Attorney General Mukul Rohatgi's stand that AMU is not a minority university reveals the anti-minority stand of the political party now in power, says Mohammad Sajjad, outlining the long history behind one of India's premier universities.
On January 11, 2016, the attorney general of India, Mukul Rohatgi, stated before the Supreme Court: '...Aligarh Muslim University is not a minority university. As the executive government at the Centre we cannot be seen as setting up a minority institution in a secular State.'
This was the first hearing of the case in which AMU and the Union of India had jointly appealed against Justice Arun Tandon's verdict in the Allahabad high court delivered on October 4, 2005. That ruling had struck off the 50 per cent reservation for Muslim minorities, implemented only that year, for the first time.
Thus, one of the two appellants, the Union of India, has, after remaining an appellant for more than a decade, has now withdrawn. The lone appellant left, the AMU, will fight the case with its advocates in the Supreme Court.
The attorney general's stand reveals the anti-minority stand of the political party now in power. This politics of minority-bashing comes as no surprise. Since the issue is sub judice in the Supreme Court, it would be absolutely inappropriate and unwise on the part of Muslims to launch any political agitation.
However, the text of Justice Tandon's judgment of 2005 is something one should read and understand carefully. He had stuck more to the Azeez Basha vs Union of India case of 1967. Which is rather surprising, because the AMU Amendment Act of 1981 clearly says, i. It was 'established by the Muslims of India'; ii. The AMU court will be the supreme governing body; and iii. It will 'promote the educational and cultural advancement of Muslims of India.'
But Justice Tandon had chosen not to touch upon the Act of 1981 which acknowledges the historical truth that Muslims established the university.
More intriguing is the role of sections of the media which have started debating whether religion-based reservation is valid, whereas the case here was substantially different. The case in point is whether the AMU is a minority institution.
If it is a minority institution, then, Constitutionally, the reservation for Muslim minorities would be valid, in consistence with Article 30(1) of the Constitution of India. Now, the point is, how can we argue that AMU is a Muslim minority institution?
And here the debate goes into the domain of history.
Historically, the MAO College was established by Muslims and upgraded to the status of University in 1920 {section 23(2)}, with the struggle of/for the Muslims. The non-Muslim donors had the same objective: Educational advancement of Muslims.
The objective of the AMU Act 1920 was 'to establish and incorporate a teaching and residential Muslim university at Aligarh and to dissolve the societies registered under the Societies Registration Act, 1860, which are respectively known as the Muhammadan Anglo-Oriental College, Aligarh, and the Muslim University Association, and to transfer and vest in the said university all properties and rights of the said societies and other Muslim university foundation committees.'
In August 1920, speaking on the AMU bill in the Central Legislative Council, the then education member, Sir Mohammed Shafi, categorically said: 'The Government of India hopes to give substantial financial assistance to the proposed university in order to mark their own goodwill towards an institution which they earnestly hope will be a source of immense benefit to the Indian Muslims.'
It is, therefore, rather more appropriate to revisit the history of the Aligarh Muslim University, because it is history which will determine its minority status.
The earliest scheme for a Muslim university at Aligarh was set out in the 1870s, but for all practical purposes the idea was more a metaphor than a political programme till Sir Syed's death on March 27, 1898.
In 1898, one Rafiuddin Ahmad had clearly explained what kind of university the Muslims had in mind. And that was for a 'secular, modern university of/for Muslims, though avoiding parochialism' -- it had to be universal and inclusive in its admission and recruitment policy.
It was reiterated in the session of the Mohammedan Educational Conference at Lahore in December 1898. Morison (1863-1936) also said it was to be a 'university for Indian Muslims.'
Sir Ziauddin (1878-1947) visualised it to be a strictly residential university with power to affiliate other Muslim minority colleges in India.
In March 1899, Theodore Beck (1859-1899) presented a rough sketch of the Muslim university based on an expanded Aligarh College. 'Our university,' he said, 'is to give a liberal education to the upper and middle classes of Mohamedans and to train scholars...'
Sir Syed's first death anniversary (1899) was chosen as the date to hold meetings all over the country to raise funds for the Muslim university.
One of the companions of Sir Syed, Samiullah, called on the nawab of Rampur for financial aid and also to ensure Muslim control of the MAO College. Theodore Beck, Mohsinul Mulk (1837-1907) etc joined the campaign.
