Essay

AMU under assault

Print edition : March 04, 2016

The Aligarh Muslim University, which is touted as India’s premier Muslim educational institution whenever it suits the government to take that stance. Photo: THE HINDU ARCHIVES

Syed Ahmad Khan. He founded the institution that later became the Aligarh Muslim University.

Bharatiya Janata Party leaders L.K. Advani, Rajnath Singh, M. Venkaiah Naidu and Sushma Swaraj at a rally against reservation in New Delhi in August 2005, soon after the UPA government allowed the Aligarh Muslim University to reserve 50 per cent of seats in 36 courses for Muslims. Photo: S. Subramanium

Jawaharlal Nehru delivering the convocation address at the Aligarh Muslim University on January 24, 1948. Photo: THE HINDU ARCHIVES

Gopal Subramanium, former Solicitor General. Photo: S. Subramanium

AMU students on the university campus in October 2005, after the Allahabad High Court's judgment stripping the institution of its minority status. Photo: Rajeev Bhatt

The Modi government’s reversal of the Union government’s stand on the Aligarh Muslim University not only perpetuates a grievous wrong but betrays a poor understanding of the issue at stake.

“THE way Aligarh participates in the various walks of national life will determine the place of Muslims in India’s national life. The way India conducts itself towards Aligarh will determine largely, yes, that will determine largely the form which our national life will acquire in the future.” When Dr Zakir Husain uttered these meaningful words, as Vice-Chancellor of the Aligarh Muslim University (AMU), on the occasion of President Rajendra Prasad’s visit, he was pointing unmistakably to the close link that binds this university to the Muslims of India as all the records of its history show.

However, the AMU came under a malevolent attack in 1965, and the attack has been revived now under the Narendra Modi government, just when it seemed that the worst was over.

On January 11, 2016, Attorney General Mukul Rohatgi informed a Bench of the Supreme Court comprising Justices J.S. Khehar, M.Y. Eqbal and C. Nagappan, that “[i]t is the stand of the Union of India that the AMU is not a minority University. As the executive government at the Centre, we cannot be seen as setting up a minority institution in a secular state” (emphasis added, throughout; The Times of India; January 12, 2016). He was withdrawing the Union of India’s appeal against the judgment of the Allahabad High Court.

This is a total reversal of the stand taken by the Manmohan Singh government. In 2005, it told the Allahabad High Court, through its eminent counsel Gopal Subramanium, that the AMU 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 the institution by such incorporation.” This considered view was expressed twice—before a single judge, Justice Arun Tandon, and an appellate bench comprising Justices Ajoy Nath Ray and Ashok Bhushan. Its total reversal by the Modi government is, therefore, deliberate. It is in keeping with its concerted moves against the autonomy of all cultural and educational institutions, especially if they are established and administered by a minority community, the Muslims particularly. The three judges rejected the AMU’s minority character.

Article 30(1) confers this judicially enforceable fundamental right on minorities: “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.” The Supreme Court has ruled that a university is very much an “educational institution” within the meaning of Act 30(1). The Modi government’s excuse is false on the very face of it, namely, that “we cannot be seen as setting up a minority institution in a secular state”.

Article 30(1) figures in the Constitution of a secular state and recognises the existence of minorities and their right to establish and administer educational institutions of their choice. The Modi government may not wish to be “seen” as espousing any minority—the Rashtriya Swayamsewak Sangh (RSS) rejects the very concept of minority—still less seen to be “setting up” the AMU. It has existed since 1920. In issue now is the Muslims’ right to establish and administer the AMU and qualify for the protection of Article 30(1).

The ignorance is staggering. Secular states the world over have freely accorded recognition to denominational universities.

International practice

Article 8 of the Treaty between the Allied and Associated Powers and Poland on the Protection of Minorities, concluded on June 28, 1919, reads thus: “Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Polish nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, school and other educational establishments, with the right to use their own language and to exercise their religion freely therein.” Article 13(1) of the Council of Europe’s Framework Convention for the Protection of National Minorities, 1994, says: “Within the framework of their education systems, the parties shall recognise that persons belonging to a national minority have the right to set up and to manage their own private educational and training establishments.”

Article 14(3) of the European Charter of Fundamental Rights (2000), which binds members of the European Union, says explicitly: “The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national law governing the exercise of such freedom and right.”

The United Nations’ International Covenant on Economic, Social and Cultural Rights, to which India is a party, recognises in Article 13(4) “the liberty of individuals and bodies to establish and direct educational institutions”.

