AMU’s Minority Character: Question of Fact or Law?

Aligarh Muslim University’s minority tag has been used as a political tool since the late 60s, writes Tahir Mahmood.

Who established the Aligarh Muslim University? This question, raised for the first time in the mid-1960s, is back in the national debate once again. The difference between a question of fact and question of law is well established under legal theory; and who established an educational institution is obviously a question of fact. As such, it has to be answered not with reference to any law but by going by the authentic history of the institution.

The institution now known as the Aligarh Muslim University grew out of the Madrasat-ul-Uloom Musalmanan [college of learning for the Muslims] founded by the great 19th century educationist, Sir Syed Ahmad Khan. Motivated by the glory of the Hindu College in Banaras where he was then posted, he formed a committee of “Muslims desiring educational development of the community” which spent five years collecting necessary funds and through a referendum opted for Aligarh as the seat of the proposed college. 

The Madrasat-ul-Uloom was inaugurated in December 1875 and was later rechristened as Mohammedan Anglo-Oriental (MAO) College. Sir Syed breathed his last in 1898 and his successors, all leading Muslim scholars of the time, continued his mission with great zeal.

Brief History of AMU

• AMU Act was enacted in 1920, dissolving and incorporating Mohammedan Anglo-Oriental College.
  
• October 20, 1967: A five-judge Constitution bench of the Supreme Court held AMU as a “central university”, not a minority institution in Aziz Basha case.
  
• The then Congress government took a plea on the basis of the preamble of the AMU Act that envisaged establishing a ‘Muslim University’.
  
• Congress under Indira Gandhi in 1981 brought an amendment restoring its minority status.
  
• October 4, 2005: Justice Arun Tandon of Allahabad High Court in a judgement strikes down provision of 50 percent reservation for Muslims in the university and terms granting of minority status as ‘unconstitutional’.
  
• January 5, 2006: Division bench of the Allahabad High court upholds judgement passed in 2005.
  
• April 5, 2016: NDA govt tells Supreme Court, will withdraw appeal challenging the Allahabad High Court verdict.
  

(compiled from different sources)

History of AMU

At the turn of the century, the movement for elevation of the Hindu College of Banaras to the status of a “Hindu University” encouraged them to seek incorporation of the Mohammedan Anglo-Oriental (MAO) College as “Muslim University.” Laws required to elevate the two colleges as universities were enacted in 1915 and 1920 respectively. This in short is the history of AMU.

Very clearly, if India had attained freedom due to the struggle of Mahatma Gandhi and his associates and not by virtue of the British Parliament’s Indian Independence Act 1947 – and if the great Muslim shrine in Ajmer was not “established” by the Indian government’s Dargah Khwaja Sahab Act 1936 – then AMU was established by the Muslims of India and not by its parliamentary legislation of 1920.

How the Politicisation Began?

The idea that AMU had been “established” by its legislative charter of 1920 and not by the Muslims was the brainchild of the Congress government. Peeved at communal tension on the campus following a students’ union election, it had robbed AMU of its statutory autonomy.

Challenging the unwarranted action before the Supreme Court, one Aziz Basha pleaded, inter alia, that AMU as a minority institution enjoyed protection of Article 30 of the Constitution -- which empowers minorities to “establish” and administer educational institutions of their choice – and hence its autonomy could not be violated.

Annoyed, the government of the day took the stand in the court that the university had been “established” by the AMU Act of 1920, since its preamble began with the words “whereas it is expedient to establish a Muslim University…”. KK Wanchoo, CJI of the day and known to be a committed judge, agreed to the language-based game of the government and decided the Aziz Basha case in its favour.

Issue of Autonomy

Contravening well known history, Aziz Basha upset Congress party’s political applecart and it had to eventually amend the AMU statute with a new preamble saying “whereas it is expedient to incorporate as a university the institution known as MAO College…” The matter was thus settled.

Twenty-five years later a judge of the Allahabad High Court tried to rake up the controversy once again by Justice Arun Tandon. Some disgruntled students seeking admission to AMU’s Medical College had challenged its admission policy. Deciding the case, Tandon declared the 1972 amendment of AMU Act illegal, questioning Parliament’s competence to enact it [Naresh Agarwal 2005]. 

The highly unreasonable verdict, derogatory of the national legislature, was quickly appealed against in the Supreme Court and was stayed by it. Once bitten twice shy, the Congress government of the time sided with the appellants. It is the stand taken by it in the court that the present dispensation at the centre is determined to withdraw.

Former President Zakir Hussain had once said “the world will judge India’s claim of secularism by the treatment meted out to Aligarh.” But who bothers now about the worldview of the country’s professed secularity?

(The writer is former Chairman of National Commission for Minorities)

Also read:

Wasn’t Insulted But Smriti Irani is Hampering AMU’s Growth: VC