Minority Institutions-Rights or Privilege

 
Aligarh Muslim University is, without doubt, a minority institution but it must allow reservations for Backward Caste Muslims alone

The Allahabad High Court in order to quash the 50 per cent quota for Muslims had to declare Aligarh Muslim University itself a non-minority institution since the reservation quota was based on its being a minority institution. However, the hon’ble court has based its judgement on the Supreme Court judgement in the case of Azeez Basha vs Union of India. In this case, the hon’ble judges of the Supreme Court concluded that Muslims are one homogenous community and in contrast the Hindus are not. Thus, according to this logic, Muslims constitute a majority community and Hindus several minority communities. So if Muslims are a minority according to this strange logic, they cannot enjoy a minority status as stipulated in Article 30 of the Constitution.

As to the second question, whether Sir Syed Ahmad Khan had established Aligarh Muslim University, it concluded that MAO College was transformed into a university through an Act of Parliament, which was representative of the whole country. As such, the judgement arrived at the conclusion that the Muslims are neither a minority community nor did they establish AMU and hence it is not a minority institution under the Indian Constitution.

The Allahabad High Court based its judgement on the Supreme Court judgement and quashed the 50 per cent quota as unconstitutional. If such perverse logic is applied, no justice will ever be done.

Historically, Muslims have been recognised as a minority community and apart from this, Muslims are not a homogenous community at all. They too are divided into various sects and follow different doctrines and practices. They are also divided into caste systems and do not intermarry. Certain beliefs are common but this is also true among Hindus. The Supreme Court judgement in the above case has negated the age-old consensus among all leaders of the freedom struggle and all negotiations based on the assumption that Muslims are a minority community.

Technically, it is true that AMU was established according to a parliamentary Act and is financed by the Government of India. But one cannot deny the fact that MAO College was established by Sir Syed Ahmad Khan, who raised the entire infrastructure, including buildings, and this college fulfilled the needs of North Indian Muslims for close to 35 years. Moreover, it was on the insistence of Muslims themselves that the British government transformed it into a university.

Later, the Indian Parliament also amended the Aligarh Muslim University Act in 1981 and recognised the university as a Muslim institution, and it continued to be recognised as a minority institution. If one quashes its minority character by using such logic that Muslims are a majority community and Hindus are in the minority then one begins to doubt whether the judges have applied their minds properly or have become victims of certain myths being propagated by certain interests.

Also, it is well known that Muslims are very backward and in fact slipping even below the Scheduled Castes in all economic and educational indices. One should try to help Muslims through positive action rather than take away even legitimate rights. It is true that there is a controversy about reservations on a religious basis. Should the entire Muslim community be treated as one and reservations be given to the community as a whole or should this be done on the basis of caste? 

Indian Muslims, most of whom were converted from low castes, retained their caste identities though untouchability was not as severe among them as among Hindus. Many Muslim leaders and activists belonging to lower castes are now struggling for the benefits of reservations on a caste basis. Today in UP, Bihar, Maharashtra and other states there is a Backward Caste movement asking for Mandal Commission benefits. They maintain, and rightly so, that until now the ashraf (upper caste Muslims like Syeds, Shaikhs, Pathans etc.) have pocketed all the benefits in the name of Muslims and that this cannot be allowed perpetually.

Should reservations in various professional courses granted by the AMU executive committee and confirmed by the human resources ministry be given to Muslims as a whole or to Backward Caste Muslims only? This is the real question. It is true that Backward Caste Muslims have been left high and dry while all the benefits have gone to a small section of upper caste Muslims. Democracy and implementation of the Mandal Commission recommendations has brought new awareness among these poor and OBC Muslims to fight for their rights.

The real debate should not be whether reservations ought to be given or not but about which sections of Muslims this benefit should reach. The Left, which has always been sympathetic towards the plight of the Muslim minority, should not ask for the scrapping of religion-based reservations in toto but should use its influence to get benefits for OBC Muslims.

It is true that an overwhelming majority of Muslims in India today belong to the OBC and Dalit categories. There are hardly 10 per cent of Muslims who belong to the ashraf categories...

Thus, in my opinion, the reservations granted in professional courses (at AMU) should be retained and their benefit be given to OBC Muslims... Like the lower caste among Hindus these lower caste Muslims have also suffered intensely. In this way, communal forces will also not be able to exploit these reservations for Muslims politically

Archived from Communalism Combat, November 2005 Year 12    No.112 -Cover Story 4

 
Rights or privilege?

