Wrong in law
Aligarh Muslim University challenges the Allahabad High
Court decision
BY FAIZUN MUSTAFA
Aligarh Muslim University (AMU) has minutely studied the
judgement of the learned Allahabad High Court judge, Justice Arun Tandan dated
October 4, 2005 and found it technically flawed, legally unsound and
constitutionally untenable. The university, after consulting its lawyers, has
challenged the judgement on the following grounds:
Ř The finding of the learned judge that Article 30 of the Indian
Constitution gives rights only to natural citizens and not to body corporates
such as universities incorporated or juristic entities, which means that these
entities cannot claim fundamental rights that are guaranteed by the Constitution
for citizens alone. Aligarh Muslim University was established by an Act of
Parliament and not by the Muslims of India and therefore is not a minority
institution within the meaning of Article 30. It is for the first time in
India’s judicial history that such a narrow interpretation has been applied to
Article 30. As per this interpretation, there is no minority institution in the
country that is entitled to protection under Article 30. The Supreme Court of
India in a series of cases has held that Article 30 is to be liberally
interpreted, as unlike the other fundamental rights it has not been subjected to
any restriction within the text of the Article. Every minority institution is
run by a society that is registered under the Societies Registration Act and
therefore every minority institution is necessarily a juristic entity.
Ř It is a well
established precedent that the legislature has the power to overturn a decision
of the courts. It can remove the very basis on which the decision was based. It
can also legislate retrospectively and nullify a decision that pre-dates
legislative intervention. The legislative power of Parliament to enact a law on
a given subject includes the power to re-enact, repeal, amend or change a
statute within the appropriate category. The learned judge has endorsed the
aforesaid rule yet fails to apply the same to the facts and circumstances of the
case. In 1981, the Indian Parliament in its wisdom amended the Aligarh Muslim
University Act, 1920 and removed the basis on which the Supreme Court of India
rendered its decision in the Azeez Basha vs The Union of India case in
1967. (In the Azeez Basha case, the Supreme Court held that AMU was established
by a statute i.e. the 1920 Act as passed by the central legislature, and not by
Muslims. Before 1920 and the legislation that gave AMU the status of a
university, AMU was the Mohammedan Anglo-Oriental (MAO) College.) The only
question required to be considered by the hon’ble single judge concerned the
legislative competence of Parliament to enact the amending Act of 1981 whereby
Parliament removed the ambiguity and cured the defects as noticed in the Azeez
Basha judgement.
Ř On a reading of the complete Aligarh Muslim University Act of
1920 (as amended by the Aligarh Muslim University Amendment Act of 1981), it is
clear that the purpose of the Act was to simply accept and assert the status of
AMU as a minority institution while also giving it the status of a university.
The enactment of an Act by the legislature thus merely changed the form and not
the substance of MAO College.
Ř The legislative
power of Parliament can also be invoked to fulfil fundamental rights or give
effect to such rights. It was in the exercise of this power that Parliament
passed the Act of 1981 so as to remove doubts about Aligarh Muslim University’s
minority character from the minds of the Muslim community. The Act of 1981
specifically stated that Aligarh Muslim University was established by the
Muslims of India and not by Parliament. Even the hon’ble Supreme Court
recognised in the Azeez Basha judgement that if AMU was established by the
Muslim minority, then the ‘minority would certainly have the right to administer
it’. The judgement of the learned single judge is clearly erroneous as it
completely overlooks this aspect of the Azeez Basha verdict. With the passage of
the amendment Act of 1981, and the explicit words used therein, it is now
acknowledged that Aligarh Muslim University was established by Muslims of India
and in the light of the Azeez Basha judgement, the Muslim minority community has
been awarded the right to administer it within the meaning of Article 30(1) of
the Indian Constitution. The Union of India in its February 25, 2005 letter also
accepted that Aligarh Muslim University was established by Muslims of India and
is being administered by them as per Article 30 of the Indian Constitution.
Ř The October
judgement is completely silent on Section 5(2)(c) of the Act of 1981, which
empowers the university to especially promote the educational and cultural
advancement of the Muslims of India. A non-minority institution can never be
given such a mandate by Parliament.
Ř The distinction drawn by
the learned judge between ‘University’ and ‘Deemed-to-be University’ is also
erroneous. To say that a ‘Deemed-to-be University’ can be a minority institution
and a ‘University’ cannot is unconstitutional and moreover, runs contrary to a
decision by an 11-member bench of the Supreme Court of India.
(Faizun Mustafa is the registrar, Aligarh Muslim University.)
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