Is it possible for a University that has "Muslim" as a middle name - as in Aligarh Muslim University - to not be a minority institution? While for the past 40 years, the Supreme Court has been wrestling with words to determine whether Aligarh Muslim University is a minority institution or not, it does not appear to have paused to consider why parliament could not have simply called it Aligarh University if its intention was to terminate the Muslim character of the University.
The origins of the institution stretch back to the 19th century and the immediate aftermath of the First War of Independence in 1857-58. Muslim political dominance, which began 666 years earlier with Mohammad Ghori ascending the throne of Delhi in 1192 AD, ended in 1858 with the last Mughal emperor imprisoned and banished to Rangoon. This left the Muslim community, and particularly its ruling element, bewildered at their sudden change of fortune. Most looked back to a dead past that could not be revived.
Sir Syed Ahmed Khan alone did something about accepting the inevitable while not abandoning the Muslim heritage. At Aligarh, he set up a school that imparted Western education but combined it with Islamic teaching. The school was upgraded in 1877 to a college and flourished as the Muhammadan Anglo-Oriental College.
Sir Syed's dearest wish, to see the college further upgraded as a University, remained unfulfilled at his death in 1898, but was realized when in 1920, the Governor General-in-Council, recognizing that the Muslim
ummah had raised the required Rs 30 lakh (a very large sum at the time) to qualify for university status, passed the Aligarh Muslim University Act. The Muslim character of the University was recognized by listing in the Annexure the 124 founder-members of AMU, all Muslims, providing that the AMU Court would be an exclusive Muslim body, and ensuring that Muslim students would be given compulsory religious instruction.
After Independence, the Constitution included AMU (along with Banaras Hindu University and Delhi University) in the Union List. This required fresh legislation to bring the statutes relating to these Universities consistent with the Fundamental Rights enshrined in Article 13. While Article 28(1) of the Constitution held that no religious instruction could be imparted in "any educational institution wholly maintained out of state funds", Article 28 (2) exempted education institutions "established under any endowment or trust which requires that religious instruction shall be imparted at such institution."
In conformity with this provision, the AMU Act of 1951 changed religious education from "compulsory to "optional". In doing so, it implicitly reaffirmed that AMU had indeed been "established" by a Muslim trust. As such, it was generally assumed that the AMU Act was compatible with Article 30 that recognizes the "right of minorities to establish and administer educational institutions", including the benefits deriving from Article 30(2) that in granting aid "the State shall not discriminate against educational institutions managed by a religious or linguistic minority".
The University had a policy of reserving 75% admissions to "internal students" (please note:
not minority students), that is, students passing out from the schools run and maintained by the University. In 1965, the University decided to reduce internal reservations in admissions from 75% to 50%. This led to the most unruly and violent protests on the campus, provoking Government into promulgating an ordinance, later converted into an amendment to the Act, that converted the University Court from the "supreme governing body" to an advisory role and significantly altered its composition.
In protest against this, one S. Azeez Bashawent to the Supreme Court challenging the validity of the 1951 AMU Act as having removed the "Muslim" character of the University, thus depriving it of the privileges accorded to minority educational institutions under Article 30. The Supreme Court in 1967 held that AMU was not "established" by the Muslim community but by Parliamentary statute in 1951, thus obliterating in one stroke the entire history of the institution. As such, the Supreme Court held, since the State could not "establish" a minority institution, the AMU could not be held to have a minority character.
The endless controversy generated by this judgement appeared to have been ended when, in 1981, the Indira Gandhi government pushed through an amendment that statutorily described AMU as an "educational institution of their choice established by the Muslims of India, which originated as the Muhammedan Anglo-Oriental College, Aligarh, and was subsequently incorporated as the Aligarh Muslim University". The amendment added that AMU was designed '"to promote especially the educational and cultural advancement of the Muslims of India". This brought AMU within the ambit of Article 30 as a "minority institution" and should have ended the matter once for all.
But it did not. AMU's admissions policy was challenged in the Allahabad High Court and the single judge availed of the opportunity in 2005 to "read down" the 1981 amended Act, arguing that while the1981 Act may not be "unconstitutional", it only meant Muhammedan Anglo-Oriental, not AMU, had been "established" by the Muslim community. It further held that Parliament did not have the power to pass such an amendment. This was endorsed by a two-judge divisional bench of the same court in January 2006.
The issue has been referred to the Supreme Court where the UPA government, in the affidavit it filed, upheld its adherence to the 1981 Act. The BJP government have reversed that stand and declared that, "as the executive government at the Centre, we cannot be seen as setting up a minority institution in a secular state." This brings matters back to square one.
Having just been to the AMU campus, I can certify the depth of feeling there, borne out by the Vice-Chancellor's statement that this is a "matter of life and death" for the University. I should also declare my interest as a former member of the AMU Court, elected by the Lok Sabha. As such, I recall Dr. Zakir Hussein's memorable phrase: "The way Aligarh participates in the various walks of national life will determine the place of Muslims in India's national life" and by his further assertion that "The way India conducts itself towards Aligarh will determine largely the form which our national life will acquire in future" (cited by Violette Graff in her well-known dissertation published in the
Economic & Political Weekly, 11 August 1990).
The crux of the AMU imbroglio is the secular character of the Indian state. India's unity in diversity is based on assuring sub-national identities as the precondition for their adherence to the larger Indian identity. Hence, ensuring the "Muslim character" of AMU is a litmus test for secularism. It reveals the imperative need for all secularists to band together to preserve the 1981 amendments. Not only has the UPA government's affidavit been radically altered by the BJP government in its pleading before the Supreme Court, which will be taking up the matter next month, the HRD ministry has ordered AMU to cease and desist from further action in the efforts it is making to set up an additional five centres of excellence in Muslim concentrations in different parts of the country.
Smrita Irani is playing with fire. She is doing this, of course, at the behest of those at the very top of the government. Not only is the AMU student community being alienated, the danger of a communal conflagration is very great. The Modi-Amit Shah duo is clearly seeking to polarize the electorate along religious lines in the run-up to next month's sate assembly elections in Assam, the state with the largest share of Muslim votes in the country, as also next year's crucial assembly elections in Uttar Pradesh. Nothing has changed whatever the rhetoric of "
sabka saath, sabka vikas".
(Mani Shankar Aiyar is a Congress MP in the Rajya Sabha.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.