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Distorting the Reality of Distorting the Reality of

In response to a writ petition challenging the constitutionality of the new policy of reserving 50 per cent of seats for Muslim applicants, the Supreme Court held that the Aligarh Muslim University was not a minority institution and could not reserve seats for Muslims. However, the judgment ignored the reason for the change in the university's admission policy, from the erstwhile reservation based on classification of candidates into 'internal' and 'external' applicants, to a scheme of reservation based on the all India merit of Muslim and non-Muslim students. A review of the judgment requires judicial statesmanship by a bench that is aware of the history of the AMU's role in the modernisation of Indian Muslims and of the worldwide concern for adequate protection of minority rights.

Commentary

Distorting the Reality ofAligarh Muslim University

In response to a writ petition challenging the constitutionality of the new policy of reserving 50 per cent of seats for Muslim applicants, the Supreme Court held that the Aligarh Muslim University was not a minority institution and could not reserve seats for Muslims. However, the judgment ignored the reason for the change in the university’s admission policy, from the erstwhile reservation based on classification of candidates into ‘internal’ and ‘external’ applicants, to a scheme of reservation based on the all India merit of Muslim and non-Muslim students. A review of the judgment requires judicial statesmanship by a bench that is aware of the history of the AMU’s role in the modernisation of Indian Muslims and of the worldwide concern for adequate protection of minority rights.

IQBAL A ANSARI

T
he Aligarh Muslim University (Amendment) Act 1981 defines the university under S2(l) as “an educational institution of their choice, established by the Muslims of India, which originated as the Mohammadan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University”. The Act (1981) also empowers the university under S5(2)(c) “to provide especially the educational and cultural advancement of the Muslims of India”.

High Court Judgment

The constitutionality of this amendment was challenged before the Allahabad High Court under writ petition numbers 15504, 12060, 24264, 24271, 24274 of 2005 by Nagesh Aggarwal and others who were not selected for admission by the university on the basis of its newly formulated policy reserving 50 per cent seats for Muslim applicants. Agreeing with the petitioners’ contention that the finding of the Supreme Court in Azeez Basha vs Union of India (AIR 1968, SC 662) that the university was established by an Act (1920) of Parliament and not by Muslims, justice Arun Tandon held that the Aligarh Muslim University (AMU) was not a minority institution enjoying the protection of Article 30 of the Indian Constitution, and therefore, it could not reserve any quota of seats for Muslims. The judge disregarded the submission of the senior advocate Gopal Subramaniam on behalf of the union of India that

the Parliament subsequently to the judgment of the Supreme Court in the case of Azeez Basha (supra) had to step in to clear the haze, which was the basis for the judgment of the Supreme Court and to declare that the original minority character of Mohammadan Anglo-Oriental (MAO) College was never lost by the incorporation brought by the Legislative Act for enforcing the University Act, 1920.

This was seen in the light of the documents before the legislature as “establishing a clear intention of the Muslim community to establish a Muslim University by converting the original MAO college through an act of incorporation”.

In his opinion, the amendments made under the 1981 Act have not fundamentally altered the basis of the Azeez Basha judgment of the Supreme Court. Though not questioning the legislative competence of the Parliament in amending the Act (1981), the judge, instead of striking down the provision as unconstitutional as wrongly reported by media, took recourse to the exercise of “reading down” the said provision, so that the establishment of the educational institution referred to the MAO college and not to AMU. That such “reading down” amounts to misreading, which is unwarranted by the text as well as the context, is obvious. The said provision was necessitated precisely because in Azeez Basha the Supreme Court had questioned the establishment of the university by Muslims. The establishment of the MAO college by Muslims was never in doubt and was not an issue.

The other novel device adopted by the judge in rejecting the university’s claim of rights under Article 30 is the principle that the rights under the article, like any fundamental right, are available only to citizens and not to any incorporated body like a university. This amounts to saying that no minority can ever aspire to establish a full-fledged university whose degrees are recognised under law, as its bodies like the senate/court and the academic and executive councils, not being natural persons, could not claim any rights guaranteed to minorities under Article 30.

While explaining the constitutional scheme of rights as rights of persons and those of citizens, the judge has ignored the fact that an important component of the Indian constitutional scheme is the collective rights of groups of citizens, like religious and linguistic minorities and sections, who have been guaranteed fundamental rights not only as individuals but also as collective groups.This imperfect understanding of all the dimensions of Articles 29 and 30 leads the judge to equate the academic and executive councils of the AMU with councils and committees of other corporations and companies not enjoying any collective rights of citizens. This was referred to in the decision of the Supreme Court in the case of Dharam Dutt and others vs Union of India and others ((2004) SCC 712, para 30) and in some similar judgments.

