IT is a glorious history to which Aligarh Muslim University (AMU) is a proud heir studded with many achievements, especially in history. Contrary to common impression, the goal of a university was very much present to the mind of its founder, Sir Syed Ahmad Khan, when he established the Mohammedan Anglo-Oriental College in Aligarh in 1875. He had two obstacles to surmount. One was prejudice amongst Muslims against Western education and against the rationalist approach to Islam which this great thinker who influenced Iqbal and Maulana Azad advocated. The other was money. A university needs enormous amounts.
Sir Syed’s dream, of which he had often spoken publicly, came true in 1920. Now, nearly a century later, it faces destruction by a malevolent and concerted attack on several fronts. This is the culmination of a process that began in 1965. A violent assault on AMU’s Vice Chancellor provided an opportunity to the rank careerist M.C. Chagla, Education Minister, to advance his political career.
In a judgment of shocking errors, the Supreme Court upheld the law that Chagla had got enacted against the views of Congress Muslims and despite the doubts of Prime Minister Lal Bahadur Shastri. It accepted his view that AMU was not established by Muslims but by Parliament ( Azeez Basha vs Union of India (1968) SCR 833, AIR 1968, 666; see the writer’s articles “AMU under assault”, Frontline , March 4, 2016, and “Politics and AMU”, Frontline , March 18, 2016).
Not until 1981 was the wrong set right by the Aligarh Muslim University (Amendment) Act, 1981. A judgment of the Allahabad High Court, on January 5, 2006, held that Act to be unconstitutional. The Government of India of which Dr Manmohan Singh was then Prime Minister appealed. Its case was forcefully argued in the High Court by the Solicitor General, Gopal Subramanium, with a wealth of historical material. The AMU also appealed to the Supreme Court. These proceedings came in handy to the Narendra Modi government. Not only did it decide to withdraw the Union of India’s appeal, but it decided to turn the arms of the clock back to 1965. It now asserts the dishonest thesis formulated by Chagla in the Union’s affidavit to the Supreme Court.
Error on the part of the court is aggravated by malevolence on the part of the government. AMU’s Vice Chancellor Lt General Zameer Uddin Shah, decorated with numerous medals, was Deputy Chief of the Army Staff and a judge in the Army court. Among the five AMU education centres in underprivileged hamlets, one was in Kerala.
Human Resource Development (HRD) Minister Smriti Irani insulted him. Read this: “Kerala Chief Minister Oommen Chandy had invited Shah to a meeting in [Smriti] Irani’s office for talking about funds for these centres. When Shah, after clarifying to the officials of the HRD Ministry that he had been invited by the CM for this meeting, entered her office, she asked curtly, ‘Who let you in?’ Red-faced, Shah replied, pointing out at Chandy, ‘The honourable Chief Minister has invited me to be a part of this meeting.’ But to his and the Chief Minister’s shock, she snubbed Shah, asking, ‘Who will decide who should be in the meeting? Who pays your salary? The Kerala CM or the HRD Ministry?’” (Rana Siddiqui Zaman, Tribune , March 19, 2016). Would she have behaved thus even to a retired captain of the Army or to the Vice Chancellor of any other university? Smriti Irani’s own educational qualifications came under a cloud when she was appointed to the office that requires cultural attainments beyond those of a TV star.
The Attorney General, Mukul Rohatgi, told the Supreme Court, on January 11, 2016: “We cannot be seen as setting up a minority institution in a secular state.” However, Article 30(1) in the Constitution of our secular state 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 ruled in the Azeez Basha case that a university is very much an “educational institution” within the meaning of Article 30(1). The Modi government will not be “setting up” AMU in 2016. It was set up in 1920.
Two pronouncements by authorities of eminence expose the error. One is by Dr Zakir Hussain in the Rajya Sabha on September 26, 1951. He had served as Vice Chancellor of AMU and rose to be President of India in 1967. “It is possible in a secular republic, according to our present Constitution, to have a hundred per cent Hindu institution and a hundred per cent Muslim institution. The Constitution does not say anything against it. From various remarks that I have heard I am inclined to believe that some people think that the Constitution does not allow the existence of such purely Muslim or purely Hindu institutions.… For instance, this amending Bill for the Hindu University of Benares or the Bill relating to the Aligarh Muslim University does not seek to change the names of these universities. Further, if you look into the present Act of the Aligarh University, express mention is made there for providing for Oriental and Islamic studies and for the teaching of Muslim religion and theology. And if you look into the present amending Bill, under the ‘Powers of the University’ you find that the Benares Hindu University can promote Oriental studies, and in particular Vedic, Hindu, Buddhist and Jain studies and give instruction in Hindu religion. Now, this apparent inconsistency is the key to the understanding of the significance of what we are doing. A secular republic will have a Hindu university and a Muslim university as Central universities, because only a secular republic has the large-heartedness, the tolerance and the vision to have them both.”
