The Constitution, Minorities and the Judiciary

 PROF. FAIZAN MUSTAFA

 What are minority’s rights? What is the origin of these rights? What is the jurisprudence of the philosophy of minority’s rights? What deliberations took place in the Constituent Assembly?  What constitutional provisions have been appearing on minority rights in India? Why special rights are needed in spite of right to equality under the Indian Constitution? How has judiciary over the years interpreted minority’s rights?

Protection of minorities is the hallmark of a civilization. According to Gandhiji, the claim of a country to civilization depends on the treatment it extends to the minorities. Lord Acton added another dimension: the most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities. Rights of minorities figured prominently in the Constituent Assembly. Our founding fathers were deeply concerned to ensure full meaningful protection to the members of the minority communities individually and collectively. The minorities particularly Muslims, Christians, Sikhs were apprehensive that their civil and political rights may be ridden rough shod by the majority community despite the secular pretensions of independent India.

In the initial stages, the minority insisted that a system of separate electorate should be continued as in the past. Nationalists in India opposed this demand because it was based on, and recognized, communal or religious separatism. Separate electorates were incompatible with the goal of secular democracy to which the Indian nation was committed.  At the same time, some method had to be found by which the minorities were not ignored or swamped.  Popular legislature swayed by passion and prejudice may well trample upon the rights of minorities, especially unpopular minorities.

 The topic on which I propose to speak is the "Constitution, Minorities and the Judiciary." If the two decisions of Allahabad High Court are any indication, it seems that as opposed to legislature, it’s the judiciary, which is violating minority rights in India.  Why this is so?  As a humble student of constitutional law, as I look at the whole concept of judicial review, why at all judges sits should sit on the judgment on the wisdom of the legislature I find that the reason given in all classical texts justifying this power given to those who do not represent the will of the people, the judges, is very simple and this is the reason.  They say in a democratic setup the majority communities interests are very well protected by their representatives who are sitting in the legislature and therefore there is every possibility that in Parliament or legislatures, the minority rights are ignored.

Whereby the protection of minority right is ensured.  In a democracy where the number is everything and the minority community definitely doesn’t have numbers with them.  Therefore to protect minorities rights, the concept of judicial review was evolved. It is a sad commentary that in India the judiciary is one, because of very technical interpretation of law (on which we would be able to throw some light later in the lecture), is denying these rights to minorities.  Therefore the very reason of giving power of judicial review to judges, according to some commentators of constitutional law, is protection of minority’s rights. The answer to the question why judges do so, or are doing so, is very simple, they are not going: to face any electorate; if at all the legislatures are protecting minority rights, they are not protecting out of great love for the minority rights but because of electoral compulsion. Accordingly special safeguards were guaranteed to minorities and were incorporated in the chapter on Fundamental Rights with a view instill in them to a sense of confidence and security. Thus an effective arrangement was evolved and the fears of minorities were dispelled. In the words of reverent Jereme D’Souza, who represented the Indian Christian community, by the compassion, the generosity, the thoroughness with which individual rights have been safeguarded in the section of our Constitution devoted to Fundamental Right. The way in which these fundamental rights were placed under the power and the jurisdiction of the Supreme Judicature and the spirit in which those provisions were passed by that house, the minorities accepted the pledge of Sardar Patel that our mission is to satisfy every interest and safeguard the interest of all the minorities to their satisfaction.

A reference was made by the Convener to Justice Khanna and therefore I proposed to quote justice Khanna, ‘it is in this background that article 25 and 30 were enacted in our Constitution’ and in the memorable words of Justice Khanna, I quote 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 country.’  As long as the Constitution stands, as it is today, no tempering with those rights can be contemplated.  Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible.  It is a fallacy, or rather harassy, to regard these constitutional guarantees for minorities as special privileges and concessions to them.  Even though I am pained to say that P.A.Inamdar decision does exactly the same; they say that these are not the rights but protections.  These guarantees are essential in a democratic and pluralistic polity because as Frankly Inruswel reminded us and I quote `no democracy can long survive which does not accept as fundamental to its very existence the recognition of rights of minorities’.

 What is the definition of minority?  First of all let us have a clear idea about the definition of minority. The most obvious definition of minorities and majorities is in terms of number.  A minority is a group that is numerically smaller then the majority in a society.  The basic definition is however not enough for the preponderance or the lack of numbers alone is not a guide to any authoritative definition.  Minority in apartheid South Africa, for instance, exercised power and domination over the rest of the society.  It is also true that in several countries the numerical line dividing the minority and the majority may be so thin that it is impossible to demarcate a minority group. Alternatively a society may be composed of different groups, none of which forms a minority numerically speaking.  The criterion of numbers therefore is an essential but not a sufficient condition for any definition of minority.

Just to note what happened in Allahabad High Court on the question of the definition of minority.  As the case of Aligarh Muslim University started before the division bench, the first question from Chief Justice A.N. Ray was: ‘Are Muslims a Minority in India’ and therefore what is the proof that they are in minority?  We tried to get a notification from Government of India that following communities are minority.  I gave that notification to my lawyers but they said we don’t want to use it.  The whole question which the Chief Justice Ray was putting was that if you say 15-20 crore in a country, there is no threat of extinction to you and if there is no threat of extinction to you, you are not a minority.

