Long before Dr Faizan Mustafa was appointed vice chancellor of NALSAR University of Law, Hyderabad, he was Dean, Faculty of Law, and Registrar of Aligarh Muslim University. Recently, in Supreme Court, Attorney General Mukul Rohatgi made submissions tantamount to denying the minority status of AMU. In this interview with Scroll.in, Dr Faizan lays out the history of AMU, its long battle to retain its minority status, and why Rohatgi has got his argument all wrong. Excerpts:

What was the position of the Aligarh Muslim University Act, 1920, and the various amendments to it over the years, regarding the institute’s minority status?

In 1950, India adopted the Constitution. Article 30 of the Indian Constitution gives the minorities the right to “establish and administer educational institutions of their choice”. There are three terms in the sentence – “establish”, “administer”, and “of their choice”. Fundamental rights are available to pre-Constitution institutions also – and, therefore, to Aligarh Muslim University as well.

Article 30 is the only fundamental right which is not subject to any restrictions. By contrast, for instance, Article 19 (1) (a) guaranteeing the right to freedom of expression has as many as eight restrictions. There are jurists who, therefore, say that Article 30 gives absolute right. However, in the TMA Pai case, the Supreme Court said that this absolute right did not mean that there was no restriction.

Didn’t it mean restrictions such as, say, maintaining hygiene or meeting sanitary standards?

Yes, but otherwise the right under Article 30 is absolute. The Supreme Court has also said that if you have established a minority institution, then you have the right to administer it. This institution, which is today called Aligarh Muslim University, was established after 1857 (the revolt), when Sir Syed Ahmad Khan and other Muslims realised that the British government was here to stay, and that any participation in government had to be through education. So they formed a Society for the Diffusion of Western Learning among Muslims. Thereafter, they invited essays on the theme of why Muslims are educationally backward.

You mean to say that there was an essay writing competition.

Yes, and as many as 25 essays were received. Each and every essay said Muslims were not making use of government educational institutions. This was because, the essayists said, Muslims believed that if they were to go to government institutions, where no religious instruction could be imparted, their commitment to their religion would be adversely affected. Therefore, the need was to establish an institution which could provide western learning and also (Islamic) theology.

But this kind of education (secular and religious together) could only be given in a minority-established institution. However, when they went to the District Collector to secure permission for setting up a university, he advised them to proceed gradually – that is, first establish a school, then a college and, finally, a university.

They set up a school, which was upgraded to college in 1877. It was called Muhammadan Anglo-Oriental College. During the foundation-laying ceremony itself, the then Viceroy and Governor-General of India (usually shortened to Viceroy) came. In his presence, Sir Syed said that their intention was to establish a university. Thereafter, this wish was reiterated every year, in the presence of the viceroy who would visit the college, which soon acquired tremendous reputation. Government too supported conversion of college into university.

In 1898, Sir Syed died. At his condolence meeting it was said that the most befitting tribute to the departed founder would be to realise his lifelong wish to turn the college into a university. It was decided to raise funds and approach the government.

Why did they decide to approach the government?

Oh, this was because a university could be established only by invoking the sovereign power of the state. This was then done by getting a royal charter or by having an Act passed by the legislature. Parliament was not there then; what India then had was the Governor-General in Council.

The government asked the Muslim leaders to raise Rs 30 lakh. This was because the government support was minimal then. There was also a debate whether or not AMU should be an affiliating university. People wanted all Muslim degree colleges of India to affiliate with AMU. The government, however, advised them to opt for a smaller unitary university where it would be easier to maintain standards. In order to give the university adequate status, the community wanted the Governor-General to be the Chancellor. Though reluctant, the government ultimately agreed – so the Governor (of United Provinces) became the rector and the Governor-General the Visitor, which is now the President of India.

It was in 1920 that the Aligarh Muslim University Act was passed to incorporate AMU.

Did the Act explicitly reflect AMU’s Muslim character, or stated that it was a minority institute?

In the annexure of this Act there is a list of 124 founder-members, all of whom are Muslim. The Act also provides that Muslim students would be given compulsory religious instruction. It also said that the university’s supreme governing council called Court was to be an exclusive Muslim body, empowered to elect the Vice-Chancellor.

