Reservation Policy and Aligarh Muslim University: What are the Facts? What the Law says?
         Date: 30-Jun-2018

Adv Monika Arora

 
There are many misconceptions and controversies surrounding the status of Aligarh Muslim University (AMU). A section of society believes it to be a minority institution. The other section believes that it is a University established by an “Act of Parliament.” There is a third section which is not aware of the facts of the issue and hence is unable to state anything on this issue.
 
 

 

 
Brief facts of the case are as follows:
 
History before establishment of AMU in 1920 (1872-1920)

  • Sir Syed Ahmed Khan established Mohammedan Anglo-Oriental Fund Committee in 1872.
  • He started a school in 1873.
  • The school was upgraded to High School in 1875.
  • Then Mohammedan Anglo-Oriental College was started in 1877 affiliated to Calcutta University and then in 1887 to Allahabad University.
  • Sir Syed Ahmed Khan passed away in 1898.
  • Efforts were started for the establishment of Muslim University.
  • Muslim University Association was found in 1911
  • Anglo Oriental College society and Muslim University Foundation committee were also trying to establish a Muslim University
  • Muslim community put forth the following demands to the British government:

    a. The degrees of University should be recognised by the government
    b. The control and administration of AMU will be completely in the hands ofMuslims
    c. Thousands of other schools and colleges will be opened under the control and with affiliation to AMU

Indian (British) government refused to accept these demands and laid down the following terms and conditions for the establishment of Aligarh University:

a. If a University will be established it will be established by an Act passed by the Central Legislative Council (Parliament)

b. The university will be completely administered as per the provisions of that Act and its administration will be in the hands of Government of India only.

c. The conditions for establishment of thousands of schools under the university were rejected.

Events from 1913-1915

Discussions continued between British government and Muslim community. The Muslim community got divided into two factions.

a. Moderate group who believed that AMU should be established even under the control of the government. This group was led by Sheikh Abdullah.

b. Liberal group who believed that university should not be established without the control of the Muslims.This group was led by MaulanaAbulKalam Azad, Mohammad Shafi and Maulana Mohammad Ali.

All discussions between muslim community and British govt. however proved to be futile.

Banaras Hindu University BHU was established in 1916 by BHU Act 1915

After establishment of Banaras Hindu University in 1916, once again Muslim community started deliberations with the Indian government. Harcourt Butler (Member of Education in the Viceroy’s Executive Committee Council) clarified with Raja Mahmudabad (Muslim Foundation committee) that all the conditions applicable to BHU regarding establishment and administration of the University will be applied to Aligarh Muslim University.

In 1916-17, the Muslim community accepted the control of British Indian government over the university.

AMU Act 1920 was passed by the Parliament (at that time Central assembly) and the Aligarh Muslim University was established

The group which wanted control of Muslim community over Aligarh University came to Delhi in 1921 and established JamiaMilliaIslamiauniversity all by themselves.

It is pertinent to mention here that a private individual could establish a University but the government was not bound to recognise the degrees of that University. Hence it was not in a position to attract good talented students. Thus Muslim community accepted the conditions of British (Indian) government to get degrees recognized by government.

According to the agreement between the government and Muslim representatives:

1. AMU will be established according to the act passed by Parliament

2. The control and administration of AMU will be in the hands of the government.

3. All the three organisations administered by the Muslims will come to an end and they will merge all the Assets and liabilities with the university.

4. Other schools and colleges across the nation will not be controlled by AMU

Hindus and Muslims have both contributed in terms of money and land for AMU including large donations made by Maharaja of Vijayanagaram, Thakur GurPrasad Singh( Beswan), KunwarJagjit Singh (Bijnore), Ray Shankar Das (Muzaffarnagar), Maharaja of Patiala (who donated Rs. 58000 at that time), Raja Harikishan Singh, Maharaja of Dharbhanga, Maharaja MahendraPratap Singh etc.

Thus AMU was established by an act passed by the Parliament by which government of India has complete control over administration which is done as per this act only. The Muslim community has no right to make changes in this act.All the rights are vested with the Parliament only

Constituent Assembly of India and AMU

  • It was unanimous decision of Constituent Assembly of India that AMU should be given the status of a Central University and that of Institution of National Importance.
  • It was placed in the Union List in the Seventh Schedule of the Indian Constitution. Any institution mentioned in the Union list can never be a minority institution.
  • There were several Muslim representatives in the Constituent Assembly including Maulana Azad who had made sincere efforts for the establishment of AMU
  • Dr. B.RAmbedkar stated that BHU and AMU are Institutions of National Importance and have been rightly placed in the Union List.
  • All the other universities including Calcutta University, Madras University, Mumbai University, Allahabad University which were established by the Act were entrusted back to their respective States.
  • None of the Muslim members present in the Constituent Assembly raised the issue of minority status of AMU and this word ‘minority institution’ was never used in the context of AMU.
  • Administration of AMU was placed in the hands of Parliament.
  • Parliament never administers a minority Institution.
  • AMU has been placed in entry 63 of Union List of Seventh Schedule of Indian constitution
  • If any Institution mentioned in the Union List has to removed, it has to be done through an extremely difficult process of amending the Indian Constitution.

