Judgment on the Minority Character of AMU: A Classical Case of Fallacious Legal Reasoning

The constitutional debate about the minority character of Aligarh Muslim University (AMU) has its genesis in the Supreme Court judgment of Azeez Basha v. Union of India (1968 AIR 662). In fact, the judgment of Allahabad High Court in Dr. Naresh Agarwal v. Union of India substantially relies upon the reasoning of Azeez Basha to declare unconstitutional the AMU Amendment Act, 1981 which itself was intended to change the basis of Azeez Basha’s reasoning!

Many attempts have been made in the past by the Parliament, jurists and academicians through constitutional, legal and rational means to bury the ghost of Azeez Basha, but it has shown fantastic resilience. This article is yet another attempt to give a decent burial to the ghost of Azeez Basha with the help of a hypothetical case which highlights the flaws in the reasoning of  Azeez Basha. This hypothetical case has been titled as The Freedom Fighters v. Union of India and from hereon, the narration seeks to build bridges with the help of creative freedom available to all fictional works

If you believe that Independence of India was the result of hard-fought battle by our freedom fighters led by the father of our nation Mahatma Gandhi against the British imperial forces you are wrong! Consider your opinion in the light of a judgment delivered by the Hon’ble Supreme Court of India in The Freedom Fighters v. Union of India case. The brief facts of the case are as follows:

“One pseudo-nationalist who never participated in the freedom struggle of India was denied the benefits & allowances which accrue to the freedom fighters for the services rendered by them to the nation with respect to its independence from British subjugation. Aggrieved by this denial Pseudo-nationalist approached the Court of Law. His contentions before the Court in support of his case are summarized below:

  • That the independence of India was brought into existence by British Parliament through the Independence of India Act-1947. But for this Act, India would have never attained independence in the eyes of Law. So, actually it is the British Parliament which was responsible for India’s independence.
  • The sacrifices of Gandhi Ji & his battery of freedom fighters pales into insignificance in comparison with the painstaking work of the British parliamentarians in passing the Independence of India Act-1947
  • In the light of above facts it is clear that the claim of Gandhi Ji & his battery of freedom fighters as the liberator of India are misplaced, misleading & without any foundation.
  • As there is a class of person who is getting freedom-fighters allowances & benefits despite the fact that there can not be any freedom-fighter in India in view of Independence of India Act, there is no reason why the same benefits can not be extended to the Plaintiff or for that matter, to all Indians or British.
  • Unequal treatment of the Plaintiff is violation of Article -14, 15 and 16 of the Indian Constitution”.

               Accepting the contentions of the pseudo-nationalist the court ordered that all the benefits, allowances & privileges granted to the alleged freedom-fighters must be scraped with immediate effect as it is violative of Article -14, 15 and 16! In arriving at this conclusion the Court relied heavily upon the judgment given by the Supreme Court in Azeez Basha v. Union of India.

The Court observed that “in Azeez Basha case it was held that Aligarh Muslim University (AMU) was not a minority institution because it has been established by an Act of Parliament i.e.; AMU Act -1920 & not by Sir Syed & his battery of social servants. Therefore AMU can not claim any right, benefit or privilege available to minority institutions.

On the basis of analogy it is very clear that the reasoning of Azeez Basha requires that in order to get the privilege of being freedom-fighter one needs to be a freedom-fighter first. As there can not be any freedom fighter in view of the Independence of India Act-1947, no one can legitimately claim the privileges of freedom fighters. If at all anyone deserves such privilege it is the British Parliament because but for the enactment of the said Act India would have never attained Independence! Holding otherwise will tantamount to overruling Azeez Basha case by implication because it would destroy the very basis on which Azeez Basha ruling is founded. Keeping in mind the need for consistency we are not willing to depart from the ruling of Azeez Basha. As in case of AMU it was the Indian Parliament which brought it into existence so also it was the British Parliament which brought into existence the Independence of India.

Accordingly as Sir Syed & his followers can not be said to have established AMU so also Gandhi Ji & his followers can not be said to have liberated India from the British. Consequently the alleged freedom fighters are not entitled to any benefits, allowances or privileges which could be granted only to those who brought into existence the Independence of India”.

The above hypothetical case demonstrates the anomaly that may be created by adopting hyper-technical interpretation of historical events. Establishment of AMU by Sir Syed & his followers in order to disseminate modern, professional and secular education among Muslims is a historical fact as much as the liberation of India by Gandhi Ji & his followers. Legal technicalities should not be allowed to trump historical facts. Instead of going by fictional theories, judgment on historical facts should rely upon historical evidence for proof. Hence, whenever called upon to determine disputes around historical facts, judicial wisdom should refrain from applying fictional theories to settle them lest the outcome of judicial process border upon absurdity opening Pandora’s box for dirty politics. The AMU case, pending before the Hon’ble Supreme Court has presented a great opportunity to correct the monumental error committed by it in Azeez Basha case. Let’s hope that this time historical wisdom will prevail over techno-legal trivialities.

