Aligarh Muslim University: A central university or Minority institution?

AMU has completed its centenary 100 years of establishment in 2020. It is one of the prominent universities of India. Aligarh Muslim University Act was enacted in 1920 by the British government. It has stayed itself from controversies since the colonial period. Even today it attracts headlines sometimes for the portrayal of Jinnah’s photo and for stopping the Tiranga rally. Going back to the history of AMU, Its older name was Muhammadan Anglo-Oriental College (MAO College). It was founded by Sir Syed Ahmad Khan.

In post-independence India, the continuing colonial legacy of communal politics, the then government had reduced a central university to minority status in 1981 through legislative action. It was later held unconstitutional by the Allahabad High Court in 2006. Post-judgement, the UPA government had filed a plea to challenge the Allahabad verdict.

But later in 2016, the NDA government withdrew the plea filed by the previous government. The reason given by the NDA govt is that it was set up through central legislation and a 5 judge constitutional bench of the Supreme Court of India had held it as a “central university” and NOT a minority institution. Currently, it is before the Supreme Court of India which referred this matter to the 7-judge bench in 2019.

Intellectual assertions over minority character

First, Faizan Mustafa writes an article ‘The composite campus’ in Indian express over the “Minority character of AMU” on Dec 22, 2020. First, He quotes section 2 of MAO College Laws 1877 to show that college is primarily for Muslims. By his logic, if an institution is founded by people from minority communities then it would be exclusive for them.

If Muslims don’t share from the institution founded by them, then how can they get equal shares in the institutions made by non-Muslims? In my village, all three schools (Primary school, Secondary school, and High school) were built on the land of upper-caste Hindus. They have never claimed their exclusiveness upon those schools. It is still open for all to get admission over there.

Second, Faizan sees 50% reservation through the prism of minority institutions under Article 30(1) instead of fundamental rights under Article 15(1). According to him, thus, AMU does not have a religion-based reservation. But in reality, AMU provides 50% reservation to Muslims. NO constitutional provision advocates for reservation based on religion. In the constitution, there is a basis of caste, backwardness, weaker section, and women to give reservation but religion is no basis at all.

Reasoning the assertions

Even if going through his logic, there are two valid confusions: First, Which law will prevail in case of conflict between fundamental rights mentioned in Article 15(1) and pre-independence laws i.e. section 2 of MAO College Laws 1877? Second, Which fundamental right will get precedence when two fundamental rights i.e. Article 15(1) and Article 30(1) clash with each other? Three arguments can answer these confusions:

First, the Supreme Court in Deep Chand Vs State of UP 1959 has clarified that the ‘doctrine of the eclipse’ will be applicable to pre-constitution law. It means that “Any law or act violates the fundamental rights then the fundamental rights overshadow the other law or act and make it unenforceable but not void ab initio.” By this logic, section 2 of MAO College Laws 1877 will be overshadowed by the fundamental rights [Article 15(1)] of the Indian constitution.

Second, He tried to justify that the government can fund minority institutions [Article 30(2)]. If he deems not funding as discrimination then one can also deem funding as discrimination. It is often confused with Article 30 because, unlike minority institutions, the central government funds AMU. Intellectual intellection has been extrapolating the rights given to the minority. They should refrain from jumping into other’s domain by misusing minority rights.

Thirdly, Mustafa was silent over STs/SCs reservation. Giving minority character to AMU denies reservation to the STs/SCs community. It is against their fundamental rights. Various Supreme Court judgments show that fundamental rights prevail over customary rights. Even the amendment brought in 1981 was held unconstitutional by the Allahabad High Court.

Fourth, A very funny logic is given to defend the minority character of AMU is that it is founded by Muslims. Thus, it would be a minority institution. First, it’s wrong to say that it was founded by Muslims only. Many people have contributed their efforts. A committee was formed and asked to fund generously. The Viceroy and Governor-general of India donated Rs 10,000 which was the Indian rupee. Similarly, Maharaja Raja Mahamder Singh of Patiala contributed Rs 58,000, and Raja Sambhu Narayan of Banaras donated Rs 60,000.

Similarly, In 2011, the National Commission for Minority Educational Institutions (NCMEI) held that “Jamia was founded by the Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution.” First, this assertion is wrong to compartmentalize any institution based on identity. Even if this institution were made by the Muslims, they should not adhere medieval mindset which chooses to exclude other communities from equal accessibility. India has become independent and medieval logic should not have any place in today’s governance.

Fifth, An irrelevant argument is inserted to defend the proposition of minority character through alumni. For example, Faizan Mustafa in his article put a preposition to support the minority character of the AMU by saying that “Two its alumni, Khan Abdul Ghaffar Khan and Zakir Hussain, were conferred the Bharat Ratna.” Alumni of AMU is great doesn’t mean that it would erode the fundamental rights of STs/SCs from getting fundamental rights. They were great because of their hard work and dedication like other great leaders who come from some other college.

Now, this matter has been in the Supreme Court with a larger bench consisting of 7 judges to decide. I hope the judiciary will give judgment based on the merit of the case instead of emotionality posed by some people in their vested interests.

Footnotes

1. The Indian Express | When PM Modi speaks at AMU today, he could underline his resolve to preserve, defend university’s character
2. The Economic Times | SC refers to 7-judge bench issue of determining correctness of minority status to AMU
3. The Hindu | A plural syntax
4. Frontline | History of Aligarh Muslim University
5. Firstpost | AMU in a spot of controversy over Jinnah again: Portrait of Pakistan founder along with Mahatma Gandhi attracts criticism
6. India Today | Controversy over tiranga rally on AMU campus now
7. DailyO | The deeper roots to the current controversy over Aligarh Muslim University
8. The Indian Express | Minority status for Jamia Millia Islamia: Govt to withdraw support in court
9. India Today | Aligarh Muslim University all set to lose its minority status, decision to spark political slugfest
10. Hindustan Times | HC confirms AMU status as not a minority institution

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