    1951 amendment in the AMU Act

  • The then Education Ministerof the Jawaharlal Nehru government MaulanaAbulKalam Azad made two amendments in the AMU Act in 1951:
  • The provision that‘instruction in Muslim religion shall be compulsory in case of Muslim students’ was deleted.
  • The provision that ‘no person other than a Muslim shall be a member of University Court’ was deleted.

(Similar amendments were made in the BHU Act)

Section 8 was added which stated that AMU shall be open to all persons of all religions irrespective of sex, race, creed or class. Dr ZakirHussain supported the resolution brought by Sh. Maulana Azad and while participating in the Parliamentary debate,he called it a ‘Welcome Step’.

1965 amendment in the AMU Act

It was introduced in the Parliament on 2/9/1965 by the then Education Minister Mohammad Karim Chagla who was the former Chief Justice of Bombay High Court. Sh.LalBahadurShastriwas the Prime Minister. He stated in the Parliament that

‘AMU is not a minority institution. AMU has neither been established by nor is being administered by the Muslim community. The establishment of AMU was by legislature. It is in Union List as entry 63 in our Constitution. It is provided that the Central Universities and other Institutions of National Importance can be legislated upon by Parliament. Now, I cannot understand how it can be said that the administration is in the hands of the minorities’. (Parliamentary debates 2/9/1965 page 3490)

Sh. Chagla also stated that

‘Another member Mr.MuzaffarHussain has told him that he has laid down 6 crore Muslims of India and hence they will not vote for Congress. I want to ask the respected member who has made him representative of the 6 crore Muslims of India?’ He further said that ‘he was proud to be member of Congress party which stood for some principles and ideals and that it does not compromise with them. If his friends did not vote for Congress, even then Congress party will be happy without their vote.’ (Parliamentary debates 2/9/1965 page 3503- 3504)

He further stated that for him all four Centre universities including Aligarh, Banaras, Delhi and VishvaBharatiwere the same. (Parliamentary debate 2nd September 1965 page 3503-3449)


Supreme Court on the status of AMU

 
S. Aziz Basha and another versus Union of India

Date of judgement: 20 September 1967

Bench: K.N Wanchoo (Chief Justice of India) Justice R.S Bachawat, Justice V. Ramaswamy, Justice G.K Mitter, Justice K. S Hegde.
 
Muslim representatives went to the Supreme Court aggrieved by the amendments made in the AMU Act in 1951 and 1965 by Union of India.
 
They stated that AMU is a minority institution under Article 31 of the Indian Constitution and Parliament has no authority to amend the AMU Act. Article 31 states all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice.
  • All the 5 judges of Hon’ble Supreme Court gave a unanimous judgement holding that:
  • AMU is not a minority Institution and Article 31 does not apply to this Central University.
  • AMU was established by an act of Parliament and is being administered by the provisions of the AMU Act.
  • It is not possible for the Muslim minority to establish a University whose degrees are bound to be recognised by the government and so it must be held that the AMU was brought into existence by the Central Legislature and government of India. (AIR 1968 SC 662 para 26)
  • Thus the amendments to the AMU Act are not unconstitutional and Article 30 does not apply at all to AMU.
  • Parliament has a right to amend AMU act
  • All five writ petitions filed by Muslim representatives were dismissed.
Thus these amendments for fully supported by all the three Prime Ministers Sh. J.L Nehru, Shri LalBahadurShastri and Smt. Indira Gandhi whose Education Ministers namely Maulana Azad and Mohammed Karim Chagla brought in these amendments in the AMU Act and when government presented its stand before Supreme Court of India the govt. of Mrs. Gandhi was standing alongside Mr.Chagla.
Furthur amendments were made in the AMU Act in 1972 by the Education Minister Sh.NurulHasan at the time when Smt. Indira Gandhi was the Prime Minister.Sri Noorul Hasan stated in the Parliament that : ‘This is a National University. It is neither a minority institution nor a religious institution. There was no such intention in the past nor in the present to confer the status of religious educational institution on AMU.’
Furthur amendments were made in the AMU Act by the Parliament under Janata Party government in 1979. Mr Morarji Desai was the Prime Minister and Pratap Chandra Chander was the Education Minister. Sh. Chander stated that ‘we should respect the Supreme Court judgement of 1968’(stated on 30/4/1979).
 
1981 amendment in the AMU Act: An unconstitutional step of the Congress government
 
Section 2(1) of the AMU Act stated that ‘University’ means Aligarh Muslim University. This definition was changed to ‘University’ means ‘educational Institution of their choice established for the Muslims of India which originated as Muhammedan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh University’.
 
