THE STATUS OF GOVERNMENT FUNDED/AIDED MINORITIES EDUCATIONAL INSTITUTIONS
Institute of Objective Studies
March 28, 2008
Venue: Deputy Cairman Hall, Constitution Club, New Delhi
Prof. Faizan Mustafa, Former Registrar, AMU, Aligarh initiating the discussion
A brainstorming discussion on "The Status of Government Funded/Aided Minority Educational Institutions", organized by the Institute of Objective Studies (IOS) was held on March 28,2008 at the Constitution Club's Deputy Chairman Hall. Presided over by former Gujarat High Court judge A S Quraishi, it was conducted by Supreme Court lawyer Mushtaq Ahmed Alig, who, laconically, put forth the background and the perspective of this inter-active brain-storming discussion. The cases of the Aligarh Muslim University (AMU) and the Jamia Millia Islamia (JMI) pending in the Hon'ble Supreme Court of India and in the National Commission for Minorities Educational Institutions have desiderated the holding of this discussion. The trouble started when the Hon'ble Supreme Court's Construction Bench held in 1968 that the AMU was established by an Act of the then British Parliament when the AMU Act, 1920 was passed bringing this University in existence and that it was not founded by the Muslim community of India, though it admitted that the Mohammadan Anglo-Oriental (MAO) College, culminating and incorporated into the University was established by the Muslims of India. It also admitted that a corpus of Rs. 30 lakhs, a condition for converting the MAO College into the AMU, was collected and deposited by the Muslim community which is still lying in the University's treasurery. Admitting the historical evolution of the AMU by the Muslim community but denuding the University of its minority character so assiduously and unequivocally provided under Article 30 of the Construction, on a technical interpretation, was criticized by constitutional experts like H.M. Seervani. After a long struggle, the minority character of the AMU was restored by AMU (Amendment) Act, 1981 wherein it was clearly stated, inter alia, that the AMU was established by the Muslims of India. The recent 50% reservation for the minority students in the AMU was challenged in the Allahabad High Court which upheld the Supreme Court judgement of 1968 in the Aziz Basha case and held that SC judgement still holds the field. Since the AMU is not a minority institution, hence there is no question of any quota for the minority students. The Division Bench went a step further and quashed the 1981 Amendment Act which had restored the minority character of the University. The High court judgement is under challenge in the Supreme Court.
Jamia Millia Islamia (National Muslim University) was established by the Muslim community in 1920 through a registered society by the same name and style. In 1962, it was declared as a Deemed University under the University Grants Commission Act, and in 1988, it was declared/incorporated as a Central University by virtue of the JMI Act, 1988. Similar is the case with the Hamdard University (a Deemed University) but it was granted a minority status by the NDA Government in 2003.
There is no denying the stark historical fact that the AMU and the JMI are by birth minority institutions, and 100% funded by the government. The Supreme Court has held that a minority institution does not cease to be so after grant of aid by the state. The PM's High Power Sachar Committee report has highlighted the educational backwardness of the Muslim community all over India and has recommended for special measures for their economic and educational upliftment. It is high time the minority status of these two central universities is restored which will go a long way in meliorating the overall conditions of the community. This discussion is aimed at chalking out a strategy to retrieve the minority character of these institutions.
The case of AMU was dwelt in detail by former AMU Registrar Faizan Mustafa while Supreme Court lawyer Tarique Siddiqui threw light on the issue of minority character to Jamia Millia Islamia. Former Ambedkar University Agra Vice Chancellor and IOS Vice Chairman Manzoor Ahmed, IPS, discussed the fate of other minority educational institutions and said that it depended upon the outcome of the cases of these two educational institutions.
It was participated among others by Aligarh Muslim University (AMU) Vice Chancellor and Acting Registrar, Dr P K Abdul Azis and Prof Javed Musarrat, respectively; former AMU VC Naseem Ahmed; former Jamia Hamdard VC Siraj Hussain; AMU Law Faculty Dean Prof Iqbal Ali Khan; Maharashtra Cosmopolitan Educational Society Pune President P A Inamdar; Indra Prastha University Law Professor Afzal Wani; Supreme Court Bar Association President P H Parekh and lawyers K T S Tulsi, R S Suri, A S Chandhoke, Romy Chacko, Zafar Sadiq, Ms Savitri Pandey, Amber Qamruddin; and former Jamia Millia Students Union President Shams Parvez and activist Tanveer Ahmed.