It’s the same Judge who subsequently would rely too much on what he called judicial discipline following higher judicial precedence, the decision of the Supreme Court, but for almost two and a half hours we laboured very hard to convince him and the brother Judge Justice Ashok Bhushan remarked that you cannot add another test, the threat of extinction test, to the numerical criterian because the Supreme Court 11 judge bench and the other benches have said that if a community is less then 50% in a State, it is a minority community; but the Ld. Judges were not willing to accept this preposition.  Push to wall, when we were not able to convince them, though subsequently it does not find any reference in the judgment.  Our lawyers had to argue that if at all this is the test, we say that there is a threat of extension to the Muslim Community in India, kindly recall Gujarat genocide.  But I think it was too much for us to deliberate so much and for almost two and a half hours to argue that Muslims are in a minority in India.  Similar thing was happening to the Aligarh Muslim University before the single judge, who asked us specifically to file an affidavit that Muslims are in minority in India and Muslims are in minority in U.P. and Muslims were in minority at least when, in 1921, Aligarh Muslim University Act was passed. All these things are part of record because both Union of India and Aligarh Muslim University had to file specific affidavits citing census record that Muslims are a minority in U.P., are a minority in India, were a minority in 1920 and there was a concept of minority in 1920 as well. That why I believe that numerical test has some relevance to our case as well.  My thesis is that the test of number is not enough to determine the minority character therefore I am adding another dimension to the definition of minority.

We need to go further than just a numerical definition in order to conceptualize minority rights; we may do this by putting fourth a second consideration. The second component of the minority right is that the group must be non. Dominant in the society and the polity; a group can be conceptualized as a minority when its values and world view are either not reflected at all, or insufficiently reflected, both in the public sphere or in the constitution of societal norms. Both these factors reinforce each other both the non-recognition or inadequate recognition of the minority group in the public sphere or the constitution of those norms that defines a society signifies marginalization and exclusion.  But I believe these two characteristics, numerical size and non-dominance, may still not necessarily result in what can be referred to as a minority majority problem.  A group may be numerically smaller than others and its values may be incompletely reflected in the dominant political and social norms but this may not logically lead to either resentment or feeling of exclusion.  We can easily conceptualize a situation where a minority group may be perfectly willing to give up its practices and merge into the mainstream for various reasons.  Alternatively, the minority group may not wish to be considered to be minority at all.  Therefore, for the purposes of defining a minority a third component is to be added to these two objective criteria.  The crucial point is:

That these characteristics refer to the linguistic religious characteristics of ethnic minorities, differ from the rest of the population and that these group wish to preserve their distinctive identity even if this identity does not conform to the norms and the values of the majority. Let us therefore proceed towards a workable definition of the term minority for the purposes of this lecture. A minority is a group that is numerically smaller in relation to the rest of the population. It is non-dominant to the extent that its values are either inadequately or not represented in the public sphere or in the constitution of societal norms, its has characteristics differ from the majority group and, more importantly, it wishes to preserve these characteristics. This definition of minority, in my humble opinion, is related to the majority in terms of numbers, of domination, or lack of domination, of possessing distinctive characteristics and in terms of its desire to preserve these characteristics even if they conflict with the sensibilities of the majority community.

Let us look at the jurisprudence and the philosophy of the minority rights before I quickly come to the Indian Constitution. In my humble opinion the debate on the status of minorities and the minority rights should be lifted from the communalism versus secularism and the nationalism versus sectarianism debate and plays in the theoretical field of democracy, equality and rights. Therefore I don’t want to propose to talk on Articles 25 and 30 as extension of secularism. I look at the entire question of minority as a question of democracy, that these are citizen of a democratic polity where distinctiveness is to be preserved and therefore I don’t find any relationship between Article 14 and Article 30. I believe that both stands on their independent footings and in spite of Article 14 which guarantees right to equality, you need Article 30; that is what the wisdom of the frame work of Indian Constitution would lead us to. The case for minority rights in my humble opinion in other words should drive from, and be legitimized by our understanding of democracy.

The idea that special rights, in addition to universal rights are needed to protect the religious and cultural practices of minority communities dates back to at least the last decade of the 19th century when multi-national states in Europe were to acknowledge the importance of minority rights.  For instance Article 19 of Austrian Constitutional Law 1867 acknowledged that ethnic minorities have an absolute right to maintain and develop their nationality and their languages.  Similar provisions were found in Hungary’s Act 54 of 1868 and in the Constitution of Swiss Confederation of 1874, which granted three languages of the country equal rights in the civil services, legislation and in the Courts. However, the idea that the law and convention should protect minorities in the polity emerge as a generalized principles of international jurisprudence only after the first World War.  The provisions of the Peace Treaties after the First World War focused particularly on the status of minorities.  Minority protections were codified in five treaties negotiated between the Allied and Associated powers on the one hand and Poland, Czechoslovakia, Romania, Greece and Yugoslavia on the other. Special provisions for the minorities were incorporated in the Peace Treaties with Austria, Bulgaria, Hungry and Turkey while Albania, Finland and Iraq declared that they would protect their minority but there was more.  The entry of east European countries into the League of Nation was made conditional on the grant of minority rights and the League was entrusted with the responsibility to see that these communities were protected.

