High Court’s Fundamentalist Fatwa on AMU Based on Literal Deductionism

Par Excellence

 [We give below excerpts from the judgment delivered by Hon’ble Justice Arun Tandon of the Allahabad High Court on October 4, 2005 which distorts the reality of the Aligarh Muslim University. His lordship was so preoccupied with “reading down” the meaning of an unambiguous declaration by Parliament about the fact of the establishment of the University by the Muslims of India that he ignored the University’s Social Mission of “especially promoting the educational and cultural advancement of Muslims of India” declared by the sovereign Parliament in 1981. The Hon’ble judge also did not at all look into the reasons for the University’s change of policy for managing its Muslim majority of students by indirect “secular” methods to front door admission of Muslim and non-Muslim students on their all India merit, so as to improve its standards by reducing inbreeding and widening its present narrow regional base. The mode and style of the argument on which the judgment is based is exactly like fatwas on women wherein the basic concern for justice is totally ignored. The decision of the High Court needs to be overruled by the Supreme Court—Ed]

The petitioners allege that the Hon’ble Supreme Court in the case of Azeez Basha V. Union of India reported in AIR 1968 SC 662 has held that Aligarh Muslim University has been created by an Act of Parliament and, is not a minority institution so as to be covered under Article 30 of the Constitution of India.

Therefore, the reservation provided in respect of Muslim candidates as aforesaid is wholly without jurisdiction and is even otherwise in violation of Article 29(2) of the Constitution of India. It is further contended that the amendment made in Sections 2 (l) and 5 (2) (c) of the Aligarh Muslim University Act 1920 vide Act No. 622 of 1981 is ultra vires the Constitution of India, a brazen overruling of the judgment of the Hon’ble Supreme Court in the case of Azeez Basha (Supra) and be declared as such.

The Union of India as well as the Aligarh Muslim University have taken a stand that the provisions of the Aligarh Muslim University Act, 1920 which were the basis for the judgment of the Hon’ble Supreme Court in the case of Azeez Basha referred to above have since been altered vide the amending Act No. 62 of 1981 with specific reference to Sections 2(I) and 5 (2) (c), therefore, the judgment of the Hon’ble Supreme Court in the case of Azeez Basha (supra) is no more a good law. Counsel for the respondents submit that the Aligarh Muslim University was an Institution founded by the Muslims and it has only been incorporated as a University by the Act of 1920.

There has been no change in substance of the original minority character of Institution by such incorporation. It is contended that it is always open to the Parliament to change the basis or to remove the defects and the Impediments pointed out by the Court and to explain and clarify the ambiguous part of the statute which has resulted in a declaration of law by the Hon’ble Supreme Court provided such amendments are within the legislative competence of the Parliament. In view of the rival contentions raised by the parties which have been briefly noticed herein above the following issues arise for determination by this Court in the present writ petitions:

1. Whether the Aligarh Muslim University is a minority Institution entitled to protection under Article 30 of the Constitution of India and therefore it can provide for reservation of seats for Muslim candidates only. The said issue is to be decided with reference to the following sub-issues:

(1) Whether the judgment and order of the Hon’ble Supreme Court in the case of Azeez Basha, AIR 1968 Supreme Court 662, is no more a good law in view of the change effected in the statutory provisions, vide amending Act 62 of 1981?

Whether the provisions of Act 62 of 1981 especially Section 2(1) and Section 5 (2) are retrospective in nature and have the effect of declaring Aligarh Muslim University as a minority Institution within the meaning of Article 30 of the Constitution?

2. Whether the amended Section 2(1) and 5 (2) (c) are within the legislative competence of the Parliament and whether the said amendments are a brazen attempt to over rule the judgment of the Hon’ble Supreme Court in the case of Azeez Basha (supra)?

3. Whether the reservation of the entire 50% seats for Muslims required to be filled on the basis of entrance examination to be conducted by the Aligarh Muslim University from internal as well as external candidates is arbitrary and violative of Article 14 and Article 29(2) of the Constitution of India?

4. Whether the petitioner have any locus to maintain the present writ petitions, and whether the petitions have become infructuous in view of the subsequent developments?

The Hon’ble Supreme Court has dealt in great detail the historical background in which the Mohammadan Anglo Oriental College, Aligarh and Muslim University Association were dissolved their properties and rights were transferred and declared to be vested in the University. Section 3 of the Act declared the constitution of a body corporate by the name of Aligarh Muslim University having perpetual seal and a right to sue and to be sued by that name.

