The Foundation of The College
Sir Syed Ahmed Khan, a 19th-century Muslim reformer, established the Muhammadan Anglo-Oriental College (MAO College) in Aligarh in 1877. Through this organisation, he aimed to preserve and carefully balance Islamic beliefs and principles while introducing modern British education to the Muslim community. Though it was primarily an Islamic institution, MAO College welcomed members of other communities as well.
In order to combine the MAO College and another Muslim University Association into a single university known as the Aligarh Muslim University (AMU), the Aligarh Muslim University Act, 1920 (AMU Act) was passed on September 14, 1920. The founders of the Muslim university actively engaged and succeeded in their desire to convert and incorporate the MAO into the present AMU.
Azeez Basha v. Union of India
In a landmark 1967 case of S. Azeez Basha and Anr v. Union of India (1967), the Supreme Court of India examined alterations made to the Original Aligarh Muslim University (AMU) Act through subsequent amendments in 1951 and 1965. The bench, comprising Chief Justice KN Wanchoo and Justices RS Bachawat, V. Ramaswami, GK Mitter, and KS Hegde, deliberated on whether AMU could be classified as a non-minority institution. Their decision was rooted in the historical context of the university’s establishment.
The petitioners in this case argued that the amendment infringed upon their constitutional right under Article 30 (1) to create and run educational institutions. They further argued that the modifications infringed upon the institution’s freedom of religion (Article 25), right to acquire property (Article 31), right to preserve culture and language (Article 29), and right to carry out religious and charitable works (Article 26(a)). While acknowledging its foundation by a Muslim leader, the court concluded that AMU’s creation occurred under a pre-constitutional statute, distancing it from being solely attributed to a minority community under Article 30. Thus, the court underscored that the university was established through a statute rather than by a minority group. The Supreme Court supported the amendment, ruling that the petitioners’ fundamental rights had not been infringed. The Bench reasoned that the Muslim minority neither founded nor oversaw AMU. The Court said, “It may be that the 1920-Act was passed as a result of the efforts of the Muslim minority,” pointing out that the Act was enacted through central legislation. However, this does not imply that the Muslim minority founded Aligarh University when it was founded in accordance with the 1920 Act. According to their ruling, the Act’s clauses “clearly show” that the AMU administration was not “vested.” in Muslim Community.
The 1981 Amendment
In 1981, the Aligarh Muslim University (AMU) Act of 1920 underwent its fourth amendment, marked by three significant revisions. Firstly, Section 2(1) of the 1981 Act altered the definition of “University” to specify it as an institution “Established by the Muslims of India.” Secondly, Section 5 of the Amendment Act expanded the foundational purposes of the institution to include “Educational and Cultural Advancement of Muslims in India.” Thirdly, the term “Establish and” was removed from the Preamble of the 1920 Act. These amendments were made following recommendations from the Beg Committee and the Minorities Commission of India. These changes effectively conferred minority status upon AMU, altering the implications of the Azeez Basha judgment.
AMU v. Malay Shukla – The Allahabad High Court Judgement of 2006
The Allahabad High Court was deliberating on a legal challenge to the reservation policy for Muslim candidates. This policy involved allocating 50% of post-graduate course seats, originally designated for qualified MBBS doctors, by the University. The University argued that the Aligarh Muslim University (Amendment Act 1981) altered the foundation established by the Basha Judgment. However, the single bench concluded that the University does not qualify as a minority institution. Affirming the decision of the Single bench, the division bench of the Allahabad High Court determined that, despite being founded by a minority, if it was never administered or claimed to be administered as such, it cannot be designated as a minority institution.
The HC held:
- relying upon the ratio in Basha, the AMU continues to be a non-minority institution and cannot claim otherwise under Article 30;
- 2 (1) and 5(2)(c) of the 1981 Act are considered invalid;
- The removal of the words ”establish and’ from the preamble of the 1920 Act by the 1981 Act is invalid and those words are restored to the preamble;
- claim of the 50% Muslim quota for PGC declared unconstitutional for all and future purposes;
- The Union’s communication dated 25.2.2005 vetting the purported minority status of the Aligarh Muslim University by permitting their claim of Muslim reservation is quashed and set aside.