The world-famous Brandeis University in the United States was founded in 1948 as a “Jewish community-sponsored educational institution” and was named after Louis Brandeis, the first Jewish judge of the U.S. Supreme Court.

In India itself, curiously, whenever it suited the government to do so it never failed to refer to Aligarh with pride as a flourishing Muslim institution. A pamphlet entitled “Muslims in India” published by the Publications Division of the Ministry of Information and Broadcasting of the Government of India as recently as June 1964 for foreign consumption referred to Aligarh as “the oldest Muslim educational institution in India. It was founded by the late Sir Syed Ahmed Khan in 1875 as the Muhammadan Anglo-Oriental College, which steadily grew up into a first rate college. Its great founder died in March 1898, and soon after efforts were made to raise it to the status of a University. It was in 1920 that it formally became a Central university after the enactment of the Aligarh Muslim University Act in that year.”

It suggests illiteracy on the part of anyone who asserts in this day and age that a secular state cannot recognise a minority institution. Since 1990, particularly, the trend has been strongly in favour of recognition of minority rights. The Sangh Parivar’s trend of thinking has been in the very opposite direction.

Ordinance against autonomy

It all began on April 25, 1965, when the Vice-Chancellor of AMU, Ali Yavar Jung, was grievously assaulted by a student. This provided an excellent opportunity for Education Minister M.C. Chagla, a classic Uncle Tom ever more royalist than the King where Muslims were concerned. He had an Ordinance issued on May 20, 1965, destroying the autonomy of the AMU. The Vice-Chancellor was persuaded to withdraw his resignation. To his credit, he stood up to Chagla and strongly refuted his false charges against Aligarh.

“Was it, however, necessary to suspend the Constitution of AMU within days?” asked the distinguished French scholar Violette Graff in an excellent article in the Economic & Political Weekly entitled “Aligarh’s Long Quest for ‘Minority’ Status” in the magazine’s August 11, 1990 issue. “He [Chagla] overdid it,” she remarked. An ordinance, soon to become an Act, changed drastically the statutes, the main amendment being related to Section 23(2) of the founding Act of 1920, which provided for the composition and powers of the court. Until then the court had been the supreme governing body, with only one essential modification introduced at the time of Independence (1951 Amendment): the clause providing for exclusive Muslim membership had been dropped. Now, under the new dispensation (1965 Amendment Act), the court was reduced to a nominal advisory body, while authority was concentrated within the hands of the Vice-Chancellor and members of the executive council who were themselves nominated by the visitor (the President of India), or were ex-officio members.

The issue became enmeshed in litigation and politics. Few cared to recall the rich history behind the AMU’s establishment. Each stand must be examined carefully. Here we are concerned with the law alone. The Supreme Court upheld the Act, which replaced the Ordinance and did so in a judgment that reeks of errors galore and much more; Azeez Basha vs Union of India (1968) Supreme Court Reports 833; AIR 1968 SCC; 662, and (1968)2 SCJ 299.

The issue before the Supreme Court was simple. A college or a school can be run by a society registered under the Societies Registration Act. Not so, a university. It must have a legal personality that can be conferred only by a statute. Limited companies can acquire such status by following the provisions of the Companies Act. There is no such law in regard to universities. A university is incorporated and thus acquires a legal personality only by virtue of a statute specially enacted either by Parliament or a State legislature. The Supreme Court accepted that “the words ‘educational institutions’ (occurring in Art. 30(1)) are of very wide import and would include a university also”. That being the case, how on earth can a minority possibly “establish” a university except by asking the government to get enacted a law incorporating the body it had formed thus and conferring on it a legal personality? Surely, all that a minority can do is raise funds, establish a society (for incorporation), acquire properties and enlist personnel, and so on. It can then solicit a statute that confers a legal personality on the society—and gets the university going. The statute only confers the corporate status—the only way it could “establish”. The actual establishment is by the minority; only its incorporation is by the legislature.

