Aligarh Muslim University &Reservation in Admissions for Scheduled Castes, Scheduled Tribes and Other Backward Classes
PART-1
Nowadays, public debate is being organized at different places at various platforms under the guidance of Sri Krishna GopalJi, Joint Secretary of the RSS and the man responsible for co-ordination between the BJP and RSS, ostensibly for mobilizing the public opinion to have reservation for SCs, STs and OBCs students in admissions in the Aligarh Muslim University (AMU). The thrust of the debate is that AMU, being a Central premier University, and not a minority institution as claimed by some, must provide reservation in admissions to SCs, STs and OBCs. How far this assertion holds well is being analyzed hereunder.
History of the Aligarh Muslim University:
Sir Syed Ahmed Khan, a Muslim educator, jurist and author founded the Mohammedan Anglo Oriental College at Aligarh, Uttar Pradesh. A British loyal, he served the East India Company and in the judicial department of the government. Sir Syed is believed to be the Father of the Two Nation Theory and one of the founding fathers of Pakistan along with AllamaIqbal and Mohammed Ali Jinnah. He was strongly against the Indian National Congress, its objectives and Parliamentary democracy in India. He was in favour of liberal and scientific education and with that purpose he established the Mohammedan Anglo Oriental College at Aligarh in 1877, for which the foundation stone was laid by the then Viceroy. He also founded the Scientific Society in Aligarh, the first scientific association of its kind in India, modeling it after the Royal Society and the Royal Asiatic Society. Syed Ahmed Khan died in 1989.
Thereafter, the idea of establishing a Muslim University gathered strength and at the turn of the century, by 1911, some funds were collected and a Muslim University Association was set up in place for the purpose of establishing a teaching University at Aligarh. Long negotiations took place between the Association and the Government of India, which eventually resulted in the establishment of the Aligarh Muslim University by the Aligarh Muslim University Act, 1920. The contributions for establishing the AMU were made by Muslims and Hindus, both. The existing Mohammedan Anglo Oriental College at Aligarh was made the basis of the AMU and was handed over to the authorities for the administration of the University along with the properties and funds attached to the College.
Legislative History of the Aligarh Muslim University:
The Aligarh Muslim University was established, as mentioned above, by the Aligarh Muslim University Act, 1920, which is a Central legislation. An analysis of the provisions of the AMU Act, 1920, as originally enacted make it very clear that the University was neither established nor administered by the Muslim minority, which is sine qua non for claiming an institution to be a minority institution under Article 30 (1) of the Constitution of India. That definition has been incorporated in the National Commission for Minority Educational Institutions Act, 2004 [Section 2(g)]as well as under the Central Education Institutions (Reservation in Admission) Act, 2006 [Section 2 (f)]. The title of the AMU Act, 1920 itself says that it is an Act to establish and incorporate a teaching residential Muslim University at Aligarh. The first Chancellor, Pro-Chancellor and the Vice-Chancellor were appointed by a notification of the Governor General in Council in the Gazette of India and the persons specified in the Schedule were the first members of the Court. The University was open to all classes and creed of the citizens. The Governor General was the Lord Rector of the University and at present the same status is vested in the President, with a wide range of powers under his control. The Visiting Board, which comprised the Governor, the members of the Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education.It is pertinent to note that there was no condition that the members of the Visiting Board or the Lord Rector must belong to the Muslim Community. Furthermore, except for the constitution of the Court provided for under Section 23, which consisted of Muslim members only, there was no other provision, which demanded the exclusivity of Muslim members. Even with respect to the constitution of the Court, the Select Committee, which went into the details of the Bill before the enactment of the 1920 Act observed as under:
“In reference to the Constitution of the Court we have retained the provision that no person other than Muslim shall be a member thereof. We have done this as we understand that such a provision is in accordance with the preponderance of Muslim feeling though some of us are by no means satisfied that such a provision is necessary.
A close scrutiny of the several provisions of the 1920 Act would reveal that there is a deep and pervasive control of the several authorities, not belonging to the Muslim minority, which have been appointed under the1920 Act passed by the Central Legislature.
