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ON October 5, newspapers across the country carried screaming headlines describing the judgment delivered the day before by Justice Arun Tandon of the Allahabad High Court in the case of Dr. Naresh Agarwal versus Union of India and others. "High Court quashes minority status of AMU", "Act struck down, AMU loses minority status", "Court observes AMU Amendment Act, 1981, giving the university its minority character as unconstitutional" were some of them.
The news provoked certain sections of students, concerned about the "loss" of minority character of the university, into spontaneous protests in Aligarh and elsewhere. The Bharatiya Janata Party, however, welcomed the order and used the occasion to protest against what it called the pseudo-secularism of the United Progressive Alliance (UPA) government at the Centre. The protests and the counter-protests have now subsided, and it is time to examine Justice Tandon's judgment, to understand its meaning and implications for the AMU.
At the outset, it is necessary to remove the misleading impression created by the media that Justice Tandon quashed the Aligarh Muslim University (Amendment) Act, 1981. Indeed, his 48-page judgment has nowhere declared it unconstitutional. On the contrary, the Judge creatively interpreted and "read down" a section of the Act. ("Reading down", in legal language, means inventing for a provision a meaning that was perhaps not intended by the law-makers, but which is otherwise consistent with the Act.) This section, 2(L), of the AMU Act, 1920, as amended by the 1981 Act, says:
" `University' means 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."
The 1981 Act deleted the word "establish" from the long title of the 1920 Act, which originally read: "An Act to establish and incorporate a teaching and residential Muslim University at Aligarh."
The 1981 Act also deleted the words "establish and" in the preamble to the Act, which originally stood as:
"It is expedient to establish and incorporate a teaching and residential Muslim University at Aligarh, and to dissolve the Societies registered under the Societies Registration Act, 1860, which are respectively known as the Muhammadan Anglo-Oriental College, Aligarh, and the Muslim University Association, and to transfer and vest in the said University all properties and rights of the said Societies and of the Muslim University Foundation Committee."
Before the 1981 Amendment Act introduced these changes in the 1920 Act, some sections of the Muslim elite were agitated by the fact that Parliament had not passed a law to undo the perceived injustice caused by the Supreme Court's judgment in the Azeez Basha versus Union of India case in 1967. In that case, the Supreme Court held that the AMU was established by a statute, that is, the 1920 Act as passed by the Central legislature, and not by Muslims. The court agreed that the nucleus of Aligarh University was the M.A.O. College, which was until then a teaching institution under Allahabad University. The conversion of that college into a university was, however, not effected by the Muslim minority; it took place by virtue of the 1920 Act, the court said. The court reasoned that the 1920 Act might have been passed as a result of the efforts of the Muslim minority, but that did not mean that the university was established by it. The court said:
"Those who were in charge of the M.A.O. College, the Muslim University Association and the Muslim University Foundation Committee were keen to bring into existence a University at Aligarh. There was nothing in law then to prevent them from doing so, if they so desired, without asking government to help them in the matter. But if they had brought into existence a university on their own, the degrees of that university were not bound to be recognised by government... . That is why the three institutions approached the government to bring into existence a university whose degrees would be recognised by government. If that is so, the Muslim minority cannot claim to administer it, for it was not brought into existence by it."
The petitioners in the Azeez Basha case challenged the validity of the 1951 and 1965 amendments of the 1920 Act, which tinkered with the composition of the AMU Court so as to remove its all-Muslim character and its powers as a supreme governing body.
The question whether the AMU was established by Muslims was important to decide whether Article 30 (1) of the Constitution - which provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice - applied to it. Once Article 30 (1) applies to an institution, it has the freedom to reserve seats for students belonging to the community it represents.
In the Dr. Naresh Agarwal versus Union of India and Others the bone of contention was whether the AMU was entitled to the benefit of Article 30 on the strength of it being a "minority" university. The court was dealing with five connected writ petitions filed by 34 petitioners who obtained MBBS degrees and claimed a right to be considered for admission to postgraduate medical courses of the AMU.
The petitioners' grievance was that the AMU had reserved 50 per cent of the total seats to be filled with external and internal candidates on the basis of entrance examinations to be conducted by it, in respect of Muslim candidates only, under the resolution of the AMU's Admission Committee and Executive Council. As the petitioners, all Hindus, were deprived of their right to participate in the selection process for admission to these courses against the reserved seats for Muslims, they challenged it on the grounds that the reservation was without jurisdiction, as Article 30 did not apply to the AMU and it was violative of Article 29 (2) of the Constitution. Article 29 (2) states that no citizen shall be denied admission in any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.
The 1981 Act amended the 1920 Act, apparently to overcome the Supreme Court's judgment in the Azeez Basha case, but in the process attempted to rewrite history, and this did not carry any conviction. The objective of the Indira Gandhi government in enacting the 1981 amendments was to win over Muslims, who had been promised the "restoration" of the minority character of the AMU, in return for their renewed support to the Congress in the 1980 Lok Sabha elections. The 1981 Act was rich in symbolism, but poor in substance.
Justice Tandon held that the mere deletion of the word `establish' from the long title and amendment to Section 2(L) was in itself not sufficient to hold that the AMU, which was a creation of a legislative Act, had not been so created.
The court held that the basis of the Supreme Court's judgment in the Azeez Basha case had not been fundamentally altered by the 1981 Amendment Act. Justice Tandon pointed out that the 1981 Act left Sections 3, 4 and 6 of the original Act - which constituted the basis of the Supreme Court's judgment in the Azeez Basha case - unamended. Section 3 of the Act declared the constitution of a body corporate by the name of AMU; Section 4 noted the dissolution of the M.A.O. College and the Muslim University Association; and Section 6 deals with the recognition of degrees by the government.
Justice Tandon interpreted the 1981 Act to mean that the word "established" referred to in Section 2(L) necessarily referred only to M.A.O. College, which was established by Muslims and was subsequently incorporated into the university. As such, he held, the AMU was not a minority institution within the meaning of Article 30, and ruled that the university could not provide any reservation in respect of the students belonging to a particular religious community. He quashed the resolution of the AMU's Academic Council (dated 15.1.05), the decision of the Executive Council (dated 19.2.05), and the Union of India's letter of approval to the decision (dated 25.2.05) reserving 50 per cent of the seats for Muslims.
Cancelling the admissions granted in pursuance of the invalid reservation policy, the court directed the AMU to conduct a fresh entrance examination in respect of the 50 per cent seats of the postgraduate medical courses without making any reservation on the basis of religion.
Does the judgment deprive the AMU of its `minority' character? Within the meaning of Article 30, yes. Eminent historian Irfan Habib, who retired as Professor of History from the AMU, put it succinctly: "It was not thought that the AMU was covered by Article 30 even after the 1981 Act came into force. Even the Union Minister of Education, Sheila Kaul, who moved the Bill to Amend the AMU Act in 1981, did not cite Article 30 during the debate in Parliament. The government took the position that Article 30 applied to the AMU only recently. By striking down the new reservation policy, the judgment has not hurt the minority character of the university."
Critics of the judgment point out that the court has not struck down Section 5 (2) {lcub}c{rcub}, according to which the university has the power to promote the educational and cultural advancement of the Muslims of India. This sub-section was also inserted by the 1981 Amendment Act, and the judgment does not deal with it at all. However, it is clear that the AMU cannot claim its right to reserve seats under this section as such reservation would come into conflict with Section 8 of the Act - also inserted by the 1981 Act - which stipulates that the university shall be open to all persons (including the teachers and the taught) of either sex and of whatever race, religion, creed, caste or class.
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