The other is by a high-powered committee which comprised some of the most respected educationists in the country: Prof. G.C. Chatterjee (Chairman), Prof. A.R. Wadia, K.S. Malhotra, P.N. Sapur, M.A. Shahmiri and R.P. Naik, ICS. It was appointed by the Executive Council of AMU in 1960 following allegations of irregularities. Their report said: “What should be the special character, the true living tradition of the Muslim University, Aligarh? In our opinion, apart from standing for those things, every university must recognise as true objectives of university education, it should develop and emphasise the study of what we may describe as the contribution of the Muslim community to the complex pattern of our national culture , and in fact to the worldwide culture of humanity. That Islam has made very substantial and notable contributions to this heritage both historically as well as currently in our own age is a patent truth which no one with any pretensions to the study of the history of civilisation will dare to deny. It is this living tradition, this dynamic force, which we should like to preserve and cherish in this university.
“Muslim University, Aligarh, with its open-door policy of admitting members of all communities and giving them opportunities to share fully in its residential and corporate life, is in a specially privileged position to foster that emotional integration which is essential for the preservation of India’s cultural and political unity.… We recommend that the Muslim University, Aligarh, should build up strong departments for the study of languages associated with Muslim culture, such as Arabic, Persian and Urdu. It should have a strong department of History which should pay special attention to the contributions which Islam has made not only to world history but also to the development of Indian polity, Indian thought, and Indian art” ((1961): Report of the Aligarh Muslim University Enquiry Committee, Aligarh: Aligarh Muslim University, pp. 142-143).
The report explains why the Modi government is behaving as it does—it wants to erase the Islamic contribution to India’s composite culture and heritage. It seeks a cultural ghar wapsi. The report did not find a minority educational institution incongruous in a secular state. None else does outside the ranks of the Sangh Parivar. Apparently, its members and legal advisers have not heard of the Islamic University of Rotterdam. It was founded in 1997 by Muslims living in the Netherlands “as a Dutch University and as an intellectual contribution of Muslims to Dutch society”. It believes in the motto “Live as a Muslim and as a responsible citizen of the Dutch society”—very much the motto of Aligarhians. Spain has an Islamic University of Averroes.
One is dismayed by the question asked by Chief Justice R.S. Thakur on April 4, 2016. He asked how a Central university could be called a minority institution. “Can a university be a minority institution? We can understand a college being called a minority institution, but a university?” (Krishnadas Rajagopal, The Hindu, April 5, 2016).
The Supreme Court itself held in the Azeez Basha case that the words “educational institutions” in Article 30(1) of the Constitution “are of very wide import and would include a university also. This was not disputed on behalf of the Union of India [which was represented by Attorney General C.K. Daphtary] and therefore, it may be accepted that a religious minority had the right to establish a university under Article 30(1).”
The Concise Oxford Dictionary defines a “university” thus: “A high-level educational institution in which students study for degrees and academic research is done” (emphasis added, throughout). A college is set up by a society registered under the Societies Registration Act. It awards no degrees, conducts no research. A university does both. But it must have a judicial personality for which a law is necessary. In the United Kingdom, it is by a Royal Charter or an Act of Parliament.
Therein lies the crucial difference between a Central university pure and simple and a university which is established by a minority and then incorporated by an Act of the legislature , as AMU was in 1920. The fact that the legislature continues to enjoy legislative power over it makes no difference. It is still a minority institution. The minority takes the initiative, collects the funds, acquires the land, erects the buildings, employs the staff, admits students and then seeks incorporation by law so that it can award degrees. Parliament continues to have legislative power, but it is subject to the minority’s fundamental right under Article 30(1) to administer it autonomously. The Chatterjee Committee had no hesitation in accepting the fact that AMU figures in the Union Legislative List “does not, in any view of the law, change its character as a minority institution”. But no such curb attaches to a Central university simpliciter. The Centre finds that a region needs a university. It takes the initiative, gets Parliament to pass a law, acquires lands, erect buildings, employs the staff and sets the university going unfettered by Article 30(1) .