The history

The Supreme Court’s resume of the AMU’s history is perfunctory, ignoring completely the motivating force behind the societies. The idea of a university was born at the very birth of a school in 1873. When the court heard the case, that history was available in works of repute. This is all the court had to say of that rich history: “It appears [ sic] that as far back as 1879 [ sic] Sir Syed Ahmad Khan thought that the backwardness of the Muslim community was due to their neglect of modern education. He therefore, conceived the idea of imparting liberal education to Muslims in literature and science while at the same time instruction was to be given in Muslim religion and traditions also. With this object in mind, he organised a committee to devise ways and means for educational regeneration of Muslims and in May, 1872 a society called the Muhammadan Anglo-Oriental College Fund Committee was started for collecting subscriptions to realise the goal that Sir Syed Ahmad Khan had conceived. In consequence of the activities of the committee a school was opened in May 1873. In 1876, the school became a High School and in 1877 Lord Lytton, then Viceroy of India, laid the foundation stone for the establishment of a college. The Muhammadan Anglo-Oriental College (M.A.O. College), Aligarh, was established thereafter and was, it is said, a flourishing institution by the time Sir Syed Ahmad Khan died in 1898.

“It is said that thereafter the idea of establishing a Muslim university gathered strength from year to year at the turn of the century and by 1911 some funds were collected and a Muslim University Association was established for the purpose of establishing a teaching university at Aligarh. Long negotiations took place between the Association and the Government of India, which eventually resulted in the establishment of the Aligarh University in 1920 by the 1920 Act. It may be mentioned that before that a large sum of money was collected by the Association for the University as the Government of India had made it a condition that Rupees thirty lakhs must be collected for the university before it could be established. Further it seems that the existing M.A.O. College was made the basis of the university and was made over to the authorities established by the 1920 Act for the administration of the university along with the properties and funds attached to the college, the major part of which had been contributed by Muslims though some contributions were made by other communities as well.”

There follows a summary of the Aligarh Muslim University Act, 1920, and the amending Act of 1965 with emphasis on the powers of the government, which is not uncommon in such statutes and is meant to prevent mismanagement. It then concludes: “This brings us to the end of the sections of the 1920 Act. There is nothing anywhere in any section of the Act which vests the administration of the university in the Muslim community. The fact that in the proviso to Section 23(1) it is provided that the court of the university shall consist only of Muslims does not necessarily mean that the administration of the university was vested or was intended to be vested in the Muslim minority. If anything, some of the important provisions to which we have already referred show that the final power in almost every matter of importance was in the Lord Rector, who was the Governor-General, or in the Governor-General in Council.”

The court’s tortuous logic

How did their Lordships expect the Muslim community to acquire the “administration” of the AMU? By electing representatives in a general election? It did what was correct—agree to statutes of the AMU that set up its bodies with defined powers. Read this: “It is true, as is clear from the 1920 Act, that the nucleus of the Aligarh University was the M.A.O. College, which was till then a teaching institution under the Allahabad University. The conversion of that college (if we may use the expression) into a university was however not by the Muslim minority; it took place by virtue of the 1920 Act which was passed by the Central legislature. There was no Aligarh University existing till the 1920 Act was passed. It was brought into being by the 1920 Act and must therefore be held to have been established by the Central Legislature which by passing the 1920 Act incorporated it.”

How could the AMU have existed as a university before the Act was passed? “It may be that the 1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority.”

Thus, the AMU having been established only by the Act of 1920, the amendment of the Act in 1965 could not be challenged. The Muslims had given up the property they had acquired for the university once the Act was passed, the court held. The tortuous logic is capped with a gross misquotation. Read this: “There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university.” This is not at all correct. “There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institution is that a university grants degrees while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions. [See St. David’s College, Lampater vs Minister of Education.] Thus under the law in India there was no prohibition against establishment of Universities by private individuals or bodies and if any University was so established it must of necessity be granting degrees before it could be called a University.”

With respect, the absence of any law prohibiting the establishment of a university by a private individual or body is meaningless. What is to the point is whether a university can at all be established without the sanction of a law. Now for the misquotation—“It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions [See St. David’s College, Lampater vs Minister of Education (1951)1 A.E.R. 559].”

The case of St. David’s College

Turn to the case and the misquotation becomes apparent. In Britain a body can be incorporated only by an Act of Parliament or by Royal Charter as St. David’s College was. Justice Vaisey said: “In my judgment, the word ‘university’ is not a word of art, and, although for the most part one can identify a university when one sees it, it is, perhaps, not easy to define it in precise and accurate language. There are obviously universities which are such by common consent, the status of which as such no man could deny. That applies not only to the two ancient universities—Oxford and Cambridge—but to others which have since been founded (I think nearly all of them not earlier than the nineteenth century). There is no question that such institutions as the universities of London, Durham, Manchester and so forth, are universities in the fullest and most proper sense. St. David’s College, Lampeter, is admittedly a borderline institution. One of the witnesses described it as in its nature unique, and I ventured to use a phrase of, perhaps, identical meaning and to call it sui generis, i.e., it is an institution which stands in a class by itself. The question which falls for me to decide is: Is that class within the ambit of the definition and proper understanding of the word ‘university’ or is it not?

