New Delhi: Should Jamia Millia Islamia University be allowed to retain its 'minority' character, or should it be open to students of all backgrounds irrespective of religion? There's no easy answer. Islamic heritage is etched in the values of Jamia which no government legislation can take away. Yet the minority identity was never a strong part of its founding principle.
Dr Zakir Hussain, who later became the President of the country, founded it in 1920 during the Khilafat and Non-Cooperation Movements in response to Mahatma Gandhi’s call for boycott of all government-sponsored educational institutions. He did not want it to be linked to any one community. The minority character that allows Jamia to set aside 50 percent of seats for Muslim students bestowed on it by a quasi-judicial commission – the National Commission for Minority Educational Institutions (NCMEI) – goes against his very objective.
Jamia was established at Aligarh but later it was shifted to Delhi – first to Karol Bagh and then to Okhla. It was run by a registered society called the Jamia Millia Islamia society. In 1962, it became a deemed university. In 1988, it was elevated to the status of a ‘Central’ University by an Act of Parliament. As a Central University, it was offering 22.5 percent reservations to SC & ST candidates in educational seats and employment and setting up 27 percent reservation for OBCs was being debated. But the NCMEI order on 22 February 2011 exempted it from the quotas for aspirants from the ST, SC and OBC and it started reserving 50 percent of its seats — 30 percent for Muslim applicants plus 10 percent for Muslim female applicants plus 10 percent for Muslim OBCs and ST — in every programme for Muslim candidates.
Before Jamia was not accorded the minority status there was a diverse student population here. It had grown to be able to attract a larger pool of talent which had added to the stature of the institution. Now, it appears to have impacting Muslim students more in a negative way. The degree from the university does not carry the same respect as earlier. It has affected their seamless integration into the mainstream. Where do Muslim intellectuals stand on the issue? Well, those Firstpost spoke appeared divided in their opinion.
Former Jamia Vice Chancellor Mushirul Hasan, who is opposed to minority status for the varsity, said a university should be open to all without any discrimination on the basis of creed and race. "All statues and ordinances which regulate the academic and administrative functioning of Jamia should be in conformity with its parent law that is the Jamia Millia Islamia Act, 1998 – which enshrines the secular status of the institution," said the eminent historian.
Any genuine struggle, he added, for Muslim empowerment and rights should be to demand and ensure the presence of Muslims in all institutions of higher education rather than creating and limiting their presence in separate educational enclaves.
Noted educationist Firoz Bakht Ahmed goes to the extent of saying that Jamia’s minority character is against “national interest”. “Reservations or minority character given to any institution on communal lines is not in the interest of unity and integrity of the country because it may start a chain reaction among the same religious groups. The ostrich mentality of reservations or minority status of some universities will not help Muslims but open Pandora’s box. They have to perform or perish!” he said.
He reminded the stand of Muslim leaders on the issue of reservation to minorities citing the instance of the voting conducted on providing political safeguards to the minorities according to articles 292 and 294 of the 1949 draft constitution. “Of the seven, five leaders, Maulana Abul Kalam Azad, Maulana Hifzur Rehman, Begum Aizaz Rasul, Hussainbhoy Laljee and Tajammul Hussain, had voted against it. Interestingly, Sardar Patel had vehemently supported the charter,” he said.
Instead of demanding reservations, he said, Muslims should ask the government to open more schools in their areas than police stations. “Instead of fighting over smaller slices of a small pie of the national income, what is needed is the expansion of the national pie which would help everyone to get their rightful and bigger share. The oppressed and the marginalised people need expansion of opportunities rather than favours from the state,” he added.
In February 2010, Jamia Teachers’ Solidarity Association had issued a statement raising several issues on the demand for minority status. These questions remain relevant, indeed need to be responded to even more urgently now. “The crucial thing to discuss is if minority interests will be served better by granting minority status or by retaining Jamia as its founders visualised that is, a university that will have a stake in the national mainstream. Jamia was envisaged as a space of higher learning and critical thinking against the insularity and isolationism of all kinds. The demand for minority status vitiates that glorious history of Jamia as a secular inclusive space,” read the joint note.
The teachers’ body had also cautioned the government not to perpetuate the “politics of minorityism while abandoning the cause of minority rights”.
But there are many who call the government’s move anti-minority exposing how hollow is Prime Minister Narendra Modi’s slogan of ‘Sabka Saath, Sabka Vikas’ (together with all, development for all). They advise the government to desist from destroying the well-established character of the central institutions dedicated to minorities.