There is another distinction of a fundamental nature. A university established by a minority is the product of an accord on the terms and conditions between it and the government , as the AMU was in 1920 and still is.
H.M. Seervai exposed the fatal flaw in the ruling in the Azeez Basha case. “The Muslim community established the university and provided it with its 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 involving 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 would be an unreal abstraction.”
His criticism was scathing. “This is the first case in which the Supreme Court has departed from the broad spirit in which it has decided cases on cultural and educational rights of minorities. In the present case, the Supreme Court has on narrow, technical grounds which are erroneous, held that a minority, 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 the 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. It is submitted that the decision is clearly wrong and productive of grave public mischief and it should be overruled.” Will the Supreme Court do that in 2016? The illiberal trend was set by that case in 1967.
Relevant history
Seervai was perfectly right in noting that “all the relevant history [of AMU] is not to be found in the judgment. Nor is the effect of so much of the history as has been set out properly appreciated.” To that glorious history we must now turn. In 1863, the rationalist Sir Syed Ahmad Khan set up a Scientific Society to inculcate a scientific temper among Muslims, and in 1864 a madrasa, later called a high school in Ghazipur. In 1886-87 followed the Aligarh Institute Gazette to disseminate ideas of secular Western education amongst the Muslims of India. Demoralised after the Mutiny of 1857, in which they were in the forefront, Muslims responded to British repression by stirring up revivalism or withdrawing into their shell. Western education was denounced. Sir Syed was strongly of the opinion that only secular education on Western lines without neglecting religion could lift Muslims from the morass into which they had sunk.
Right from the outset he had set his sights on a Muslim university . Stay of a year and a half in England strengthened his commitment. He closely studied Cambridge University when he went there. Altaf Husain Hali wrote in his biography of his friend: “Sir Syed was determined to establish a university” (Hali, Altaf Husain, Hayat-i-Javed, translated by K.H. Qadiri and D.J. Mathews, Delhi: Idarah-i-Adabiyat-i Delli, p. 147). He mentions the deep impression which Oxford and Cambridge universities had made on Sir Syed’s mind. Gopal Subramanium, counsel for the Union of India, presented to the Allahabad High Court a set of volumes on AMU. Expanded to include the court’s judgment, the five volumes are now part of the Supreme Court’s record. The writer is greatly indebted to Gopal Subramanium for providing him with a set of all those volumes. Volume 1 has an exhaustive chronology. The entire set, now part of a record, merits publication in book form (cited here as Vol. I).
On May 5, 1872, at a meeting of the Select Committee for the Advancement of Muslim Education, Sir Syed explained his concept of a Muslim educational institution. Donations were to be invited. A Mohammedan Anglo-Oriental College Fund Committee was set up.
A member uttered a caveat. He was the founder’s son who became one of the most distinguished High Court judges of India has seen, Justice Syed Mohammed Mahmood. A document he presented as early as on February 10, 1873, bears recalling now. “Before offering any remarks upon the scheme to be adopted at the proposed institution, I may be allowed to bring to the notice of the Committee, a word which appears to me to have been used by mistake . This Committee calls itself ‘The Mohammedan Anglo-Oriental College Fund Committee’. I think what we mean to found is not a College, but a University , and I hope the members will consent to my proposal that instead of the word College the word University must be substituted.…
“The best educational institutions in Europe are either entirely or next to entirely free from any control of the government of the country, and this, in countries where the rulers belong to the nation whose education is to be conducted. With how much greater force does this argument hold good in the case of India where the government is almost wholly composed of persons belonging to a nation, totally different from us in language, in religion, and in mode of thought.…
“The mode of life amongst the Musalmans of India requires far greater reform than even their mode of education. And unless we bring a large number of students and able teachers together in one place, and form a society of their own, whose notions and objects should be different from the present society of Indian Musalmans, no educational project can be carried out to any considerable extent” (Husain, Yusuf (ed.) (1967): Selected Documents from the Aligarh Archives , Department of History AMU and Asia Publishing House, pp. 222-237). No detail was missing in those 15 printed pages. He lived under the same roof as his father. It is inconceivable that he did not share his views with Sir Syed. The latter, however, faced shortage of funds.