The judge has taken no note of the other two amendments introduced in the Act of 1981, i e, declaration of the university court under S23 as “the supreme governing body of the university”, whose social numerical composition has all along continued to be predominantly Muslim – with a mere sprinkling of non-Muslim members.

Economic and Political Weekly January 14, 2006

The other significant amendment ignored by the judge is the provision under S5(2)(c), which constitutes the social mission statement of the university. Its responsibility as assigned by the Parliament requires it to “especially promote the educational and cultural advancement of Muslims of India”. If the judge had shown responsiveness to the constitutional promise of justice to vulnerable minorities, he should have addressed the issue of the reasons of change of the university’s admission policy. The erstwhile reservation based on classification of all applicants into “internal” (i e, those who had obtained a qualifying certificate/degree from the university, including its schools) and “external” (from all over the country) was changed to a scheme of reservation based on all-India merit of Muslim and non-Muslim applicants. This was the most relevant issue as the cause of action in all the five writs arose out of this reclassification of applicants.

Chequered History

In post-1947 India, irrespective of the amendments of 1951, the university de facto continued to enjoy the status of a Muslim institution of higher learning in terms of name, numerical social composition of students, teachers and other employees, social and cultural ethos and significantly, the composition of the university bodies and authorities. The only slow but sure sign of visible change was the composition of students’ ratio in coveted professional courses. No national leader, including Nehru, Azad, Patel, Radhakrishnan, Rajendra Prasad, Lal Bahadur Shastri and Indira Gandhi, ever advised the university to admit students only on the basis of merit on the grounds that it was being largely funded by a secular state. The concern about maintaining a Muslim student majority was never disregarded as an illegitimate concern. If the secularity of the state had been literally applied, disregarding the other legitimate concern of minorities, the university should have been made to reconcile to the presence of no more than 10 to 12 per cent Muslim students, according to their share in the country’s population and especially in the faculties which offer competitive courses. Instead, during Badr-Ud-Din Tayabji’s stewardship, the university took recourse to maintaining a Muslim student majority admitted to engineering and medical courses by reserving seats for “internal” students – under the presumption that the bulk of internal students would be Muslims who had learned in the schools maintained by the university.

The policy of maintaining a Muslim student majority received Delhi’s approval, with the only qualification that when Nawab Ali Yavar Jung took over as vice-chancellor he was briefed to reduce the “internal” quota from 75 to 50 per cent. This reduction was taken as a serious erosion of the minority character of the university by large sections of the campus, which led to a confrontation between student leaders and the vice-chancellor, resulting in violence during which he was physically assaulted. It was during this emotionally surcharged political atmosphere that in his speech in Parliament education minister M C Chagla held out the threat that he would see to it that the words “Hindu” and “Muslim” were removed from the names of the universities at Banaras and Aligarh

– implying a total shift of the policy consensus arrived at earlier by senior Congress leaders. Very soon Chagla had to eat humble pie, not only because of the chastening effect of the humiliation heaped on him by vociferous protestors on the Benaras campus, but also because of the realisation that the kind of secularisation of educational institutions envisaged by him did not fit into the basic framework of the Congress ideal of multiculturalism, which had become reflected in the constitutionally guaranteed rights of religious and linguistic minorities.

The mishandling of affairs in 1965 by Chagla based on his misconception and miscalculations reflected more in the manner than in the substance of amendment of the act (1965).However depriving the symbolic court its status as a supreme governing body was perceived as a threat by Muslim elite to one of the emblems of its status in India, leading to the Azeez Basha case and the subsequent popular Muslim campaign for restoration of the minority character of the university throughout the country.

About the Azeez Basha judgment I can

do no better than quote H M Seervai that: this is the first case in which the SupremeCourt has departed from the broad spiritin which it had decided cases on cultural and educational rights of minorities. …Inthe present case the Supreme Court has onnarrow technical grounds, which are erroneous, held that a minority communitywhich had striven for, and obtained, the establishment of a Muslim Universityand endowed it with considerable property and money, had not established that University… It is submitted that the decision is clearly wrong and productive ofpublic mischief and should be overruled.

