AMU Minority Status | Day 4: Aligarh Muslim University voluntarily relinquished its minority status to the British government, argues UnionAMU Minority Status
Today, petitioners concluded their arguments in favour of retaining the minority status of Aligarh Muslim University (AMU). Advocate M.R. Shamshad, the last counsel to argue among the petitioners, argued on the group rights for minorities with a brief focus on institutions of “choice” under Article 30.
Attorney General R. Venkataramani argued on the valid circumstances under which a religious minority can exercise their right to establish and administer a minority institution under Article 30. Solicitor General Tushar Mehta argued that Aligarh Muslim University chose to surrender its minority status when it bowed down to the British legislation establishing the institution under the Aligarh Muslim University Act, 1920.
Shamshad: Religious minorities have group rights under Constitution
Shamshad argued that the Part III of the Constitution of India also recognises group rights to facilitate affirmative action. Group rights in the context of education would include institutions specifically catering to the educational needs of the Scheduled Caste, Scheduled Tribes, Other Backward Classes, and women. He provided examples of tribal colleges, women’s only colleges, and universities for OBCs. He argued that the Court should not treat Article 30 as exclusionary.
AMU was first known as the Mohammedan Anglo-Oriental College (MAO). According to Azeez Basha v Union of India (1967), AMU was a government-established university as it relied on central legislation to convert from MAO to AMU. Azeez Basha had recognised this as the moment when it “surrendered” its minority status. Repeating arguments made by his fellow petitioners, Shamshad pointed out that a minority institution which was founded and administered by minorities cannot lose its status once it entered the system.
Venkataramani: Article 30 can be exercised only if there is a legislation
Venkataramani argued that an institution under Article 30 could only be established and administered if there is an enabling legislation to allow it. Additionally, for a minority to form a minority institution they should be competent to establish it under said legislation.
Venkataramani added that the unfettered right under Article 30 does not absolve them from having to abide by other “constitutional demands and requirements” about reservation. In his written submissions Venktaramani said, “the choice aspect of institutions does not exempt the minority from constitutionally sanctioned regulations or constitutional prescriptions which are themselves as important as the choice.”
Justice Sanjiv Khanna pointed out that the Attorney General’s argument that Article 30 would be considered inoperable without an enabling statute, would render the fundamental right subordinate to a statutory legislation. Chief Justice D.Y. Chandrachud added that Venktaramani’s argument would extend to all educational institutions and not just universities. This would mean that religious or linguistic minorities would be unable to establish schools in the absence of a statute.
Venktaramani agreed with the observations made by the two judges, viewing it as a sound interpretation of the law. Venkataramani pointed out that the National Commission for Minority Educational Institutions Act, 2004 was a statute that would facilitate the exercise of Article 30.
Mehta: AMU chose to be established under imperial legislation
Mehta argued that AMU surrendered its minority institution to the imperial government under the 1920 legislation. During this time, feelings of nationalism and freedom struggle were at an all-time high leading several educational institutions to denounce the British government in protest. The Solicitor General described this group of universities and institutions as “nationalists,” in contrast to the “loyalist” universities which chose to be recognised under the British government.
Mehta submitted names of different institutions such as Jamia Millia Islamia University (JMIU), Vishwa Bharati University, and Indian Institute of Technology, Roorkee, which did not “succumb” to the British government. They continued to be independent and then came to be recognised as universities under the University Grants Commission (UGC).
Further, the Solicitor referred to the famed “Aligarh Split” where a “loyalist” faction of MAO College, led by Mr. Shafi, wished to cooperate with the British government. The “nationalists” led by the Ali Brothers fought to retain the Islamic character of the institution. In fact, it was Mr. Shafi himself who introduced the draft AMU Bill to a Select Committee later in 1920. This split resulted due to hostility between the two groups. Unable to reconcile with the impact of the 1920 Act, the Ali Brothers established Jamia Millia Islamia University (JMIU), refusing to give themselves up to the British government. He argued that AMU chose to “voluntarily surrender”—clear evidence that they had relinquished their minority status.
Mehta argued that Azeez Basha, was correct as it recognised the options which AMU had in 1920. It could either be a religious institution with an affiliation with another university i.e. Allahabad University, or it could surrender its minority status to the imperial government
Article 30 did not exist at the time, and there, was no concept of a minority religion during British rule. Mehta argued that the historical context of AMU needs to be considered before examining the correctness of Azeez Basha.
CJI Chandrachud countered that siding with a government or being a “loyalist” does not necessarily mean that AMU denounced its minority status. He pointed out that being against the government is not a prerequisite for being a minority institution. Mehta responded that Azeez Basha explicitly stated that the loyalists surrendered their rights. Mehta clarified that AMU reserved the right to make its political stand known if beneficial, however, such a choice would mean that its minority status would immediately cease.
Much of the resources that the Solicitor General relied on in today’s hearing were from books narrating a historical account of the institution. During the course of the hearing, the Chief cautioned Mehta to refer less to books which serve as “secondary sources” and instead rely on official, primary sources. Often these books are authored by people belonging to “both sides of the spectrum”, the Chief said.
Mehta: British government made it clear that it had AMU’s control
Next, following his signature style of argument, Mehta took the Court through an elaborate list of dates beginning from 1870 to 1920. His next argument relied strongly on events leading up to the 1920 legislation.
Arguing that AMU’s origins were not only connected to its Muslim benefactors, Mehta pointed out that several donors, including Hindu Maharajas, contributed to the funding of the MAO College in Aligarh. Further, the land on which the college was built was donated by Lieutenant Governor Sir John Strachey. This is in stark contrast to arguments by petitioners who claimed that AMU was established with funding, money, and property owned by MAO College.
Mehta pointed out that the British government made it expressly clear that the university would be established under the sole condition of it not being a religious institution. It would be controlled by secular or non-minority authorities.
Mehta stated that after the AMU Act, the body governing MAO College was dissolved and a new body was “born.” Reading aloud the objectives of the AMU Act which expressly dissolved the societies that governed the MAO College, he pointed to Section 4 which stated that the property which belonged to the MAO College was transferred to the University with the introduction of the AMU Act. Next, Section 6 of the AMU Act required that all degrees, diplomas, and academic distinctions awarded to students be recognised by the Union government.
Mehta repeated his arguments from before and contended that MAO College had the choice to retain its minority status as JMIU decided to do. JMIU was then recognised under the UGC in independent India, he contended. Justice Khanna jokingly pointed out that the Solicitor’s arguments may have a bearing on another pending case regarding the minority status of the JMIU.
The Bench will continue hearing arguments on 24 January 2024.