Adding a new twist to the ongoing controversy over minority status of Aligarh Muslim University (AMU), the National Commission for Scheduled Castes is planning to order the university to either implement the reservation policy or submit documents supporting its claim to prove the university's minority status. The university has time till August, The Indian Express reported.
The controversy over AMU's minority status was revived by the Uttar Pradesh Scheduled Caste/Scheduled Tribe Commission earlier this month, when it issued a notice to the university asking it to explain as to why it does not give reservation in admission to the SC/ST community, while also claiming to not be a "minority institution". The commission asked the university to explain why it has not provided quotas for Dalits and Adivasis despite receiving grants from the central government and making faculty appointments as a national university.
"AMU is not a minority institution. I have issued a notice to it for not giving reservation to SC/ST communities," chairman of Uttar Pradesh SC/ST Commission, Brij Lal, was quoted as saying by PTI. "We have asked why SC/ST communities have not been given benefits of reservation and in what circumstances it has been done so. The Supreme Court has not yet passed any order in which AMU was prevented to provide reservation benefits. In light of the High Court and the Supreme Court directives, it has been established that the AMU is not a minority institution," he said.
Claiming that AMU is like any other central university set up under a central Act, "it has to give due reservation", as it uses funds under the Act.
Asked what the commission would do if the AMU did not reply within the stipulated time, Brij Lal had earlier said this month, "The commission will use its power and issue summons to them."
The legal tussle over the AMU's minority status dates back to 20 October, 1967, when the Supreme Court in the Azeez Basha vs Union of India case, ruled that the AMU was not established by Muslims, but by an Act of Parliament. It, therefore, does not merit to be seen in the ambit of Article 30 of the Constitution which gives right to minority communities to establish and administer educational institutions of their choice. The university, which has always been identified with the Muslim community, lost its minority status.
Article 30(1) of the Indian Constitution says, "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."
Post the 1967 Supreme Court judgment, there was a wave of anger among the minority groups which in 1981 forced Parliament to pass an amendment to the 1920 act to restore the AMU's minority status.
"The word 'establish' in the title of the Act was deleted, and Section 2(l) and Subsection 5(2)(c) were added, clarifying that the university was 'an educational institution of their choice established by the Muslims of India' and which 'was subsequently incorporated' as the AMU. Furthermore, the AMU was entrusted with the responsibility of promoting 'the educational and cultural advancement of the Muslims of India'," The Indian Express noted.
The argument that the university was set up by an act of Parliament and not by Muslims triggered a debate about minority institutions, and whether in a secular country a government university can have a status of both — a central university and a minority institution.
Ram Shankar Katheria, Bharatiya Janata Party MP from Agra and the chairman of the National Commission, told The Indian Express, "It does not qualify to be a minority institution under Article 30 (1) and this has been upheld by the Supreme Court ruling of 1968. The institute was granted the National University status by a Parliament Act in 1951. In 1981, the then Congress government brought in an amendment to grant minority status but the Allahabad High Court struck down the provision in 2005."
Katheria argued that since the AMU had not reserved a single seat for Muslims, there is no question of making any reservation for any community.
Even after the Supreme Court's reasoning in the Azeez Basha case, a single-judge bench and later a division bench of the Allahabad High Court in 2005 ruled that AMU was not a minority institution. There is still a clear lack of consensus on the issue but the controversy has initiated a serious debate about the ambit and scope of minority rights in education, which were made a part of the fundamental rights with a view to instilling a sense of confidence and security among the minorities.
"This is not Pakistan, the university has to follow the rules," Katheria reportedly said.
How do you decide if an institute has the minority character?
Article 30(1) of the Constitution was presumably done to assure that minorities are able to maintain and propagate their unique and special educational aspects. The law of the land guarantees that governments will not discriminate against them in giving aid on the basis of them being "minority" institutions.
What benefits would an institute get under minority status?