“Counsel for the Plaintiffs has enumerated what he regards as the essential qualities which justify an institution being described as a university, and I do not think that there is much doubt that essentially, with exceptions which I will mention, St. David’s possesses those qualifications. He said, in the first place, that it must be incorporated by the highest authority, i.e., by the sovereign power, succeeding no doubt, to the Papal privilege which was exercised in Christendom in the middle ages by the proper, and, indeed, only, body which could incorporate and give authority to a great teaching institution. There is no doubt that St. David’s College was incorporated and reincorporated and that its incorporation was confirmed and strengthened by acts of the sovereign power, that is to say, by Royal Charter.”

After discussing a host of criteria the judge said: “I have left until last what is stated to be the most obvious and most essential quality of a university, that is, that it must have power to grant its own degrees. Here we find the very curious situation that the royal prerogative of granting degrees in the various faculties and branches of knowledge has been granted to this particular institution subject to a very strict limitation. It is only entitled to grant the degrees of Bachelor of Arts and Bachelor of Divinity. It has not of its own essential power any right to grant degrees, but to that limited extent the royal privilege has been acceded to it by royal concession.

“That being the position, I have no doubt that St. David’s College possesses (I will come back to the question of degrees) most of the necessary ingredients that go to make a foundation or institution a university. … I am not referring to the man in the street—a man who, perhaps, has had no university education or no experience of what a university is—but to the ordinary man who does know what a university is or who has received his education at a university. I cannot bring myself to believe that such a man would say that St. David’s College, Lampeter, was a university. It does not, I think, follow that, if it possesses all or most of the qualities of a university, it necessarily follows that it is a university. I am inclined to think that the onus must lie on this institution, which has never been called a university in any of its charters. It is true it is included among the universities in, for instance, such a well-known reference book as CROCKFORD’S CLERICAL DIRECTORY, and it may for some purposes count as a university or be considered as equivalent to a university, or, to use another phrase, to rank as a university or to provide instruction of university standard. I cannot bring myself to think that that is enough. I cannot help feeling that this extraordinary limited power of granting degrees, which has throughout been regarded during the arguments as being really the test for the solution of this problem, is an indication that this institution falls short of a university properly so called.”

It is only because of the unique crippling bar on grant of degrees other than Bachelor of Arts or Bachelor of Divinity which prompted the judge to hold that it was not a university. What will it signify to “the ordinary man who knows what a university is or who has received his education at a university?” He would value his degree—the legal principle of incorporation, regardless. Hence, the judge’s ruling. The issue however, was law, not popular perception even by a graduate.

The proper import of this single judge’s ruling was explained in Halsbury’s Laws of England (Volume 13; 3rd Edn. of Lord Simonds; pages 707-8). It is cited as high authority in courts for good reason. At the top is the Lord Chancellor of the day, Lord Simonds, assisted by an Advisory Panel of each of the heads of the three divisions of the High Court—the Lord Chief Justice, the Master of Rolls, and the President of the Probate and Admiralty Division. There is an editor for each volume assisted by four sub-editors, all eminent barristers.

Halsbury has no hesitation in stating the law thus: “The essential feature of a university seems to be that it was incorporated as such by the sovereign power. Other attributes of a university appear to be the admission of students from all parts of the world, a plurality of masters, the teaching of one at least of the higher faculties, namely theology, law or philosophy, which in some definitions are regarded as identical, and medicine, provision for residence, and the right to confer degrees, but possession of these attributes will not make an institution a university in the absence of any express intention of the sovereign power to make it one.

“Incorporation was anciently effected by papal bull or charter, later by royal charter or Act of Parliament. The practice adopted in the case of the most recent foundations is to incorporate the university by royal charter, to which there is annexed a schedule containing the original statutes of the university, and thereafter to obtain the passing of a local Act of Parliament vesting in the university the property and liabilities of any institution which it replaces and making other necessary provisions. The constitution, functions, and privileges of universities are governed by the terms of their instruments of foundation, or by Acts of Parliament.” The volume, published in 1955, was available to the court in 1967 when it heard and decided the case.