The Act also stated that adequate purdah arrangement will have to be made for Muslim women students and they could be exempted from public lectures. Thus, it was a Muslim institute which was upgraded from college to university in 1920. From 1920 till 1950, there was no problem.

So what changed after the Constitution was adopted in 1950?

In the Constitution, universities as an item of legislation is listed in the State List, thus giving the state legislatures the power to pass laws regarding them. However, AMU, Banaras Hindu University and Delhi University are mentioned in Entry 63 of the Union List.

Since all pre-Constitution laws had to be made consistent with the Fundamental Rights (required by Article 13), the AMU Act was amended. Thus, the provision of compulsory religious education in the 1920 Act was in contradiction with Article 28 (3), which said that no person attending any educational institution receiving aid out of state funds shall be required to take part in any religious instruction imparted in such institution.

So the AMU Act was amended in 1951 to make compulsory religious instruction optional. It did not say that no religious instruction could be imparted, as is the case in state institutions under Article 28(1). This means that had Parliament treated it as a non-minority institution, the right to impart even optional religious instruction would have been taken away.

The other amendment was to do with the University Court. The government said that between 1920 and 1950 there had been massive Muslim presence in the Court. Why, then, have an exclusion clause barring non-Muslim members from the Court?

So when did the minority character of AMU become contentious?

In 1965, a controversy arose over external and internal reservations in AMU. Then AMU reduced the internal or institutional reservations from 75% to 50%.

[Interviewer’s note: AMU, as of now, allocates seats in BA and MA course in the following proportion – 40% for internal students, 40% for external students, and 20% covers eight categories such as children of employees and old students, students from disturbed states, Scheduled Castes, Scheduled Tribes, etc. For BA, internal students are those who have studied in the AMU-run five schools. For MA, internal students are those who did their BA from AMU. All students have to take the AMU entrance examination and the merit list for each category is prepared. For medical, engineering, bio-tech courses, seats are shared equally between internal and external students.]

The reduction in internal reservations led to protests and violence on the campus. Vice-Chancellor Ali Yavar Jung was assaulted. In response, the government promulgated an ordinance in 1965. The ordinance was followed by an amendment of the AMU Act, which said that the University Court was not to be the supreme governing body, but merely an advisory one to the Visitor and the Executive Council. The composition of the Court was also altered and both Court and the Executive Council were packed with the nominees of the President of India, the Visitor.

Some Muslims without consulting AMU went to the Supreme Court…

Who were these Muslims?

Nobody really knew them. They weren’t prominent. S Azeez Basha was one of them. They went to the Supreme Court saying Parliament didn’t have the power to pass the 1965 Amendment Act as it impinged on the right of the minorities to administer their institutions. In the process, the petitioners also challenged the 1951 Act, saying the clause pertaining to its Muslim character had been removed. In 1967, the Supreme Court delivered its judgement, now known as the Azeez Basha judgement.

The Supreme Court went into AMU’s history. They accepted that Muhammadan Anglo-Oriental (MAO) College was the nucleus of AMU, that MAO was established by Muslims, that it was a flourishing institution in 1920. But it also said that AMU wasn’t a university before 1920, which is when it became one through the 1920 Act. The Act was passed by the Governor-General in Council. (It was the legislature.) However, the court said that under Article 30, the state legislature (because of the secular character of the Indian state) cannot establish a minority institution. This is what Attorney General Mukul Rohatgi too said to the Supreme Court on January 11.

In the 1967 judgement, the Supreme Court said that since the legislature, not the Muslims of India, established AMU, they did not have the right to administer AMU. So the taking away of the powers of the Court, or the packing of the Executive Council with the President’s nominees, can’t be the grievance of the petitioners, because they didn’t have, to begin with, the right to administer.

Do you feel the 1967 judgement was wrong?

Yes, this is because AMU wasn’t a party in the 1967 case. My grievance is that the Supreme Court can’t take away the minority status of an institution without even giving it a hearing.