The recent Allahabad High Court judgement ruling that Aligarh Muslim University is not a minority institution has sparked a nationwide controversy

The recent decision of the Allahabad High court effectively holding that the Aligarh Muslim University cannot claim minority status compounds the confusion created by the Supreme Court over the last 50 years in matters pertaining to rights of minority educational institutions.

But before we look at the Allahabad judgement and some of the other decisions of the Supreme Court it is necessary to contextualise the rights of minorities.

The yardstick for measuring the intrinsic strength of a secular democracy is how secure the minorities feel within the nation. No doubt, democracy is ultimately supposed to be the rule of the majority but at the same time there have to be inbuilt safeguards to ensure that a rule of the majority does not become tyranny by the majority. It is in this context that the rights of minorities acquire crucial significance.

Justice Jackson of the US Supreme Court rightly pointed out in the West Virginia State Board of Education case: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein".

Democracy is the rule of equality where all persons are treated as equal whether they belong to the majority or minority. It has been argued that the fact that the minorities are being treated as equals, and that too through a fundamental right, should satisfy and protect them. Where then is the need for special safeguards or separate fundamental rights? But as observed by the Supreme Court in the case of St Stephen’s College vs University of Delhi (1992): "The minorities do not stand to gain much from the General Bill of Rights or Fundamental Rights which are available only to individuals. The minorities require positive safeguards to preserve their minority interests which are also termed as group rights".

Similarly, in the St Xavier’s College case judgement of 1974, Justice Khanna observed: "The idea of giving some special rights to the minorities is not to have a kind of privileged or pampered section of the population but to give the minorities a sense of security and a feeling of confidence".

It has been internationally recognised that minorities need not just equal treatment but also special protection. It has been assumed, and rightly so, that the majority can look after and take care of itself in respect of protection of language, religion or culture.

In all functioning secular democracies, individuals and groups have the right to practice and propagate religion as a basic right. A secular state necessarily means the absence of any state religion. But this is a very restrictive definition. Secularism also means that the state shall protect those who do not follow the majority religion. It is thus crucial that sufficient protective measures exist for the religious minority groups to protect their religion.

There is a major difference between the Backward Castes and linguistic and religious minorities. The only way in which the Backward Castes can get out of their oppression in the long run is through a casteless society i.e. if they lose their caste status. The Backward Castes will benefit and in the ultimate analysis be rid of their oppression if they lose their caste identity and in that sense merge with the so-called mainstream. For the linguistic and religious minorities the issue is different. They want to retain their identity as separate linguistic or religious groups. As very rightly said, Jews do not want to be Catholics, Gujaratis do not want to be Maharashtrians and Muslims do not want to be Hindus. Looked at from this point of view, the stress laid time and again by the Supreme Court that all educational institutions should be melting pots for all communities is wide off the mark.

The Constituent Assembly recognised that religious and linguistic minorities have to be protected by allowing them to establish and administer educational institutions for conserving their script, language or religion and giving them adequate facilities so that they are not hampered in this. It is in this context that Articles 29 and 30 of the Constitution have to be viewed.

The test of whether an educational institution is actually a minority institution or not should be whether it in fact protects or promotes a minority script, religion, language or culture. But over the last 50 years the Supreme Court has consistently negated this argument

"29(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

"30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

"(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it was under the management of minority, whether based on religion or language."

It is very clear from Articles 29 and 30 and also from the discussion above that the purpose of granting protection to minority educational institutions is to ensure that the minorities, religious or linguistic, are able to protect their script, language, religion or culture. Thus, the test of whether an educational institution is actually a minority institution or not should be whether it in fact protects or promotes a minority script, religion, language or culture. But over the last 50 years the Supreme Court has consistently negated this argument.

The Supreme Court has throughout held that the only test to determine the minority status of an educational institution is whether it is established and administered by a minority and not whether it is running for the benefit of the minority. To put it simply, if five Maharashtrians get together and start a Marathi medium school in Mumbai it will not be treated as a minority institution. But if five Gujaratis get together and start a Marathi medium school in Mumbai it will be treated as a minority school. For example, in Mumbai there are colleges run by Sindhis which do not give preference to Sindhi students, do not necessarily prefer Sindhi teachers, do not offer Sindhi as even an optional subject but are granted minority status.