That brings me to the question in India. I believe that our decisions are historically determined and therefore we must understand that we were framing a constitution when the country had already been partitioned on religious lines and the partitioned part had become a theocratic state. Therefore, in my humble opinion, nothing could have prevented framers of Indian Constitution from declaring India to be a theocratic Hindu State and they would have been perfectly within their constitutional rights to do so, but the framers of Indian Constitution, in my humble opinion, in their great wisdom, keeping in view of the pluralism of India, keeping in view the future of India, have showed great magnanity and therefore have protected the rights of minority. I wish to quote Justice Venkat Rama Iyyer who gave one of the earlier judgments on the minority rights in the country in the Kerala Education Cell “it is well known that during the middle ages the accepted notion was that sovereign were entitled to impose their religion on their subjects and those who did not conform to it would be dealt with as traitors. It was this notion that was responsible during the sixteenth and seventeenth centuries for numerous wars between the nations and for civil war in the continent of Europe. It was only latterly that it came to be recognized that freedom of religion is not incompatible with good citizenship and loyalty to the state and that all progressive societies should respect the religious beliefs of their minorities. It is this concept that is embodied in Article 25, 26, 29 & 30 of the Constitution. Another thing which I believe I must bring to the notice of the distinguished audience here is that there can be no doubt that the Constitution of India is to be recognized as an exceptionally far sighted document on the subject. The underlining argument for minority rights that is the universal rights are meaningless in a society such as India presage the debates on multi-culturalism differences and the rights of minorities that mark contemporary political theory by about 50 years.

Let us now examine for a moment why collective rights of the cultural community cannot be reduced to some individual rights to culture. Why do you need group rights at all?  Firstly, there is nothing in the individual right to culture that will guarantee that the good which that particular right is a right to is not the king though we can assert an individual right to something that we are asserting a right to may not be there at all. Therefore in order to render the right to cultural freedom meaningful, it is important that a supportive social and political environment be instituted to enable the culture to flourish. There are several good reasons for doing so. For without exception to the evaluative resources provided by the cultured individual’s experience both by the sense of law as well as that of diminishing.

Why I am talking of this philosophy that individual’s rights are not enough to protect the communities or the group’s rights is simply there. Because there are political parties in this country which oppose these rights; in fact a Committee headed by Late Mr K.R.Malkani of BJP have already suggested that Article 29 & 30 are to be deleted because already there is enough protection of individual rights under the constitution and once we have guaranteed equality to each individual, there is no need for these special right for the groups. Try to understand and bear with me why I believe that the individual rights are not sufficient to protect the interest of the groups. Therefore in order to render the right to cultural freedom meaningful it is important that a supportive social and political environment is created to enable the culture to flourish. There are several good reasons for doing so. For without access to evaluative resources provided by the culture, individuals experience both in sense of laws as well as that of diminishment. Ronald Dowkinargo’s said that "since cultural narratives are a pre-condition for making intelligent judgment about how to lead our lives, we must protect societal culture from debasement and decay.  Cultures are valuable because through access to societal culture, we have access to a range of meaningful options but the survival of a culture is by no means guaranteed, therefore, where and whenever it is threatened with the debasement and decay, it must be protected. We argue that in an inherited a cultural structure we have some duty out of simple justice to leave that structure at least as rich as we found it".  Further once the existence of that culture is ensured it is the duty of the State that minority groups are not subjected to demeaning and pervert stereotyping or targeting.  For individuals have the right to live with dignity and it is precisely this right that is compromised when an individual cultural community is marked off in perverse ways. If you say Muslims are bad, my right as an individual is violated because I belong to that community. Therefore if you want to ensure my right as an individual to live with human dignity, you have to remove that stereotype that Muslims are like this, or like that. That is my thesis.

That brings me to the question of deliberations in the Constituent Assembly and you will find that the two rights that we are having today under Articles 29 & 30, there have been deliberations in the Constituent Assembly which have subsequently led to a kind of perverse interpretation.  Originally, in Article 29, the right which was guaranteed to minority was like that all minorities that are based on religion or language shall not be discriminated in State Aided or State Aid Recognized Institutions in the matter of admission.  It’s an interesting history to read if you look at the deliberations in the Constituent Assembly that prior to 15th August, 1947 (on 14th August, 1947) the Advisory Committee on Minority Rights was alluring us with lot of promises but once the country was partitioned, some of these promises may not be fulfilled and therefore this vital word minority from Article 29 was deleted and the word which came in was ‘any section of Indian Citizens’.  Now Article 29 as it stands today is like this `that any Section of Indian Citizens having a distinctive language, script or culture of its own shall have the right to conserve the same’.  My submission is that Article 29, as it stands today, accepts that you have a right to your distinctive culture.  Article 29, as it stands today, at least accepts that the distinctive plurality of India is to be preserved.  Article 29, as it stands today, accepts the great value of preserving different identities.  What Article 29 clause 2 is saying has created a lot of problem in the interpretation of 29 & 30 over the years.  Article 29 Clause 2 says ‘that no citizen solely on the ground of religion "shall be discriminated in an institution which is State Aided or State Recognized’.  Then Article 30 Clause 1 says that all minorities, whether religious or linguistic shall have the right to establish and administer Educational Institutions of their choice. The big question which the Indian Supreme Court and other courts have been debating over the years has been precisely the relationship of 29(2) and 30(1). For many years, they were answers but those answers are not really implemented.

