AMU's minority status case in SC: PM Modi must
intervene with HRD Ministry
Milli Gazette |
Dr Syed Zafar Mahmood ZakatIndia.org
The minority character of Aligarh Muslim University is back in the news.
Attorney General (AG) Mukul Rohatgi has told the Supreme Court that, in
the opinion of the HRD Ministry, AMU is not a minority institution; 'as
the executive government at the Centre, we can't be seen as setting up a
minority institution in a secular state'. Thus, even though
characteristically rubbing the minority shoulders on the wrong side, a
central government functionary has for once realized the importance of
secularism in the Indian constitution. Another perturbing aspect,
however, of the AG's statement before the court is that instead of
highlighting secularism as an asset for the wellbeing of the
heterogeneous Indian society he has tried to present it to the court as
a constraint forced on the minorities.
Attorney General's amnesia
2. While saying so the AG forgot so many democratic realities of India.
To manage Hindu temples and endowments in the state of Tamil Nadu, for
more than 50 years, there exists a separate service cadre for Hindus
only (code 003). It is known as Tamil Nadu Hindu Religious and
Charitable Endowments Administration Service. Recruitments are made by
Tamil Nadu State Public Service Commission for the post of Assistant
Commissioner under the Tamil Nadu Hindu Religious and Charitable
Endowments Administration Department. The recruited officers, after
undergoing official training, are posted across the state, they're
accommodated in government residences and they travel in government
3. In the state of Kerala, Deputy Commissioners are directly recruited
by the Kerala Public Service Commission (KPSC) to serve under the Hindu
Religious and Charitable Endowment Administration Department. The KPSC
advertisement in newspapers says 'Only persons professing the Hindu
religion shall apply to the post'. In the state of Karnataka, Sections 6
and 7 of Hindu Religious Institutions and Charitable Endowments Act,
1997 say that the Commissioner etc shall be government servants and they
shall be Hindu.
4. In the state of Odisha, Sections 7 and 8 of the Orissa Religious
Endowments Act, 1970 say that an officer of the state government shall
be the President of the Board and he shall be Hindu. In the most
populated state of Uttar Pradesh, Sections 3 and 6 of Sri Kashi
Vishwanath Temple Act say that four Secretaries to the Government of UP,
one Director, the Divisional Commissioner and District Magistrate of
Varanasi shall form the Executive Committee of the Board and if any of
these officers is not Hindu the officer next below him who professes
Hindu religion shall substitute him.
Constitutional provisions for minority uplift
5. Attorney General Rohatgi also forgot before the Supreme Court that
under article 15(4) of the Constitution of India the Government is
empowered to make special provisions for the advancement of the socially
and educationally backward classes of citizens. Under article 15(5) the
Government can make special provisions, by introducing specially drafted
bills for legislation, for the advancement of any socially and
educationally backward classes of citizens. Under article 30(1) the
minorities have the right to establish and administer educational
institutions of their choice. Under the spirit of these constitutional
provisions the Parliament through the AMU Amendment Act of 1981
empowered the University to promote especially the educational and
cultural advancement of Muslims in India. Through this statutory
amendment the parliament neutralized the 'anti-minority-character'
effect of the Supreme Court judgement in Aziz Pasha case of 1967.
AG's inability to hide bias
6. But the attorney general could not even decently hide the anti-Muslim
bias of those who briefed him. He said in the court that the AMU is not
a minority university because it has been established through an act of
parliament. Going by such reasoning, one is afraid, the recruitments and
special government services rendered to the Hindu temples in the above
mentioned five states would need to be withdrawn and cancelled because
all of these have been established through acts of legislative
assemblies. Also tens of thousands of schools in India are recognized by
the government and affiliated to different boards of education. Some of
them are statutorily registered as minority institutions. Thus, for
granting minority status, government recognition is an enabling factor.
RTE Act and minority status
7. More so, under the Right to Education Act 2009 no school, other than
a school established, owned or controlled by the appropriate Government
or the local authority, can be established or function, without
obtaining a certificate of recognition from the prescribed authority.
So, as a fall out of the attorney general's reasoning no school can be
granted the minority status as all schools are recognized by the
AG's attempt to obstruct basic structure
8. Rohatgi also said that the ratio of the 1967 Aziz Pasha case still
holds good. Is he trying to say that the parliament is incapable of
undoing a view taken by the court ? That way he is trying to obstruct
the basic structure of the constitution which may have far reaching
consequences destabilizing the sacrosanct and strong Indian
constitutional monolith. Doesn't he need to resist from throwing the
baby along with the bath water?
Supreme Court's loaded question
9. Perhaps that is why the supreme court in its astute wisdom had to ask
him the loaded question: is the abrupt change in the attitude of the
union government caused by the political change of guard at the centre?
Again the AG looked askance while the court had to order him to
transform whatever the government has to say into a duly sworn affidavit
on 4 April 2016 that's the next date of hearing.
Briefing to AG clashes with PM's declared policy
10. It seems that the AG was briefed parochially at the bureaucratic
level without the latter pre-obtaining specific instructions from the
political executive regarding the substance of the arguments to be made.
Otherwise, this instance of the union HRD ministry is quite at variance
with the way prime minister Modi has recently changed his government's
approach toward interest-less banking in India as well as dealing with
the intransigent western neighbour Pakistan. One wishes there is truth
therein; may be because of that Rohatgi added the rider that it is upto
the university to adopt a contrary view.
Kudos to VC
11. In the meanwhile the student body and staff association of the
'varsity would do well to register their democratic agitation with the
union HRD ministry. Three cheers to the vice chancellor who has already
stated that the AMU's minority character is a matter of life and death
for the institution as well as the Indian Muslim community.
12. A deeper analysis reveals that the whole issue boils down to
reserving 125-150 seats in the university's medical & engineering
colleges and may be in MBA too. In whole of India there are thousands of
institutions giving such degrees but somehow the union HRD ministry is
disproportionately bogged down with these 125-150 seats in AMU.
Mishra Commission's recipe
13. The national commission headed by former supreme court judge Justice
Ranganath Mishra had written in its 2008 report that if, as per judicial
decisions, in the institutions established by the minorities more than
50% seats cannot be reserved for the minority candidates that leads to
the remaining 50% seats virtually going to the majority community. The
Commission strongly recommended that, going by that reasoning and in the
interest of justice and fair play, in all those institutions that are
not established by the minorities at least 15% seats must be reserved
for the minority candidates.
14. The AMU counsel has asked the supreme court to refer the 1967 Aziz
Pasha case to a larger bench. If the 1981 amendment in the AMU Act has
neutralized the 'anti-minority-character' effect of Aziz Pasha case then
such a reference is not called for. However, if the court decides to do
so then - and even otherwise during the current judicial proceedings -
the above recommendation of Justice Mishra Commission needs to be
strongly raised by the AMU counsels during their arguments.
Good hope from Modi - otherwise from Supreme Court
15. PM Modi will hopefully once again act in the spirit of a world
statesman, will intervene and benevolently restore to the AMU its
pristine glory of minority status as per the dreams of its illustrious
founder Sir Syed Ahmad Khan; and he would give clear instructions to the
HRD ministry for revising its stand taken in the court. Alternatively,
the Supreme Court would restore justice to the glorious institution
established by the Indian Muslims 130 years ago in 1885. For that
purpose it may even refer the matter with suitable directions to the
National Commission for Minority Educational Institutions in the spirit
of section 11(c) of the NCMEI Act, 2009.
Author is President, Zakat Foundation of India