This new definition was very cleverly drafted. It was an attempt to override the judgement the Hon’ble Supreme Court of 1968 and also to mislead the Muslim community. It was an attempt to bring the university under the purview of Article 30 after 61 years of its existence. It was a serious deception and fraud being played on the Constitution of India. Furthursection 5(2)(c) was added which stated-‘object of the university was ‘to promote especially the educational and cultural advancement of the Muslims of India.’
 
During the 1981 debates Sh. Somnath Chatterjee who was a prominent leader of theof the communist party opposed these unconstitutional attempts of the Congress Party and stated‘What are you doing? Can what was done in 1920 be undone in 1981 by legislation like this? (Parliamentary debates 22/12/1981 page 381.)
 
On 20th August 1889, AMU Court passed a resolution for reserving 50% of seats in the students admissions for Muslim students and sent it to the President of India for consideration (who is also visitor of AMU).He rejected this proposal as unconstitutional and stated that it was violation of Section 8 of AMU Act which says that no discrimination on the basis of religion will be made. He further stated that AMU is fully funded by government of India through UGC. Hence the resolution is in contravention of Article 29(2) of the Constitution of India which states that ‘no citizen shall be denied admission into any education institution maintained by the state or receiving aid out of state funds on the grounds only of religion, race, caste, language or any of them.’
 
Another attempt made for reservation for Muslims in 2005
 
After 15 years again AMU admission committee passed a resolution reserving 50% seats for Muslim students in medical college and executive committee approved it and forwarded it to Ministry of Human Resource and Development which was under Late Sh. Arjun Singh. Joint secretary of HRD Ministry vide letter dated 25/2/2005 stated that the Ministry had no objection to reservation of seats upto50% for Muslim students for admission in Medical College in AMU. Non-Muslim students approached the Allahabad High Court against this unconstitutional step

Naresh Agarwal vs Union of India 2005 Allahabad High Court

Justice Arun Tandon held that :

  • Muslim reservation is unconstitutional in AMU.
  • Aziz Basha case (1968) of Hon’ble Supreme Court of India still holds good.
  • AMU is not a minority institution within the meaning of Article 30 of the Constitution of India.
  • AMU was established by an act of parliament and not by a minority.
  • Parliament has tried to overturn the judgement of the Supreme Court in this manner which is wrong and unconstitutional.

Union of India challenged this decision of Single judge before Division Bench of Allahabad High Court.

Justice A.N Ray who was the Chief Justice and Justice Ashok Bhushan held on 22/12/2005 as follows:

  • Judgement of Justice ArunTandon was upheld that AMU is not a minority institution.
  • Aziz Basha case of 1968 of Hon’ble Supreme Court still holds good.
  • AMU was established by an act of Parliament and administered according to the provisions of act.
  • Parliament has violated its limits by rendering 1968 judgement
  • Ineffective in the year 19815.
  • Parliament cannot establish a minority institution. It can only be established by minorities.
  • 50% reservation to Muslim students is unconstitutional and hence set aside.
  • Union of India letter dated 25 /2/2005 is quashed.
  • Politics cannot be permitted in the realm of Constitution.
  • No such attempts should be made by AMU in future to provide reservations to Muslim students in the university.
  • Petitions were dismissed.

AMU and Union of India challenge the decision of division bench of Allahabad High Court of 22nd December 2005 and Supreme Court which held on 5/1/ 2006:

The reservation for Muslim students is unconstitutional and refused to stay the decision of Allahabad High Court. It further ordered that status quo be maintained.

Petitions were filed in 2014 for granting reservation to SC ST and OBCs in AMU in Year 2014. All the petitions are pending before Hon’ble Supreme Court.

What is the fault of SC, ST and OBC?

98 years have passed sinceAMU Act 1920 was passed establishing it as a Central University. 50 years have passed since the judgement of Supreme Court in Aziz Basha case reiterating that AMU is not a minority institution but a Central University established by an act of Parliament having been placed as entry 63 in the Union List. It is an Institution of national importance. From Dr B.R Ambedkar in the Constituent Assembly to all Congress governments under Pandit Nehru,LalBahadurShastri, Indira Gandhi,Morarji Desai- all have maintained that it was not a minority institution. But in 2005, for the first time Congress government under Mr Arjun Singh as the Education Minister played fraud on the Constitution of India by tampering with it with the aim to appease the Muslim minority. However these fraudulent amendments were struck down by the Allahabad High Court and Supreme Court saying that they were unconstitutional.

But the question remains that SC, ST, OBCs have already waited for almost 100 years to get their rightful due in AMU. Till how long they will have to wait for getting reservation in AMU which is their Constitutional right? Furthurwho will compensate them for the loss of lakhs of opportunities of becoming doctors, engineers, etc if they would have got admission in AMU or appointment as a teacher and in staff in this Central University? Or is it too much to ask for?