It was Aftab Ahmad Khan (1867-1930), an alumnus of the college, who formed the Sir Syed Memorial Fund to raise the college to university and also to pay off the debts of the college due to financial embezzlement and falling enrolment in the late 1890s.
Mohsinul Mulk as the president (and Aftab was the secretary of the Sir Syed Memorial Fund) undertook an all-India tour to raise funds and to establish an endowment of Rs 10 lakhs. Shaukat Ali (1873-1939) was also in the SSMF.
Badruddin Tyabji (1844-1906), once president of the Indian National Congress, contributed Rs 2,000 to the fund.
In the same year the Old Boys Association was formed which launched its own campaign to raise funds for the Muslim university, where one per cent of the income had to be contributed by the alumni for the purpose. (This contribution helped to pay salaries of the employees of the college also).
Aftab Ahmad formed the 'Duty Society,' sending students to 'beg' during their vacations. Aftab had also joined the Indian National Congress.
Thus, as much as three, four bodies came up to raise the MAO College to the status of a university for Muslims -- the Sir Syed Memorial Fund, the Old Boys Association, the Mohammedan Educational Conference, the Duty Society, etc.
That is why Mohammad Ali Jauhar (1878-1931) said in no uncertain terms, 'The idea of a Muslim university had been generated by a popular movement. Aligarh's is the people's very own institution.'
During 1910-1912, a friendly competition to raise funds took place between the Banaras Hindu University and the AMU. The Aga Khan visited Banaras and contributed some amount to its fund. This was reciprocated by the Maharaja of Darbhanga, who visited Aligarh.
The incentive that the AMU will have the authority to affiliate the (Muslim) 'minority' colleges (then we did not have the Constitution and its Article 30 nor did we have any minority rights discourse in world politics), all over the country, injected enthusiasm among the rapidly emerging aspirants of modern education among Indian Muslims.
Consequently, the funds started pouring in. Several landed aristocrats of Muslims contributed lakhs of rupees. The Raja of Mehmoodabad in August 1911 and Syed Aziz Mirza in August 1912 came out with the draft constitution for AMU to be controlled by Muslims even though non-Muslims could very well get admissions.
Then the viceroy proposed that he would be the chancellor and appoint visitors to all the universities to enquire into university affairs, which would advice the courses of study, academic regulations, etc.
The viceroy also clarified that the court of trustees of the proposed AMU would constitute exclusively of Muslims who would elect 25 members of the executive council, each having a term of three years.
This arrangement was made for the proposed AMU with the express purpose of making it truly a Muslim-controlled university. Then the education member in the viceroy's council, Butler said, '...It was now up to the Muslims to raise the money and put together an acceptable constitution for the AMU to define the composition and principles of functioning of the AMU.'
Accordingly, a Muslim University Foundation Committee was formed in 1912, whose members were towering nationalists like Maulana Azad, Mazhar ul Haq, Mohammed Ali Jauhar. (Interestingly, the Aga Khan, in his autobiography, records the date of AMU having been granted in 1912 itself).
But this proposed university was not given the mandate to affiliate other Muslim 'minority' colleges of India, hence leading to divided opinion within the committee. Meanwhile, on October 1, 1915, the BHU Bill was passed, leading to desperation among Muslims to get a similar status for the proposed AMU.
Therefore, Maulana Azad (1888-1958), Hasrat Mohani (1875-1951), M A Ansari (1880-1936) all pressed to accept whatever they are getting. On April 10, 1916, the AMU Foundation Committee met to ratify the acceptance of the university and on December 1, 1920, the MAO College finally got upgraded to become AMU through an Act of the central legislature and started functioning as such from December 17, 1920.
The Act provided for the AMU court as the supreme governing body, which comprised Muslims only. It also said that 'it meant to establish and incorporate a teaching and residential university at Aligarh' and that 'it transferred and vested in the university all properties and rights of the MAO.'
It should be specifically remembered that many other universities were established during the period such as Patna, Lucknow, Dacca, etc. None of them was given that special status which was conferred upon AMU. Dacca University was brought to satisfy Muslim demand ever since the annulment of the partition of Bengal in 1911. Yet, Dacca University was not given a Muslim character/status.
This presentation of AMU's history clearly proves that it was established by Muslims and therefore the Act of 1920 granted the right to administer it to Muslims.