A view of the audience
Tracing back the history of AMU with regard to its minority status, Prof Faizan Mustafa who along with the then Vice Chancellor Naseem Ahmed, IAS, dealt with the present case of AMU said "we should first take up the issue of our own status coming under question mark following the April 5, 2007 Allahabad High Court ruling refusing to consider Muslim community as a religious minority in Uttar Pradesh". According to him, "if Muslims are not a minority, how would they deal with the question of the status of minority educational institutions?"
It is to point out that while passing the order in the Anjuman Madarsa Noorul Islam Dera Kalan (Ghazipur District) versus State of Uttar Pradesh case, the bench comprising S N Srivastava had directed the state of Uttar Pradesh "to treat any member of the Muslim community as equal to other non-minority religious community without discrimination in any respect in accordance with the law" on the basis of criteria, including the population of Muslims as enumerated in the census reports of 1951 and 2001.
Now Director of KIT Law School, Bhubaneshwar (Orissa), Prof Faizan Mustafa said the Mohammedan Anglo Oriental (MAO) College established by the Muslims of India couldn't be seen separately and independently from AMU. According to him, it's true that the institution got its university status through a legislative Act in 1920 but it should be seen as an evolutionary process of the educational institution in whose aims and objects the target was the establishment of a university, not just a school or college. In his own words, "the remedy lies in the Supreme Court, therefore, we should concentrate upon it."
It is to point out that Allahabad High Court had on October 4, 2005, ruled: "It is held that the judgment of the Hon'ble Supreme Court in the case of Azeez Basha still holds good even subsequent to the Aligarh Muslim University Amendment Act, 1981 (Act No. 62 of 1981). Aligarh Muslim University is not a minority Institution within the meaning of Article 30 of the Constitution of India. Therefore, the University cannot provide any reservation in respect of the students belonging to a particular religious community. The resolution of the Academic Council dated 15th January, 2005, the decision of the Executive Council dated 19th February, 2005 as also the approval granted thereto under letter of the Union of India dated 25th February, 2005 are hereby quashed." Afterwards, the SC gave a stay order to the institution's status quo till the final judgment came out.
Agreeing with Prof Faizan Mustafa, Supreme Court senior advocate K T S Tulsi averred that to deprive AMU of its minority status would, in his view, be denying fundamental rights enshrined in the country's Constitution to them. He also discussed in detail the issue of Sikhs and while quoting verses from Guru Granth Sahib said that only those who followed the tenets and principles were Sikhs, while others like Nirankaris and Deras were outside the pale of their faith. According to him, from this point of view, the Sikh population was not beyond 50 per cent in Punjab. So, how the Sikhs be declared as a non-minority community in Punjab?, he questioned.
Mr. P.A. Inamdar, President Maharashtara Cosmopoliton Education Society, Pune addressing the audience
It is also to point out that striking down the Punjab government notifications that reserved 50 per cent seats for Sikhs in educational institutions run by the community and the Shiromani Gurdwara Parbandhak Committee (SGPC), the Punjab and Haryana High Court in its judgment on December 17, 2007 had said: "Sikhs were not a minority in the state and hence, were not entitled to reservation in SGPC-run institutes."
According to Tulsi, to deprive Muslims and Sikhs of the rights over their educational institutions won't be in accordance with the spirit of the Constitution, talking affirmative action for them.
Another Supreme Court senior advocate R S Suri was of the view that as it was the issue of importance for each and every minority community in the country, the need of the hour was to have had a consensus on the issue among all the minorities. They should sit together and chalk out strategies, he suggested.
Pleading strongly the case of Jamia Millia Islamia, its lawyer Tarique Siddiqui, who practices in the apex court, said "it needs a special attention of the Muslim minority community."
According to him, the situation in Jamia case was different from the AMU case. He elaborated: "The AMU authorities are themselves fighting the case and the judgment of the Supreme Court in the case of Azeez Basha is not in its favour whereas the authorities in Jamia are creating problems due to dichotomy in its approach and the same judgment in Azeez Basha case comes to its rescue."