In 2016, the National Democratic Alliance government, which came to power in 2014, withdrew from the appeal, stating that it did not recognize the minority status of the University. Subsequently, the University pursued its case independently. On 12 February 2019, a three-judge bench, led by Chief Justice Ranjan Gogoi and including Justices L. Nageswara Rao and Sanjiv Khanna, referred the decision in S. Azeez Basha for reconsideration by a seven-judge bench. Then, on 12 October 2023, the matter came before Chief Justice D.Y. Chandrachud, who formed a seven-judge bench, comprising himself along with Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai, Surya Kant, J.B. Pardiwala, and Manoj Misra, to hear the case.
On February 1, 2024, a Constitution Bench concluded hearings and reserved judgment in the minority status case of Aligarh Muslim University (AMU). The Court’s deliberations centered around the question of whether AMU qualifies as a minority institution under Article 30 of the Constitution of India, which grants religious and linguistic minorities the right to “establish and administer” educational institutions.
Arguments
Being recognised constitutionally as an “Institution of National Importance” under Entry 63 of List I, AMU is the only one of the two educational institutions (the other being Benaras Hindu University) which has been bestowed this title. The petitioners argued that AMU is indeed a minority institution, citing its founding by Sir Syed Ahmed Khan with the explicit purpose of providing education to the Muslim community in India. Furthermore, they contend that AMU retained its minority status despite being incorporated under the AMU Act, 1920, as the act merely transformed the pre-existing Mohammedan Anglo-Oriental (MAO) College into AMU without altering its fundamental character. The respondents, on the other hand argued asserted that its establishment was through imperial legislation by the British Government, devoid of significant involvement from the Muslim community. They maintain that the conversion of MAO College to AMU under the AMU Act, 1920, led to the loss of its minority status, as stipulated by conditions imposed by the British government.
The petitioners emphasize that for an institution to be considered minority-controlled, both the establishment and administration must be in the hands of the minority group, with non-minority involvement in administration being inconsequential to the institution’s character. They further assert that during its inception, AMU’s administration was primarily under the control of Muslims. The respondents contended that both establishment and administration by the minority group are necessary for an institution to qualify as a minority institution, which, in the case of AMU, does not apply as it was neither established nor administered by Muslims. Additionally, they argue that AMU’s administration was ultimately under the control of the Lord Rector, representing the British government, with the supreme governing body holding an advisory role.
Article 30’s application to pre-Constitution institutions remains contentious; while precedents uphold its applicability to minority institutions established before the Constitution, opponents argue that such distinctions were absent during British rule.
Regarding the Azeez Basha case, petitioners contest its legal soundness, fearing it sets a dangerous precedent for the loss of minority status upon statutory recognition, whereas respondents maintain its specificity to AMU and affirm its correctness in acknowledging AMU’s establishment by the British government.
In discussing AMU’s designation as an institution of “national importance” under the Constitution, petitioners stress that this classification doesn’t inherently affect its minority status, contrasting with respondents’ assertion that such inclusion, especially under List 1 of the Constitution, implies a shift in control to the Union government, requiring a constitutional amendment for minority status preservation.
Court’s Observation
The bench noted that while “administrister” refers to something that is a continuous process and isn’t fixed to a particular point in the past, “establish” or “establishment” is rooted in the founding moment in time. ‘Of their Choice’ suggests that a minority community is not only free to create an institution but also free to choose another organisation to run it without compromising the institution’s minority status. The CJI noted that it would be excessive to claim that the right to establish a minority institution is only dependent upon recognition by enabling legislation in light of the center’s argument that the rights under Article 30 could only be realised by an enabling provision or statutory framework. This would imply the ambiguous conclusion that a statutory right can take precedence over a constitutional one. Repeatedly, when the Centre contested the rejection of the 1981 Amendment, the Chief Justice of India (CJI) cautioned counsel against presenting arguments that might impede Parliament’s unrestricted law-making authority. The CJI emphasized that when interpreting terms like ‘established’ within the Act, it falls within the legislature’s purview to adopt a particular perspective. He underscored that arguments should not undermine Parliament’s powers or its ability to enact amendments. According to the CJI, Parliament is an enduring, unified, and perpetual institution. The historical backdrop surrounding the enactment of the AMU Act and its original intent must be considered, bearing in mind that during the British Raj, regulatory structures were designed to uphold imperial dominance. The Chief Justice of India (CJI) expressed the view that the relinquishment of rights by the founders of the AMU has been interpreted with utmost stringency.