It has been said earlier (October 20, 1967) and in the judgment of the Allahabad high court (October 4, 2005) that if the words 'established' and 'administered' were to be read conjunctively, then the judgment reads that the AMU had 'willingly surrendered its right to be administered by the Muslims' in 1951, hence this 'disqualifies it to be a minority institution'.
This point needs some clarification. First of all, the right to administer was not surrendered, the exclusive Muslim composition of the AMU court was changed by a bill in 1951 (this was during a kind of 'interim' government, as the first general election took place only in 1952) piloted by Nehru, Maulana Azad. (The then VC of AMU was Dr Zakir Husain).
This exercise was done in the right spirit, in a definite historical context when the country was divided along communal lines.
A wrong reading of history had placed the guilt for India's Partition squarely on Muslims alone. Therefore, it was the right thing to change the social composition of the AMU court, but in no way should it be read as surrendering the minority character of the institution.
This point emerges even more strongly, when in the subsequent period we would come out with our Constitution which, vide Article 30(1), provides that:
'All minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice.'
'The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.'
The problem started in 1965, when through an amendment of the Act, the AMU court was reduced to a nominated advisory body and the vice-chancellor and the members of the executive council all had to be nominated by the visitor (the President of India).
This was further confounded by the outrageous remark of the then education minister, M C Chagla, who said that 'AMU was not a minority institution and that it was neither established nor administered by the Muslims' and the same voice was echoed, two years later (October 20, 1967) by the five-judge bench of the Supreme Court with Justice K N Wanchoo as the Chief Justice.
The verdict practically nullified Article 30 of the Constitution. It also severely encroached upon the autonomy of universities, a sine qua non for modern civilisation. Outraged by it, H M Seervai, the famous Constitutional lawyer and author of a book on Partition, remarked that the judgment was 'wrong and productive of grave public mischief and it should be overruled.'
There is an oft-quoted statement by the famous historian and the then member of the Rajya Sabha, Tara Chand (1888-1973): 'It will be a falsification of the history of India if it is asserted from any quarter that the AMU was not established by Muslims, and primarily for the educational advancement of the Muslims of India...'
Then the government appointed a committee in 1970-1971, which recommended: 'Notwithstanding any judgment, decree or order of any court or tribunal to the contrary, the AMU shall be deemed to have been established by the Muslim minority of India as an educational institution of its choice, and shall be administered and managed as provided for in the Articles 29 and 30 of the Constitution.'
But the 1972 amendment act failed to take this recommendation into account. It snatched away the minority character and also violated the principle of autonomy for universities by giving tremendous power to the VC.
Even the Communist Party of India-Marxist and the Aligarh Study Centre of Irfan Habib and K P Singh opposed the Act which snatched away the minority character of AMU, and their pamphlet said it amounted to 'playing with Hindu communal sentiments.'
To rectify all these anomalies (which denied the historical truth of Muslims being the founders of the institution and snatched away the Constitutional guarantee of minority rights), the Act of 1981 was brought in. It clearly stated that AMU was established by Muslims, the AMU court would be the supreme governing body and it will promote the educational and cultural advancement of the Muslims of India.
Since the Supreme Court's judgment pertaining to a Christian minority college (St Stephen's College, Delhi) provides for 50 per cent reservation for the concerned minority, it was well within every kind of justifications that the AMU could have 50 per cent reservation for Muslims.
Therefore, the AMU reserved the seats, that too after obtaining a go-ahead from the Union government.
An objection was raised from certain sections (external link) that such an arrangement will lead to the consumption of the cake by the creamy layer of Muslims, as the minority character does not take into account its own backward castes.
While not disagreeing with this view, it should be emphasised that, neither the Supreme Court (in its St Stephen's College judgment) nor the legislature provides for the exclusion of the creamy layer of the relevant minority. And, most important of all, we perhaps don't have any such political demand.
Let us hope that a strong political demand for the exclusion of the creamy layer from reservations in all the minority institutions of India comes up sooner than later.
Thus, history does make out a case for the minority status for AMU, and hence it should be hoped that this specific history of the university will not stand falsified.
Mohammad Sajjad teaches history at AMU. He has authored two books: Muslim Politics in Bihar: Changing Contours (Routledge, 2014) and Contesting Colonialism and Separatism: Muslims of Muzaffarpur since 1857 (Primus, 2014).