I wish to go to the very first case in the Kerala Education Bill, which is important and also on this point on several others.  The Supreme Court of India in the Advisory opinion in the Kerala Education Bill has said that the minority institutions are primarily for the minority which established them.  In a minority community, there shall be sprinkling of outsiders so there shall be only sprinkling of non-minority member in a minority community. This was said in the very first case by the Supreme Court on the minority question.  Yet the confusion remains because no one rembers what is this sprinkling of outsiders? This is an impression sprinkling of outsiders which has been accepted by future benches including the P.N.A. Pai, Inamdar and Islamic Study.  Each one of them is quoting this sprinkling of outsider’s expression but there was more which the Supreme Court has said in the Kerala Education Bill. The expression in Article 30 is that the minorities shall have the right to establish and administer educational institutions of their choice and the Supreme Court in Kerala Education Bill said that of their choice means of their choice so it is entirely in the hands of the minority community to widen their choice.  It is in their hands to enlarge their choice and it is entirely for them to decide what is their choice?  Today we are told in the context of Aligarh Muslim University about which I am going to talk in detail. Well you had a right to establish educational institution of your choice but you did not have a right to have an educational institution whose degrees were recognized. My humble submission before the divisional bench and before this august gathering is that this was part of my choice.

The Muslim Community in the year 1920 made a choice that I want my institution the MAO college to be converted into a Central University with state aid whose degree will be recognized at par with other institution and if I am having this right to have my choice as wide as I wish, it is for no Court to tell me that you made a choice a very restricted one because I did not. You have no evidence whatsoever to speculate on the state of mind of the people of the Muslim Community in 1920. The paragraph 26 of Aziz Pasha, says that this must have been the major consideration in the minds of the Muslim Community that there is no use establishing a University whose degree are not recognized it made a deal with the Government and in that deal it has bartered away its right. Because Government said that if the community want a University whose degrees are recognized then it would not be your University, it would that of the Government and thus the community has finished with its right. In any cases a larger bench of the Supreme Court has specifically said that no one-generation can barter away the rights of the future generations.  Fundamental rights can never be abated. If at all assuming the non acceptance, for the sake of argument, that the Muslim Community in 1920 gave up its right, the present generation of the Muslim Community is not bound by that so called contract between the Government and the so called Community in 1920 and, therefore, the entire rationale of Aziz Pasha should fall on sound logical ground.

The other thing, which the Kerala Education Bill said and which has been reiterated in a number of decisions that aid has no meaning in the context of Article 30. There are people who are writing in newspaper, there are scholars from my campus also, very eminent scholars who are saying your case is very weak, you are 100% aided (though we are not) we are substantially aided but not 100%, that if you have received the aid then definitely the conditions would come. Yes, I accept what in the Kerala Education Bill said `aid would come with conditions but aid can never come with such a condition which is annihilative of its minority character.  The Supreme Court in the Kerala Education Bill, in St.Xavier, in Sirtaj Bhai and St. Stephen’s and P.M.A.Pai in any number of cases has said that the Government in granting aid shall not discriminate against any educational institution simply because it is minority institution.  Even the Delhi University does not have a right to get aid. Aid is given on merit so I am also an institution.  It is going every year to the Government, few days back there was a meeting in UGC, the budget meeting as it is called, I presented my case, I said I want this much of aid they may not give me entire aid, they may give little less then that or may be they will slash the aid as they are saying now that 30% resources are to be raised by each and every University so I would also raise resource for myself but this should remain crystal clear that the mere fact that any institution, including Aligarh Muslim University, that is receiving aid out of State funds has no bearing whatsoever on the minority character of the Aligarh Muslim University. There are number of decisions which have said that aid can never come with conditions which are destructive of minority character of an institution.  In fact, in a later case in St. Xavier and Sirtaj Bhai, the Supreme Court has specifically said that State has the power to regulate.

It is true that there are cases as downs were put by my senior Mr Mustaq that ups and downs has been there so there were cases which can be termed as downs of Supreme Court where interference has held as regulation but the dictum of the Court is very clear that regulations are permitted but regulations have to satisfy a dual test.  What is that dual test?  The dual test is that the regulation is reasonable and, have a pause for a moment,  the reasonableness of regulations under 30 is different from the reasonableness of Regulation under 19. If you are going to curtail my freedom of speech, my freedom of movement, my freedom to trade, a different kind of test of reasonableness is applied but if it is a reasonableness under 30 for minority right, the Supreme Court said that the regulation must be conducive to make that institution an effective vehicle of minority education. Therefore, any regulation which is coming in way of the minority education or coming in way of the philosophy of the founders, the way they want to mould their institution is destructive of minority character and thus unconstitutional on the basis of article 30. Every regulation has to be reasonable and every regulation must make that institution a better vehicle of minority education. I want to emphasize this point a little more because of what the courts have said in Aziz Pasha and subsequently in Allahabad High Court regarding.

The President of India in his visitorial power can quash that decision, if it does not conform to Act, Statute and Ordinance and therefore you have accepted very seriously, as Chief Justice Ravel put it supervisory role for the Government. Our submission, a very humble one is this, we have accepted governmental regulations for two reasons: 1. We also want to be a University at par with other Central Universities. This power is there with the Visitor in respect of every Central University. Moreover the governmental regulations so far as they are consistent its my minority character are not annihilative of its right as a minority institution. We have accepted regulations, for instance, if I say that I would recruit a Lecturer who has qualified UGC’s national education test. That, no way, comes in way of the institution being a Muslim institution.  I also want better-qualified teachers to be recruited in Aligarh Muslim University. If I say that I would also pay my employees the same pay scale and the same enhancement of D.A. as other University teachers are getting in other Universities, the answer is very simple I also want to attract better teachers in my University.  So therefore if I have accepted some kind of regulative control that in no way intrudes on my right to administer my institution which is a minority institution.  So long as any regulation is making my institution an efficient vehicle of minority education such a regulation is valid.  The power of the Visitor is that if University authorities are not acting as per Act, Statute and Ordinances, then it would be quash, definitely if the Act has given me the power to promote educational and cultural advancement of Muslims of India and I make reservations for Muslims of India in my University which is consistent with my statutory responsibility given to me by the Parliament of India, the Visitor cannot quash it and exactly same happened with Aligarh Muslim University.