On January 8, 1877, the Viceroy Lord Lytton, laid the foundation stone of the Mohammedan Anglo-Oriental College (MAO College). In the address which Sir Syed delivered on this occasion, he made two important points which are very relevant today—the aim was to establish a university and it was to be established by Muslims. “From the seed which we sow today, there may spring up a mighty tree whose branches, like those of the banyan of the soil, shall in their turn strike firm roots into the earth and themselves send forth new and vigorous saplings; that this College may expand into a University whose sons shall go forth throughout the length and breadth of the land to preach the gospel of free enquiry and of large-hearted toleration and of pure morality” (Mulk , Nawab Mohsinul (ed.), Aligarh(1898): Addresses and Speeches Relating to the MAO College , p. 32, quoted in Khalik Ahmad Nizam, History of the Aligarh Muslim University, Delhi: Idarah-i-Adabiyat-i Delli, p. 17).
He pointedly added: “There have before been schools and colleges founded and endowed by private individuals. There have been others built by Sovereigns and supported by the revenues of the State. But this is the first time in the history of the Muhammadans of India that a college owes its establishment not to the charity or love of learning of an individual, nor to the splendid patronage of a Monarch, but to the combined wishes and the united efforts of a whole community.”
Nor did he omit to thank the benefactors. “To our Hindu friends also our thanks are largely due. Foremost among them is the name remembered by us with no less sorrow than gratitude, of His Highness Sri Maharao Raja Mahamdar Singh Mahamder Bahadur, G.C.S.I., the late Maharaja of Patiala whose munificent contributions to the College amount to no less than Rs.58,000. Their Highness the Maharaja of Vizianagaram, K.C.S.I., and the Maharaja of Benaras head the list which includes the names of many liberal-minded Hindu gentlemen whose philanthropy forbids them to recognise distinctions of race and creed” (Vol. I, pages 12378-80).
He next thanked the Nizam of Hyderabad, Sir Salar Jung, the Nawab of Rampur and other notables. The founder of AMU thus made plain in 1877 that his aim was to establish a university, for which the MAO College was but a stepping stone, and that it was to be established by the Muslims of India. These two decisive features marked the entire proceedings from 1877 until 1920. When Lord Ripon, the Viceroy, visited Aligarh in 1884, Sir Syed said: “Some day when our endowments are sufficient, we would request the Government to confer upon us the legal status of an independent University .” He was thus fully aware of the legal requirement of statutory incorporation for a university. Sir Syed could not have imagined that 82 years later India’s highest court would hold that such statutory incorporation wiped out the undisputed historical fact that (a) the Muslims did all they could to establish their university, (b) they continuously asked the government authority to accord the requisite statutory recognition, and (c) the university that was so established was based on terms agreed between the Muslims and the government.
The founder established another institution in 1886 which played its own role, the Muslim Education Conference (MEC). Time was fast running out. A sad Sir Syed lamented in 1897, on the visit of Lord Elgin, the Viceroy, that he could not hope to live to see a university for the Muslims of India similar to Oxford and Cambridge becoming a reality. He died on March 27, 1898.
Historic resolution Four days later, at a meeting of the College Board of Management, on March 31, 1898, Aftab Ahmad Khan moved the following historic resolution which was seconded by Nawab Mohsinul Mulk: “That steps to found a memorial, in honour of the Syed Ahmad Khan… and worthy of him be at once taken; and that the memorial take the following form; the collection of a sum of ten lakhs of rupees to be called the Syed Ahmad Endowment Fund, with the object of carrying out his cherished desire of raising the MAO College to the rank of a Mohamedan University .”
The movement received a shot in the arm when the 12th MEC met in Lahore on April 1, 1898. Proposals for a Muslim university were fully discussed; about 900 people attended. The conference showed a keen spirit of enterprise. Badruddin Tyabji subscribed Rs.2,000 to the university. From Calcutta, Syed Amir Ali pledged his support.
As a young man, the Aga Khan had visited Aligarh in 1896 and promised Syed Ahmad an annual grant. In 1902, he had spoken in favour of a Muslim university in his presidential address at the Muhammadan Educational Conference. His second visit to Aligarh was in 1904, when he gave a handsome donation to Arabic studies scheme (Minault, Gail and David Lelyveld (1974): “The Campaign for a Muslim University, 1898-1920”, Modern Asian Studies , Vol. 8, No.2, pp. 149, 153 and 162).
