Reopening a settled matter
Parliament has decided on AMU’s minority character. It is to be seen whether it stays protected, writes FAIZAN MUSTAFA
Aligarh Muslim University’s (AMU’s) minority character is in the news again. Smriti Irani, just four days before the cabinet reshuffle, had approved the Central government’s affidavit opposing AMU’s minority character. The case will come up for hearing in the Supreme Court on July 11. Most people including some top TV anchors are not aware that this historic case is not about the rights of minorities. The case is fundamentally about the powers of Parliament: Can Parliament, to promote fundamental rights, enact a law ‘incorporating’ a minority university? Does Parliament have the powers to overturn judicial decisions? Can a government in a parliamentary democracy refuse to defend Parliament in the court of law?
As many as five fatwas were issued against AMU’s founder Sir Syed Ahmed Khan, including one from Mecca, which declared: “This man (Sir Syed) is erring and causes people to err. He is rather an agent of the devil and wants to mislead Muslims. It is a sin to support the college. May God damn the founder! And if this college has been founded, it must be demolished and its founder and his supporters thrown out of the fold of Islam.” At a time when religious fundamentalism is on the rise and the country is debating whether to ban a fanatical Muslim preacher, the human resource development ministry’s affidavit is not only strange but hugely disappointing. This will close the doors of modern liberal education for thousands of poor Muslims.
What to say of AMU, even Banaras Hindu University was originally a minority university because the Hindus, too, in spite of their numerical superiority, were a minority in terms of powerlessness during the British regime. Article 30(1) of the Indian Constitution gives the minorities, whether based on religion or language, the fundamental right to ‘establish and administer educational institutions of their choice’. Thus, this right is available not only to the religious minorities like the Christians and Muslims but also to the Hindus wherever they are a minority. In fact, in some states like Jammu and Kashmir, Punjab and several north-eastern states, they too are a religious minority.
No one has ever doubted the minority character of Mohammadan Anglo-Oriental College (MAO College). The Supreme Court in 1967 and Allahabad High Court in 2005 admitted the so-called ‘deep green’ character of the college. The moot question is: Has the college on its conversion in 1920 into Aligarh Muslim University through an Act of Governor-General-in-Council lost its minority tag? Section 5 of the AMU Act says AMU shall inherit not only all debts, liabilities, etc. of the MAO College but also all its rights. Thus, common sense tells us that AMU has inherited the minority tag of MAO College.
Departing from its otherwise liberal approach of expanding the ambit of fundamental rights in general and minority rights in particular, the Supreme Court in 1967 opined that since the preamble of the 1920 AMU Act had stated that ‘whereas it is expedient to establish a Moslem University at Aligarh’, it is clear that the university was established by the government and thus it cannot be given minority status. Justice KN Wanchoo’s judgment has been criticised by all the leading jurists. In fact, HM Seervai, India’s greatest constitutional law writer, went to the extent of terming this regressive decision as ‘productive of great public mischief’. The Supreme Court itself in 1981 noted these criticisms and decided to have a fresh look at the decision by a larger bench.
In the meanwhile, Parliament took the initiative through an amendment in 1981 itself to clarify its intention and not only deleted the crucial word ‘establish’ from the preamble and the long title of the Act but also explicitly stated that AMU was an institution of their choice established by Muslims of India and it in fact originated as MAO College and was merely ‘incorporated’ and not really ‘established’. In 2005, the Allahabad High Court struck down this amendment and termed it as the ‘brazen overruling of judicial verdict’. Thus Parliament lost the case in Allahabad and the government of India, which is subordinate to Parliament, appealed to the Supreme Court on behalf of Parliament. In a parliamentary form of government, the government takes directions from Parliament because it is responsible to Parliament. The Central government’s affidavit has now abandoned Parliament’s cause and AMU has the onerous task to speak for Parliament. The government’s decision is legally untenable as Parliament’s power to amend the AMU Act, 1920, was upheld even by the Supreme Court in 1967.
How to decide the question of Parliament’s competence to legislate? The thumb rule is to see whether the subject concerned is within the competence of the assemblies. If the answer is ‘no’, Parliament’s jurisdiction cannot be challenged. Since AMU is mentioned in the Union List, the legislative competence of Parliament cannot be questioned. Now the next issue is: Does the 1981 amendment violate any fundamental right? The answer is a big ‘no’. It in fact promotes fundamental rights under Article 30. What the constitution prohibits is the violation of the fundamental rights by Parliament, not their promotion and realisation.
Finally, can Parliament overturn a judicial verdict by amending a law? The answer is ‘yes’. It routinely does so by removing the basis on which the judgment was rendered. This year itself the Central government overturned a Supreme Court decision on enemy property through an Ordinance and recently on UGC NET by mere UGC Regulations. The Vodafone judgment was similarly overturned during UPA rule by a retrospective parliamentary amendment. Whether the court rises to the occasion again and protects minority rights as it has been doing all these years remains to be seen.