“The Supreme Court has repeatedly held that minority institutions are primarily for the minority which has established it and there can be only ‘sprinkling of outsiders in a minority institution’. Thus, as a minority university, under Article 15(5) of the Constitution of India, Jamia can reserve seats for the Muslim minority. Article 15(5) exempts minority institutions from SC/ST/OBC reservation. Being a minority university, Jamia is thus exempt from state’s reservation policy. There is no injustice in it,” says Prof (Dr) Faizan Mustafa, vice chancellor, NALSAR University of Law, Hyderabad.
He said Section 7 of the Jamia Millia Islamia Act is like Article 29(2). The Supreme Court, he said, in St. Stephen’s and TMA Pai judgments, had held that this kind of provision only means there cannot be 100% reservation in an aided minority institution. It may be recalled an 11-judge bench of the Supreme Court has also removed 50% upper cap on minority reservation which was put in the St. Stephen’s case. “Thus, a minority institution may reserve more than 50 % seats. After minority reservation seats are to be left for the general candidates. Section 7 on its own does not make JMI as a non-minority institution,” he added.
Asked does not it promote ghettoized minority, he said the best educational institutions of the country are minority institutions like CMS Vallore and Delhi University’s St. Stephen’s college. “It won’t lead to ghettoization as minority status is a constitutional concept. Minority institutions must excel. This is what framers of the constitutions expected from them,” he said .
While declaring Jamia a minority university, the three-judge bench of the NCMEI headed by MSA Siddiqui had said, “We hold that the Muslim community established this university and managed it all through. It never lost its identity. We declare it as a minority educational institution covered under Article 30 of the Constitution.”
Asked does not the ground appear to be week to defend, Dr Mustafa replied, “Justice Siddiqui has held that minorities can establish universities under Article 30 of the Constitution. In the AMU case, it was held by the apex court in 1967 that term ‘establish’ means ‘to bring into existence’. Subsequently, a six-judge bench of the same court held ‘establish’ also means ‘to found’. Jamia was founded by Muslims. It was also giving degrees. Then it became a deemed university under Section 3 of the UGC Act. The Parliamentary Act therefore did not establish Jamia as it was already there prior to the enactment. What was already in existence was now elevated to the superior status of a central university.”
A five-judge Constitution Bench of the Supreme Court presided over by Chief Justice T S Thakur said on 15 January that "...the power to grant minority status to an institute entirely vests with the central government, which may decide it based on relevant material".
Asked whether the apex court too weakened the position of Jamia, Dr Mustafa replied, “In the AMU case, the Allahabad High Court has held that only courts can decide the minority character of an institution. In my opinion with the order of five-judge bench, AMU has already won its battle as the Supreme Court has accepted that it is government to determine the minority character. The United Progressive Alliance government did accept that AMU is a minority university. Whatever government can do, Parliament is better suited to do as Parliament possesses legal sovereignty in India. In 1981, Parliament through an amendment in the AMU Act acknowledged and recognized the historical fact of AMU's minority character. JMI has got its minority character from National Commission for Minority Educational Institutions which has been given power by the Parliament under NCMEI Act to determine minority character of educational institutions.”
NCMEI was originally not empowered to take such a decision as the Act initially stated that a minority educational institution meant a college or institution (other than a university) established or maintained by a person or group of persons from among the minorities. Subsequently, Kapil Sibal as HRD Minister in Manmohan Singh Government brought out an amendment in May 2010 to the NCMEI Act, allowing the statutory body to award minority status to universities too.
Meanwhile, Shehzad Poonawalla, lawyer and activist, who has petitioned President Pranab Mukherjee seeking his attention on this issue, has alleged that “the central government is unleashing its communal project upon the university and its students by denying and stealing away the minority character. The Central government has taken a ‘U’ turn from its earlier stand. The agenda of the Modi government became clear when its Minority Affairs Minister Najma Heptulla of the day of assuming her office itself declared that Muslims are not minorities. Now, the agenda is being extended by stealing away the minority character of Jamia and AMU. This is being done to introduce a Hindutva agenda and deny young Muslims any opportunity to higher education”.
Properties belonging to Jamia, says Poonawalla, were funded by private contributions from 1920 to 1988. “How can the government get its ownership by merely giving it a central university tag? That is not how the law in this regard works. Minority institutions cannot be hijacked like this. The BJP says secular India has no place for minority institutions. It is the secular constitution that grants us the right to form and administer our institutions too. And not just to religious minorities but also to linguistic ones. Only Muslim universities are in the cross hairs of the government in the Centre. The reason is obvious. It’s communal politics at play before the UP elections in 2017,” he alleged.
Adding that the government is “not bothered about the constitutional impact of the stand it is taking”, he asked, “Has Article 30 of the Constitution that grants minorities, linguistic and religious ones, the right to establish and administer their institutions been abolished? Does the doctrine of Estoppel not apply here?”