Because of this skewed interpretation by the Supreme Court, the only reason why most of the institutions claim minority status is to get certain benefits for the management and not for the script, language or culture of the minority that they represent. There are, broadly, three benefits available to a minority institution that are not available to other institutions:

(a) Minority educational institutions do not have to maintain reservation in employment or admissions for SCs, STs and OBCs as required to be done by other educational institutions.

While on the one hand, genuine minority institutions do not get adequate protection under Article 30, on the other hand fake minority institutions enjoy these rights and privileges. What is needed is a comprehensive overhaul of the Article 30 jurisprudence developed by the Supreme Court over the last 50 years 

(b) In terms of control over employees, minority educational institutions have much greater powers than other institutions. For instance, in the selection of teachers and principals the minority educational institution can have a selection committee which does not include the university representative. Similarly, while in ordinary schools the headmasters normally have to be appointed on the basis of seniority, minority managements can select a headmaster of their choice.

(c) In matters of admission of students, minority educational institutions can have reservation of up to 50 per cent for students of their community.

Unfortunately, it has been observed that most of the managements seek minority status only to avoid reservation for Backward Castes and for victimising employees.

It is in this context that Aligarh Muslim University seems to have been ‘done in’ by a curious interpretation of the Constitution first by the Supreme Court and now by the Allahabad High Court.

The case of Azeez Basha vs Union of India (AIR 1968 SC 663) was decided by a constitutional bench of the Supreme Court in 1967. The question was whether certain amendments to the Aligarh Muslim University Act, 1920 affected the Muslim minority’s rights under Article 30(1). The court held that though the university came into existence because of the demands from the Muslim minority community and due to their efforts, it was in fact ‘established’ by a central legislation and hence could not be said to be ‘established’ by a minority.

This is and was an amazing decision. Having accepted and held that it was as a result of the efforts and aspirations of Muslims that the university was established, for the Supreme Court to turn around and hold that it was not a minority institution merely because it was formally brought into existence by an enactment is to make a mockery of minority rights. As the constitutional expert HM Seervai rightly pointed out, any university has two distinguishing features: firstly, it is incorporated by a sovereign and secondly, it is empowered to give its own degrees which are recognised by the sovereign. The only manner in which a community could establish such a university was by invoking the exercise of the sovereign power, which might take the form of either a Charter or an Act of the legislature. This, the Muslim community that had set up the Mohammedan Anglo-Oriental (MAO) College, did. They brought the university into existence in the only manner in which such a university could have been brought into existence, namely, by invoking the exercise by the sovereign authority of the legislative power.

It was the Muslim community that had provided the lands, money and other necessaries for founding the university and in that sense ‘founded’ the university. By the logic of the Supreme Court, though a university is an educational institution it can never ever get the character of a minority educational institution.

The same error has been committed by the Allahabad High Court in its October 2005 judgement in the case of Dr. Naresh Agarwal vs Union of India where certain amendments to the Aligarh Muslim University Act, 1920 were challenged. After the decision in the case of Azeez Basha, the Act was amended to incorporate specific provisions in the Act which categorically pointed to the fact that the university was established by Muslims. A further amendment stated that one of the objects for establishing the university was to ‘promote especially the educational and cultural advancement of the Muslims in India’. On the basis of this, a reservation for Muslim students in admissions was provided. This was challenged by some non-Muslim candidates.

It was argued that in view of the amendments of 1981 the basis of the Supreme Court decision in the Azeez Basha case had been removed and so Aligarh Muslim University could at least now be termed a minority educational institution. However, following the logic of the Supreme Court, the Allahabad High Court rejected this contention and effectively held that no university could ever be a minority institution.

In keeping with the past record of the courts, the decision is not at all surprising. While on the one hand, genuine minority institutions do not get adequate protection under Article 30, on the other hand fake minority institutions, which have been mushrooming only for the managements to derive personal benefits without having any impact on community rights, enjoy these rights and privileges.

What is needed is a comprehensive overhaul of the Article 30 jurisprudence developed by the Supreme Court over the last 50 years, which in my opinion has been totally wrong and not in consonance with the spirit of the Constitution. Minority status needs to be given only to those educational institutions which promote or protect the script, language, culture or religion of a minority grouping and the protection given to these institutions needs to be only to the extent that such protection furthers these goals. We cannot allow either the Backward Castes or employees to be sacrificed on the altar of such protection.

