AMU's Minority Character, the Judiciary and the Executive
Dr Syed Zafar Mahmood,
The citizens of India would be grateful to the Hon'ble Supreme Court for very kindly taking note of the contents of this article vis-a-vis the ongoing matter regarding the minority character of the Aligarh Muslim University.
2. The nation and the world are quite aware from duly recorded history that in 1875 Sir Syed Ahmed Khan had established the Mohammedan Anglo-Oriental College in Aligarh. It was originally affiliated with Calcutta University and in 1885 its affiliation was shifted to the Allahabad University.
MAO College: Tool of Muslim modernization
3. Since the last quarter of the 19th century this institution began catalyzing the coming together of different schools of Islamic thought, accelerated their movement toward modernity and spearheaded the Indian Muslims' intellectual and social renaissance. It thus came to be recognized as the fountain head of an intertwined dynamic Indo-Islamic consciousness and quintessence.
The Aligarh Movement
4. Such affirmative squirming and twitching of Indian Muslims - initiated by the legendary Sir Syed - came to be collectively known as the Aligarh Movement. One of the foremost objectives of this movement was to develop the MAO College into a university so that it could stand on its own and play a bigger role in nation building by ameliorating the Muslim educational backwardness. For that purpose the College added more and more programs to its curriculum. During the first four decades of its working, the institution had phenomenally grown up in academic diversity, reputation and size.
Enactment only procedural in nature
5. As per the norms of governance prevalent at that time (which incidentally continue till date) the only method of upgrading a college to a university was to pass a statute to that effect in the legislature. For passing such a statute there was no requirement that the existing college should not have been established by a minority community. Thus the Aligarh Muslim University Act was passed in 1920.
Properties of MAO College became AMU properties
6. Section 4(i) & (iv) of this original Act of 1920 says, "the Societies known as the Muhammadan Anglo-Oriental College, Aligarh, and the Muslim University Association shall be dissolved, and all properties, movable and immovable, and all rights, powers and privileges of the said Societies and all properties, movable and immovable and all rights, powers and privileges of the Muslim University Foundation Committee shall be transferred to and vest in the University and shall be applied to the objects and purposes for which the University is incorporated." The instruments of bequest, gift and trust favoring any of the aforesaid bodies were made to construe as if the word University had replaced each one of them.
Mandatory promotion of Islamic studies
7. Section 5(2)(a) of the original Act of 1920 says "The University shall have the powers to promote Oriental and Islamic studies and give instruction in Muslim theology and religion".
AMU seed money came from MAO College
8. The original Act of 1920 had also recognized that the seed money to run the University was to come mostly from its forerunner bodies. As per Section 7 the University's Reserve Fund comprised the capitalized value of all permanent and recurring grants of money which had been made to (i) the Muhammadan Anglo-Oriental College, (ii) the Muslim University Association and (iii) the Muslim University Foundation Committee as well as (iv) the total income accruing from immovable properties whose ownership was transferred from the above mentioned entities to the University by virtue of this Act.
The 1971 & 1981 statutory clarifications
9. Later in 1981 Section 2(l) of the Act was amended to clarify and expand the definition of the 'University' as "the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University". The Act enjoins upon the University to "specially promote educational and cultural advancement of the Muslims of India" and through the amendment made in 1971 the Act recognized the University Mosque as the center of its campus.
1920 Act didn't establish but only upgraded the institution
10. It is, therefore, quite clear from the law and historical records that the land, money and human resources all were contributed by Indian Muslims and they established the MAO College in 1875 and they ran it as such for 45 years. Alongside, they made efforts to raise the status of this institution to university. But, the only prescribed method to do so was to enact a statute. Thus, the 1920 Act was only an enabling law just like we the people of India made efforts for Independence but that had to be granted by the empowered agency namely the British Government who issued the Declaration of Independence. Nobody would accept that because the Britishers issued this declaration therefore India was established by Britain. Hence there is no scope nor justification to doubt that the MAO College which was established by Muslims of India became the Aligarh Muslim University through the enabling legislation of 1920; by doing so the legislature did not 'establish' the University, it only upgraded an existing institution to the level of a university.
11. Even the logo of the Aligarh Muslim University carries a verse from the Holy Quran alongside a date tree, the sketch of Holy Quran and the crescent. All of these represent Islamic tradition and culture.
CJ's obiter dictum
12. One wonders as to what else is required to accept the AMU as a minority institution. The observation of the Hon'ble Chief Justice of India, as obiter dictum in another case, asking as to "how a central university can have a minority character" stares into the face of Article 30 of the Constitution which gives the fundamental right to all minorities to establish an educational institution of their own choice.
Dictionary meanings of 'institution'
13. The Hon'ble Chief Justice did not clarify as to why a central university, in his opinion, is excluded from the definition of "Educational Institution" as mentioned in Article 30. The Oxford dictionary defines an 'institution' as an organization founded for educational, professional or social purpose. The Cambridge dictionary defines an 'institution' as a large and important organization such as a university. The Constitution makers were clearly aware of these definitions of the word 'institution'. Yet to leave no future doubt they prefixed the word 'educational' to the word 'institution' while giving this right to the minorities.
5-Judge SC bench clarification
14. Besides, in the famous TMA Pai case of 2002 the 5-Judge bench of the Supreme Court has given the required clarification. In that judgement Question no. 11 was as follows: What is the meaning of the expressions 'Education' and 'Educational Institutions' in various provisions of the Constitution ? The Supreme Court answered: The expression "Education" in the Articles of the Constitution means and includes education at all levels from the primary school level upto the post-graduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove.
SC urged to take note of this article
15. Thus, a large number of the citizens of India most respectfully urge the Hon'ble Supreme Court to kindly accept that the Aligarh Muslim University is a minority institution manifesting the specific fundamental right given to the minorities in Article 30 read with the 5-Judge Bench clarification by the Supreme Court in the MA Pai case. The AMU is an educational institution which Muslims have established as per their own choice. The Constitution does not exclude a central university from the purview of 'educational institutions'.
Appeal to PM & HRDM
16. The citizens also urge the Hon'ble Prime Minister and the Hon'ble Minister of Human Resource Development to rise to the occasion and accept the above constitutional scheme as well as the fact that the MAO College was established by Muslims of India and that through the Act of 1920 the Parliament only procedurally upgraded the College to a University and these facts were duly clarified through the 1981 amendment. The central government would do well not to withdraw its appeal before the Supreme Court.
Respecting the constitutional precincts
17. The citizens of India earnestly urge the nation to see reason and not to challenge the sentiments of millions of Indian Muslims and their sympathizers. Let us not test the nerve of the nation, let us not push any section of the population to the wall and let us remain confined within the sacred constitutional precincts.
Dr Syed Zafar Mahmood
The author, a retired Indian Revenue Service officer, is President of Zakat Foundation of India. He was Officer on Special Duty at the Sachar Committee.
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