The idea of establishing a Muslim university was warmly greeted by all the Muslim personalities of the day. In December 1902, at the 16th session of the MEC held in Delhi, the Aga Khan supported the proposal in his presidential address in which he visualised this university as a Muslim Oxford. He appealed to Muslims to raise funds for the project (Muslim University Press (1972): Presidential Addresses of the Muhammadan Education Conference entitled Khutabat-I-Aliyah , pp. 206-218). In July 1906, Badruddin Tyabji said in an address to the Aligarh College Association in England: “If, as I hope, Aligarh develops into a university it will become the centre of attraction of education for all Mohammedans, not only from the various Mohammedan schools and colleges of India, but also, it may be, from all other parts of the Mohammedan world” (Report of the Minorities Commission on AMU 1978, paragraph 13).
The movement picked up speed. On January 10, 1911, the Syed Memorial Fund Committee was replaced by a Muslim University Foundation Committee headed by the Aga Khan and based in Aligarh. It acquired the assets of the former. Yet another body was added in 1915, the Muslim University Association. On February 16, 1911, a Constitution Committee was set up with the Raja of Mahmudabad as president. These two men pushed the project forward. A deputation waited on the Education Minister, Government of India, Harcourt Butler on May 16, 1911, to present a draft constitution followed by another on September 23, 1911. Butler demanded that the university have an endowment of Rs.3 lakh.
Two obstacles
There were two obstacles in the path. The role of the extremists led by the disruptive Ali brothers was one. The other was retired English officials of AMU in London. Viceroy Lord Hardinge forwarded to the Secretary of State for India Lord Crewe on June 10, 1911, his advice to accept a university in Aligarh provided that it was adequately funded and under effective government control. He was given the green signal to negotiate the terms with Muslim leaders. But the Constitution Committee was in a truculent mood. In issue was the university’s right to accept affiliation of colleges all over India , its autonomy, and its name to which the British objected . London had decided that “the university should be called ‘The University of Aligarh’, not the ‘The Muslim University, Aligarh’” (Secretary of State to Viceroy, February 23, 1912, see Minault and Lelyveld , p. 169). Butler tried to get London to reconsider this dispatch but failed.
However, while London was firm on affiliation, it was firm on official control, unlike Calcutta which wanted both the Benaras Hindu University and the AMU to be under its control. On August 11-12, 1912, the Constitution Committee met at Lucknow and passed three resolutions: to reject London’s decisions on affiliation; the Viceroy’s role as Chancellor; and the university’s name. It had 54 members in addition to all the MAO trustees ex-officio and “had a good claim to be representative of Muslim interests” (ibid., p.171).
On October 10, 1915, the Benares Hindu University Bill was passed and strengthened the hands of the moderates. The Aga Khan gave a handsome donation to BHU. But politics in India emboldened the radicals. On October 15 an acrimonious meeting of the Muslim University Association decided by a controversial vote to accept the government’s terms. The Foundation Committee, its superior, ratified the decision in April 1916. There was no progress until Butler, now Lt Governor of the North West Province, came to Aligarh in November 1919. His successor as the Education Minister was Sir Mohammed Shafi, an old Aligarhian. Events softened both sides. A revised draft constitution was prepared in 1920. The government proposed some changes, which were accepted.
In July 1920, the Bill received London’s approval and was published in the Gazette. It reflected a compromise agreed by both. Its Statement of Objects and Reasons correctly recorded that compromise. “The Muslim University Association having requested the foundation of a University and certain funds and property being available to this end, it is proposed to dissolve that Association and the Muhammadan Anglo-Oriental College, Aligarh, and to transfer the property of those societies to a new body called ‘the Aligarh Muslim University ’. The present Bill is designed to incorporate this University.”
The Bill was moved in the Imperial Legislative Council by the Education Member Sir Mohammed Shafi on August 20, 1920. It met at the Council Chamber, Viceregal Lodge, Shimla, with the Governor General in the chair. The proceedings are very significant. Introducing the Bill, the mover particularly recalled Sir Syed’s remarks on January 8, 1877, on a university. The first graduate of the MAO College was a Hindu student. He recalled the “negotiations with the Government” by the Muslim University Association’s president, the Raja of Mahmudabad; how a scheme it had agreed with the Government of India was sent to London in November 1911 after “considerable discussion and somewhat long negotiations”.
Surendra Nath Banerjee said: “Speaking as a representative of the Hindu community, we desire to welcome the Bill which has been introduced and also to congratulate the Honourable Member in charge of it on the admirable speech which he has made in introducing it. That, I think, represents the attitude to the Hindu community. This university is to be a unitary and residential university, and it is to represent an advance upon the type of universities, which has been established in Dacca and in Benaras. All that is welcome, not only from the Muslim, but also from the general and the larger standpoint.”
