Aligarh Muslim University and the Case of "Establishment Theory"

By Afroz Alam

To our amazement and disbelief, the High Court of Allahabad delivered its judgment against the minority character of Aligarh Muslim University (AMU). The point, however, is not that the judgment went against the AMU, but the question is, on what ground the judiciary came out with this verdict, which outwardly snatched its status to be a minority institution? In short, a close examination of the court's judgment shows that it stands on the legally invented and judicially imagined argument that Aligarh Muslim University does not qualify for the minority status under Article 30(1) of the Constitution because it was not established by the Muslim minority but by an Act of Parliament in 1920. Does this argument really hold any weight? The answer is a big NO.

How could the judiciary turn the established historical fact upside down? Eve an ordinary person have tell that the Muhammadon Anglo Oriental College, Aligarh, founded in 1877, was the result of untiring efforts of Sir Syed Ahmad Khan for the educational empowerment of Muslims. And it was this very college, which was upgraded to the status of a University by the Parliamentary Act of 1920. The Parliamentary Act of 1920 was only a status-granting Act. Meaning thereby, the MAO College acquired legislative respectability as an Aligarh Muslim University. As well as the educational empowerment and cultural autonomy of the Muslim community were being legally established by this Act of 1920. If, by any reason, this was not so then what it really was? Was the Act of 1920 a carefully orchestrated and organized conspiracy against the aspirations of a Muslim College to be a Muslim University?

Rather than imagining that 1920 Act brought substantial change in the original minority character of AMU, it is more realistic to imagine that the Act came out to provide an effective opportunity to the Muslim minority to reduce their educational and cultural impoverishment and keep them at par with modem education. In this particular context and against the judicial enforcement of the idea of non-minority character, we can cite the hailing statement of the then Governor-General in the Legislative Council that reflects the objective behind the Act of 1920. He said: "I should like to add my congratulations to the Muslim community on the passage of this Bill. I have come here specially this morning to preside in order that I might add my good wishes and congratulations." Was this a congratulatory tone for taking away the authorship of the Muslim community from the AMU? Of course not. It was congratulation to the Muslim community on their MAO College being designated as University. Thus, had there been no MAO College, there would have been no AMU. It is logically absurd argument that the Muslim minority did not establish AMU. It is just like telling that the father of a child that he will cease to be a father after his child gets appointed to a governmental post. The judgment also implies that freedom fighters should not be credited as a force behind the Independence of India but only India's Independence Act 1947.

The High Court's judgment did nothing but restored the Azeez Basha case (AIR 1968-page 662). But two wrongs cannot make a right. Both the judgments fall sort of similar logical anomalies and primordial reasoning. The only difference between the two is the difference of time. Azeez Basha case delivered by Supreme Court in 1968 and Malay Shukla and others case by High Court in 2005. What is more flabbergasting that both the judgments failed to note the Section 5 (2)(c) of the AMU Act, which clearly states that the university has the power to "promote especially the educational and cultural advancement of the Muslims of India." This particular section of the long debated Act of 1920 in itself disproves the legal maneuvering that the University is not for the educational and cultural advancement of the Muslims.

It is also surprising to note that the Azeez Basha case approved the AMU (Amendment) Act No. 52 of 1951 and AMU (Amendment) Act of 1965, which took away the right of the Muslim minority to administer their own educational enterprise. But when the legislature rectified its own anomalies by the AMU (Amendment) Act 1981 and overtly recognized the implicit minority character of AMU, the recent judgment of the High Court made an observation that the "power to amend the statutory provisions cannot be extended to such an extent so as to create a situation whereby legislative Act, declared constitutionally valid, could be rendered unconstitutional by subsequent legislative enactment."

Our contention in this context is not the legality of the judgment but to question it on the basis of moral reasoning. It is not a paradox but an irony that when the Parliament disabled the AMU by snatching its minority character, administrative and cultural autonomy by the Acts of 1951 and 1965, the Hon'ble judiciary recognized its legality. But when the same Parliament enabled the AMU to restore its robbed features by the Act of 1981. the Hon'ble judiciary found every fault with its legality. Could it be called the deliverance of "justice" on the part of Hon'ble judiciary, which approved the disabling Acts and disapproved the enabling Act of the same Parliament? The cause of the query remains unproven. Why should Muslims stay away from the educational institution established and administered by them? Is an educationally empowered Muslim community not an asset for India? These questions are waiting to be answered.

The author is a Lecturer, Department of Political Science, AMU, Aligarh
e-mail: afroz_alam2000@yahoo.co.in