What Court’s Opinion Inclined To
The interpretation of Article 30’s application to pre-Constitution institutions further complicates the matter. While precedents uphold its applicability to minority institutions established before the Constitution, opponents argue that such distinctions were absent during British rule. The Azeez Basha case is contested, with petitioners fearing its implications for the loss of minority status upon statutory recognition, while respondents affirm its correctness in acknowledging AMU’s establishment by the British government.
The court’s observations shed light on crucial aspects of the debate. The distinction between “establish” and “administer” underscores the founding moment versus ongoing control, with implications for minority status. The Chief Justice of India (CJI) cautions against interpretations that impede Parliament’s law-making authority, emphasizing the enduring nature of legislative power.
Furthermore, the historical context surrounding the AMU Act’s enactment highlights the complexities of colonial regulatory structures and imperial dominance. The CJI stresses the need to consider the original intent of the Act within this framework, suggesting a strict interpretation regarding the relinquishment of rights by the founders of AMU.
Ultimately, the court’s opinion suggests a reluctance to define AMU solely as a minority institution. The emphasis on legislative authority, historical context, and the role of the British government in its establishment raises doubts about its minority status. While acknowledging its historical significance to the Muslim community, the court’s observations signal a broader interpretation that transcends narrow definitions of minority control.
In conclusion, while AMU’s founding and historical context are rooted in serving the Muslim community, the legal and constitutional complexities surrounding its establishment and administration raise doubts about its minority status. The court’s observations highlight the need for a nuanced understanding that considers both historical context and legislative authority in determining AMU’s institutional identity.
WHY AMU Should not be minority institution
Firstly, opponents argue that AMU’s establishment under imperial legislation by the British government undermines its claim to minority status. They contend that the involvement of the British government in the creation of AMU, particularly through the conversion of the Mohammedan Anglo-Oriental (MAO) College into AMU under the AMU Act of 1920, suggests a broader institutional framework beyond the control of any specific minority group. This suggests that the institution’s origins were not solely rooted in the aspirations of the Muslim community but rather influenced by imperial interests.
Secondly, opponents stress that AMU’s administration, ultimately overseen by the Lord Rector representing the British government, further diminishes its minority character. Despite any initial Muslim control during its inception, the administrative framework of AMU was ultimately subject to imperial oversight. This indicates a significant level of non-minority influence in the governance and management of the institution, thereby challenging its designation as a minority-controlled entity. Furthermore, opponents question the applicability of Article 30 of the Indian Constitution to AMU’s pre-Constitutional origins. While precedents uphold Article 30’s applicability to minority institutions established before the Constitution, opponents argue that such distinctions may not be relevant in the context of British colonial rule. This suggests that the legal framework surrounding minority rights and institutions may not neatly apply to institutions established during colonial governance. Additionally, opponents highlight concerns regarding the Azeez Basha case and its implications for AMU’s minority status. While petitioners fear that statutory recognition could jeopardize minority status, opponents affirm the case’s correctness in acknowledging AMU’s establishment by the British government. This suggests a broader interpretation of AMU’s institutional identity beyond narrow definitions of minority control. from the government’s standpoint, the involvement of the British government in AMU’s establishment, coupled with concerns about administrative control and the applicability of constitutional provisions, raises doubts about its classification as a minority institution. These arguments underscore the need for a nuanced understanding of AMU’s historical context and legal framework in determining its institutional identity.
A precedent of concern: a potential harmful example
Granting Aligarh Muslim University (AMU) minority status despite the complexities and challenges presented could set a potentially problematic precedent for several reasons.
Implications for Other Institutions: If AMU were granted minority status despite significant involvement from the British government in its establishment and administration, it could open the door for other institutions with similar histories to claim minority status. This could lead to confusion and legal disputes over the classification of various educational institutions, potentially undermining the clarity and consistency of minority rights in India.
