AMU's Minority Character, the Judiciary and the
Dr Syed Zafar Mahmood
The citizens of India would be grateful to the Hon'ble Supreme Court for
very kindly taking note of the contents of this article vis-a-vis the
ongoing matter regarding the minority character of the Aligarh Muslim
2. The nation and the world are quite aware from duly recorded history
that in 1875 Sir Syed Ahmed Khan had established the Mohammedan
Anglo-Oriental College in Aligarh. It was originally affiliated with
Calcutta University and in 1885 its affiliation was shifted to the
MAO College: Tool of Muslim modernization
3. Since the last quarter of the 19th century this institution began
catalyzing the coming together of different schools of Islamic thought,
accelerated their movement toward modernity and spearheaded the Indian
Muslims' intellectual and social renaissance. It thus came to be
recognized as the fountain head of an intertwined dynamic Indo-Islamic
consciousness and quintessence.
The Aligarh Movement
4. Such affirmative squirming and twitching of Indian Muslims -
initiated by the legendary Sir Syed - came to be collectively known as
the Aligarh Movement. One of the foremost objectives of this movement
was to develop the MAO College into a university so that it could stand
on its own and play a bigger role in nation building by ameliorating the
Muslim educational backwardness. For that purpose the College added more
and more programs to its curriculum. During the first four decades of
its working, the institution had phenomenally grown up in academic
diversity, reputation and size.
Enactment only procedural in nature
5. As per the norms of governance prevalent at that time (which
incidentally continue till date) the only method of upgrading a college
to a university was to pass a statute to that effect in the legislature.
For passing such a statute there was no requirement that the existing
college should not have been established by a minority community. Thus
the Aligarh Muslim University Act was passed in 1920.
Properties of MAO College became AMU properties
6. Section 4(i) & (iv) of this original Act of 1920 says, "the Societies
known as the Muhammadan Anglo-Oriental College, Aligarh, and the Muslim
University Association shall be dissolved, and all properties, movable
and immovable, and all rights, powers and privileges of the said
Societies and all properties, movable and immovable and all rights,
powers and privileges of the Muslim University Foundation Committee
shall be transferred to and vest in the University and shall be applied
to the objects and purposes for which the University is incorporated."
The instruments of bequest, gift and trust favoring any of the aforesaid
bodies were made to construe as if the word University had replaced each
one of them.
Mandatory promotion of Islamic studies
7. Section 5(2)(a) of the original Act of 1920 says "The University
shall have the powers to promote Oriental and Islamic studies and give
instruction in Muslim theology and religion".
AMU seed money came from MAO College
8. The original Act of 1920 had also recognized that the seed money to
run the University was to come mostly from its forerunner bodies. As per
Section 7 the University's Reserve Fund comprised the capitalized value
of all permanent and recurring grants of money which had been made to (i)
the Muhammadan Anglo-Oriental College, (ii) the Muslim University
Association and (iii) the Muslim University Foundation Committee as well
as (iv) the total income accruing from immovable properties whose
ownership was transferred from the above mentioned entities to the
University by virtue of this Act.
The 1971 & 1981 statutory clarifications
9. Later in 1981 Section 2(l) of the Act was amended to clarify and
expand the definition of the 'University' as "the educational
institution of their choice established by the Muslims of India, which
originated as the Muhammadan Anglo-Oriental College, Aligarh and which
was subsequently incorporated as the Aligarh Muslim University". The Act
enjoins upon the University to "specially promote educational and
cultural advancement of the Muslims of India" and through the amendment
made in 1971 the Act recognized the University Mosque as the center of
1920 Act didn't establish but only upgraded the institution
10. It is, therefore, quite clear from the law and historical records
that the land, money and human resources all were contributed by Indian
Muslims and they established the MAO College in 1875 and they ran it as
such for 45 years. Alongside, they made efforts to raise the status of
this institution to university. But, the only prescribed method to do so
was to enact a statute. Thus, the 1920 Act was only an enabling law just
like we the people of India made efforts for Independence but that had
to be granted by the empowered agency namely the British Government who
issued the Declaration of Independence. Nobody would accept that because
the Britishers issued this declaration therefore India was established
by Britain. Hence there is no scope nor justification to doubt that the
MAO College which was established by Muslims of India became the Aligarh
Muslim University through the enabling legislation of 1920; by doing so
the legislature did not 'establish' the University, it only upgraded an
existing institution to the level of a university.
11. Even the logo of the Aligarh Muslim University carries a verse from
the Holy Quran alongside a date tree, the sketch of Holy Quran and the
crescent. All of these represent Islamic tradition and culture.
CJ's obiter dictum
12. One wonders as to what else is required to accept the AMU as a
minority institution. The observation of the Hon’ble Chief Justice of
India, as obiter dictum in another case, asking as to "how a central
university can have a minority character" stares into the face of
Article 30 of the Constitution which gives the fundamental right to all
minorities to establish an educational institution of their own choice.
Dictionary meanings of 'institution'
13. The Hon’ble Chief Justice did not clarify as to why a central
university, in his opinion, is excluded from the definition of
“Educational Institution” as mentioned in Article 30. The Oxford
dictionary defines an 'institution' as an organization founded for
educational, professional or social purpose. The Cambridge dictionary
defines an 'institution' as a large and important organization such as a
university. The Constitution makers were clearly aware of these
definitions of the word 'institution'. Yet to leave no future doubt they
prefixed the word 'educational' to the word 'institution' while giving
this right to the minorities.
5-Judge SC bench clarification
14. Besides, in the famous TMA Pai case of 2002 the 5-Judge bench of the
Supreme Court has given the required clarification. In that judgement
Question no. 11 was as follows: What is the meaning of the expressions
'Education' and 'Educational Institutions' in various provisions of the
Constitution ? The Supreme Court answered: The expression "Education" in
the Articles of the Constitution means and includes education at all
levels from the primary school level upto the post-graduate level. It
includes professional education. The expression "educational
institutions" means institutions that impart education, where
"education" is as understood hereinabove.
SC urged to take note of this article
15. Thus, a large number of the citizens of India most respectfully urge
the Hon’ble Supreme Court to kindly accept that the Aligarh Muslim
University is a minority institution manifesting the specific
fundamental right given to the minorities in Article 30 read with the
5-Judge Bench clarification by the Supreme Court in the MA Pai case. The
AMU is an educational institution which Muslims have established as per
their own choice. The Constitution does not exclude a central university
from the purview of 'educational institutions'.
Appeal to PM & HRDM
16. The citizens also urge the Hon’ble Prime Minister and the Hon’ble
Minister of Human Resource Development to rise to the occasion and
accept the above constitutional scheme as well as the fact that the MAO
College was established by Muslims of India and that through the Act of
1920 the Parliament only procedurally upgraded the College to a
University and these facts were duly clarified through the 1981
amendment. The central government would do well not to withdraw its
appeal before the Supreme Court.
Respecting the constitutional precincts
17. The citizens of India earnestly urge the nation to see reason and
not to challenge the sentiments of millions of Indian Muslims and their
sympathizers. Let us not test the nerve of the nation, let us not push
any section of the population to the wall and let us remain confined
within the sacred constitutional precincts.