Those who think that out of the blue the University has taken a decision to reserve 50% seats and has created this kind of a crisis are not well informed. The decision to reserve 50% seats in Aligarh Muslim University was not taken in 2005, the decision was taken in 1987 by the Supreme Governing Body of the University, the University Court. A nine- member Committee was appointed which included two judges. The Committee recommended that course.  We did receive a show cause from the Visitor because until 1987 it was not clear what is this sprinkling of outsiders. That confusion was cleared by the Supreme Court in 1992 when St. Stephen’s case was decided. Therefore, we got a show cause from the Visitor that how come you have provided for the Muslim reservation in the face of 29(2) and in the face of Section 8 of the AMU Act which say that you would not discriminate on the prohibited grounds. The University Court gave a 222 page reply to the Visitor citing all the cases on the subject and the Visitor did not quash our resolution and therefore the subsequent authorities of the University said that  Visitor’s subsilentio has approved the Resolution of 1987; since that Resolution of the Court has not been quashed, it stands and if it stands, the court is on record that the University must provide for that reservation because the decision of the University was consistent with the Act and Statute, therefore the Visitor could do nothing. The Visitor is a constitutional Head of this country. Therefore, if we had given this power to the Visitor of India, the constitutional Head of our republic that on behalf of the entire Muslim community, he must ensure that the Executive Council, Court, Academic Council and the Vice-Chancellor of the University must act in a manner which is consistent with the minority interest. What is wrong in it? Why Muslims of India cannot trust the Visitor?  With this residue power that if these authorities go against the interest of the Muslim Community on behalf of the Muslim Community, who are the citizens of this country in equal measure with other communities. You give a show-cause to them and if their reply to the show-cause is unreasonable, you quash that proceeding. I believe this provision strengthens my minority character.

That brings me to St. Stephen’s case, whereas Mushtaq Saheb rightly said that the Supreme Court, for the first time, explicitly evolved this decision that what would happen to an institution as to admission.  Can a minority community in an aided institution prefer members of its community? The Supreme Court in its wisdom decided that a minority community upto 50% may reserve seats on preferential basis for the members of that community which has established that institution and for the rest 50%, they said it should be open and members of other communities should come. Another important thing which St. Stephen case did, St. Stephen is again a pre-Constitution institution and therefore it has a bearing on Aligarh Muslim University which is also a pre-Constitution institution.  In St. Stephen case, the Supreme Court evolved a test to judge the minority or otherwise status of a pre-Constitution institution by saying what the Court prescribed a dubious or a devious, test.  We would not looked minutely into the history.  If from the record of the history, as the Supreme Court did in Patro’s case and in Father Prust’s case, it is made out that it is a genuine institution and over the years this has been promoting a particular interest of a particular community, the Court will not go into the minute history of that institution unless the Court is convinced that the Institution is a dubious one. Can anyone of you ever have this doubt about the dubious nature of Aligarh Muslim University being an Institution which is a fake institution, an institution which has been founded by some people to take some advantage in the management quota seat and sell those seats on capitation fee. I think that doubt has not come in anybody’s mind and therefore I believe, with very great respect, that doubt should not have come in the minds of Ld. Judges of Allahabad High Court as well. Yet the minority community was not convinced that there has to be a 50% upper limit in preferring the members of the minority community in a minority institution because 50% does not completely answer sprinkling of outsiders.  Sprinkling is far less, sprinkling is 2%, 5%, 10%. Therefore, the minority community and the Jamia Hamdard went to the Supreme Court, they filed a petition and they said we want 100% reservation. Jamia Hamdard is on record, we have former Vice-Chancellor and a Registrar of Jamia Hamdard here, they would testify that the Jamia Hamdard is on record that in a minority institution, there is a claim of a minority community, if their need so warrants, they may say we would have all 100% seats for ourselves and the Supreme Court, I am happy, accepted that contention in T.M.A.Pai case when it has said that the upper limit of 50% is gone. Therefore, in a minority institution, it would all depend on the need of the community.

What is the need of the minority community as to MDMS? Seventy-seven seats are reserved in Muslims Aligarh Muslim University and 20 are reserved in Al-Ameen College. These are the only 97 seats for the 15 crore Muslims in this country and therefore what we have reserved is much less than what we really need. Then in TMA Pai case the Court again made a very remarkable statement and this I believe the Court approved Aziz Basha, though not explicitly because Aziz Pasha is not referred in TMA Pai which I believe is not without some significance, while all the earlier case are referred. Pasha is the case of Supreme Court 1968 which said Aligarh Muslim University is not a minority institution.  The Supreme Court said that the right to establish and administer educational institutions means right to establish institutions at all levels.  Whatever you mean by education that explanation is to b e extended to educational institutions as well and therefore it means that you can have a University under Article 30.  Aziz Pasha is very explicit on it.  The Pasha said judgement that term educational institution of their choice is of wide import and includes a University. On this point, Allahabad High Court is not willing to follow Pasha and that creates doubt in my mind.   At least follow Pasha sincerely and fully; where Pasha supports Aligarh Muslim University, you are not willing to rely on it.  Where Basha goes against me in spite of intervention of the Legislature 1981, Pasha is still a good law. I think this proposition is not a very correct proposition in law.