The whole basis of this judgement is that “in the face of the Act” (Supreme Court’s words) it isn’t clear that the Muslim minority established it. After quoting the rather long title of the Act, which said that whereas it is “expedient to establish and incorporate Aligarh Muslim University”, the Supreme Court said AMU was established by Parliament. The court then went to argue that since Muslims did not establish AMU, they did not have the right to administer it.

However, the judges admitted in Basha that the term educational institution in Article 30 does include university. Therefore, there can be no doubt that there can be a minority university. Universities are to be incorporated under a central or state Act.

Did the judgement spark off a movement?

Yes, the old boys of AMU and other well-wishers started a movement for restoring to AMU its minority character. This movement continued till 1981, when the government accepted the demand. It said that the Supreme Court did not understand what the intention of the legislature was in 1920, because of the confusion over the word “establish” in the long title of the 1920 Act. It also said that since the Act did not provide a detailed narrative of how the university came into being, what was implicit was to be now made explicit.

Were these changes incorporated in the 1920 Act through the 1981 amendment?

Since the 1920 Act did not explicitly convey the idea that AMU and MAO were one and same, the government deleted the word “establish” from the long title of the 1920 Act. In the definition – 2 (L) of the AMU Act – the amendment said “the university” means an educational institution of their choice established by the Muslims of India, which originated as MAO college and was subsequently incorporated as AMU. This is how it stands today.

They added what is now Section 5 (2) (c). It gives the university the power to promote especially the cultural and educational advancement of the Muslims of India. They also restored to the Court the powers granted to it by the 1920 Act. It was, once again, back to being the supreme governing body. The amendment also ensured Muslim presence in the Court and gave it a role in the appointment of the Vice-Chancellor.

When Parliament overturns a Supreme Court judgement, it does bare minimum. They did not touch all the aspects relating to “administer” except restoring powers of the Court and few other matters. This was because in Basha the Supreme Court had ruled that an institution can administer if it can prove that it was established as a minority institution. This the amendment of 1981 clearly showed now. From 1981, it was absolutely clear that AMU was a minority institution. Since the 1981 amendment was a declaratory law...

What do you mean by declaratory?

A declaratory law is always retrospective. It may clarify certain provisions. This means the 1967 judgement is gone and AMU, since 1920, is a minority institution.

Did AMU not have a quota for Muslims right through?

You see, AMU was established as an institute of excellence. There was an institutional quota. However, over the years, the all-India character of AMU was coming under strain. There were many reasons for it, but prime among these was the emergence of several centres of excellence in different parts of India. The consequence was that instead of catering to the needs of Muslims of India, AMU was confined to servicing the districts of West Uttar Pradesh and Aligarh. The main beneficiaries of institutional reservations were the sons and daughters of AMU employees and those who had studied in the schools of AMU.

A number of committees went into this issue. Till 1993, when the St Stephen’s case was decided, it wasn’t clear whether there could be reserved seats for the minorities who had established the institute. This clarity wasn’t there because Clause 2 of Article 29 says that any educational institution which receives aid by the state cannot deny admission to students on grounds of religion, language or caste, etc. Like St Stephen’s, AMU is a state-aided institution. This clarity was for the first time provided in 1993, and the Supreme Court ruled that an institute could reserve 50% of seats for the community which established it.

The saner elements in AMU said that in order to preserve its all-India character, it was perhaps better to have reservations for Muslims instead of having it for internal candidates. But there were others who thought otherwise, and preferred internal reservations.

What was the reason for this difference of opinion?

This is because if you have Muslim reservations, then many internal candidates will not make the cut. The AMU reservation policy – and I say this with complete sincerity and without any fear of contradiction – is the only policy in the history of affirmative action in the world that intends to take the more meritorious instead of the less meritorious. All reservation policies cater to the unequal, or admit students who scored lower grades than others, to bring them on par. AMU’s Muslim category is a superior category, the internal was an inferior category.

Why do you say that only internal candidates stand to gain from the existing admission policy?

This is best illustrated through an example. For MBBS, 1,700 internal students compete for 75 seats, and 50,000 students compete for the other 75. When the Muslim quota was brought in for the first time in 2005, not a single internal Muslim candidate qualified in MBBS in the Muslim quota. The person who was last in the Muslim quota was still far ahead of the student who was first in the internal quota.

