The assertion by Attorney General Mukul Rohatgi that the executive of a secular country cannot set up minority institutions and the Government of India is in agreement with the 1967 five-judge bench decision of the Supreme Court and two 2005 judgments of the Allahabad High Court in respect of Aligarh Muslim University has initiated a new constitutional debate in the country. Some of the fundamental issues involved in this historic case are: how a minority character of an institution is to be determined; who would determine this status; can citizens waive their fundamental rights; can parliament pass a law helping incorporation of a minority university; if a minority institution accepts governmental supervision in order to ensure efficiency of administration and safeguard itself from maladministration, does it loses its minority tag?
Indian secularism is indeed unique. Minority rights were given to promote secularism. Thus, parliament can pass a law like AMU (Aligarh Muslim University) Act or JMI (Jamia Millia Islamia) Act for protecting the educational interests of minorities. Even the majority community has been given some special rights. An annual provision of 45.5 lakhs and 13.5 lakhs out of consolidated funds of India for the maintenance of Hindu temples under Article 290A of the constitution, the special status of the cow and permission to keep kirpan in no way impinge on our secularism.
Article 30(1) gives minorities, whether based on religion or language, the right to "establish and administer educational institutions of their choice". Most minority institutions are institutions of linguistic minorities. Hindus too do run a number of minority institutions on the basis of their status as a linguistic minority in different states. The Supreme Court has held that the term "educational institution" includes a "university". Similarly, it said expression "of their choice" means "of their choice", and it is within the power of minorities to expand their choice as much as they want. It is thus possible for a minority community to choose a central university with some governmental supervision, and whose degrees are recognized at par with degrees of other universities.
In the memorable words of Justice H.R. Khanna in the St. Xavier's case, "These provisions enshrined a befitting pledge to the minorities in the Constitution of the country whose greatest son had laid down his life for the protection of the minorities. As long as the constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible..."
To say that the Aligarh Muslim University is not a minority institution is to restrict the ambit of Article 30 of the Constitution. The 11-judge Bench in the TMA Pai Foundation case has clearly held that the expression "educational institution of their choice" means education at all levels, which would certainly include universities. Even in the much touted Azeez Basha case (1967), the apex court had ruled that the expression includes "university". Thus, even a central university may be a minority institution if the law incorporating such a university has been passed by parliament. Union HRD Minister Smriti Irani on January 17 said that universities like AMU & JMI have been established by parliament, and therefore the government's stand is correct. The Supreme Court in the 1967 case has not ruled out possibility of a central university being a minority institution. It merely said that from the provisions of the AMU Act, 1920, it is not clear that it is a minority institution. This is the heart of this case. Can parliament help a minority community on the request of that minority, through a parliamentary law, to incorporate a minority university?
The Supreme Court's line of argument in the Azeez Basha case had been as follows: since parliament established Aligarh Muslim University, Muslims do not have the right to administer it. It is strange that Aligarh Muslim University was not a party before the Supreme Court, and thus, the full facts were not before the court. The conclusion of the court was primarily based on the provisions of the Aligarh Muslim University Act, 1920. To determine minority character, you cannot merely look at the law enacted by the legislature. In the St. Stephen's case in 1993, the Supreme Court held that St. Stephen's College is a minority institution and has apparently maintained its Christian character which is evident from its very name, emblem, motto, the establishment of a chapel and its religious instruction in Christian Gospel. Thus, the 1967 decision in the Azeez Basha case has been overruled by the court itself. If the tests laid down in the St. Stephen's case are applied to Aligarh Muslim University, it would certainly qualify as a minority institution. Even parliament, by giving centrality to the university mosque, has accepted its minority character.
The court in the Azeez Basha case in 1967, made some speculations and suppositions about the real intentions of the Muslim community without any reference whatsoever to the records. The court concluded that the Muslim community surrendered its minority character in lieu of recognition of degrees. Subsequently, a larger bench of the Supreme Court in the St. Xavier's case clearly held that no one generation of the minority can waive the fundamental rights of future generations. Thus, on this issue also, the 1967 decision of Azeez Basha has already been overruled by the apex court itself and is not law.
Parliament clarified doubts raised by the apex court through the 1981 Act by conveying that the Aligarh Muslim University had in fact been established by Muslims themselves as "an institution of their choice" and the legislature in 1920 merely incorporated it. As to the purpose of this university, parliament again made it explicit by laying down that it is to "especially promote educational and cultural advancement of Muslims of India".
Had the 1981 Act been before the Supreme Court in 1967, it would not have held that Aligarh Muslim University is not a minority institution.
It must be kept in mind that if a few provisions of the Aligarh Muslim University Act, 1920, or its amendments in 1951 and 1965 give excessive control to the government in the administration of the university, such provisions are to be struck down as unconstitutional as these provisions adversely impact minorities' right to administer. We cannot on the basis of these very provisions deny minority character to AMU. Minority status cannot be determined by looking at law. We need to look at the history prior to enactment of law. The best course would be treat these provisions as mere supervision by the government.
The apex court has consistently held, in a number of cases including the TMA Pai case, that minority institutions cannot be taken over by the government. Even governmental aid cannot come with such conditions as are destructive of minority character. There can be no nationalization of minority universities. Let the Supreme Court once again save the minority rights and the constitution and guide the nation at this critical juncture.
(Faizan Mustafa is Vice-Chancellor NALSAR University of Law and teaches Constitutional Law.)
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