I think Pai made a mistake which was subsequently corrected in Islamic Academy case.  Pai said that the rights of minority and the rights of non-minority are at par. That was a wrong preposition. They said that well the citizens have right under Article 19, minorities have right under Article 30 and therefore both have the same rights. With very great respect, I believe the Supreme Court was wrong and the five judge bench made it explicitly clear that minorities and non-minorities are not at par because the minority community has a right to prefer students of its community even though they may be less in merit but the majority community does not have this right. Moreover, in Islamic Academic Court when it said if tomorrow a law is passed to nationalize education, it shall be applicable to all  national institution except minority educational institution which can never be nationalized.  Then came Inamdar and the least I say about Inamdar is better because I believe most of you are interested in listening to the Aligarh Controversy.

Just to say one sentence about Inamdar and that applies to Pai as well. Defining minority on the state level again violates the rights of religious communities in India because if I win the case, which I am going to fight in the Supreme Court, still in view of Pai and in view of Islamic Academy and Inamdar, may be a question is raised that you cannot exercise preference on an All India basis because the Court has said that the minorities are to be determined at the state level. I believe the Kerala Education Bill was correct. I believe Aziz Pasha on this point was correct because Aziz Pasha said that they treat Muslims as a religious minority on an all India basis. Then Inamdar tried to dilute Article 30 by saying that it is not a right, but a protection. Those of us who are familiar with famous Holfer’s analysis,  Jural’s analysis, rights in its form as privilege in its form as liberty, in its form as right, are aware that to say that it is a mere protection and not right is also denying what the framers of the Constitution had in mind when they drafted Article 30.

That brings me to Pasha and the decisions of Allahabad High Court. I have two decisions against me.  But let us look at the Pasha case. This is a decision of the Supreme Court (1968) which some members of the minority community conceded and remember not in the representative capacity. It was not an age of public litigation. Some members in their individual capacity, had challenged the amendment in the Aligarh Muslim Act, the 51 amendment, the clause which says that only a Muslims can become a member of the University Court and the 1965 Act which made the Court merely an Advisory Body and packed the board with the nominees of the Visitor because out of the 52 members of the court, 44 are to be the nominees of the President of India and out of the 9 members of the Court, 8 are to be the nominees of the President of India.

These were the provisions which were challenged that the Parliament has taken over the right to administration from the Muslim community. Therefore, the Court went into the question whether 65 and 51 amendments were unconstitutional and to do this the court started referring to history. If you look at the paragraph 3 & 4 of Pasha, they referred to Sir Syed, they referred to Muslim University Association, the Foundation Committee, the diffusion of western learning society, the collection of funds, the college and Madarsa Drululoom being established by the Muslims and then they negate history. The beauty of Pasha is that the Supreme Court began by referring to history in paragraph 3 & 4, and then they reject history because they say ‘let us look on the provisions of the Act.’ Whether on the provisions of the Act, this deep green history can be made out, the Court atleast in four place in Pasha has said that if a minority community has established an institution, it would definitely have a right to administer. The Court came to the conclusion that on the provisions of the 1920 Act, it is not clear, it is not made out, that Muslims had established this Institution.  Thus the Court had decided the case not on the basis of history and, with great respect I say it decided a case in complete legation of history.  As Tara Chand has put it, Aziz Pasha was falsification of history and the two judgment of Allahabad High Court fall in the same category.  The Court decided the case on the basis of provision of law. The law validly made by the Governor General in Council and all of us are aware that if the case is decided on law and if the law is changed the basis of that case stands changed.

 And, Allahabad High Court has no complaint with the Parliament of India which correctly narrated the history of Aligarh Muslim University in 1981. Let us again look at the Pasha, how Basha is developing its logic. They said that the key question was recognition of degree. The Muslim minority have no power to establish a University whose degrees were recognized by the Government and therefore debarred their right.  As I said before if educational institution of their choice means a right to widen the choice, the Courts have no power to prevent or to substitute or to put words into my mouth, to say that you made this choice. No, I did not.  Our contention a very strong that we wanted a Central University. We wanted an aided University, these are all parts of our choice, and we wanted a University whose degrees were recognized. In any case, any speculation about the state of mind of Muslim community can never be the rationale of a judgment. The Allahabad High Court is wrong in saying that discussions on Section 6 are the corner stone of Pasha. With very great respect, I disagree. In Pasha, the Court is saying that it must have been in the minds of Muslim Community that there is no use establishing a University whose degrees are not recognized. When Pasha accepted that MOA college was the nucleus of Aligarh Muslim University, that the Parliament in 1920 had given in the Annexure the list of the foundation members of the University, and they were not one or two, they were one hundred twenty four and all of them Muslims. The Parliament is itself accepting and admitting somebody as its founder. When the Parliament in passed a law, the Member Education introduced the bill paid fulsome tributes to Sir Syed. The Government General congratulated the Muslim Community for conversion of the college into a University and on the realization of their dreams.  Do you congratulate people on their death? Because the interpretation which the Hon’ble Supreme Court talk and the interpretation which the two benches of Allahabad have taken that MAO College has been dissolved and dissolution means death and a new entity came into being in 1920. May be you established MAO College, may be MAO college was deep green but in 1920 MAO college came to an end because of this provisions of dissolution in Section 4 and a new institution was brought into existence.

