'Aligarh Muslim University is not a minority institution - it had been established by an Act of Parliament, and had not been established by Muslims', said the 1967 five judge bench judgment of Supreme Court in S Azeez Basha versus Union of India.
Dismissing Azeez Basha's petition challenging some "radical" amendments introduced by the government in 1965 in the AMU Act, the Supreme Court had concluded, "we are therefore of opinion that there is no force in any of these petitions. It is not disputed that the 1951 and 1965 Acts are within the competence of Parliament unless they are hit, by any of the constitutional provisions to which we have referred above. As they are not hit by any of these provisions, these Acts are good and are not liable to be struck down as ultra vires the Constitution. The petitions therefore fail and are hereby dismissed."
Fifty years later, an intense legal battle is again being fought in the Supreme Court on the same question i.e. whether or not AMU is a minority institution.
The Modi government's position, as articulated by Attorney General Mukul Rohatgi, is that AMU is not a minority institution and it's contention in the court was simple: "you cannot override the Aziz Basha judgment. The Union of India's stand is that according minority status to AMU would be contrary to the judgment and it still holds good".
The provocation for the issue to be brought before the apex court is twofold :
Firstly, AMU's refusal to give reservation to Schedule Castes, Schedule Tribes, OBC, and instead issuing an order in 2004 that 50 percent seats in post graduate medical courses would be reserved for Muslims.
This was challenged in Allahabad High Court, which in 2005 (single judge) and 2006 (division bench) ruled that the apex court's judgement in Azeez Basha case continues to hold good. The High Court also ruled that the reservation for Muslims was unconstitutional.
The UPA 1 government at the Centre and AMU filed appeals against the HC verdict in 2006 citing the 1981 amendment to claim minority status, arguing that it allowed the institution to carve out reservation for Muslims.
Secondly, a petition filed by Prashant Bhushan before the Supreme Court challenged the appointment of its vice-chancellor Lt General (retd) Zameeruddin Shah, which was allegedly done in contravention to the UGC norms.
The legality of the AMU minority tag issue will take its own time to settle but the issues involved here have raised some critical questions for public debate, and the so called "minority appeasement" politics around it.
It also questions whether institutions established by the Union Government through an Act of Parliament, AMU and Jamia Millia Islamia in this case, can refuse to give reservation to the SCs, STs, OBCs and reserve 50 percent seats for Muslims alone.
These universities, like any other central or state university, are fully funded by the government and therefore functions on tax payers' money.
The question then arises as to how could the university on its own claim minority status, reserve half of the seats for Muslims and deny rights to socially, economically, educationally backward communities to get an entry into the university
Interestingly, all the national or regional parties that claim to be champions of the social justice cause for the marginalised sections of society, the backward castes and Dalits, like the Congress, SP, JD(U), RJD, BSP are not taking up this question.
They all argue on common lines that Article 30 of the Indian Constitution gives a right to minorities to establish and administer a minority institution, notwithstanding the fact that AMU and Jamia were established by the central government through due parliamentary process.
For the moment, it seems that these parties are keen to be seen as protectors of interests of the Muslim community, whether or not they are fully conversant with the existing law of the land. In the case of Jamia's minority tag, there was a difference of opinion in the UPA government between HRD minister Kapil Sibal and Minority Affairs Minister Salman Khurshid, but unmindful of the contrarian opinions within the ministries concerned, the National Commission for Minority Educational Institutions, in February 2011, granted minority status to Jamia Millia.
The apex court judgement on AMU will have a bearing on Jamia as well. But that has to be decided separately.
The unfolding events as well as the political legal positions taken up by the so called secularist parties have raised another interesting equation -- all these parties are on one side of spectrum on the AMU and Jamia issue, while the BJP is on the other.
Modi government has already put a spanner on AMU's 2010 decision to open five off-campus centres, one each at Murshidabad, Malappuram, Kishanganj, Bhopal and Pune. The Congress was keen to push the establishment of these off campus centres and had even made it a political issue in the run up to the parliamentary elections.
Recently, HRD Minister Smriti Irani had explained her government's position in plain terms to Kerala Chief Minister Ooman Chandy, when the latter had met her to seek her support for the Malappuram centre of the AMU. Irani had even snubbed the AMU VC on the issue.
Incidentally, by the time the Supreme Court will begin hearing the AMU case again in July, the current round of assembly elections in Assam, West Bengal, Tamil Nadu, Kerala and Puducherry would be over, and the heat will be on for the UP assembly elections.
The legal battle in the Supreme Court will depend only on the legal-technical issues involved, but it will also have a significant bearing on public perception. The protagonists for the AMU minority tag have already decided to go national to raise public opinion of those concerned, something which is bound to have a counter-polarising effect.
"In this case the BJP has to do nothing, say what it has to say in the Court and leave the rest of the action for the rival social and political formations", said an expert, who is closely monitoring the court proceedings.
Incidentally, one of the charges against the Samajwadi Party, which gave an upward swing to the BJP in the 2014 parliamentary elections in Uttar Pradesh, was the Akhilesh Yadav government's excessive minority appeasement policies.
Updated Date: Apr 05, 2016 19:22 PM