Abhay Kishore

The Aligarh Muslim University is not and was never intended to be a minority institution. Therefore, a denial of reservations in AMU is simply a fraud on  the constitution.

Ram Shankar Katheria, the Chairman of National Commission for Schedule Castes (NCSC),  has said that Aligarh Muslim University (AMU) cannot deny reservations to the students of reserved category as it does not have a minority status, which he claimed had been confirmed by the University Grants Commission, HRD Ministry, and the National Commission for Minorities. As regards the indicia to be prescribed for grant of minority status certificate, a reference to Section 2(g) of The National Commission for Minority Educational Institutions Act has become inevitable as it defines a Minority Educational Institution. Section 2 (g) is as under : –  “Minority Educational Institution” means a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities”.

In this article I will articulate the historical facts which led to the establishment of the Aligarh Muslim University negating the argument that the Aligarh Muslim University is a minority institution and so cannot have the same reservation criteria as any other public university in India.

Historical Background of “Non” Minority Character of AMU

It is necessary to refer to the history previous to the establishment of the Aligarh Muslim University in 1920 in order to understand the character of the university. It appears that as far back as 1870 Sir Syed Ahmed 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 Ahead 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, Aligarh was established thereafter and was, it is said a flourishing institution by the time sir Syed Ahmed 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 Muslim University in 1920 by the Aligarh Muslim University Act, No XL of 1920 but 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 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 Aligarh Muslim University Act, 1920 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 contrition were made by other communities as well.

It is necessary now to refer in some detail to the provisions of the Aligarh Muslim University Act, 1920 to see how the Aligarh University came to be established. The long title of the Aligarh Muslim University Act, 1920 is in these words : “An Act to establish and incorporate a teaching and residential Muslim University at Aligarh“. The preamble says that:

“…it is expedient to establish and incorporate a teaching and residential Muslim University at Aligarh, and to dissolve the Societies registered under the Societies Registration Act, 1860, which are respectively known as the Muhammadan Anglo-Oriental College, Aligarh and the Muslim University Association, and to transfer and vest in the said University all properties and rights of the said Societies and the Muslim University Foundation Committee“.

It will be seen from this that the two earlier societies, one of which was connected with the M.A.O. College and the other had been formed for collecting funds for the establishment of the University at Aligarh, were dissolved and all their properties and rights and also of the Muslim University Foundation Committee, which presumably collected funds for the proposed University were transferred and vested in the University established by the Aligarh Muslim University Act, No XL of 1920.

It is true, as is clear from the Aligarh Muslim University Act, No XL of 1920, 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 that 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 Aligarh Muslim University Act, No XL of 1920 was passed. It was brought into being by the Aligarh Muslim University Act and must therefore be held to have been established by the Central Legislature which by passing the Aligarh Muslim University Act, No XL of 1920 incorporated it.

Subsequent amendments were also brought in 1951,1965 and 1981.

Unlike any other minority institution in the country the Constitution of India- Entry 63, List I of the Seventh Schedule – provides Aligarh Muslim University with a special identity and accords special benefits of a national public university. This is a fundamental difference between AMU and any other minority institution, which enjoys protection under Article 30 of the Constitution.

MC Chagla who served as Minister of Education during 1963 to 1966 said, “AMU is not a theological convent but a national university”. Nawab Ali Yawar Jung who was then appointed as the new Vice Chancellor of the University miraculously escaped an assassination attempt when he suggested certain changes in the rules of admission. In a letter he wrote to MC Chagla, he stated that the Aligarh University is an All India university which must remain open to all and attract all India talents and at the same time remain designated Muslim university in the sense that it specializes in subjects connected with Muslim culture.

A Body Corporate cannot avail Protection under Article 29 and 30

Having regard to Sections 3, 4 and 6 of the Aligarh Muslim University Act, read with other sections of the Act whereby Aligarh Muslim University was declared to be a body corporate having perpetual succession and a common seal it has been held the Aligarh Muslim University was a statutory body distinct from its members who had contributed to incorporation of the same. The legal position with regard to fundamental rights being altered with the incorporation of a company/ corporation has been a subject matter of consideration before the Hon’ble Supreme Court in the case of State Trading Corporation of India Ltd. v. Commercial Tax Officer and Ors., it has specifically been held that with incorporation, the corporate body become a distinct legal entity vis-a-vis the members, who have contributed to the incorporation. Fundamental rights, which are available to  the citizens (e.g. Articles 19, 29 and 30) under the Constitution of India, are not available to incorporated body’s and as they do not answer the description of citizen of India. Aligarh Muslim University having been incorporated as a legal juristic person under a legislative Act of 1920, as such cannot claim fundamental right guaranteed for citizens under the Constitution of India nor the members of the minority community can claim such a fundamental right in respect of a body incorporated.

This series of historical developments is evidence to the fact that Aligarh Muslim University is not and never intended to be a minority institution and so denial of reservations to SCs, STs and OBCs is a fraud on Constitution. #NLSIU

Abhay Kishore is a 4th Year Student of B.A., LL.B (Hons.) at Aligarh Muslim University.

Image Source: DNA India