Seervai’s critique

H.M. Seervai’s sharp remark in his devastating critique of the ruling is perfectly justified. “Wanchoo C.J. tore one sentence from its context in the judgment of Vaisey J. in St. David’s Case. Had he set out the whole passage from that judgment, as was his clear du ty, he would have found that the judgment of Vaisey J. on which he relied negatives the proposition that the only essential feature of a university is the power to confer its own degrees and that anybody could establish a university. As regards the history of the foundation of the university, it is submitted that the whole relevant history is not to be found in the judgment.”

Seervai went on to quote from a recognised work on AMU which refutes the court’s historical resume. He concluded: “The Muslim community established the university and provided it with its total endowments. Even if the definition given by the court were correct, namely, ‘to bring the university into existence’, it is submitted that the Muslim community brought the university into existence in the only manner in which a university could be brought into existence, namely, by invoking the exercise by the sovereign authority of its legislative power. The Muslim community provided lands, buildings, colleges and endowments for the university, and, without these, the university as a body corporate would be an unreal abstraction. …

“If the Banaras Hindu University and the Aligarh Muslim University were not established by and for Hindus and Muslims respectively, they would not have been called the ‘Benaras Hindu University’ and the ‘Aligarh Muslim University’. It is submitted that this aspect of the matter has been overlooked by the court.

“It is submitted that this is the first case in which the Supreme Court has departed from the broad spirit in which it had decided cases on cultural and educational rights of minorities, which was reflected in the words of Das C.J. quoted at the beginning of this Chapter. In the present case, the Supreme Court has on narrow, technical grounds, which are erroneous, held that a minority community which had striven for, and obtained, the establishment of a Muslim university and endowed it with considerable property and money, had not established that university, and that provisions of the Act of 1920 vesting the supreme government of the university exclusively in Muslims did not vest the administration in Muslims. On the Supreme Court judgment there is nothing to prevent Parliament from converting the Muslim university into a university for foreign students or for backward classes” ( Constitutional Laws of India; Fourth Edn.; Volume 2; pages 1319-1324).

For 15 years there was protracted agitation against the wrong done to the AMU. At long last, the Aligarh Muslim University (Amendment) Act, 1981 (Act No.62 of 1981) was enacted on December 31, 1981. Section 3 (iii) defined “university” to mean “the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University.” People who thought that the wrong of 1965 was righted finally in 1981 were proved wrong. The issue was revived in 2005 when the Allahabad High Court struck down the 1981 Act as void. Under judgments of the Supreme Court, minority institutions are entitled to reserve a quota of seats for members of that minority. Five petitions were filed by persons challenging the validity of the 1981 Act, relying on the Supreme Court ruling in the Azeez Basha case. It is well settled by a plethora of rulings that while the legislature cannot override a court ruling, it can retrospectively alter the basis of that ruling and thus render it legally ineffective (see In re: Cauvery Water Disputes Tribunal (1993)1 SCC 96 at page 142).

After copious quotation from the Supreme Court’s judgment Justice Arun Tandon held, on October 4, 2005, that its “basis … has not been so [ sic] fundamentally altered so as to come to a conclusion that if the amendments made under the 1981 Act had been there before the Supreme Court at the time of decision of Azeez Basha the judgment would have been otherwise.”

On Appeal, Justices Ajoy Nath Ray and Ashok Bhushan upheld this judgment on January 5, 2006. That Justice Ray referred to the great historic figure as “one Sir Syed” reveals a lot. We refer to a person as “one ____” if he is nondescript or out of contempt. We do not refer ever to “one Raja Ram Mohan Roy”. Sir Syed altered the course of history and won praise from Jawaharlal Nehru. The judge noted that “the Union of India through Mr Gopal Subramanian has been at pains to argue before us that the Aligarh Muslim University is a minority institution”. Only a decade later the Modi government instructed its Attorney General Mukul Rohatgi to deny this and withdraw the appeal against the Allahabad High Court’s decision.