The dissolution of M.A.O. College and the Muslim University Association was also specifically noticed in section 4 of the Act. The effect of Section 3, Section 4 read with Section 6 of the original Act vis-à-vis the University being brought in existence by a legislative Act are the main basis for the decision of the Hon’ble Supreme Court in Azeez Basha. The said sections have not been amended and hold ground even today. Mere deletion of the word “establish” from the long title and amendment to Section 2(1), whereby the University has been defined to be an educational institution of their choice, established by the Muslims of India, which originated as M.A.O. college, Aligarh and which was subsequently incorporated as Aligarh Muslim University in itself is not sufficient to hold that the Aligarh Muslim University, which was a creation of a legislative Act, has not been so created. The entire Act has to be read as a whole, amendment in the long title and few sections of the Act are not themselves sufficient for record a finding that the Aligarh Muslim University is a minority Institution covered by Article 30 of the Constitution of India.

In the case of the Bakhtawar Trust (supra), the Hon’ble Supreme Court, in paragraph 27 has held that two questions ought to be answered for judging as to whether the basis, upon which the earlier decision of the Court was based, had been changed for the purposes of coming to a conclusion that the earlier law declared by the Court is no more good law. The questions are (a) what was the basis of the earlier decision and (b) what if any may be said to be the removal of that basis.

From the judgment of Azeez Basha, which has been quoted in extend herein above, this court has no hesitation to hold that the basis of the judgment of the

Hon’ble Supreme Court in Azeez Basha has not been so fundamentally altered so as to come to a conclusion that if the amendments made under the 1981 Act had been there before the Hon’ble Supreme Court at the time of decision of Azeez Basha the judgment would have been otherwise. The Hon’ble Supreme Court has clarified the meaning to be attached to the word `Establish’ as mentioned in Article 30 of the Constitution of India, and has held that the same means to bring into existence. The bringing into existence of the Aligarh University by an Act of Legislature has been considered by the Hon’ble Supreme Court in the light of the historical background and various provisions of the Act, including Sections 3, 4 and 6, which remain unamended. The Hon’ble Supreme Court has taken note of the fact that the foundation of the Aligarh Muslim University lay in the M.A.O. College as well as in the Muslim University Association. Thereafter, having regard to Sections 3, 4 and 6 read with other sections of the Act, whereby Aligarh Muslim University was declared to be a body corporate, having perpetual succession and a common seal, it has been held that the Aligarh Muslim University was a statutory body distinct from its members, who had contributed to incorporation of the same.

The legal position with regard to fundamental rights being altered with the incorporation of a company / corporation has been a subject matter of consideration before the Hon’ble Supreme Court in the Case of Dharam Dutt (supra) as well as in A.I.R. 1963 Sc 1811; State Trading Corporation of India, Ltd. V. The Commercial Tax Officer and others it has specifically been held that with incorporation, the corporate body become a distinct legal entity vis-à-vis the members, who have contributed to the incorporation. Fundamental rights, which are available to the citizens (e.g. Article 19, 29 and 30) under the Constitution of India, are not available to incorporated body’s and as they do not answer the description of citizen of India.

Aligarh Muslim University having been incorporated as a legal juristic person under a legislative Act of 1920, as such cannot claim fundamental right guaranteed for citizens under the Constitution of India nor the members of the minority community can claim such a fundamental right in respect of a body incorporated.

It is no doubt true that in the case of Azeez Basha it has been held that Institution as referred to in Article 30 may include the University also. The aforesaid conclusion of the Hon’ble Supreme Court has to be read in the background, in which it has been so held. The Hon’ble Supreme Court itself in the case of Azeez Basha has recorded that a private University could be created prior to the enforcement of University Grant Commission Act, 1956 although the degree awarded by the said University may not be necessarily recognized by the government. Meaning thereby that prior to University Grants Commission Act there was no bar for a private University being established and degree awarded, which may or may not be recognized by the State. As a matter of fact reference may be had to the following institutions, which were awarding degrees / certificates without having been established by any Act of Legislature, prior to the enforcement of the University Grant Commission and such degrees / certificates were recognized by the state:

1. 1. Hindi Sahitya Sammelan, Allahabad; AIR 1971 Supreme Court 966 (para 1).

2. 2. Tibbia College (Medical College); AIR 1962 Supreme Court 458 (para 2).

Subsequent to the enforcement of the University Grants Commission Act, 1956 a private University can be established provided such University is granted recognition as `deemed University’ by the University Grant Commission.

Therefore, to that extent minority citizens may establish a minority University subject to it being declared a `deemed University’ by the University Grants Commission. In view of the aforesaid, the court is of the opinion that the judgment of the Hon’ble Supreme Court in the case of Azeez Basha (supra) was based on over all consideration of the provisions of the Act and the historical background, in which Aligarh Muslim University was brought in existence. Such basis, on which the aforesaid judgment was founded has not been so fundamentally altered under Act of 1981 so as to create a situation that in the changed circumstances the Court could not have rendered said judgment.

