Last week an issue, which has always been controversial was reopened. It is about whether Aligarh Muslim University and Jamia Mila Islamia were minority universities. The government has said that Aligarh Muslim University and Jamia Millia Islamia are not minority educational institutions. In the case of AMU, the Attorney General has argued that this is because it was set up by an act of Parliament, not by Muslims. However, critics say this is a narrow reading of the history and background of AMU and JMI. There are hundreds of minority institutions in the country but still the controversy continues.
What is the ‘minority character’ of an educational institution?
Article 30(1) of the Constitution gives all religious and linguistic minorities the right to set up and run educational institutions, including schools, colleges and universities. The law guarantees that governments will not discriminate in giving aid on the basis of their being ‘minority’ institutions, thus sealing in a commitment by the Government of India to allow minorities to flourish.
Why this provision was included in the constitution?
This was done to assure minorities of being able to maintain and propagate their unique and special educational aspects.
AMU was founded as the Madrasatul Uloom in 1875 in Aligarh, and evolved into the Mohammedan Anglo Oriental College. The seeds of Jamia Millia Islamia were sown in Aligarh by a group of nationalist students and members who formed a camp there as Jamia Millia Islamia, which later moved to Delhi. Leaders like M A Ansari, Zakir Husain and Mahatma Gandhi encouraged the university to push nationalist values and ideas.
- However, there was friction between JMI and AMU along political lines, as a significant section at AMU was said to be tilting towards the Muslim League, while the ‘nationalist’ JMI was wholeheartedly supported by the Congress.
- The universities have had their own journeys in independent India. AMU has no reservation for Muslims, but has preferences and reservations for local candidates, irrespective of faith. JMI gives reservation/preference to Muslims after the National Commission for Minority Educational Institutions (NCMEI) granted it minority status in 2011.
Arguments in favour of granting minority status for JMI and AMU:
Jamia became a deemed university in 1962 and a central university in 1988, both by Acts of Parliament. However, supporters argue that Jamia was founded by the Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution and is covered under Article 30(1) and under the National Commission for Minority Educational Institutions Act’s provision.
- And In 1920, the Indian Legislative Council set up the AMU, and all assets of Mohammedan Anglo Oriental College were transferred to it. Those arguing for minority character say that this was done by an Act as that was the only way a university could be set up at the time.
- Those opposed to the move say the Act of 1988 states that “it shall not be lawful for the university to adopt or impose on any person any test whatsoever of religious belief or profession in order to entitle him to be admitted therein as a teacher or student or to hold any office therein or to graduate thereat”.
- They also argue that the application to be declared a minority institution was made in 2006, when reservation for OBCs was introduced in higher educational institutions. Making these institutions minority acted against poor and disadvantaged Muslims.
What has Supreme Court said?
In 1981, Parliament passed an AMU Amendment Act, which accepted that AMU was set up by Muslims. But, in the famous Azeez Basha versus Union of India case, to which AMU was not a party, the Supreme Court ruled thatAMU was not a minority institution as it was set up by the British legislature, and not by Muslims.
- Even, the Allahabad High Court ruled in 2005 that the 1981 Act was ultra vires of the Constitution, and that AMU was not a minority institution.
- But the Supreme Court stayed the Allahabad HC decision, so effectively, AMU remained a minority institution.
What has happened now?
Recently, the Centre reversed its earlier position and stated that AMU was not a minority institution as it was set up by Parliament.
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.
- The Supreme Court in the 1967 case has also 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.
- The conclusion of the court was primarily based on the provisions of the Aligarh Muslim University Act, 1920. However, critics argue that to determine minority character, one cannot merely look at the law enacted by the legislature. In the 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, critics argue.
Protection of minorities is the hallmark of a civilization. These guarantees are essential in a democratic and pluralistic country like India. The framers of the constitution showed utmost sensitivity to the needs and aspirations of the minorities. Accordingly, special safeguards were guaranteed to the minorities and were incorporated in the chapter on fundamental rights with a view to inculcate in them a sense of confidence and security. Both, AMU and JMI universities have witnessed hectic activity on minority status, especially after reservation for OBCs was made mandatory in 2006. Although the discussion is still centered on the Art.30 (1) of the Constitution (that ensures that ‘all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice’), there is a possibility that this legal debate might take a political form. It is now up to the Apex Court to decide about the minority character of these institutions.