Wasn’t the Muslim quota challenged in the same year?

Yes, and a stay was put on the new admission policy. It is interesting to examine the basis on which the Muslim quota was challenged. For the MD and MS (postgraduate in Medicine and postgraduate in Surgery) courses, the Supreme Court’s position for many years had been that 75% of seats would be reserved for internal students, and the remaining seats for students who take the all-Indian examination conducted by AIIMS (All India Institute of Medical Sciences).

In 2004, however, the Supreme Court revisited the MD-MS admission policy in the Dr Saurabh Choudhary case. In accordance with the judgement in this case, the Directorate of Health reduced the 75% institutional quota to 50%. It was after this that AMU, claiming to be a minority institution, demanded a quota for Muslims. AMU students stood to lose. Earlier, 75% of seats were reserved for them. But following the new admission policy of 2005, 50% of seats were reserved for Muslims, 25% for all-India candidates, and only 25% for internal candidates.

Why? After all, internal students could also qualify for the Muslim quota.

Only those among them who were Muslim. The non-Muslim internal students went to the Allahabad High Court, saying their chances of getting admission to the MD course in AMU had been reduced. The single judge, Arun Tandon, in 2005, said he was reading down the 1981 Amendment Act. Sometime the courts don’t strike out the law but read it down.

What is the difference?

This means the law is saved (that is, it is not deemed unconstitutional) but its impact is reduced. He said that the 1981 Act merely establishes that MAO was established by the Muslims of India, not that the university was established by them.

So he delinked AMU from MAO?

Yes, he delinked it. Further, he said the minorities cannot establish a university; at best, they can establish a deemed university. His argument was that a full-fledged university would require a legislative Act (thereby saying Parliament can’t establish a minority institution). As a consequence, government of India and AMU went in appeal to the divisional bench of the Allahabad High Court. The two-judge bench delivered its judgement in January 2006.

That is quick, isn’t it? The students challenged the quota in 2005, Justice Tandon reads down the 1981 Act and a two-member bench delivers it judgement in 2006.

Yes, it was quick. The two-judge bench said that religion-based reservations were wrong even though there was a notification from the HRD Ministry permitting it. The AMU had gone to the Union government and after looking at the AMU Act, the ministry said that since AMU was a minority institution, it was entitled to reserve 50% of seats for Muslims. This notification was quashed.

When a person goes to the court, it asks for X, Y, Z to be done. Neither before the single judge nor before the divisional bench, the students who had questioned the Muslim reservations claimed that the word “establish” which had been deleted in 1981 was wrong. There was no request made, but the court did strike it down on its own. It went beyond the pleadings. The divisional bench said it agreed with the single judge, but said it would go a step further.

What was that step?

It said Parliament did not have the power to pass the 1981 amendment Act. So they held unconstitutional the deletion of the word “establish”, the narrative linking MAO to AMU, and the provision that said AMU has the power to “promote the educational and cultural advancement of the Muslims of India”. It quashed the amendment Act that had unambiguously restored to AMU its minority character.

The irony is that the appeal to the Supreme Court is not about the minority character of AMU, but about the power of Parliament to legislate on it.

So how do you react to Attorney General Mukul Rohatgi telling the Supreme Court on January 11, “As the executive government at the Centre, we can’t be seen as setting up a minority institution in a secular state”?

It seems the learned Attorney General has got it wrong. It is his duty to defend the right of Parliament to legislate.

So what you are saying that Rohatgi is not defending the right of Parliament to enact law as far as AMU goes, right?

Yes, that is what I am saying. The High Court, after all, ruled that Parliament didn’t have the power to pass the 1981 Amendment Act. Even in Basha, the right of Parliament to amend the AMU Act was upheld. That is why the Supreme Court said the amendment was constitutional, and it was so because Parliament had the power to amend the AMU Act.

So there is a contradiction in his position?

Yes, yes. But let me take you through other, finer details. The Allahabad High Court judgement says that AMU had a character in 1950, which was incorporated into the Constitution as Entry 63 of the Union List, and that this character can’t be changed by the 1981 amendment. Two issues arise. One, the character of AMU in 1950 is independent of the amendments of 1951and 1965. The very nomenclature of the university – Aligarh Muslim University – conveys the sense of it having a Muslim character.

