Mohammed Anas & Shah Alam
The seven-judge constitutional bench of the Supreme Court of India is poised to decide the much-debated minority status of the Aligarh Muslim University, possibly once and for all. The verdict that may be announced before the upcoming Lok Sabha polls will be a landmark on several counts, most importantly in illustrating the SC’s own judicial conduct to correct itself and its interpretation of Article 30 of the Constitution that confers on minorities the right to establish and run their own educational institutions.
A five-judge bench of the SC had held on Oct 20, 1967 in the S. Azeez Basha and Anr versus Union of India case that the AMU was not a minority institution established by the Muslims; but by the Indian government, through a central law; namely, the Aligarh Muslim University Act, 1920. The court accepted that a university is an educational institution.
It said “it may be that the 1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority”. Why? Because, “It would not be possible for the Muslim minority to establish a university of the kind whose degrees were bound to be recognised by the government”.
A minority cannot establish a university even though Article 30(1) gives it the right to do so and a university has a legal personality which only a statute can confer, the SC had judged.
Interestingly, Azeez Pasha (wrongly mentioned as Basha), an alumnus of AMU, had challenged the constitutionality of 1951 and 1965 amendments to the AMU Act, praying that they should be declared ultra vires as they were infringing upon the rights of Indian Muslims. But, the SC bench headed by then Chief Justice K.N. Wanchoo delved largely on interpreting Article 30 through, as noted jurist Faizan Mustafa says, a narrow prism. The bench noted that the word “establish and administer” for founding minority institutions should be read conjunctively. It said:
“Article 30 gives the right to a minority to administer institutions (only if they have been) established by it. (If not) it cannot claim the right to administer it under Article 30(1).”
The bench went on:
“the Aligarh University, when it came into existence in 1920, was established by the central legislature by the 1920 Act. It may be that the 1920 Act was passed as a result of the Muslim minority. But that doesn’t mean that Aligarh University when it came into being under the 1920 Act was established by the Muslim minority…”
This 1967 judgment is quoted ad nauseam by everyone who wants to contest the Muslim character of the university. Until 1981, it was the Congress party, which, through a series of amendments, had ensured that the university would be “brought to national mainstream by making it free of Muslim control”. Interestingly, the Jana Sangh and later Bharatiya Janata Party, which is now vehemently opposing AMU’s minority tag, had favoured minority character of the varsity and its MPs, ArifBaig, Ram Jethmalani, L.K. Advani, Subramanian Swamy and Atal Bihari Vajpayee had forcefully supported its cause.
In fact when in 1981, under the burden of its electoral calculation, the Congress party brought out 1981 amendments in the AMU Act to supersede the 1967 SC ruling, Jethmalani, a BJP MP, had opened the debate and termed the SC judgment as “mockery of justice”. “What is this silly argument that was set up by Parliament? Can a university be established without legislation? It’s only good for Indian secularism that AMU remains a minority varsity” he had said.
Jethmalani’s legal diatribe was preceded by sharp critique of the SC judgment by foremost legal luminary H.M. Seervai: “It is for the first time in which the Supreme Court has departed from the broad spirit in which it had decided cases on cultural and educational rights of minorities… it is submitted that the decision is clearly wrong and productive of grave public mischief and it should be overruled.”
The arguments of SC lawyers representing sides seeking minority status for AMU border on similar opinion, even though they are sans vehemence of Jethmalani and Seervai.
The 1981 amendment defined the AMU as “the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University”.
But, over a decade later the Allahabad High Court held this formulation illegal in two of its judgments (2005), saying that the 1981 amendments were unconstitutional. This led AMU and others in 2006 to move the SC which is currently hearing the case.
The National Democratic Alliance (NDA) government, headed by BJP, is contesting the AMU stance.
Article 30 and Minority Rights
Article 30(1) gives minorities, whether based on religion or language, the right to “establish and administer educational institutions of their choice”. Most of the minority institutions in the country are institutions of the linguistic minorities. Hindus too do run a number of minority institutions on the basis of their status in different states as a linguistic minority: hundreds of Sindhi, Tamil, Telugu, Gujarati minority institutions are flourishing in the country,” he wrote.
The SC, as noted by Faizan Mustafa in his piece for The Wire (2016), has given highly liberal interpretations to expressions used in Article 30, which is the only fundamental right which has not been subjected to any restrictions as far as the text of the Constitution is concerned and thus has been termed as an absolute right. The apex court has held that the term ‘educational institution’ includes a ‘university.’ Similarly it said the expression ‘of their choice’ means ‘of their choice’ and it is within the power of minorities to expand their choice as much as they want.
To say that the Aligarh Muslim University is not a minority institution is to restrict the ambit of Article 30 of the Constitution.
Parliament had clarified the doubts raised in Basha by the 1981 Act that AMU was merely incorporated by Parliament and that the university had in fact been established by the Muslims themselves as “an institution of their choice.”
The Allahabad HC unfortunately termed the 1981 amendment as unconstitutional. “The primary issue before the Supreme Court now is to examine the constitutionality of the AMU amendment of 1981. The only test to examine the constitutionality of central law is to ensure that the subject on which parliament has legislated must not be under the exclusive jurisdiction of the state assemblies. AMU is specifically mentioned at entry 63 of the Union list and therefore the legislative competence of Parliament as to the 1981 amendment cannot be questioned,” writes Mustafa.
Interestingly, the SC, even in the Basha, had upheld the Parliament’s legislative power to amend the AMU Act. Will it not now uphold its own judicial wisdom to overturn the Allahabad HC’s 2005 verdict?
Parliament has been prohibited from passing any law which impinging on fundamental rights. But Parliament has all the powers to enact laws for the protection of fundamental rights. The Aligarh Muslim University Act, 1920 was a law passed by the legislature to promote the fundamental rights of the Muslim minority. Similar laws have been passed in different states for incorporating a number of minority universities. Several deemed universities of minorities have been established by the Ministry of Human Resource Development under Section 3 of the UGC Act, 1956.
The law is settled that fundamental rights cannot be waived.
The justiciability of fundamental rights in India assumes paramount importance. In the Indian juridical milieu, justiciability specifically denotes the legal enforceability and adjudication of rights guaranteed to citizens by the Constitution. The constitutional framework, explicated principally in Part III, establishes the foundation for the proactive safeguarding and redressal of Fundamental Rights through judicious mechanisms.
Part III of the Constitution expressly affirms the assurance of Fundamental Rights to citizens, with infringements thereof subject to judicial scrutiny and remedy. Article 30, analogous to other Fundamental Rights, holds substantive significance as justiciable rights. Given the minority status of AMU delineated under Article 30, it becomes imperatively incumbent upon the Supreme Court to ensure the protection of this constitutional provision, recognizing its parity with other fundamental rights enshrined in the Indian constitutional framework.
The onus on the Supreme Court extends beyond a mere safeguarding of AMU’s minority status; it encompasses the communication of a message affirming that minorities possess an inherent entitlement to their due rights and that their causes merit equal treatment under the auspices of the rule of law.
Mohammed Anas is an independent journalist based in New Delhi. Shah Alam is an Associate Professor of Mass Communication at IMS Unison University, Dehradun.