It is to point out that the Jamia authorities were playing dichotomy in the matter. According to him, under the stewardship of Dr Mushirul Hasan, Vice Chancellor, Jamia Millia Islamia the Jamia Majlis-e-Muntazemah (Executive Council) had in a unanimous resolution adopted on May 9, 1997 said that the university deserved to "be declared a minority institution so that its historic character is in tact" but later on it took the otherwise stand, in a reply to the notice sent by the National Commission for Minority Educational Institutions (NCMEI), that the university was not a minority educational institution and also stated that "extending reservations along religious lines will have dangerous consequences". The decision in this case is to come shortly.
Tarique Siddiqui asserted: "In 1920 Jamia Millia Islamia (National Muslim University) was established by the members of the Muslim community. On January 26, 1950 when Constitution of India came into force wherein Article 30 was incorporated first time, Jamia Millia Islamia was the property of Muslim community and undisputedly it enjoyed the provision of Art 30. Therefore, the community should come ahead seriously with other thinking people and urge the UPA Government led by Congress, which was directly or indirectly too involved in its establishment following the call for boycott during the Khilafat and Non-Cooperation Movements in 1920, to allow Jamia avail the provisions granted to the minority educational institutions under Article 30 of the Constitution."
According to him, the Central Educational Institutions (Reservation in Admission) Act, 2006 was in no way applicable on minority educational institutions. "Therefore, it must not be implemented in Jamia", he opined, while urging the government to allow reservation for at least 50 per cent seats.
Talking in terms of a judgment of Kerala High Court, SC lawyer Romy Chacko opined that so far as the dilution of Constitution's Article 30 was concerned, its another Article 29 (2), talking of no discrimination on the basis of religion, caste, colour or race in admission to the educational institutions, seemed to be responsible for it.
Mr. K.T.S. Tulsi, Sr Advocate addressing the audience
AMU Acting Registrar and OSD (Development) Prof Javed Musarrat, said that as stated by Prof Faizan Mustafa, history of AMU started since the establishment of the educational institution by Sir Syed in 1875, not in 1920 when it got its university status.
Well known social and educational activist P A Inamdar, opined the October 4, 2005 Allahabad Court judgment should be seen as the one providing us an opportunity to ponder over the strategy. "The solution is in the over-ruling of Aziz Basha judgment", he said.
Inamdar also said that both AMU and Jamia had been established by the Muslims and so they were unquestioningly minority educational institutions.
Senior advocate P H Parekh suggested that like scheduled caste groups, minorities should also develop a consolidated pressure group. In his view such move won't be either wrong or illegal.
Saying that minorities were like mothers to the educational institutions created by them, academic Prof Afzal Wani raised the question as to why they were being denied of their rights?
Prof Wani also said that lakhs of students from both AMU and Jamia, founded by the Muslims, came out and joined the mainstream and set the finest example of national integration.
He said pluralism was one of the main points of the Constitution and in a pluralistic society minorities' rights became very important. "Therefore, its protection is a must," he said while hoping that the present government would do the needful before its term ended after a year.
. Another academic Prof Iqbal Ali Khan said Parliament could pass legislation. Therefore, it was high time the government should be pursued to move in this regard.
In the light of his own experiences as the vice chancellor of AMU, Naseem Ahmed said the issue of the status of the government-funded minority educational institutions had become complicated. "Therefore, it shouldn't be taken lightly," he opined, revealing that "when we at the AMU decided to go for reserving 50 per cent seats, we knew it would be challenged in the court." He, however, agreed with Prof Faizan Mustafa that the case of minority status of AMU was strong with facts and evidences and it should be tackled strategically.
He also said that like the AMU, Jamia's case too needed special attention. In his view, this educational institution was too established by the Muslims.
While summing up the discussion, Justice A S Quraishi, in his presidential address, said the fate of the educational institutions were, no doubt, in danger. "Therefore, the need of the hour is to take up the matter in a wider and holistic way. And, that's the question of the existence of minorities, as stated by Prof Faizan Mustafa and others."
The discussion concluded with a feeling that there should come into being a consolidated forum of all the minorities that could look after the entire issue of the status of the government funded/ aided minority educational institutions in the country and work as a pressure group to pursue the government to protect, maintain or grant the minority status to them.
The report prepared by AU Asif