Even the framers of the Constitution did not regard the Aligarh Muslim University to be a minority institution and considered it to be an institution of national importance, established by a Central Legislation alongwith BHU and Delhi University, and kept these institutions under Entry 63 of the Union List, to be further legislated upon if it was so required and in order to show the Government’s impartial and non-communal nature.
After the Constitution came into the force, the first Amendment was brought about to the AMU Act in 1951. Section 9 of the 1920 Act, which empowered the Court to make statutes providing for compulsory religious instructions in the case of Muslim students, was deleted. This deletion was in conformity with Article 28(3) of the Constitution of India, which gives liberty to a student of an institution recognized by the State or receiving aid out of State Funds, to not be compelled to take part in any religious instructions that may be imparted in such educational institutions. Further, Section 8 was also amended, and under the new Section 8, the University was made open to persons of either sex, and of all races, creed, class and caste. The 1951 amendment further distanced any communal tag attached to the University if any ever existed before.
The second amendment came about in the year 1965. Section 23 was amended in a manner that the Court, consisting of only Muslim members, no longer remained the supreme Governing Body and could no longer exercise the powers earlier conferred upon it by sub sections (2) and (3) of Section 23. Under the amended Section 23, the Court’s power was limited only to three specific areas: (a) to advise the Visitor in respect of any matter which may be referred to the Court for advise; (b) to advise any other authority of the University in respect of any matter which may be referred to the Court for advise; and (c) to perform such other duties and exercise such other powers as may be assigned to it by the Visitor or under this Act.The powers of the Executive Council were correspondingly increased and the powers of the Court were transferred to the Executive Council. The constitution of the Court was also drastically changed by the amendment of 8th Statute, such that it practically became a body nominated by the Visitor except for the Chancellor, the Pro-Chancellor, Members of the Executive Council, who were ex officio members, and three members of Parliament, two to be nominated by the Lok Sabha Speaker and one by the Chairman of the Rajya Sabha. The earlier Court and Executive Council were dissolved and fresh Court and Executive Council were executed in its place.
The Parliament enacted the AMU Amendment Act, 1981, so as to hold on to the a big vote bank by appeasing those who were agitating for the minority status of the AMU. This amendment was brought about in order to overcome the Constitutional Bench judgment of the Hon’ble Supreme Court in the case of S. Azeez Basha v. Union of India, whereby, inter alia long title, Section 2 (1) and 5 (2) (c) and Section 23 were substituted. The much disputed word ‘establish’ was removed from the long title, and it appeared under the definition of ‘University’ under Section 2(l) and read as“educational institution of their choice established by the Muslims of India, which originated as the Mohammedan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University”. Substantial changes were made to Section 23 and the Court was given very wide and unrestricted powers under the same. By virtue of the said amendment of 1981, an attempt was made to assert that the Aligarh Muslim University had not been “established” by an Act, whether in 1920 or 1951, but only “incorporated”. Therefore, since, it could be argued that the AMU had been “established by the Muslims” and University thus came under the category of minority institutions provided for in Article 30(1) of the Constitution of India.
PART-2
The Constitutional Provisions in respect of Minority Institutions:
In most of the modern democracies of the world, the religious and linguistic minorities have been given special protection on the belief of the historians and defenders of liberty like Acton, who said that the one prevailing evil of democracy is the tyranny of the majority and the test of that democracy is the security of minorities. Although, this belief is not the universal truth, for example, countries like South Africa, U.S.A., Chile, and several other nations where majority had faced the tyranny of the minority. It is interesting to note that Ms. Raj Kumari Amrit Kaur, one of the distinguished members of the Constituent Assembly, who hailed from the Christian minority community herself, while placing the notes and memoranda to the Sub-committee on Minorities said that she was against the special privileges and safeguards given to a special section of the society in the name of minority. In her view, privileges and safeguards weaken those that demand them and are a definite bar to unity, without which there can be no peace, as also no efficiency in governance, and without which the standards of good governance are lowered.