Archived from Communalism Combat, November 2005 Year 12  No.112, Cover Story 1
 

Aligarh Muslim University challenges the Allahabad High Court decision
 

Aligarh Muslim University (AMU) has minutely studied the judgement of the learned Allahabad High Court judge, Justice Arun Tandan dated October 4, 2005 and found it technically flawed, legally unsound and constitutionally untenable. The university, after consulting its lawyers, has challenged the judgement on the following grounds:
 

• The finding of the learned judge that Article 30 of the Indian Constitution gives rights only to natural citizens and not to body corporates such as universities incorporated or juristic entities, which means that these entities cannot claim fundamental rights that are guaranteed by the Constitution for citizens alone. Aligarh Muslim University was established by an Act of Parliament and not by the Muslims of India and therefore is not a minority institution within the meaning of Article 30. It is for the first time in India’s judicial history that such a narrow interpretation has been applied to Article 30. As per this interpretation, there is no minority institution in the country that is entitled to protection under Article 30. The Supreme Court of India in a series of cases has held that Article 30 is to be liberally interpreted, as unlike the other fundamental rights it has not been subjected to any restriction within the text of the Article. Every minority institution is run by a society that is registered under the Societies Registration Act and therefore every minority institution is necessarily a juristic entity.  

• It is a well established precedent that the legislature has the power to overturn a decision of the courts. It can remove the very basis on which the decision was based. It can also legislate retrospectively and nullify a decision that pre-dates legislative intervention. The legislative power of Parliament to enact a law on a given subject includes the power to re-enact, repeal, amend or change a statute within the appropriate category. The learned judge has endorsed the aforesaid rule yet fails to apply the same to the facts and circumstances of the case. In 1981, the Indian Parliament in its wisdom amended the Aligarh Muslim University Act, 1920 and removed the basis on which the Supreme Court of India rendered its decision in the Azeez Basha vs The Union of India case in 1967. (In the Azeez Basha case, the Supreme Court held that AMU was established by a statute i.e. the 1920 Act as passed by the central legislature, and not by Muslims. Before 1920 and the legislation that gave AMU the status of a university, AMU was the Mohammedan Anglo-Oriental (MAO) College.) The only question required to be considered by the hon’ble single judge concerned the legislative competence of Parliament to enact the amending Act of 1981 whereby Parliament removed the ambiguity and cured the defects as noticed in the Azeez Basha judgement.  

•  On a reading of the complete Aligarh Muslim University Act of 1920 (as amended by the Aligarh Muslim University Amendment Act of 1981), it is clear that the purpose of the Act was to simply accept and assert the status of AMU as a minority institution while also giving it the status of a university. The enactment of an Act by the legislature thus merely changed the form and not the substance of MAO College.  

• The legislative power of Parliament can also be invoked to fulfil fundamental rights or give effect to such rights. It was in the exercise of this power that Parliament passed the Act of 1981 so as to remove doubts about Aligarh Muslim University’s minority character from the minds of the Muslim community. The Act of 1981 specifically stated that Aligarh Muslim University was established by the Muslims of India and not by Parliament. Even the hon’ble Supreme Court recognised in the Azeez Basha judgement that if AMU was established by the Muslim minority, then the ‘minority would certainly have the right to administer it’. The judgement of the learned single judge is clearly erroneous as it completely overlooks this aspect of the Azeez Basha verdict. With the passage of the amendment Act of 1981, and the explicit words used therein, it is now acknowledged that Aligarh Muslim University was established by Muslims of India and in the light of the Azeez Basha judgement, the Muslim minority community has been awarded the right to administer it within the meaning of Article 30(1) of the Indian Constitution. The Union of India in its February 25, 2005 letter also accepted that Aligarh Muslim University was established by Muslims of India and is being administered by them as per Article 30 of the Indian Constitution.  

• The October judgement is completely silent on Section 5(2)(c) of the Act of 1981, which empowers the university to especially promote the educational and cultural advancement of the Muslims of India. A non-minority institution can never be given such a mandate by Parliament.  

•  The distinction drawn by the learned judge between ‘University’ and ‘Deemed-to-be University’ is also erroneous. To say that a ‘Deemed-to-be University’ can be a minority institution and a ‘University’ cannot is unconstitutional and moreover, runs contrary to a decision by an 11-member bench of the Supreme Court of India.

(Faizun Mustafa is the registrar, Aligarh Muslim University.)

