Intention of the Legislature
The preamble of AMU Act, 1920 grounds sections 3 and 4 which shows that the MAO. College, Muslim University Association and the Muslim University Foundation Committee had come to an end legally, and all the three bodies voluntarily surrendered all the moveable and immoveable property they had to the Aligarh University. Through Section 23 of the Act, the Court of the University was constituted, which by law became the governing body of the university. Under this section, no person other than Muslims could be a member of the Court. The Governor-General of India was, under this law, the Lord Rector of the University (Section 13). Governor-General in Council was given power to remove any difficulties which might arise in the establishment of the university (Section 40).

Following the acceptance by independent India of the Constitution of India, the Aligarh Muslim University (Amendment) Act, 1951 was passed.  Under this law, Sections 13 and 14 were amended, and in place of the Lord Rector, a Visitor was appointed by the University, and the powers of the Visiting board were bestowed on the Visitor. The proviso of section 23(1) was deleted which resulted in non-Muslims also becoming members of the Court of the University. Moreover, compulsory religious instruction was made optional.

In 1965, the Act was replaced by the Aligarh Muslim University (Amendment) Act, 1965 (originally an Ordinance). The result of this amended law was that the Court of the University was no longer the main governing body.  Many of its powers were taken away and powers of the Executive Council were increased. The Court became a mere body nominated by the Visitor, and all the people holding office before the promulgation of the Ordinance ceased to hold office from the said date until the Court was reconstituted.

The Genesis of the Present Controversy
The controversy started when Supreme Court in 1968 reflecting on issue in the Azeez Basha versus Union of India (constitutional validity of 1965 Amendment Act and 1951 Amendment was challenged)  held that Aligarh Muslim University is not a minority institution as it is not established and administered by Muslims and therefore cannot seek protection of Article 30 of the Constitution. It will be pertinent to mention here that AMU was not a party to this controversial judgment.

Subsequently, on the recommendations of the Beg committee and the Minorities Commission of India, the AMU Act 1920, was amended once again in 1981by the Parliament so as to remove the technicalities which prevented AMU from being declared a minority institution in Azeez Basha. The amendments seek to reduce the Act to its actual substance and intention i.e. its intention was to declare and incorporate MAO College into a university namely AMU and not to establish an entirely separate entity. Hence, the 1920 Act was like a vehicle through which MAO College was transformed or incorporated into AMU. 

Section 2(1) of the AMU Act (after the 1981 amendment) makes a substantive definition linking the identity of the original MAO College and the incorporated University. It states that the University was only subsequently incorporated from and only out of the original MAO College, which already existed and since this was a fact, and if there is no distinction between these two, then, the mere process of incorporation, cannot snatch away its character as a minority institution. The 1981 Amendment to the original act created a deemed provision, ratified it through a statutory enactment. This should have settled the matter and dispute, finally.

The controversy started when Supreme Court in 1968 reflecting on issue in the Azeez Bashav. Union of India (constitutional validity of 1965 Amendment Act and 1951 Amendment was challenged)  held that Aligarh Muslim University is not a minority institution as it is not established and administered by Muslims and therefore cannot seek protection of Article 30 of the Constitution. It will be pertinent to mention here that AMU was not a party to this controversial  judgment.

For 25 years, the Aligarh Muslim University (that is, from 1981 to 2005) enjoyed the right under Article 30 and in the continuation of this right, the University proposed the reservation policy for Muslim students, In 2005, the Allahabad High Court in Dr. Naresh Agarwal v. Union of India strongly and wrongly relying on Azeez Basha case –despite the subsequent amendments and enactments –declared the Act unconstitutional.

It is always open for the Parliament to change the basis or to remove the defects and the impediments pointed out by the Court and to explain and clarify any abstruse part of the statute which was made basis of law declared by the Supreme Court. The Supreme Court has done so in the past. (Reference may be made to the decision of this court in Mohd. Ahmad Khan versus Shah Bano Begum, which was domineered by Parliament by the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1985)

The 1981 Act, acknowledged the historical fact that was apparent from the records before the Parliament; that the Aligarh Muslim University was established by Muslims,  hence, the declaration in Section 2(I) read with Section 5 (2) (c) being a recognition of a historical fact cannot be challenged so far as it is within the legislative competence of the Parliament. The legislative power of the Parliament can be questioned only on two grounds:  (a) that the legislature has no competence to enact the law and (b) that the legislation is hit by the rights guaranteed under Part-III of the Constitution.