Ayaz Ahmed-min

Ayaz Ahmad is Assistant Professor at Glocal Law School.

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  • S.W.Zaman says:

    One important thing to be noted here is that one should look into the fact that what was the intention behind the establishment of this university. The founder of Mohamdan Anglo Oriented college, which was converted into University by an act of Parliament in 1920, I.e. prior to independence.
    The point regarding intention of establishmental of the MAO college is very clearly pointed in a book named Pan-Imperialism and Islamism in India written by Mr.Bipan Chandra. In a chapter written on the founder of the University Mr. Sir Syed Ahmad Khan, where it has been clearly mentioned that I have founded this college only for the uplift of muslims.
    Second important point is that the act passed by parliament is prior to independence and a minister who is not even a graduate is no one to interpret the Constitution of India, where article 30 specifically deals with rights of minorities to establish and administer educational institutions.

    • ameer Ahamed says:

      Arguments aside, the historical fact remains that MAO college which was leter converted to AMU was established by Sir Syed Ahmed Khan.
      Other than that, please look the intention of establishing AMU even from the current point of view. After 68 years of independence, Muslim community still remains as a very backward community; more backward than even the SC/ST as per the Sachar commission report!. Is this a desirable condition for a progressive country like India? Gandhiji have said that the progress of a nation depends on the uniform growth of its various constituents. Did Muslims of India progress uniformly with other communities of India after independence? The answer and the unfortunate reality is that the community didnt grow.
      Are Muslims of India, being the people who chose to remain as proud Indians rather than migrating to the Muslim Pakistan, dont deserve some appreciation?
      Thanks to the large heartedness of the tolarent Hindu brothers of India, we are still proud that we are one of the most secured Muslims in the whole world; barring a few intolerent incidences here and there.
      We have great confidence in the constrituion of India, the legal system of india and over and above all in the tolerent and secular credentials of the majority Hindu brothers and sisters of India.
      It is our firm belief that the majority of the secular Hindus and the legal system of this great nation will not leave this downtrodden community into further chaos. That will only create a further dent in the progress of this great nation.
      So, it is a plea to all peace loving patriotic Indians not to make AMU a political issue. AMU is close to the heart of any proud India Muslim. Please dont make the wound further bigger by pushing this already under privilaged community by denying AMU the minority status. Please keep the poltics aside; let us live in peace and in co-existance. Let us proudly present the unity in diversity of our nation to the world by singing- “Sare jahamse Acha, Hindustan hamara”. Jai Hind.

  • S.W.Zaman says:

    One important thing to be noted here is that one should look into the fact that what was the intention behind the establishment of this university. The founder of Mohamdan Anglo Oriented college, which was converted into University by an act of Parliament in 1920, I.e. prior to independence.
    The point regarding intention of establishmental of the MAO college is very clearly pointed in a book named Pan-Imperialism and Islamism in India written by Mr.Bipan Chandra. In a chapter written on the founder of the University Mr. Sir Syed Ahmad Khan, where it has been clearly mentioned that I have founded this college only for the uplift mentioned of muslims.
    Second important point is that the act passed by parliament is prior to independence and a minister who is not even a graduate is no one to interpret the Constitution of India, where article 30 specifically deals with rights of minorities to establish and administer educational institutions.

  • Dk.Bhatt says:

    The analogy so painstakingly made by the author is misplaced for many reasons. Firstly, the Constitution of India repealed the Independence of India Act 1947 for good under Art 395 on 26’th January 1950 itself. Had it not been so, India would still be owing allegiance to the British Monarch as a “Dominion” and would still be symbolizing the “desire for self-government of the Hindus in India”! The Act of 1947 was repealed suo motu by the Constituent Assembly to formally proclaim regaining of sovereignty of “We the People of India” as a sequel of centuries-long freedom struggle against the foreign rule. So it is unreal, in the first place, to suppose either that India owes its independence to the Indian Independence Act of 1947 or that any law or governmental scheme (like Freedom Fighters Pension Scheme) post-independence might be invalidated due to its inconsistency with any such British Act. Secondly, in so far as Basha judgment of the Supreme Court regarding minority status of AMU is concerned, it cannot be gainsaid that under the Constitution the Parliament or a State Legislature cannot establish or incorporate any minority institution whereas a university can only be established or incorporated by a central or state legislature. The Constitution of India guarantees and The National Commission of Minority Educational Institutions Act 2004 emphatically grants to minorities inter alia right to establish minority educational institutions of its choice. The 2004 Act however clarifies that here “minority educational institution” means college or institution but excludes a University. So the very notion of a minority university seems incompatible with the constitutionally envisaged secular notion of a statutorily incorporated university!