Seth Nathmal also supported the Bill. Such was the spirit in the Council that the educationist Sir Deba Prasad Sarbhadikari’s detailed critique won him a seat on the Select Committee. Its report was presented on September 2, 1920, and was considered on September 9. Replying to the debate, Sir Mohammed Shafi said: “In a somewhat long experience of Legislative Councils, both provincial and Imperial, I have seldom seen a Bill of the first importance such as the Muslim University Bill pass through the various stages with such little opposition and so smoothly as the measure which we are now about to place on our Statute Book.” As President, the Governor General said: “Before putting the question [to vote] I should like to add my congratulation to the Muslim community on the passage of this Bill.” It was devout Hindus who welcomed AMU. It is malevolent Hindutvaites who wish to destroy it now.
Incontestable facts
This unbroken, consistent record stretching over nearly half a century (1873-1920) yields six incontestable facts: 1. The goal always was a university; 2. The initiative was always taken by Muslims as a community towards this goal; 3. It raised the funds; 4. Its representatives negotiated the terms with the Government of India; the negotiations were tough and protracted; 5. The Act of 1920 embodied an accord between Muslims and the government. Muslims yielded on the issues of state control and local affiliation; the government yielded on the name; 6. Muslims yielded the properties of the MAO College and the Muslim University Association under the agreement embodied in the Act; namely that they would administer AMU which they had established with their funds, the state merely providing the imprimatur of statutory incorporation. It was in the nature of a trust. In our times, the equitable doctrine of promissory estoppel applies. It would be dishonest of the state to swallow the funds by denying the minority character of AMU. At one stage when there was a breakdown in the negotiations, Muslims were prepared to put the funds to other uses rather than give them to the government on terms that they could not accept.
Not only this history but even elementary justice was denied dishonestly in 1965 as it is in 2016. The Supreme Court upheld this in 1968, and its egregious excesses need to be pinpointed since the Modi regime swears by that ruling.
Chief Justice K.N. Wanchoo went so far as to say: “ The Muslim minority did not own the property which was vested in the Aligarh University on the date the Constitution came into force, and it could not lay claim to administer that property by virtue of Article 26(d).” Is it honest to say that the minority character of the university, with the Muslims’ entrustment of their funds to the state, under the Act of 1920, disappeared once the Constitution of India came into force? One would have thought that the Constitution of India, with its fundamental rights, further strengthened Muslims’ rights.
Another shocking feature of the judgment is its repeated mention of participation of non-Muslims in AMU, which Muslims themselves desired, as a denial of the fact that it was not administered by Muslims. “Nor do we think that the provisions of the Act can bear out the contention that it was the Muslim minority which was administering the Aligarh University, after it was brought into existence.… It appears from paragraph 8 of the Schedule that even though the members of the Court had to be Muslims, the electorates were not exclusively Muslims. For example, sixty members of the Court had to be elected. Some of these persons were and could be non-Muslims. Fifteen members of the Court were to be elected by the Academic Council, the membership of which was not confined only to Muslims.
“There were other bodies like the Executive Council and the Academic Council which were concerned with the administration of the Aligarh University and there was no provision in the constitution of these bodies which confined their members only to Muslims. It will thus be seen that besides the fact that the members of the Court had to be all Muslims , there was nothing in the Act to suggest that the administration of the Aligarh University was in the Muslim minority as such.”
Surely the minorities must be encouraged to include others in their institutions. We have here the Supreme Court laying down that if they did so, they could not claim the right to administer those institutions. They must function in a ghetto, a charge often made against Muslims. A case was being built up. Apparently ignorant of university administration, Chief Justice Wanchoo gleefully cited the government’s powers of intervention, common to all universities, to conclude that AMU was not administered by Muslims but by the Government of India from New Delhi.
What would you call a judgment which is disfigured by such laboured and tortuous reasoning? M.C. Setalvad characterised the Supreme Court’s judgment in the Golak Nath case as a “political judgment”. ( My Life , p. 588). In 1987, Justice Chinnappa Reddy of the Supreme Court characterised the Supreme Court’s doctrine of an unamendable “basic structure” in 1973 as one “propounded by the bourgeoisie”. He described how “the judiciary comes to the rescue of the bourgeoisie”.