Except for once in 1996-97 when the university became intervener before the constitutional bench of the Supreme Court

– which was constituted to settle some basic issues regarding minority educational institutions but proved infructuous as the bench lapsed – no effort was made to get the Azeez Basha judgment reviewed and overruled. Part of the reason for this was that no “mischief” was caused by the 1965 act and by the judgment, as apprehended by Seervai, to the Muslim character of the university in substance as well as form. On the contrary, for all practical purposes, the university continued to function as a Muslim institution, wherein the only uncertain element was ensuring a Muslim majority among students, managed by recourse to the indirect method of the categorisation of applicants into “internal” and “external” and reserving a 50 per cent quota for the former.

One reason why the university did not seek any clear verdict regarding its minority character even after 1981 Act was the vested interest of the beneficiaries of the reserved 50 per cent internal quota and nominations. This enabled much less meritorious Muslim as well as non-Muslim students to get admitted at the cost of more meritorious external applicants. The reasons for this lie in the fact that whereas a 50 per cent internal reserved quota is filled from among a limited number of students, there is no limit to the number of external applicants. As a result, the cutoff percentage of internal students is much lower than that of external applicants. This internal quota reservation, which has all along enjoyed the consensual approval of all in the name of secularism – including leftist groups on the campus – gives undue protection to those who are affluent enough to get admitted to the AMU from the school stage, or who live in and around Aligarh or other places in UP and Bihar. This realisation of the dilution of its standards, by callous inbreeding and shrinking of its base as an all India university to one confined to UP and Bihar, had dawned on some right from the 1980s. This led to attempts from 1986 to go in for all India merit based admission policy of both Muslim as well as non-Muslims, while fixing a community-based quota. The move was opposed from both sections, i e, those who had a vested interest in the internal quota, and those who were ever ready to

Economic and Political Weekly January 14, 2006

cry “secularism in danger”, as has been done in the petition and subtext of the judgment. This is even after the St Stephen’s College judgment of 1991 upheld the rights of minorities to preferentially admit students of the community.

Reversing a Ghettoised Existence

It is this attempt of the university to get out of the narrow ghettoised existence to which it had been condemned, causing inbreeding over a long period, that made the present university administration sit up and replace the so-called secular policy of back door entry to a front door communitarian entry of Muslims on an all India basis. It felt encouraged by the change in the judicial-political climate towards the direction of minority rights to preferential admission, without any rigid ceiling as pronounced by the apex court in TMA Pai judgment. This made even the then HRD minister Murli Manohar Joshi offer a 50 per cent admission quota for Muslims to the university.

The media, the right as well as secularleft response to the change in the university’s admission policy has been largely based on the ill-informed assumption that reservation was being introduced for the first time, for which strong disapproval was expressed. It was assumed this would imply admitting less meritorious students on religious grounds, whereas the reality is that the transparent all India merit based admission of Muslim and non-Muslim students that has been envisaged would result in admitting the best Muslim as well as non-Muslim students from all over the country. It will also widen the social and regional base of the university and generate a competitive spirit among Muslim students, irrespective of their social origin or region. It will also make university schools perform better and internal students work harder, as they will no more enjoy the undue protection given to them by fixing of an internal quota. Contrary to general perception, the university’s move would not have meant its communal ghettoisation but a slow and sure reversal of its existing secular ghettoisation.

The review of the judgment requires not any technical-legal hair-splitting lacking vision but judicial statesmanship by a bench that is aware of the history of the AMU’s role in the modernisation of Indian Muslims, and of the worldwide concern for the adequate protection of minority rights. The crucial issue that requires to be addressed is whether the Aligarh Muslim University should have an admission policy based exclusively on merit – disregarding all other communitarian considerations, including the irrational policy of internal and external classification – or whether the university’s history and present-day Muslim educational needs should entitle it to preferentially admit a sizeable number of Muslim students not through back doors but transparently on the basis of all India merit. If this requires reserving seats for Muslims, will such a “communal” reservation cause any more damage to national integration than is being caused by Sikh, Christian and Muslim minority institutions elsewhere enjoying such a right sanctioned by the judicial pronouncements of the apex court?

EPW

Email: iqbalansari2001@hotmail.com

[On January 5, 2006, the Allahabad High Court upheld a single bench’s October 4 judgment declaring AMU was not a minority institution and terming the 50 per cent quota illegal.]

Economic and Political Weekly January 14, 2006

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