No less revealing are these paragraphs from Justice Ajoy Nath Ray’s judgment: “India of 1920 is not the same as the India of 2005 or 2006. Section 3 (28) of the General Clauses Act, 1897 as amended up to date clearly says that the India of 1920 is British India; we do not have to go to a General Clauses Act definition to know that it was not a country where there were different political parties of any real power or importance; it was not an India where one community could wait for a more supportive and sympathetic political party to come in power and then gain their objective; there was no democracy. What the British said, went. For any public achievement the people of India, whether Mohammadans or not, had to be in the good books of the English people. Any other achievements had to be made underground. It was in this context that the university was set up by the then ruling government; as soon as it was incorporated under the auspices of the English Government and the English Legislature, the university had all success and all support from the very beginning; the Mohammadan community chose the politically right path of inviting high English personages like Lord Lytton to be associated with their College; once they gave way the manner in which the then Legislature desired to set up the university, the degrees of the university had full and 100 per cent value. The degrees of a university, even if it could be set up independently then, which was in the bad books of the English government, but wholly Mohammadan and wholly green, and perhaps wholly good, was of no practical value; it would either die or go underground. The other university, which was set up by the Act of 1920 started with a prospect of prosperity and prospered it has, right until date.

We are aware that their Lordships of the Supreme Court have not looked at the issue in the light that we have respectfully used above, but we feel confident, again respectfully, that we have not gone against what the Supreme Court has stated but only tried to support it, such support being necessary in the face of the current challenges.”

These political comments in the “historical” narrative stand out in bold relief. Incidentally, under Article 367 of the Constitution of India, the General Clauses Act, 1897, of colonial times is applicable in the interpretation of the Constitution. For that matter, even the Indian Penal Code is colonial statute.

Read this delightful piece of judicial prose: “There have been time gaps in the list of dates and years in the history of the Aligarh Muslim University, which would make Rip Van Winkle look like suffering from lack of sleep. From 1920 until 1947 or 1950, nothing much happened; it was a period of dormancy. There were amending Acts of 1951, 1965, 1972 and 1981; there was a Basha case in 1967-68; it was, so to speak just a little stirring in bed, but not really getting out of it, because the non-minority institution continued to be non-minority institution through the Basha decision.” Of course, until the Azeez Basha case none, but none, questioned the AMU’s minority character.

Justice Ashok Bhan also held that the 1981 Act did not change the basis of the Azeez Basha ruling. “The Aligarh Muslim University, a body corporate, came into existence only by Act of legislature. By merely changing the definition of Section 2(1) by amending the Preamble and long title can the fact that the university came into being by an Act of legislature be forgotten? It is true that [the] 1920 Act was passed as a result of the efforts of the Muslim minority which fact has been clearly noted in paragraph 23 of the Azeez Basha judgment and is also clear from previous history of the establishment of the university.”

The issue of its minority character was raised for political ends for the very first time by Chagla. He bitterly complained in Parliament of lack of support for his stand even from members who mattered. The Act of 1981 undid the outrage the Act of 1965 had perpetrated—Rip Van Winkle woke up, as Justice Ajoy Nath Ray remarked.

In a recent article on Section 377 of the Indian Penal Code, affecting the LGBTQ community, the eminent counsel Raju Ramachandran candidly remarked that “the final outcome is going to depend entirely on the composition of the bench. After all, the transgender judgment became possible only because of a very fortunate combination of judges. Many moons ago, when Indira Gandhi superseded three judges, her close advisor Mohan Kumaramangalam was candid. He said that the social philosophy of judges mattered. The legal fraternity reacted piously, saying that judges can have only one philosophy, ‘the philosophy of the Constitution’. They completely missed the point. After all, does not the judges’ social philosophy inform their understanding of the Constitution?” ( The Indian Express; February 4, 2016.) The AMU is a far more emotive issue involving half a century’s wrong.

Benjamin M. Cardozo’s remarks on this point are often quoted, but divorced from the context which renders them far more meaningful. The entire passage bears quotation in extenso: “I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which made the man, whether he be litigant or judge. I wish I might have found the time and opportunity to pursue this subject farther. I shall be able, as it is, to do little more than remind you of its existence. There has been a certain lack of candour in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. I do not doubt the grandeur of the conception which lifts them into the realm of pure reason, above and beyond the seep of perturbing and deflecting forces. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by. We like to figure to ourselves the processes of justice as coldly objective and impersonal. The law, conceived of as a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter.”

It is time that the politics and prejudice that enveloped AMU are discarded. Its rich history dating back to the 19th century will not only establish its claim to being an “educational institution” established by Muslims but also reveal the greatness and vision of “one” Syed Ahmad Khan. He was not only the founder of the Aligarh Movement but a committed and erudite rationalist who suffered from attacks by bigots for blazing a new trail. He influenced thinkers like Abul Kalam Azad and Mohammad Iqbal.

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