In a classic judgment, the High Court of Australia ruled that it was “not prepared to accede to the proposition that an imputation of want of impartiality to a judge is necessarily a contempt of court”. If the judge’s conduct deserves such criticism, it would “be for the public benefit” to make it. If imputation of political and ideological bias are kosher, why not those of communal bias? In the Babri Masjid case, the bench split on communal lines, with Justice J.S. Verma going out of the way to make observations which the Hindu side found most helpful in the High Court.
Aligarh has always been proud of its secular traditions. Khaliq Ahmad Nizami’s brochure Secular Tradition at Aligarh Muslim University is a convincing answer to its detractors. It provides details of non-Muslims’ membership on the teaching staff, in the students’ union, in the residential life and in other fields (AMU, 1991).
Detractor-turned-admirer
Nirad C. Chaudhuri was a detractor who became an admirer. “From my boyhood I had a dislike for Aligarh…. I thought that Aligarh was the cradle (we preferred to regard it as the hotbed) of the Islamic revivalism in India. Under the teaching of Bankim Chandra Chatterji and Vivekananda most of us had become Hindu revivalist, but were not on that account prepared to concede to the Muslim the right to his revivalism, because we regarded our Hinduism in its revivified form as nationalism, and reformed Islam as anti-national . As between the Hindus and Muslims of India, it has always been an ethics of double standards.…
“AMU is trying to retain the sociocultural distinctiveness of the Muslims only as a contributory factor in the creation of a multicultural society in India . It is remaining Islamic without in any way sacrificing modernisation or the absorption of Western influences. I found its Islamism to be far less reactionary than the Hinduism of an organisation like the Jana Sangh.…
“Apart from this basic cultural balance in a product of cultural synthesis, what I found at Aligarh was the educational atmosphere. In these days when university education is going to pieces all over India under the influence of politics, it gave me the impression of having a steady and genuine academic life….
“Aligarh is an educational community in which education counts, instead of being a minor element. No sound and effective system of education can exist without a sound and living ideology. That exists at Aligarh, and that does not exist in the other universities in India.
“If loyalty to the Islamic way of life has given this stability to the academic life of Aligarh, it would be madness to take it away or try to destroy that loyalty.… The two communities can come to terms only if the two ways of life are recognised to be equally valid and good for the communities. Then there will be understanding between the two” ( Hindustan Standard, March 9, 1970).
But while this government is in the dock, the Supreme Court is on trial. Will it reverse the sorry trend of illiberal rulings in recent years on minority educational institutions? An adverse verdict might put the lid of judicial finality on the Azeez Basha case and wipe out the redress which the Act of 1981 provided. But it will unleash the kind of emotions which monstrous judicial wrongs unleash. The Modi government will not be able to act on it to rob the Muslims of their rights .
Incidentally, when it was part of the Janata Party, the Jana Sangh was privy to its two election manifestos, of 1977 and 1980, which pledged to restore the minority character of AMU.
Let there be no underestimation of the challenge which India’s secularism now faces. The destruction of the Babri Masjid was a heinous crime. The mosque evoked emotions because it was a house of worship of historical significance. AMU is a living institution dear to all. The destruction of its historical character will be a crime as heinous as the demolition of the Babri Masjid. There is time still for the Modi government to pause and reflect and reverse its stand before the Supreme Court. Judicial error will be no excuse. The government urged the court to commit it. It will invite popular wrath.
The entire Kashmiri leadership during a historical phase came from AMU—Sheikh Abdullah, Mirza M.A. Beg, his AMU contemporary G.M. Sadiq, Mir Qasim and Mufti Mohammed Sayeed. AMU’s diaspora stretches to the United States and the U.K.
Consider this precedent. Dartmouth College was chartered by the English Crown in 1769. Later, in 1816, the state legislature of New Hampshire passed a law completely reorganising government of the college, stripping it of its autonomy. The Supreme Court of the state decided against the old trustees. Chief Justice John Marshall of the U.S. Supreme Court set aside the law in a judgment that ranks as a classic ( Trustees of Dartmouth College vs Woodward , 4 Wheaton 518, 4 L. Ed. 629 (1819)).
The great Advocate Daniel Webster’s remark brought tears to the eyes of judges of the U.S. Supreme Court. “She may be a small college, but there are those who love her.” The history of the Aligarh Muslim University and its travails explain why its perils arouse the emotions they do.
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