Jamia Millia Islamia in Delhi. Jamia Millia Islamia in Delhi.

The government has said that Aligarh Muslim University and Jamia Millia Islamia are not minority educational institutions. In the case of AMU, the Attorney General has argued that this is because it was set up by an act of Parliament, not by Muslims. But critics say this is a narrow reading of the history and background of AMU and JMI.

What is the ‘minority character’ of an educational institution?

Article 30(1) of the Constitution gives all religious and linguistic minorities the right to set up and run educational institutions, including schools, colleges and universities. This was presumably done to assure minorities of being able to maintain and propagate their unique and special educational aspects. The law guarantees that governments will not discriminate in giving aid on the basis of their being ‘minority’ institutions, thus sealing in a commitment by the Government of India to allow minorities to flourish.

What is the background of the setting up of the universities?

There are very interesting linkages, similarities and divergences between AMU and JMI. AMU was founded as the Madrasatul Uloom in 1875 in Aligarh, and evolved into the Mohammedan Anglo Oriental College. It had very progressive roots — its founder, Sir Syed Ahmad Khan, spoke for women’s education and personally passed the hat for funds. It is said that someone with more regressive ideas about educating Muslim women and pushing English threw a shoe at him in anger, but Sir Syed auctioned the shoe and added that to the collection.

The seeds of JMI were sown in Aligarh by a group of nationalist students and members who formed a camp there as Jamia Millia Islamia, which later moved to Delhi. Leaders like M A Ansari, Zakir Husain and Mahatma Gandhi encouraged the university to push nationalist values and ideas.

There was friction between JMI and AMU along political lines, as a significant section at AMU was said to be “League-y”, or tilting towards the Muslim League, while the ‘nationalist’ JMI was wholeheartedly supported by the Congress.

The universities have had their own journeys in independent India. AMU has no reservation for Muslims, but has preferences and reservations for local candidates, irrespective of faith. JMI gives reservation/preference to Muslims after the National Commission for Minority Educational Institutions (NCMEI) granted it minority status in 2011.

Aligarh Muslim University Aligarh Muslim University

What were the arguments for and against minority status for JMI?

Jamia became a deemed university in 1962 and a central university in 1988, both by Acts of Parliament. NCMEI held that “Jamia was founded by the Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution”, and was, therefore, “covered under Article 30(1)… read with Section 2(g) of the National Commission for Minority Educational Institutions Act”.

Those opposed to the move say the Act of 1988 states that “it shall not be lawful for the university to adopt or impose on any person any test whatsoever of religious belief or profession in order to entitle him to be admitted therein as a teacher or student or to hold any office therein or to graduate thereat”. They also argue that the application to be declared a minority institution was made in 2006, when reservation for OBCs was introduced in higher educational institutions. Making it a minority institution acted against poor and disadvantaged Muslims.

And what about AMU?

In 1920, the Indian Legislative Council set up the university, and all assets of Mohammedan Anglo Oriental College were transferred to it. Those arguing for minority character say that this was done by an Act as that was the only way a university could be set up at the time. Muslims collected Rs 30 lakh, and handed it over.

In the famous Azeez Basha versus Union of India case, to which AMU was not a party, the Supreme Court ruled that AMU was not a minority institution as it was set up by the British legislature, and not by Muslims. In 1981, Parliament passed an AMU Amendment Act, which accepted that AMU was set up by Muslims.

As aspects of admission policy were challenged by some groups, the Allahabad High Court ruled in 2005 that the 1981 Act was ultra vires of the Constitution, and that AMU was not a minority institution. AMU’s appeal against the single-judge order was dismissed, but the Supreme Court stayed the Allahabad HC decision, so effectively, AMU remained a minority institution.

On January 11, 2016, the Centre reversed its earlier position and stated that AMU was not a minority institution as it was set up by Parliament. Those supporting minority status for AMU want a larger, seven-judge bench to hear the case. They also argue that an Act of Parliament must prevail over judicial pronouncements — and therefore, the 1981 AMU Amendment Act must hold.

Is this a matter strictly for the courts, or is there politics involved?

AMU and Jamia have figured in almost all elections, especially state elections in UP, and they remain symbolic ‘issues’ of importance. Aligarh used to be cited as part of the ‘Shah Bano’ slogan in the 1980s; Jamia figured in the Batla House encounter controversy of 2008. Both universities have witnessed hectic activity on minority status, especially after reservation for OBCs was made mandatory in 2006.

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