The legislative competence of the Parliament to enact the Amendment Act of 1981 cannot be disputed by virtue of Entry 63, List-I, Schedule-VII of the Constitution. The Amendment Act, 1981 is only in furtherance of the commitment of the State to fulfill and protect the rights of the minority community and as such it cannot be said to be hit by any of the Articles contained in Part–III of the Constitution of India.

De-coding the Basha Judgment
The Court in Azeez Basha, recognised various definitions of the term “establish” and noted that the word could mean both to found and to create. In the judgment itself, it has been accepted that the word ‘establish’ could mean ‘to make or form’, ‘to found’, ‘make’, ‘start’, ‘originate. Reference may be made to the meaning of the term “establish” as intended by the drafters of our Constitution, who incorporated the articles on the cultural and educational rights, with specific emphasis on minorities. The framers, explicitly highlighted the necessity to establish such institutions in the sense of founding them, and further, to manage and to control such institutions as desired by the minorities.

Alternatively, even if the meaning imparted to the term “establish” by the court is correct, that is, “To bring the University into existence”, it is submitted that the university was brought into existence by the Muslim community by the only means by which a University could have been brought into existence i.e. by invoking the exercise by the sovereign authority of its legislative power. The lands, buildings, colleges and other endowments without which, the university as a body corporate would be an illusory abstraction, was provided by the Muslim community. Though, Muslim community could have established a university, the degrees ir provided students had to be recognized only by the government for which they had approached the sovereign power.

The Supreme Court in Azeez Basha disregarded the fact that the very purpose of the University, which was the educational renaissance of Muslims would be defeated if its degrees were not recognised by the government.

Azeez Basha: High Water Mark of Legal Positivism
Although, the Basha judgment comprehensively studied the historical development of the University, the final decision was not based on the legalities and technicalities attached to it enactments. The Supreme Court, today, should not decide this matter on narrow technical grounds, which are the outcome of a misreading of the history of the case at hand. AMU was established by the Muslims for the educational and cultural advancement of the Muslim community and it owes its origin to the MAO College founded by Sir Syed Ahmed Khan.

AMU in reality is nothing but an extension of the MAO College. Sir Syed envisaged the MAO College as a University for Muslims that was in tune with the British education system, while staying true to the core fundamentals of Islam. Sir Syed Ahmed Khan’s son, Mr. Syed Mahmood,  a Cambridge educated scholar, fostered and put forth a proposal to the Anglo-Oriental College Fund committee, of converting the college to an independent university. The idea of an independent Muslim university gathered tremendous support, consequentially leading to the founding of the Muslim University Association, which was asked by the government of India, to collect a sum of Rupees 30 Lakh before the University could be established.

The Muslim University Foundation Committee was formed and it collected the needed capital as inquired by the government for the formation of the Muslim University. Further, the British government supported the establishment and promised grants in aids since, from its very conception; the MAO College was seen as catering to the educational needs of a particular community. At the meeting of the Governor General’s Legislative Council in which the bill was finally passed as the AMU Act, 1920, the Governor-General recorded that, “……I should like to add my congratulations to the Muslim community on the passage of this bill. I have come here specially this morning to preside in order that I might add my good wishes and congratulations to those which have already been uttered in this Council.”[1]

It was the Azeez Basha case that flatly snatched the legal right of the Aligarh Muslim University, to get legal recognition under Article 30 of the Indian Constitution. The Supreme Court and later, even the Allahabad High Court, departing from the broad spirit in which Courts had decided cases on the cultural and educational rights of minorities, have held — on narrow, technical grounds — that a minority community which had striven hard to establish a Muslim University and endowed it with considerable property and money, has simply not established such a University at all. Not only is this judicial assessment flawed but it ignores the legal and statutory history of the AMU entirely.

 (The writer is Head, Glocal Law School, Glocal University Saharanpur, Uttar Pradesh)

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