The Many Layers of Aligarh Muslim University’s ‘Minority Status’

Why is the AMU not a Minority Educational Institution, despite being labelled so by the 1981 Amendment?

Imagine a predominantly Muslim varsity in India and the name Aligarh Muslim University pops up in your head, almost instantly. But nearly a century after it was set up with help from the British, the university continues to debate and defend its minority tag.

Citing previous judgments on the matter, the National Commission for Scheduled Castes has claimed that Aligarh Muslim University is not a minority institution and, therefore, must clarify why it has failed to provide reservation for students under the SC/ST category, as is required by all central universities.

AMU has claimed that since it is a minority institution, as guaranteed by the AMU Act 1981, it is exempted from reserving seats under the SC/ST category under Article 15 (5) of the Constitution.

But why are there two contradictory versions on AMU’s minority status?

What is a Minority Institution?

Article 30 (1) of the Indian Constitution says that “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”.

But what exactly is a Minority Educational Institution? In order to provide clearer guidelines and monitor these institutions, the National Commission for Minority Educational Institutions Act was passed in 2004. Section 2 (g) of the Act defines a ‘Minority Educational Institution’ as a college or educational institution established and administered by a minority or minorities.

But a particular linguistic or religious community can be in the minority in one state, while being in majority in another. In such a case, who decides whether a particular community – linguistic or religious – is, in fact, in minority?

According to a Supreme Court judgment in TMA Pai Foundation vs State of Karnataka (2002), a particular community, whether linguistic or religious, can only be called a minority, if its strength is demographically low in that particular state. Therefore, calling a community a minority does not depend on its numbers at the national level, but only at the state level.

Can an educational institution established by an individual from a particular community for the benefit of the larger community, qualify as a minority institution?

The Supreme Court in State of Kerala vs Mother Provincial ,1970, opined that any educational institution established by an individual from the community can attain minority status, so long as “the intention in either case must be to found an institution for the benefit of a minority community by a member of that community”.

Now, if you recall high school lessons in history, one man by the name of Sir Syed Ahmed Khan appears prominently in the Aligarh movement, as it were called. He had envisioned the educational and cultural regeneration of Muslims in India, by attempting to introduce the community to modern education.

Under his aegis, a school was set up in Aligarh, followed by the Muhammadan Anglo Oriental College (MAO) in 1877. Now if we follow the Mother Provincial judgment, Sir Khan, by seeking to uplift the Muslims of India, set up an educational institution. So, the school and the MAO should be rightly called ‘Minority Educational institutions’, right?

If so, shouldn’t the Aligarh Muslim University, which was formed on the basis of the MAO, continue to represent its minority character?

Who Formed AMU and When?

Let’s go back into AMU’s history and the events that preceded its formation to understand how the principle of ‘establish and administer’ was applied.

• Prior to the establishment of the Aligarh Muslim University, Sir Syed Ahmed Khan had set up the Muhammadan Anglo-Oriental College Fund Committee in May 1872.
• The activities of this committee culminated in the formation the Muhammadan Anglo Oriental College in 1877.
• But by 1911, demands for a Muslim University in Aligarh grew stronger and a Muslim University Association was set up with the purpose of establishing a teaching university.
• After negotiations with the British government, the Aligarh Muslim University was formed by the AMU Act 1920.
• Existing societies – the Muhammadan Anglo-Oriental College, Aligarh, and the Muslim University Association – were dissolved and their properties and rights were transferred to the body corporate, Aligarh Muslim University.

1966-67: The First Legal Dispute in AMU

The AMU was formed in 1920, which means the enabling act was passed by the British prior to India’s independence. After independence, the Indian Parliament introduced two amendments to the AMU Act in 1951 and in 1965, mainly to ensure that the AMU Act was not in violation of the new constitution and its principles.

The 1951 Amendment introduced the following changes. Section 9, which provided for compulsory religious instruction for Muslim students, was done away with.

Section 8 of the Act was amended to open the university “to persons of either sex and of whatever race, creed, caste, or class” and to ensure that the university does not adopt or impose on any person, any test whatsoever of religious belief or profession in order to entitle him to be admitted therein...”

Further, unlike before, the university’s court was no longer required to be fully Muslim and was now open to members of other faith.

The 1965 amendment deleted sub Section 2 and 3 of Section 23 of the AMU Act 1920. This meant that the University’s court was no longer the supreme governing body. Additionally, the powers of the Executive Council were widened.