Two, the legislative entries are the field of activities. By his submission, Rohatgi is freezing the field of activity and taking away from Parliament the power to legislate. This means the same will apply to Banaras Hindu University and Delhi University. In other words, the government can’t make laws regarding them as well. But both were not parties to the case in the Allahabad High Court. So how can their rights be taken without hearing them, just as AMU was not heard in 1967?

Three, the High Court also said that the 1981 Amendment Act was a brazen overturning of the 1967 Supreme Court judgement by Parliament. Recently, the government issued an ordinance overturning the Supreme Court judgement in the Jallikutta case. It is a different matter that the Supreme Court has stayed it. The overturning of judgements happens every day. Parliament does this by removing the basis of the judgement. The basis of the Basha judgement was that from the AMU Act of 1920 it was not clear whether Muslims had established it. As I have pointed out earlier, Parliament clarified in 1981 as to who established it. From this perspective, the 1981 Act is completely constitutional.

But the issue here is whether a minority institution is empowered to have a policy of religion-based quota.

Minority institutions are different from state institutions. Many people have this confusion that religion-based reservations can’t be there. But this prohibition pertains to state institutions. For instance, Delhi University can’t have reservations for any religious community.

Minority institutions can be either religious or linguistic. Most minority institutions in India are not religious but linguistic minority institutions. For instance, we have about 100 Sindhi minority institutions in the country, including good many medical colleges. If I am a Brahmin of Uttar Pradesh and I come to Hyderabad and wish to set up an educational institution in Hindi medium, then it would be a minority institution. Minority is defined at the level of states.

Likewise, if a Marathi or a Telugu community establishes an institution in Delhi, it would be a minority institution. It would be allowed to reserve seats for the community which established it. There is no communal angle in the minority rights.

The protection in the Constitution is granted to preserve the diversities of India. You can’t protect the language or script or culture (Article 29) if you don’t have public spaces for it to flourish. This isn’t possible if a community, either linguistic or religious, doesn’t have members preserving it. This is possible only through minority institutions.

What explains for Rohatgi’s submission to the Supreme Court?

Either he wasn’t briefed properly or the government hasn’t taken a reasoned, deliberated decision. Parliament can legislate to promote rights under Article 30.

Do you have the apprehension, as so many Muslims have, that the current government seeks to change the character of AMU?

I think they may have a problem with the word Muslim…

May?

That is because I can’t see any other reason for Rohatgi’s change in stance will damage prime minister’s image and commitment to diversity. (That is change in the stance of the Union government from the time the United Progressive Alliance presided over it.)

So you think Rohatgi, or rather the government’s problem, arises because of the Muslim character of AMU?

I don’t know. But I do think the government is missing out the opportunity to reach out to Muslims. It could have done this by saying that it did not agree with the Allahabad High Court, and that it is a historical fact that AMU is a minority institution.

But how could it have reached out to the Muslim community? The entire Hindutva campaign targets the community.

Since AMU is also a symbol of Muslim identity, it presented the government the opportunity to reach out to the community.

And that opportunity the government…

I think they have lost it. In its appeal, both AMU and the government have said that all the facts were not before the Supreme Court in 1967. The University was not a party in it. After all, the request to the Supreme Court is to simply reconsider the Basha judgement, which has been criticised by all legal luminaries. For instance, HM Seervai, who is India’s greatest constitutional author, in his criticism said, “The 1967 decision of the Supreme Court is protective of great public mischief and must be overruled.”

So the government could have asked for a seven-judge bench of the Supreme Court to hear the appeal. (The one which heard Basha was a five-judge bench). Assuming it rules against AMU’s minority character, despite the 1981 Amendment Act, the government could have taken the plea that it tried but was now helpless against the verdict. So politically too, it was a wrong decision.

Ajaz Ashraf is a journalist in Delhi. His novel, The Hour Before Dawn, has as its backdrop the demolition of the Babri Masjid. It is available in bookstores.