Sri Thakur Dass Bhargava, in the Constituent Assembly Debate, specifically said that in educational matters, from a national point of view, no discrimination could be justified in favor of a minority or a majority member, in so far as admission to educational institutions is concerned.
The Constitution recognizes two kinds of minorities, i.e., religious and linguistic. Under Article 30(1), religious and linguistic minorities have the right to establish and administer educational institution of their choice. However, under Article 29(2), any educational institution receiving aid out of State funds, including minority institutions, cannot deny admission to a citizen on grounds of religion, race, caste, language or any of them. Keeping the spirit of the democracy and requirement for preservation of the culture and language by minorities, Article 29 and 30 have been incorporated in the Indian Constitution, as mentioned above.
Litigation in relation to the Status of the Aligarh Muslim University:
A. S. AzeezBasha&Anr. v. Union of India[(1968) 1 SCR 833]
Five Writ Petitions were filed before the Hon’ble Supreme Court, challenging the constitutionality of the 1951 and 1965 amendments to the AMU Act 1920. It was contended that the AMU was established by the Muslim minority, and therefore, under the provisions of Article 30(1), the Muslims had the right to administer it, and the amendments of 1951 and 1965, which abridged that right, were unconstitutional. The Union of India took an unambiguous, clear and categorical stand before the Supreme Court, against the claim that the Aligarh Muslim University was a minority institution. The Union of India said that the Government of India, by virtue of the statute, established the Aligarh Muslim University and therefore, the Parliament had the right to amend that statute as it thought fit in the interest of education, and the said amendments were perfectly valid.
The Constitutional Bench, headed by the Chief Justice unanimously, in an authoritative pronouncement, after analyzing the history and the entire legislation, held that the Aligarh Muslim University was not a minority institution, and the Muslims cannot claim the right to administer the same inasmuch as it was established by a statue passed by the Central Legislature and not by the Muslim minority. The Supreme Court was posed with four questions in this case, namely:
1. Whether in the face of the Act it can be said that the Aligarh Muslim University was established by the Muslim minority?
2. What is the meaning of the word ‘establish’ under Article 30 (1)?
3. Whether the amendment of the Act can be struck down as unconstitutional under Article 30(1)?
4. Whether the Muslim minority administered the Aligarh Muslim University after it was brought into existence?
The Supreme Court dealt with each of the above-mentioned questions in complete detail, and pronounced a sound judgment, keeping in view all the relevant provisions and historical background.
After such an authoritative pronouncement by the Constitutional Bench judgment of the Supreme Court, the matter should have rested there for all time to come. However, as mentioned above, to overcome the judgment in AzeezBasha, which was pronounced in 1967, the Parliament passed the 1981 amendment to the 1920 Act for political considerations.
B. Dr. Naresh Agarwal & Ors. v. Union of India & Ors.
In the instant matter, 34writ petitionswere filed bystudents who had obtained an MBBS Degree, and claimed the right to be considered for admission to post graduate medical courses of AMU, before the Hon’ble High Court of Judicature at Allahabad. These students, who happened to be Hindus, challenged the resolution of the Executive Council of the AMU, which reserved 50% seats of the post graduate medical courses for the Muslim students only.
The Hon’ble Single Judge, relying on the judgment in AzeezBasha’s Case, held that theAMU was not a minority institution and held that section 2(l) of the 1981 Act was, on the face of it, an attempt to negate the judgment of the Hon’ble Supreme Court, without altering the foundations / basis on which the judgment in AzeezBasha was based. Since the AMU is not a minority institution, which still holds well, therefore, the university cannot make provisions for reservations in respect of the Muslim students.