This leads us to the second issue namely whether the members of the minority community, who are said to have founded the University, retained a right to administer the University even after its incorporation. From Section 3 read with Section 13, 15, 16 to 22 of the Act, it is apparently clear that the administration of the University was vested in the officers and the statutory body’s, which were constituted under the Act itself and at no point of time the founders, who had contributed to establish the University claimed any right to administer the same. The administration of the University has all along vested in the officers and the bodies continued under the statutory provisions itself. The Hon’ble Supreme Court has, therefore, held in the case of Azeez Basha that the right of administration was never vested in the Muslim minority. Subsequent to the creation of the University itself under 1920 Act. The contention of the counsel for the respondent to the effect, that the right of administration automatically flows once it is established that the institution is established by a minority community is too broad a proposition to be accepted. From the judgments, which have been noticed herein above, it is settled that Article 30 consists of two parts (1) right to establish (2) right to administer. Both rights are to be read conjunctively. Reference – T.M.A. Pai Foundation and St. Stephen’s College (supra). However, it does not necessary follow that every time the citizens of minority community establishes an institution, they necessarily desires that said institution must be administered by the members of the minority community only. It is always open to the founder members, who establish an institution, to handover the administration of the same to person who may not belonging to minority community and therefore it is not always necessary that the right to administer the minority institution would follow automatically, once the institution is established by the minority. The right to administer depend upon the wish and desire of the founder members. From the facts, which have been noticed in the case of Azeez Basha and as apparent from the Act of 1920, right to administer the University was ever retained by the members of the Muslim community. As a matter of fact, the right to administer had been willing surrendered in favour of the statutory authorities and bodies constituted under the Act. Suffice is to reproduce para 20 of the judgment in Azeez Basha:

“(20) We should also like to refer to the observation in Durgah Committee, Ajmer v. Syed Hussain Ali, 1962-1 SCR 383: (AIR 1961 Supreme Court 1402). In that case this court observed while dealing with Article 26 (a) and (d) of the Constitution that even if it be assumed that a certain religions institution was established by a minority community it may lose the right to administer it in certain circumstances. We may in this connection refer to the following observations at p. 414 (of SCR): (at p. 1416 of AIR) for they apply equally to Article 30(1).

“If the right to administer the proper ties never vested in the denomination or had been validly surrendered by it or had otherwise been effectively and irretrievably lost to it, Article 26 cannot be successfully invoked.”

At this stage it would be worthwhile to refer to the challenge, which was made to the amendment incorporated in 1920 Act by the amending Act of 1951 and Act of 1965. The proviso to Section 23(1) of the Act, 1920, which provided that all members of the Court would only be Muslims, was deleted vide Amending Act of 1951. In order to give effect to the said amendment, the Amending Act of 1965, provided that all members of the Court as well as of the Executive Council will ceases to hold such office from the appointed date i.e. 20th May, 1965. The provisions of the aforesaid Act of 1951 and 1965 were challenged before the

Hon’ble Supreme Court specifically by the Muslims only, who alone could claim a right as citizens to seek protection under Article 30 of the Constitution of India. The challenge was repelled by Hon’ble Supreme Court after recording a finding amongst other that the right to administer was never vested in Muslim minority.

That an other anomaly, which may be created on acceptance of the contention raised by the counsel for the University and Union of India would be that, in case it is held that amendment incorporated vide Act 1981 declare Aligarh Muslim University to be a minority institution with Reference to Article 30, it would logically follow that the amendments made vide Amending Act, 1951 and the Amending Act of 1965, whereby the constitution of the governing bodies was altered by the legislature would ipso facto be rendered void, being hit by Article 13 of the Constitution of India in as much as the amendments made by the Act of 1951 and 1965 would violate the rights of the minority institutions vested under Article 30 of the Constitution. The contention of respondents, if accepted, would create a situation whereby the legislative Acts of 1951 and 1965 declared constitutionally valid by the Hon’ble Supreme Court, would be rendered void being hit by Article 13 of the Constitution of India.

In the opinion of the Court the power to amend the statutory provisions cannot be extended to such an extent so as to create a situation whereby legislative Act, declare constitutionally valid, could be rendered unconstitutional by subsequent legislative enactment.

In view of the facts noticed and conclusions arrived by the Hon’ble Supreme Court in the case of Azeez Basha qua the Aligarh Muslim University being brought in existence, it cannot be said that the said decision was solely based on the interpretation of the statutory provisions, so as to enable the legislature to declare vide Section 2(1) that the Aligarh Muslim University has been established by the Muslim minority. The declaration in that regard under Section 2(1) is on the face of it is an attempt to negate the judgment of the Hon’ble Supreme Court specifically when such declaration has been made without altering the foundation / basis on which the judgment in the case of Azeez Basha was based. Section 2(1) has the effect of setting aside an individual decision inter parte. Such an Act on the part of the legislature amounts to exercise of judicial power, and functioning as an Appellate court or Tribunal. Reference – Judgment of the Hon’ble Supreme Court in the case of Cauvery Water Tribunal (supra). In order to save Section 2(1), as substituted under 1981 Act from being stuck down on the ground of brazen overruling of the judgment of the Hon’ble Supreme Court in Azeez Basha it is necessary to read down the said provision in a manner so as to hold that the word “Established” referred to in Section 2(l) necessarily refers to Mohammadan Anglo Oriental College, which was established by Muslims and was subsequently incorporated into the University, as has been held in the case of Azeez Basha. Accordingly it is held that the word `Established’ in Section 2(l) may be read with reference to Mohammadan Anglo Oriental College only, which was established by Muslims.

