By Syed Hamid, Former Vice-Chancellor, Aligarh Muslim University,
The chorus of criticism against AMUs reservation policy is irretrievably flawed. It is shocking to discover that a badly needed step taken by a backward minority towards progress and self-confidence is being greeted with reverse appreciation and hostile shibboleths. Brazen sophistry is being deployed to condemn a patently salutary and long overdue step towards self-reliance. The callous critics fail to realize that unless Muslims make up the backlog in education and make an appreciable entry into the liberal professions they would remain woefully unable to join the national mainstream. There is no gainsaying the fact that as of now, Muslims are far behind other communities. To expose them at this stage to ruthless competition would be less than fair.
The test of a democracy lies in how it treats its minorities – whether their interests are protected and promoted, or they are brushed aside. It is not strange that people who are grieving with sighs and groans at the so called ghettoisation of Muslims never felt the slightest qualm at their slide-back ever since independence in total oblivion of the fact that “ghettoisation” in the physical sense is not of their making. The problem of minorities is essentially a problem of a democracy. Lord Acton rightly observed, “if we take the establishment of liberty for the realization of duties to be the end of civil society, we must conclude that those states are substantially the most perfect who include various distinct nationalities without oppressing them. Those in whose no mixture of races has occurred are imperfect; and those in which its effects have disappeared are decrepit. A state which is incompetent to satisfy different races condemns itself; a state which labours to neutralize, absorb or to expel them destroys its own vitality; a state which does not include them is destitute of their chief basis of self government”.
Without a comprehensive harmony accommodative of religious pluralism and secularism our vibrant democracy will suffer a divisive syndrome and our various minorities will miss the mainstream of national life – a travesty of the tryst with destiny India made during its freedom struggle. Minority education was rightly given lot of importance in the Constituent Assembly debates. Modern education amongst minorities is the best method to solve inter-community tensions as it broadens their world view and intensifies mutual tolerance. Thus, Article 30 is the only fundamental right which the framers of the Constitution in their wisdom thought should not be subjected to any restrictions. Nothing could have caused greater hurt to the lowering leaders including Sardar Ballabh Bhai Patel who incidentally was the Chairman of the Sub-committee on Minorities, than the specious reasoning being now mustered to assail a progressive decision taken by AMU to augment access of the Muslim minority to professional courses. Only 50% seats have been reserved to Muslims, that too only in 36 courses out of a total of 289 courses offered by the University. It seems the free and secular media has suddenly been hijacked by the rightist lobby and by some ill-informed vested interest who probably have no respect for the principles enshrined in the Constitution. The campaign against the reservation reflects Sangh Parivar’s lack of faith in the modern, liberal, secular foundations of the Indian Constitution. Ironically enough, till recently the BJP as the major party of the NDA Sangh Parivar itself decided on the reservation of 50% seats across the board in the Jamia Hamdard. A similar reservation endorsed by UPA Government became anathema overnight. It is evident that the opposition stems not from reason and logic but from political and extraneous considerations.
To say that the Aligarh Muslim University is not a minority institution is to restrict the ambit of Article 30 of the Constitution. The 11-judge Bench in TMA Pai Foundation case has clearly held that the expression “educational institution of their choice” means all levels of education. Even in the much touted Azeez Basha case the Apex Court had ruled that the expression includes “University”. Thus there is no bar to a central university being a minority university. Criticism of the University’s policy hangs on to Aziz Basha’s case to this day as a recurring refrain almost as pathetically as our neighbour’s woeful insistence in the past on a plebiscite in Jammu & Kashmir. The latter has received a decent burial, the former should follow suit. The Supreme Court’s line of argument in the Aziz Basha case had been as follows: since Parliament established the University, Muslims do not have the right to run it. Parliament clarified this doubt by the 1981 Act that this university was merely incorporated by the Parliament and it had been established by the Muslims themselves. To say that Azeez Basha is still good law is to deny both the fact as well as law as it stands today after the 1981 amendment. To say that the duty of the University to especially promote educational and cultural advancement of Muslims of India is nothing more than yet another fundamental duty is to generalize without warrant from a specific instance. If it is a fundamental duty applicable generally where was the reason for iterating it in one particular Act and why a similar provision does not exist in Acts of other Universities.
Nothing could be more far-fetched than to argue that by the very fact that the President of India is the Visitor of the University, the latter loses its minority character. The Visitor is there only to ensure that the university is run in accordance with its Act and Statutes. The Vice-Chancellor is indeed appointed by the Visitor but the Visitor selects one name out of three sent to him by the University Court i.e. the supreme governing body of the University. It is the Executive Council of the University in which the process of selecting the new Vice-Chancellor begins. The Courts have repeatedly held that the right to administer a minority educational institution does not mean the right to mal-administer. The Visitor ensures, in this case on behalf of the entire Muslim community, that the University is not mal-administered. The Apex Court has clearly held that in the name of aid, minority institutions cannot be taken over by the government.
Reference is made time and again to section 8 of the AMU Act which is just a non-discrimination clause of the Act. This section says nothing more than Article 29(2) of the Constitution. The Supreme Court of India has held in any number of cases that 29(2) does not mean that minorities cannot prefer their own members in admission to their institutions. It merely means that every minority institution will certainly have a “sprinkling of outsiders” Keshavanand Bharati case has held that minority rights are part of the basic structure of the Constitution.
The Apex Court held that Article 30 does not cut across the law and regulations made in the true interest of efficiency of instruction, discipline, health, sanitation, morality and public order. It held that government regulations cannot destroy the minority character of the institution. The regulation must satisfy “a dual test, the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it”. The management must be free from control so that the founder or his nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. AMU is thus well within its constitutional right to decide its admission policy to further the interests of Muslims of India. The court has permitted preference in admission being given to minority students even in an aided institution provided the institution permits admission of non-minority students to a reasonable extent. The Five judges bench in Islamic Academy case had clarified that non-minorities cannot be treated at par with minorities, as they do not have a preferential right in the admission procedure.
It is indeed painful to note that when a minority reserves just 50% seats in an institution established by it, that too in a few courses, it is termed as blatant communalism, ghettoisation etc. There can be no worse instance of semantic tyranny than using, without the least warrant, words like ghettoism when logic fails and arguments peter out. Will the critics of AMU care to give us figures of Muslims in BHU and other central universities. The number of non-Muslims in AMU even by a conservative estimate would be ten times higher than the number of Muslims in other individual universities.
AMU is fully committed to secularism. Its portals remain open to all communities. It was so with its first incarnation, the MAO College, and it remains so to this day. The Apex Court explicitly overruled the rigid limit of 50 per cent reservation as laid down in St. Stephen’s case. The court has said that the non-minority students in a minority institution cannot be in such numbers as to defeat the basic purpose of establishing such institutions. AMU is simply following the directions of the Apex Court. In fact a much higher percentage than 50% is permissible in view of the Supreme Court decision in TMA Pai Foundation case.
The new policy is calculated to bring in better standards. University’s democratic character and its autonomy are imperiled when the decisions taken after due deliberation by university bodies are recklessly called into question by a section of the media whose abysmal ignorance and skewed interpretation of minority rights enshrined in the Constitution are matched by its warped vision of Indian polity’s secular character and its pluralistic foundation. We do expect that the media would not rush to inferences stemming from prejudices and hang-overs and meaningless labels but take care to form a judgment after a proper and sympathetic study of minority rights and AMU’s ground situation. Let better sense prevail and the campaign to tarnish the image of India’s greatest citadel of minority education be terminated. We trust that the crescendo of specious arguments being pressed in service to distort facts and misinterpret law will fail to convince the public and truth will prevail.