C. The Aligarh Muslim University v. Malay Shukla & Anr.
The aforesaid verdict of the Learned Single Judge was challenged before the Division Bench of the Hon’ble High Court of Judicature at Allahabad, consisting of Hon’ble Justice A. N. Ray and Justice Ashok Bhushan (at present judge of the Supreme Court). The Ld. Division Bench delivered two concurring judgments, one by each of the two judges, i.e., Justice A. N. Ray and Justice Ashok Bhushan. In both the judgments, the decision of Ld. Single Judge was upheld, and particularly Justice Ashok Bhushan, in great detail analyzed the history, statutory provisions, and several judgments of the Supreme Court with respect to the claim of minority institutions. In respect to the same, Justice Ashok Bhushan went on to analyze whether, in view of the points laid down in the judgment in T.M.A. Pai Foundation v. State of Karnataka; [(2002) 8 SCC 481, Para 50], the administration of the AMU was carried on by the Muslim minority community and considering the provisions relating to; a. Admission of students, b. Fee Structure; c. Constitution of a Governing Body; d. Appointment of Staff (teaching and non-teaching) and e. Power to take action if there is dereliction of duty on the part of any employees: It was held that the Muslim minority does not carry out the administration of the University. It was further held that Section 2(l) and 5(2)(c), brought in by the 1981 amendment, has nothing to do with administration of the University.
Several Special Leave Petitions have been filed before the Hon’ble Supreme Court against the said judgment of the Ld. Division Bench, by the Union of India as well as the AMU. It is very strange, the Union, which took a clear, categorical and unambiguousstand before the Supreme Court in the case of S. Azeez Basha, that AMU was not a minority institution, changed its position dramatically and urged before the Hon’ble High Court as well as the Hon’ble Supreme Court, that the AMU has a minority character. The Union has further changed its stand after the BJP has come to power, and now the Union has reiterated its stand taken in 1967, that AMU is not a minority institution and has withdrawn its appeal against. After this stand taken by the Union, there is no substance in the appeal filed by AMU and it can be concluded for all time to come that AMU is not a minority institution, but a Central one, administered by the Central Government under the Parliamentary Statute.
The Aligarh Muslim University is under an obligation to provide Reservation for SCs, STs and OBCs in admissions:
Article 15(5) of the Constitution of India gives power to the Centre and State for making special provisions in favour of SCs, STs and OBCs for admission to educational institutions, including private institutions, whether aided or unaided by the State, except for minority institutions under Clause (1) of Article 30. Article 46 of the Directive Principles of State Policy mandates the State to promote, with special care, the educational and economic interest of the SCs and STs and other weaker sections of the people. There is a Parliamentary Statue, namely Central Education Institutions (Reservation in Admission) Act, 2006, and under Section 3 of the said Act, in the Central education institutions, except those which are exempted, there has to be a reservation of 15% of the seats in favour of the SCs, 7.5% in favour of STs and 27% in favour of the OBCs. Moreover, the University Grants Commission (UGC) has issued Guidelines for Strict Implementation of Reservation Policy of the Government in Universities, Deemed to be Universities, Colleges and other Grant-in-aid Institutions and Centers. Under Paragraph 7 of the said Guidelines, the extent of reservation has been determined as 15% for SCs and 7.5% for STs, as regards appointment of teaching and non-teaching staff.
Since, there are clear constitutional and statutory provisions and guidelines, for providing reservation to SCs, STs and OBCs, from among the citizens, in the Central Educational Institutions, the AMU being a Central University, administered under a Parliamentary Statute, is duty bound and under a Constitutional and statutory obligation to provide reservation to these sections of the students in granting admissions into the University. There are already statutory provisions and therefore, the question is of their strict implementation by the Centre and the UGC.
The public debate is required where there is no statutory scheme, but if the same is clear and unambiguous, and the authorities are not implementing it, one can always take recourse to the legal remedies available under the Constitution. Therefore, it is anybody’s guess particularly those who attend these debates as to what the purpose is and for whose promotion these public debates are being organized.
By: Ms. Komal Mundhra & Shantanu Singh
Komal Mundhra is a Junior Advocate in the Supreme Court and Shantanu Singh is the IVth year student of BA, LLB(Hons) in OP Jindal Global University