The AMU pleaded before the Supreme Court in 1966, that these amendments took away from the Muslim community “the right to administer the Aligarh University” and that “this deprivation was in violation of Art. 30(1) of the Constitution”.

Establish, Then Administer

Now let's go back to the the words 'establish and administer' as mentioned in Article 30 (1) and 2 (g) of the Minority Educational Institutions Act 2004.

Based on a petition filed by the AMU in 1996, the Supreme Court delivered its landmark Azeez Basha judgment in 1967. In order to understand if the AMU’s right to administer had been violated, the court first looked at who had established the varsity. AMU argued that the Muslim community had, after the death of Sir Ahmed Khan, set up a committee and raised funds to set up the university.

The apex court held that back in the 1920s, there was no restriction on private bodies from setting up universities that could grant degrees. However, these bodies could not insist on government recognition of the degrees issued by them, unless backed by government statutes. The court observed that the Muslim community had the option of setting up a University, but chose approach the British government.

The court therefore observed that Aligarh Muslim University was set up by the Central Legislature and the Government of India and not by the Muslim majority. Since it was not set up by the Muslim majority, it could not be administered by it.

“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 and therefore it must be held that the Aligarh University was brought into existence by the Central Legislature and the Government of India. If that is so, the Muslim minority cannot claim to administer it, for it was not brought into existence by it.”

The Supreme Court in S. Azeez Basha and Ors. Vs Respondent: Union of India 

The apex court’s judgment, therefore, made it clear that the Aligarh Muslim University is not a Minority Educational Institution, as it was not established by a minority, either religious or linguistic, in the first place.

Restoration of AMU's Minority Status in 1981

The 1967 judgment of the Supreme Court sent ripples across the Muslim community, which demanded that the minority status of the Aligarh Muslim University be restored. After much deliberation, amendments to the Aligarh Muslim University Act were passed by the Parliament in 1981.

The operating part of the amendment altered Section 2(I) and defined the university 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.”

How did this amendment restore AMU’s minority status?

There are two ways in which the amendment officially declared the Aligarh Muslim University a Minority Educational Institution.

• First, the expression “educational institution of their choice established by the Muslims of India” essentially means that the Aligarh Muslim University was set up by the Indian Muslim community, which constitutes a religious minority in this country. From this it follows, that the education institution so established by a religious minority is, in fact, a Religious Minority Institution.
• Second, the amendment notes that AMU “originated as the Muhammadan Anglo Anglo-Oriental College” and was “subsequently incorporated as the Aligarh Muslim University.” This blurred the earlier distinction established between the Muhammadan Anglo Anglo-Oriental College and the AMU in the Azeez Basha judgment of Supreme Court.
• Third, Section 5(2)(c) of the same amendment read: “To promote especially the educational and cultural advancement of the Muslims of India.” This further strengthened AMU’s position as an Educational Minority Institution.

Revocation of AMU's Minority Status in 2006

But in 2005, the question whether AMU is a minority institution and whether it is allowed to offer reservation to Muslim students only, appeared before the Allahabad High Court.

A group of students approached the high court after after AMU reserved 25 percent seats in the medical course for internal students, while dividing the remaining 75 percent equally among Muslims and others. While the varsity would conduct written tests for Muslim candidates, those under the general category would write a test organised by the All-India Institute of Medical Sciences, New Delhi.

The high court, in exploring these questions raised by the petitioners, had to examine the 1981 Amendment, which had officially declared AMU a Minority Educational Institution.

In examining the constitutionality of the 1981 amendment, the high court said that the legislation was invalid, as it had the effect of overriding an existing judicial verdict. In this case, the Azeez Basha judgment of 1967.

The court further said that the expression ‘established by the Muslims of India’ as introduced by the 1981 amendment, was only applicable to the Muhammadan Anglo-Oriental College, and not to the Aligarh Muslim University. The 2006 Allahabad High Court judgment, in this way, reaffirmed the Supreme Court’s 1967 judgment.

After the Allahabad High Court upheld the 1967 Supreme Court judgment, both the Union of India and AMU filed two separate review petitions before the Supreme Court. At the time of filing the petition, the Congress-led UPA I was in power.

While the apex court is yet to announce its verdict on the matter, the BJP-led centre is learnt to have withdrawn the petition filed by the Union of India, The Indian Express, reported.

But wait, is Aligarh Muslim University still a Minority Educational Institution? Since the Supreme Court hasn’t stayed the 2006 Allahabad High Court order, AMU, legally speaking, is not a Minority Educational Institution. But that might change, if the Supreme Court decides otherwise.