By Salman Khurshid
After years of waiting, the Supreme Court (seven judges) finally heard the reference on Azeez Basha about the correctness of the finding that AMU was established not by minorities but by an Act of the legislature.
The Court heard comprehensive arguments underscoring the critical moments in the history of AMU starting with Muslim Anglo-Oriental (MAO) College with near complete admin control but with specific government supervision/regulation for good governance. Many of those regulations provisions were included in the structure of AMU in 1920, with additional features of outsider control usually to all universities. Yet elements like the Court membership being exclusively Muslim and the Court being the supreme body would indicate substantial minority administration.
The 1951 Amendment brought AMU Structure in consonance with the Constitutional requirements. 1965 Amendment sought to intrude further into autonomy of AMU but was said to be an emergency measure. 1981 Amendment came in response to the widespread demand amongst Indian Muslims to restore the minority character of AMU but it might have stopped short of the 1920 provisions. In Azeez Basha case the 1965 Amendments were under challenge and that would have succeeded if AMU was found to be minority institution.
Article 30 (1) is at core of AMU
The core issue for Article 30 (1) is the founding of an institution of their choice by the minority. Thus ‘establishment’ in the Article should be read as ‘founding’. Once it is found that the minority founded the institution, the right to administer it accrues. The minority might choose the extent of the right to exercise. The control on administration can be a pointer towards concluding that the minority has founded the institution. But once it is clear that the institution was founded by minority it is no longer necessary to measure the extent of administrative control. In the case of AMU, post 1920 administrative control during various phases has no significance beyond being a historical fact.
In terms of the history of AMU, it is important that we note how AMU saw itself over the years and how successive governments looked at AMU. Although Azeez Basha denied minority character to AMU it was generally treated as special and clearly associated with Muslim minority. No one ever thought it appropriate to change the logo (Crescent moon, Book, Date Palm tree), symbols associated with Muslims. The motto, ‘Taught man what he knew not’ is a verse from the Holy Quran.
David Lelyveld’s ‘Aligarh’s First Generation’ is an excellent informative account of the back drop of the founding of MAO college. In Azeez Basha the High Court accepted minority character of MAO college but held that the university was established not by minority but by an Act of the legislature. The book indicates that both MAO and AMU were seen by Muslims as a collective community aspiration and the purpose of the AMU Act was to respond to it. Without keeping that purpose at the forefront, interpreting ‘establishment’ is a mere mechanical exercise, as seen in Azeez Basha. The history of the Aligarh movement and the solidarity aspiration of Indian Muslims after 1857 led by Sir Syed Ahmed Khan have to be read into the endeavour to interpret the AMU Act as well as the minority rights in the Constitution. For Aligarh, the sense of belonging and ownership of the idea were paramount in the perception of Muslims. The purpose of the historical decisions was lost in the manner in which ‘established’ was interpreted.
Reading Lelyveld’s book
Lelyveld’s book deserves to be considered, particularly the Preface (page 6), the Introduction (page 26), Chapter V The Life of the Mind (page 239), Chapter VIII The College and the Quam (page 335 ). The suggestion that at the time of establishment of AMU the model of universities subscribed by the British government was non-denominational is surely misplaced considering the legislature chose to name the university Aligarh Muslim University, having already named Benaras Hindu University as such.
It will be seen that people simplify19th century Muslims of India into ‘loyalists’ and ‘nationalists’ but in the context of Aligarh it is more apt to speak of ‘pragmatists’ who were inclined to use British system for the benefit of their community and ‘idealists’ who dedicated themselves to the Independence movement.
Arguments that the Constitutional phrase ‘institution of national importance’ to question minority character is misplaced as already argued by the Appellants. In any case it is a great mistake to consider minority as separate from national or secular. The inclusion of minorities makes Indian constitutional institutions secular in character. There is need to relook at secularism from the point of inclusivity instead of siloes of majority and minority. National character of India is syncretic and inclusive; minority rights are not a concession but an imperative of democratic equality. It is important that Indian secularism be understood differently from the use of the term in Western countries. The former entails equal concern and respect for all whilst the latter separates State from the Church. In that sense a minority institution is also secular.
Constitutional morality
In support of Azeez Basha it was sought to rely on positivist views of HLA Hart to distinguish law and morality. But that is quite different from the argument made by us about Dworkin’s ‘Moral Reading of the Constitution.’ Dworkin uses the interpretive theory that provides legal reasoning akin to the Indian Supreme Court’s doctrine of Constitutional Morality. This has been critical to several important decisions since it was first mentioned in Kesavananda Bharti.
The nature of rights was considered at some length in the Puttaswamy judgment of 9 honourable judges. It was held that rights that attach to the human personality exist in pre-Constitutional times, inherent in the human society and merely enumerated in the text of the Constitution. It has been already argued that such rights are inalienable as held by Justice HR Khanna in his lordship’s dissent in ADM Jabalpur. There can therefore be no question of ‘surrendering’ those rights in 1920 and that too in a non-democratic situation. Furthermore the Supreme Court has repeatedly held that Fundamental Rights cannot be waived or surrendered; that any person cannot barter away group rights that spill over generations. It is in light of these that the restricted interpretation of ‘establish’ in Azeez Basha has to be seen. That there was no minority before the Constitution is an argument that needs to be rejected because from any point of view Muslims were in minority even before the Partition and this Court has held that the protection of Article 30 is available to institutions set up before 1950.
The contradictions
The consequence of Azeez Basha was that minorities were by an act of interpretation denied the opportunity to set up a proper university because of the intervening Act of legislature. After 1956 UGC Act they were prevented from setting up universities even in name. Curiously, schools and colleges, even deemed universities, can be minority institution despite the intervention of the State by virtue of registration being granted under the Societies Registration Act, the Trust Act or notification as a deemed university, Yet once full statutory status is claimed the minority status is lost. Faced with this conundrum the State chose to allow minority status to such institutions under the National Commission for Minorities Educational Institutions Act 2004, with minor changes in the structure of the documents (such as not dissolving the sponsoring bodies). The ratio of Azeez Basha has thus been by-passed under compulsion to accommodate emerging trends in the field of tertiary education and yet it is argued that Azeez Basha is good law.
Article 30 and other Constitutional provisions relating to minorities are a solemn promise to them that their embracing democracy and repudiating the two-nation theory will not put them at a disadvantage and suitable affirmative action will be provided to preserve their rights to treat them as equals. The reversal of Azeez Basha will be an unambiguous reaffirmation of the tryst with destiny and consequent redemption of the pledges.
(The author is a senior Congress leader, designated senior advocate, eminent author and a law teacher. He has previosly served as the Minister of External Affairs.)
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