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:
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 Ahmad is Assistant Professor at Glocal Law School.