Archived from Communalism Combat, November 2005 Year 12 No.112,  Cover Story 2

Aligarh Muslim University, 1946

Communal reservations at Aligarh Muslim University have struck at the very character and repute of the institution
 

Aligarh Muslim University (AMU) was a fairly small university when independence came. With the AMU (Amendment) Act, 1951, the Government of India took up the entire responsibility for its maintenance and provided it with a largely democratic and autonomous structure. The result of these steps was the beginning of a phase of expansion of the university with central government funds (afterwards routed through the University Grants Commission). The Chatterji Committee appointed to review the working of the university (1960) commended the Act of 1951 and agreed that a policy of admissions, where some preference may be given to internal students, should continue. The Act of 1951 forbade in its Article 8 the admission of students through any "test of religious belief" and the question of reservation for Muslims was not raised by anyone.

Unfortunately, a sudden enhancement of the internal quota to 75 per cent in 1963 and its proposed reduction in 1965 created a violent incident in the latter year. The Government of India took the opportunity to practically scuttle the Act of 1951 through an ordinance and in effect took over control of the university’s administration by its nominees. This action had the most disastrous consequences. As against government control, the issue of AMU’s autonomy as a minority institution was raised for the first time by many critics of the government’s ham-handed act. It was only after seven years that in 1972 certain amendments were made to restore some internal authority to AMU, but there yet remained in it far too many undemocratic provisions, reminiscent of the 1965 ordinance…

Finally, in 1981 Indira Gandhi’s government brought forth amendments to show that they were trying to underline the minority character of AMU… But that these provisions were intended to have no effect on the policy of admissions was shown by the reformulation, by the same amendment Act, of Section 8, in the following words: "The university shall be open to all persons (including the teachers and taught) of either sex and of whatever race, religion, creed or class". The only proviso to this was permission to provide religious instruction to "those who have consented to receive it". There is no proviso for any kind of denominational reservation…

The whole question was reopened by the BJP government in 2003-04. In his effort to bring admissions to all professional courses in the country under his control, Murli Manohar Joshi, the then human resource development (HRD) minister, sanctioned a 50 per cent Muslim quota for the Jamia Hamdard (a "Deemed University"), and as the AMU vice chancellor has confirmed, offered the same to AMU. It is not surprising that the VC of AMU has been citing the Hamdard Deemed University’s quota system as a precedent for AMU, although Hamdard is an institution managed by a private trust while AMU is administered according to a parliamentary Act and, being maintained by the government, is ‘part of the state’ in the eyes of the law…

The new admission policy, which reverses a tradition established since AMU’s foundation, stipulates that at the maximum only 25 per cent of the seats in the main professional and technical courses (medicine, engineering, management, etc.) would now be absolutely open to merit. A further 20 per cent will be reserved for internal students. For ‘Muslims of India’ who fail to enter AMU through these two channels, a 50 per cent quota would be provided. Finally, there will be a five per cent discretionary quota for admitting children of employees, alumni, government servants, SC/ST candidates, etc. In medicine, the percentages are 25 per cent general, 25 per cent internal and 50 per cent for Muslim candidates not getting through under the first two categories. There is thus to be practically no SC/ST quota at any level…

What the university authorities and the HRD ministry have entirely failed to recognise is the blow they have struck at the character and repute of AMU. The letter from the MHRD to allied parties quotes from the speech of late CPI leader Indrajit Gupta where he rightly said that a university does not become communal if it has a majority of Muslims – which for AMU has always been the case. But if a religious test is imposed – which Indrajit Gupta never contemplated, and which Section 8, as redrafted by the very Amendment Act of 1981, entirely bans – it can no longer be said that the admissions to AMU are not communally oriented…

Far from addressing this very important issue, the university authorities have, in order to justify their new admission policy, publicly run down the quality of education imparted at AMU both in its schools and in its university classes (Admission Review Committee’s Report, pp. 2-3)…

A university is an intellectual community. Until now it was the proud boast of AMU that once a student is admitted here there would be no discrimination between him and others on any sectarian grounds. Neither the university authorities nor the MHRD seem willing to consider the very disturbing fact that now on the AMU campus there would be two sets of students – one set disadvantaged by its religion, and having only half the chance than the other of getting admitted to a higher course. One cannot predict the tensions that such discrimination could breed on the campus.

Archived from Communalism Combat, November 2005  Year 12. No.112,  Cover Story 3