This, Chief Justice Wanchu has said, is the real meaning of word establish and the Article 30 though as many as five dictionaries which he have cited. Every dictionary is having the sound as another meaning of establish and the Supreme Court in two years, a large bench of six judges in reverend mother provincial has taken the meaning found that establish means found and it is revering mother provincial which has found a place in T.M.A.PAI not Pasha, therefore, our submission is that this word establish in Article 30 does not mean merely bringing into existence, it also means found and if founding is the correct meaning, you should go back from 1920 to 1877 when the college was founded and who founded the College? Look at mother provincial, look at T.M.A. Pai, the Supreme Court is saying, one philanthropic individual may found an institution.  In any case what prevented a parliament from establishing a minority institution? This is my argument.  If a minority community goes to the Parliament, a sovereign Parliament, a Parliament which can do everything except to make a man a woman, woman a man.  I neither have resources nor experts, I want an educational institution for my community.  You pass a law for establishing that institution, give me funds and help me in recruiting and running that institution, still that institution would answer the description of Article 30. Nothing prevents parliament from accepting the demands of citizens and nothing prevents citizens from demanding anything from the Parliament.  In any case there is an instance, the same parliament which passed AMU Act also passed an Act of the Dhaka University and in the Act of the Dhaka University, they specifically said in the Executive Council, in the Academic Council and all bodies, 50% members should come from the minority community, from Muslims, and they said that we want that in this area of East Bengal, the educational backwardness of Muslim community should come to an end and therefore prevents Parliament from agreeing with the demands of a minority community.

In any case, if on the face of the Act 1920 Act, it was not clear who established Aligarh Muslim University because in the preamble and the long title word establish had come: whereas it is expedient to establish and incorporate residential Muslim University at Aligarh. And, because of this word ‘establish’ Aziz Pasha had thought that Parliament had established Aligarh Muslim University.  What prevents Parliament from saying in 1981 that it did not establish?  In any case, the Supreme Court did not say that you will never say you established this University.  Pasha said that in the face of the Act with these wording in the Act, it cannot be said that the Muslim Community established and if they did not establish definitely the other right cannot be given to them.  But Pasha nowhere said that Parliament will never in future say that it did not establish Aligarh Muslim University.

In 1981, what the Parliament did, I think, it is of some importance if I referred to the speech which was made by Smt. Kaul in 1981 and, very briefly, I will read just one sentence. `I seek your indulgence, Sir, and that of the house for saying a few words before the bill is taken up for consideration; the measure that we are going to consider is one of momentous significance. On our part, we are redeeming the pledge that we have given to our Muslim brethren that the historical character of Aligarh Muslim University, that is the pledge made in the election manifesto in 1980 for the minority character of the University will be assured.  I am conscious of the fact that this is a measure to which almost all shades of opinion have lent their support. The enactment of Aligarh Muslim University Act 1920 was an important landmark in the development of our University education. However, it was not the starting point of the history of Aligarh Muslim University.  This is what the Parliament is saying. The Parliament is saying indeed that as far back as 1870, Sir Syed Ahmed Khan realized that the backwardness of the Muslims in India is mainly due to the neglect of modern education. He therefore set up a Committee to devise it. The entire history, which Pasha also relied on, is quoted.  A fact of history is something which laws cannot alter. This is a crucial statement made at the time of the 1981 Act on the floor of the house by the Minister Incharge, a fact of history is something which laws cannot alter, the enactment of the 1920 act was the culmination of a long cherished ideal of Muslims of India.  It was not only their dream that found expression in the establishment of the University they had contributed a substantial part of properties and funds which went into making what, for a long time the Muslims of India had been concerned that the law governing the Aligarh Muslim University does not unambiguously recognized this historical fact. There has been a unanimous demand from the Muslims of India that this historical fact should be duly recognized by a suitable amendment to AMU Act. Their demand enjoys broad support all over the country. In fact all the political parties in the country have supported this demand. The amendment of Aligarh Muslim University is thus made what the parliament did in 1981?

The Supreme Court was confused about the use of the word establish to decide the question who established Aligarh University. They deleted the word ‘established’. Is not it within the provenance of Parliament to delete any word which is causing some confusion? We use the word establish not in the sense in which you have interpreted it, therefore we are removing this word. I believe Parliament is within its competent. Then you say that on the face of the Act, it is not clear who established Aligarh Muslim University.  Let us clarify and therefore in defining the University, the Parliament of India said University means educational institution of their choice established by Muslims of India. This originated as MAO College and was subsequently incorporated in Aligarh Muslim University. What is so unconstitutional about this section? Read any book on Indian Education or the Muslim reins of education in the sub-continent.  Every book, every writer, would say Aligarh Muslim University was established by Muslims of India, for Muslims of India as H.M. Shervai concluded his discussion on Pasha which he called a mischievous judgment. Therefore, if parliament merely recognizes true history, a history which has been stated by any number of scholars and historians, you say Parliament does not have this power. It is very very difficult to understand on which ground you can say that Section 2(l) is violative of Constitution.

 What the Ld. Judges in Allahabad High Court have done, they say 2(l) is overruling Aziz Pasha. It is a declaration and by a mere declaration, you have over-ruled Pasha and therefore you have said: in appeal on Supreme Court Constitution Bench. " With very great respect, I submit if you ignore other changes made in the Act, 2(l) becomes a mere declaration, but look at other changes, you were not clear for what purposes Aligarh Muslim University was established. The Parliament said that what was implicit in 1920, we are now making explicit in Section 5(2)© whereby they say that it is within the power of the University, it is the responsibility of the University to promote specially the educational and cultural advancement of Muslims of India."