It is also surprising to note that the Academic Council and Executive Council of the Aligarh Muslim University, which have been constituted under the statutory provisions of the Aligarh Muslim University Act itself and declared to be a body corporate (Section 3 of the Act), started asserting a fundamental right guaranteed by Article 30 of the Constitution of India. As already held by the Hon’ble Supreme Court, such rights are available to citizens only and therefore the statutory body like the Academic Council and Executive Council could not have claimed any protection for themselves under Article 30 of the Constitution so as to provide reservation for the Muslim students nor it was open to the Executive Council and the Academic Council, which are creature of legislative enactment itself to assert that Aligarh Muslim University is entitled to the benefits of Article 30 of the Constitution of India, specifically when Academic Council and the Executive Council in control of the

University on date have been reconstituted by the Amending Acts of 1951 read with the Amending Act of 1965, the constitutionally whereof has been upheld by the Hon’ble Supreme Court only after coming to the conclusion that Aligarh Muslim University was not a minority institution.

The contention raised on behalf of the counsel for the University with regard to Aligarh Muslim University being not a party to the writ petition of Azeez Basha may also be dealt with. In the case of Nabhi Raja and R.C. Cooper (Supra), the Hon’ble Supreme Court has held that a person not possessed of a fundamental right cannot challenge the validity of a law on the ground that it is unconstitutional.

Fundamental right (Article 30 of the Constitution of India) are available to a citizen of India only. Admittedly the Aligarh Muslim University cannot be held to be a citizen, as it is a body incorporate and therefore on its own it cannot claim protection of Article 30 of the Constitution of India. It is only the Muslim minority members who can claim such protection and could challenge the validity of amending Acts of 1951 and 1965. It makes no difference as to whether the Aligarh Muslim University was a party in the case of Azeez Basha or not. Even otherwise at no point of time any attempt was made by the Aligarh Muslim University to get itself impleaded those proceedings nor the law declared by the Hon’ble Supreme Court in the case of Azeez Basha was ever questioned by any review petition.

Although the Court has reservation with regard to the extent of reservation provided in respect of Post Graduate Medical Courses by the Aligarh Muslim University (i.e. 50% of the total seats) as well as to the manner in which the said reservation has been implemented i.e. one category of the seats being completely reserved for Muslim students (50% of the total seats required to be filled by open examination to be conducted by the Aligarh Muslim University), both the aforesaid issue are not required to be gone into any further inasmuch as this Court has held that Aligarh Muslim University is not a minority Institution, entitled to protection of Article 30 of the Constitution of India and therefore has no right to provide any reservation on the basis of religion. The reservation provided by the Academic Council of the Aligarh Muslim University vide its resolution dated 15th January, 2005 the resolution of the Executive Council dated 19th February, 2005 and the approval granted by the Central Government vide letter dated 25.02.2005 to that extent are hit by Article 29(2) of the Constitution of India and as such cannot be legally sustained.

It is declared that no reservation can be provided by the Aligarh Muslim University for admission of students on the basis of religion only and any decision in that regard, being hit by Article 29(2) of the Constitution of India, would be patently illegal and without jurisdiction.

Normally this Court would not have interfered with the admissions already granted on the basis of examinations held after the students have already been admitted and a considerable time has lapsed, however, this court is also conscious of the fact that reservations as has been applied by the Aligarh Muslim University, for Muslim students only, is totally unconstitutional and in teeth of Article 29(2) of the Constitution. Therefore this Court cannot permit such flagrant violation of the Constitution of India, and the conscience of the Court does not permit that admissions granted for Post Graduate Medical Courses on the strength of reservation provided for Muslim students only by the Aligarh Muslim University to stand.

Accordingly, the Writ Petitions are allowed. 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.

The admissions granted in pursuance of the aforesaid reservation stand cancelled.

The Aligarh Muslim University is directed to conduct a fresh entrance examination in respect of the 50% seats of the Post Graduate Medical Courses, preferably within one month from the date a certified copy of this order is filed before the Vice Chancellor of the University, without making any reservation on the basis of religion.g

[Courtesy: Quarterly Human Rights Today, July-September 2005]