They would be free to reserve seats for Muslims. For example, at Jamia Millia Islamia and AMU, 50 percent seats are reserved for Muslims. They would also be free to not implement the reservation policy, ie, giving 50 percent reservation to SCs/STs and OBCs. The government could only own their land by acquiring it after paying compensation.
Arguments favouring minority status for AMU and Jamia Millia Islamia
Founded in 1875 in Aligarh as the Madrasatul Uloom, AMU eventually evolved into the Mohammedan Anglo Oriental College. Sir Syed Ahmad Khan, who founded AMU, was a man with progressive roots. He spoke for women's education and personally passed the hat for funds.
The concept of Jamia was "sown in Aligarh" by a group of nationalist students and members who formed a camp at AMU as Jamia Millia Islamia. The camp later moved to Delhi. Leaders like MA Ansari, Zakir Husain and Mahatma Gandhi encouraged the university to push nationalist values and ideas.
The National Commission for Minority Educational Institutions (NCMEI) said, "Jamia was founded by the Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution, was therefore, "covered under Article 30(1). Those arguing for minority character say that, 'this was done by an Act as that was the only way a university could be set up at the time'. Muslims collected Rs 30 lakh, and handed it over.
Arguments opposing minority status
The Act of 1988, states that "it shall not be lawful for the university to adopt or impose on any person, any test whatsoever of religious belief or profession in order to entitle him to be admitted there in as a teacher or student or to hold any office therein or to graduate thereat".
They also argue that the application to be declared a minority institution was made in 2006, when reservation for OBCs was introduced at higher educational institutions. Making it a minority institution acted against poor and disadvantaged Muslims.
In the Azeez Basha case, in which AMU was not a party, the Supreme Court ruled that AMU was not a minority institution as it was set up by the British legislature and not by Muslims. However in 1981, Parliament passed the AMU Amendment Act, which accepted that AMU was set up by Muslims. But in 2005, the Allahabad High Court ruled that the 1981 Act was ultra-virus of the Constitution and that AMU was not a minority institution.
AMU's appeal against the single-judge order was dismissed, but the Supreme Court stayed the Allahabad High Court's decision. So effectively, AMU is currently a minority institute, although the matter is still sub-judice.
Due to "minority character" given to these universities, they do not reserve 50 percent seats for SCs/STs and OBCs ,which violates social justice as these universities are also funded by the central government.
As argued in this report by The Indian Express, AMU's minority status row is a larger issue of conflict between judiciary and the legislature. "Holding the view that the 1981 Act had not altered the entire basis of Azeez Basha is erroneous. In fact, the entire confusion stems from a literal and narrow interpretation of the word 'establish', and a wrong inference drawn from the AMU's long history. Parliament, in fact, had altered the entire basis of Azeez Basha by declaring, in unambiguous term, that the 'AMU was established by the Muslims of India'.
The politics of it all
While the previous UPA government had supported the claims of the AMU in the Supreme Court regarding its status as a minority institution, the present Narendra Modi-led government NDA government has reversed its stand and has submitted an affidavit rejecting the AMUs claim.
A controversy erupted when Uttar Pradesh chief minister Yogi Adityanath said that the AMU and the Jamia Millia Islamia would "have to grant" quotas to the SCs and STs. The controversy was further accentuated when BJP MP from Aligarh Satish Gautam raised the issue in a letter to the AMU vice-chancellor.
AMU V-C, Professor Tariq Mansoor, told PTI, "We are governed by the Constitution and its Article 30 which permits religious and linguistic minorities to establish and administer their own educational institutions."
He claimed that the Supreme Court had categorically directed the AMU authorities to continue administering the institution according to the 1981 AMU Amendment Act which had granted a minority status to this institution till the Supreme Court delivers its final verdict on this matter.
"Till then, our hands are completely tied and once we receive the Commissions directives, we will convey this to them," he had said.
With input from agencies
Updated Date: Jul 13, 2018 12:16 PM