Why can’t Parliament clarify the object of an institution, which they say was established by the Parliament.  Even if it was not established by the Muslims of India, even if it was established by the Parliament of India, Parliament may establish an Institution for a backward community. Parliament may assign this job, a sacred job of educating a backward community to any institution. Moreover look at the other changes, word established was deleted. The powers of the Court which were given by the 1920 and taken over by the 65 Act restored. There were original powers of 1920 were restored.  The Court was made supreme Governing Body. The Muslims presence, which has always been there in the defacto sense was statutorily provided.

You would say it is a declaration, you can say it is a state over-ruling of Pasha, but read the entire Act of 1981 and you will find Parliament has completely removed the basis on which Pasha was decided.

In any case, I respectfully submit that at least rely on Pasha fully. If you follow this interpretation then according to the single judge of Allahabad High Court, your rights under Article 30 do not extend to establishment of Universities. While Pasha is saying that it includes Universities, they say that maximum you can have a is deemed University, the division bench has not said anything on this issue. In any case I believe the divisional bench of Allahabad High Court, which rely too much on Pasha. There are people who say that they are forbidden by this Bench to look beyond Pasha but in between there has been a legislative intervention of very great significance. The crucial word establishment was deleted, the implicit objects of the University were made explicit in 1981, the history of the institution in 2(l) and the Parliament in stating that definition has clarified that what took place in 1920 was a procedural change. The fact of incorporation is not that important that the institution will loose its original character.

I believe that Pasha and the two judges have not been fair even to the 1920 Act. I would just quote one section of 1920 and I think nothing more was needed for us to argue in this case yet we argued for hours and hours and all in vein. Section 4, the same dissolution whereby Justice Vanchu and the Allahabad judges have come to the conclusion that MAO college is dead, a new institution has come into existence, MAO college was deep green, had MAO college did not become the University, it would have been a minority institution but since it became a University with the intervention of the sovereign power, you have los the minority character. Section 4 says that all rights, liability, debts, which were made for MAO college, they shall be applicable to Aligarh Muslim University. If I would inherit the liabilities of MAO College and you say MAO College is deep green and had MAO College continued, it would have been a minority institution, I have to inherit all the rights of MAO College as a minority institution and you cannot deny me that right because Section 4 is not dissolution simplicitor, it is dissolution and transfer.  I was dissolved because my rights were transferred to a new entity. Moreover, MAO College survives today in another clause of Section 4, it says any Will, Gift or Bequeath made before or after the commencement of this Act, which means even after 1920, it would be valid today Institute of Objective Studies decides to make a Will or Gift in favour of MAO College, it shall be valid gift, valid Will because the Act permits it.  Even after 1920, when you say MAO College is dead, there is a provision, which says that you can make a Will; you can make a gift to MAO College even today. Moreover, tell me how can you change private law in this manner? I made a Will to MAO College I am dead.  How can you give the benefit of my Will to an institution different from MAO College?  You cannot change private law like this. It is my right to make a Will in favour of MAO College.  My property through my Will can be used for the benefit of Aligarh Muslim University only in one case if MAO College and Aligarh Muslim University are one and the same.  If they are two distinguishes through Aligarh Muslim Act, you cannot give the benefit of my Will or my Gift to Aligarh Muslim University.

I give you a very small fact, in all records of the revenues, the University name prior to 1920 was Madarsa because originally it was Madarsa Darululoom and we cited all the Arabic dictionaries that Madarsa also means University but after 1920 in the revenue record the change was Madarsa University. In every record of the revenue, it does not delete the word Madarsa; it says that now in all our revenue records, the Government has recorded our properties as Madarsa University.

If I have the liability to take all the students of MAO College and if I have the liability to take all the employees of MAO College, if I take all the liabilities and debts of MAO College, the rights of MAO College as a minority institution should also automatically come to me and if you deny me that right, I believe you are interpreting Article 30 in a very strange manner.  In any case, as in Keshavanand Bharti, they said that Article 30 is a part of the basic structure. Even by a constitutional amendment, you cannot delete 30.  If Aligarh Muslim University is not a minority institution, I believe you have to have another kind of article because as per 30, I founded Aligarh Muslim University and the Muslim community has been administering it all through and therefore it is a Muslim institution.  I believe Indian pluralism can get strength by giving liberal interpretations of fundamental right.

Just a last point on which I wish to conclude. Is it not strange that while interpreting 21, you have given such liberal interpretations that almost anything under the sun is covered by 21 and when it comes to 30, you give such narrow construction to the words in Article 30 that all my rights are denied while 30 is the only right in Fundamental Rights which framers of the constitution have not subjected to any restriction. You will not find in the text of Article 30 any restriction and that’s why there are eminent jurists who say 30 is an absolute right.  Even though the Supreme Court has not accepted this proposition and they said reasonable regulations in the interest of the minority community are permissible.  I accept that proposition but 30 is one right which, textually, speaking, is not subject to any restriction and therefore bordering on an absolute right yet 30 has been interpreted so narrowly that you have denied the greatest citadel of Muslim learning in the country of its Muslim status and minority character and I believe it has been thoroughly unfair.g

(The lecture was delivered at Indian Social Institute, New Delhi on January 28, 2006)