Erosion of Legislative Authority: Upholding AMU’s minority status in the face of governmental opposition could be interpreted as undermining the authority of the legislative branch. The government’s withdrawal from the appeal suggests a clear stance against recognizing AMU as a minority institution. Granting minority status against this backdrop may set a precedent of judicial overreach into legislative matters, potentially eroding the separation of powers.
Challenges to Institutional Integrity: Recognizing AMU as a minority institution despite substantial non-minority involvement in its establishment and administration could undermine the integrity and autonomy of the institution. This could lead to challenges in governance, funding, and decision-making, as competing interests vie for control and influence within the university.
Potential for Social Division: The classification of AMU as a minority institution could exacerbate social divisions and tensions, particularly in the context of India’s diverse population. Granting minority status to an institution with such complex historical and legal considerations may be perceived as privileging one community over others, leading to resentment and discord among different religious and cultural groups.
Challenges to Constitutional Principles: AMU’s minority status would raise questions about the application of constitutional principles, particularly regarding minority rights and the secular nature of the Indian state. Granting minority status despite significant non-minority involvement may be seen as undermining the secular fabric of the nation and diluting the principles of equality and non-discrimination enshrined in the Constitution.
Maximum Students already Muslims
Granting minority status to Aligarh Muslim University (AMU) solely based on the predominant religious affiliation of its student body would not only be redundant but could also lead to unintended consequences, particularly regarding institutional governance and autonomy. AMU’s student population predominantly consists of Muslims, reflecting its historical mission to serve the Muslim community. In this context, officially designating AMU as a minority institution may seem redundant, as it already predominantly caters to the minority community it was intended to serve. The primary purpose of minority status is to protect the rights and interests of marginalized communities within institutions where they are underrepresented. In AMU’s case, granting minority status would not substantially change the composition or representation of the student body.
Designating AMU as a minority institution could inadvertently grant the administration unchecked and arbitrary power, potentially undermining institutional governance and accountability. Without appropriate checks and balances, the administration may exploit its minority status to justify unilateral decisions and actions, without adequate transparency or accountability mechanisms in place. This could lead to a concentration of power within the administration, eroding the principles of democratic governance and institutional autonomy.
Granting minority status to AMU based solely on the religious affiliation of its student body could perpetuate exclusionary practices within the institution. While minority status is intended to protect the rights of marginalized communities, it should not be used to justify discriminatory practices or policies that exclude individuals from other religious or cultural backgrounds. Allowing unlimited and arbitrary power to the administration under the guise of minority status could exacerbate divisions and tensions within the institution, hindering inclusivity and diversity.
Conclusion
The argument for granting minority status to Aligarh Muslim University (AMU) based on the predominant Muslim student population may seem plausible on the surface, a more legally sound approach necessitates careful consideration of the broader implications and underlying principles of minority rights and institutional governance.
Granting minority status to AMU solely based on its student demographics could risk redundancy, as the institution already predominantly serves the minority community it was intended to represent. Moreover, such a designation could inadvertently confer unchecked and arbitrary power to the administration, potentially undermining institutional governance, transparency, and accountability.
Furthermore, there is a risk that granting minority status based solely on religious affiliation could perpetuate exclusionary practices within the institution, undermining efforts to promote inclusivity and diversity. Additionally, unchecked administrative power poses a threat to academic freedom, potentially stifling intellectual discourse and innovation within AMU.
A more legally sound approach to addressing the complexities surrounding AMU’s minority status requires a nuanced understanding of its historical context, legal framework, and constitutional principles. Efforts should focus on promoting transparency, accountability, and inclusivity within the institution, regardless of its official minority status. This entails ensuring that institutional governance structures are robust and inclusive, with appropriate checks and balances to prevent the concentration of power and safeguard the rights and interests of all stakeholders. Ultimately, while AMU’s historical mission and student demographics may reflect its commitment to serving the Muslim community, the legal and institutional complexities surrounding its minority status necessitate a careful and considered approach. By prioritizing principles of fairness, transparency, and inclusivity, stakeholders can work towards ensuring that AMU remains a vibrant and inclusive educational institution, responsive to the needs and aspirations of all its students and stakeholders, regardless of religious affiliation.
The author Anil Mehta, is an advocate and Special Cousel, ED. Former Senior Standing Counsel, UT Chandigarh; Managing Partner, Lex Solutions; Advocates, Solicitors & Consultants.
