November 2005 
Year 12    No.112

Cover Story

Wrong in law


Aligarh Muslim University challenges the Allahabad High Court decision


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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