    • Ayaz Ahmad says:

      Mr. DK. Bhatt
      If your argument is that we got independence on 26th January, 1950 because it is on this date the Independence of India Act, 1947 was abolished, then please respond fast as 26th of January is approaching and all of us need to convert Republic Day celebrations into Independence Day celebration!. “Desire for self government of the Hindus’? What about the desire of Indians for independence? I think you mentioned secularism somewhere in your reply by mistake.

      Piking from you, as a sequel of centuries-long freedom struggle against theocratic education, AMU was established to impart modern, secular and professional education. So it is unreal to suppose that AMU was established by AMU Act, 1920. It was the movement by Sir Syed and his supporters which made AMU a reality. The Act only provided legislative structure for MAO College.

      From In re Kerala to St Xavior and St Stephens to TMA Pai and PA Inamdar, the Supreme Court has held that the term “educational institution” under Article 30 (1) includes a “university”. Similarly, it said expression “of their choice” means “of their choice”, and it is within the power of minorities to expand their choice as much as they want. It is thus possible for a minority community to choose a central university with some governmental supervision.

      Last but not the least, please don’t quote wrong law! I am quoting the correct law not so emphatically for your kind perusal. The National Commission for Minority Educational Institutions Act, 2004 (2 Of 2005), Section-2 (g) “Minority Educational Institution ” means a college or an educational institution established and administered by a minority or minorities. I hope that in your eyes a University is still ‘an educational institution’. Further, as per Section-2 (l) of NCMEI Act “University means a university defined under clause (f) of section 2 of the ” University Grants Commission Act, 1956 (3 of 1956), and includes an institution deemed to be a University under section 3 of that Act, or an institution specifically empowered by an Act of Parliament to confer or grant degrees. According to UGC Act, Section-2 (f) “University” means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act. You may also like to check Article 30 of our Constitution and HM Seervai’s book for further enlightenment on this subject.

      • Dk. Bhatt says:

        Mr.Ayaz Ahmad,
        An academician must embrace the truth, even where it emanates from a layman. Let me quote https://en.wikipedia.org/wiki/Indian_Independence_Act_1947 that contains these lines : “The Act’s Provisions: “● the Dominion of India may be regarded as an expression of the desire for self-government of the Hindus in India, and the Dominion of Pakistan as the expression of the demand for self-government by the Muslims.” The website repeats the same again under heading “Salient Features of the Act of 1947”. As for the status of India as a “Dominion” of Britain until 26th January 1950 despite its independence on 15th August 1957, let me quote https://en.wikipedia.org/wiki/Dominion_of_India : “The sovereign and head of state of the dominion of India was a hereditary monarch, George VI, who was also the sovereign of the United Kingdom and the other dominions in the British Commonwealth of Nations… …The monarchy was abolished on 26 January 1950, when India became a republic within the Commonwealth, the first Commonwealth country to do so.” This unequivocally affirms my humble view that “sovereignty” was regained by “We, the people of India” only with the coming into force of the Constitution on 26th January 1950. Now it is up to those unaware of these historical facts to decide when to celebrate the real independence from those formal vestiges of foreign domination!
        Without making any counter-allegation of quoting wrong law about the definition of “minority educational institution” in National Commission of Minority Educational Institutions Act 2004 let me focus your attention to the official website of NCMEI http://ncmei.gov.in/writereaddata/Contentlinks/98fa0d957f1845cfa0c564076f96f16b.pdf that displays the whole Act of 2004 including definition clause Sec 2: (g) “Minority Educational Institution” means a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities.” So my submission that a statutory university can only be established or incorporated by Parliament or State legislature stands vindicated. From In re Kerala to Pai Foundation and even thereafter, “minority educational institution” has never been explained to mean anything called a “minority university” in any apex court judgment!

  • B A Dar says:

    We can not ignore historicAl facts and had also to take secular India in to consideration.

  • SUJAD SYED says:

    “Technicalities must not defeat justice.” This is a clear cut universal legal maxim.

  • ashkar husain says:

    Arguments of Prof Mustafa is not only interesting but solid and correct. If the credit of independence goes to Mahatma Gandhi the credit of establishing AMU should be given to Sir Syed Ahmad Khan. He founded this institution specially for Muslims. Thus Minority character is must for AMU.

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