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Introduction।। Points Involved in the Case।। Institution Should Be Established and Administered।। AMU Established by the Principal Act।। AMU Not Administered by Minority।। Legislature Can Not Reverse Decision।। Article 30 - Electoral And Not Numerical Minority।। 1981 Amendments Are Arbitrary।। 1981 Amendment is Against Secularism।। Long Standing Decision May Not be Overruled।। Bourbaki & Zero।।
“A glance at Section 6 (2), 17(5), 18 (5) and Statutes 8 (1), 10 (1) and 19 (1) of the Benares Hindu University Act will make it clear to Hon’ble members that the Visitor, i.e., the Lieutenant-governor of the United provinces, is the main agency of control in the Case of the Benares University. In the present Bill, in consonance with the central nature of the subject, much of that control is transferred to the Governor General in Council-an authority which, under the Government of India Act, will henceforward, include three Indian Members. Under the Benares Hindu University Act, all new Statutes or addition to Statutes or amendments or repeals to Statutes other than those providing for the instruction of Hindu students in Hindu religion, require the previous, approval of the Lieutenant Governor who may sanction, disallow or remit for further consideration, except Statutes affecting the constitution of the University authorities which require the previous sanction of the Governor-General in council: in this bill. That power is proposed to be vested in the Governor General in council. Moreover, the Governor-General in council will when in exercising the power so vested in him, have before him the opinion of the visiting Board which will include the Ministers one of whom will himself be in-charge of education, so that the Government of India will be in possession of the views of this popular authority when exercising their own powers in this connection. Similar arrangements are also proposed with reference to Ordinances. A glance at Section 6 (2), 17(5), 18 (5) and Statutes 8 (1), 10 (1) and 19 (1) of the Benares Hindu University Act will make it clear to Hon’ble members that the Visitor, i.e., the Lieutenant-governor of the United provinces, is the main agency of control in the Case of the Benares University. In the present Bill, in consonance with the central nature of the subject, much of that control is transferred to the Governor General in Council-an authority which, under the Government of India Act, will henceforward, include three Indian Members. Under the Benares Hindu University Act, all new Statutes or addition to Statutes or amendments or repeals to Statutes other than those providing for the instruction of Hindu students in Hindu religion, require the previous, approval of the Lieutenant Governor who may sanction, disallow or remit for further consideration, except Statutes affecting the constitution of the University authorities which require the previous sanction of the Governor-General in council: in this bill. That power is proposed to be vested in the Governor General in council. Moreover, the Governor-general in council will when in exercising the power so vested in him, have before him the opinion of the visiting Board which will include the Ministers one of whom will himself be incharge of education, so that the government of India will be in possession of the views of this popular authority when exercising their own powers in this connection. Similar arrangements are also proposed with reference to Ordinances.”
Hon’ble Raja of Mahmudabad said ( Combined Proceeding Volume-3 Pg 3064)
“It may be permissible to say that ever since the first definite proposals for the University were made the whole controversy has mainly centred around two points; the extent of jurisdiction of the University and the extent of the Government control. About the former the Muslim community has felt compelled to accept the latest academic opinion that there is no room in future for an affiliating type of a university and that the best interests of education will be served by a local University. Regarding the latter, the community has reluctantly accepted the limitation of the control imposed by the Government.”
This is also clear from the Statement of Objects and Reasons of the 1920 Act. It is as follows (Combined Proceeding Volume-3 P-1 Pg 361):
“The Muslim University Association having requested the foundation of a University and certain fund 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 these societies to a new body called ‘’ the Aligarh Muslim University.’’ The present Bill is designed to incorporate this University, to indicate its functions, to create its governing body and to define their functions. It also secures to the University the assurance of a permanent endowment and to Government the necessary power of control. The University will be of the teaching and residential type. In accordance with the recommendation of the Calcutta University Commission, the University will not include intermediate classes. But the University will have power to establish and maintain Intermediate colleges and schools at Aligarh. The degrees corferred will be recognised by the Government. Special features of the University will be the imparting of Muslim religious education to Muslims and the inclusion of the Department of Islamic Studies.
The bill also provides for the making of Statutes and Regulation. The first Statutes are scheduled to the Bill and consist of those which may be regarded as fundamental for the inception of the scheme.
The general terms of the Bill and Statutes have at various times been discussed with representatives of the Muslim University Association.”
This was also so held in the Basha case (para 27 to 29). It was despite the fact that at that time, there was a provision that ‘no person other than Muslim shall be member of the court’. The relevant part of the judgement in the Basha case is as follows:
“27. 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 is true that the proviso to Section 23(1) of the 1920 Act said that “no person other than a Muslim shall be a member of the Court”, which was declared to be the supreme governing body of the Aligarh University and was to exercise all the powers of the University, not otherwise provided for by that Act. We have already referred to the fact that the Select Committee was not happy about this provision and only permitted it in the Act out of deference to the wishes of preponderating Muslim opinion.
28. It appears from para 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 by persons who had made or would make donations of five hundred rupees and upwards to or for the purposes of the University. Some of these persons were and could be non-Muslims. Forty persons were to be elected by the Registered Graduates of the University, and some of the Registered Graduates were and could be non-Muslims, for the University was open to all persons of either sex and of whatever race, creed or class. Further fifteen members of the Court were to be elected by the Academic Council, the membership of which was not confined only to Muslims.
29. Besides 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. Besides the above, we have already referred to Section 13 which showed how the Lord Rector, namely, the Governor-General had overriding powers over all matters relating to the administration of the University. Then there was Section 14 which gave certain over-riding powers to the Visiting Board. The Lord Rector was then the Viceroy and the Visiting Board consisted of the Governor of the United Provinces, the members of his Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education. These people were not necessarily Muslims and they had overriding powers over the administration of the University. Then reference may be made to Section 28(2)(c) which laid down that no new statute or amendment or repeal of an existing statute, made by the University, would have any validity until it had been approved by the Governor-General-in-Council who had power to sanction, disallow or remit it for further consideration. Same powers existed in the Governor-General-in-Council with respect to ordinances. Lastly reference may be made to Section 40, which gave power to the Governor-General-in-Council to remove any difficulty which might arise in the establishment of the University. These provisions in our opinion clearly show that the administration was also not vested in the Muslim minority; on the other hand it was vested in the statutory bodies created by the 1920 Act, and only in one of them, namely, the Court, there was a bar to the appointment of any one else except a Muslim, though even thne some of the electors for some of the members included non-Muslims. We are therefore of the opinion that the Aligarh University was neither established nor administered by the Muslim minority and therefore there is no question of any amendment to the 1920 Act being unconstitutional under Article 30(1) for that Article does not apply at all to the Aligarh University.”
At present the position is the same; except the proviso to section 23(1) of the Act requiring the members to be Muslims has been deleted. There are some other consequential changes as well. They are as follows:
- In section 13 of the Act, Lord Rector has been replaced by the Visitor and the president is Visitor of the University. Under Section 13(2), he has the right to cause an inspection as well as inquiry. He can then advise the Vice-Chancellor to advise on the basis of such inspection and inquiry {S13(3)}. In case no action to his satisfaction is taken then he can issue direction that have to be complied with {S13(5)}. He can also annul any proceeding which is not in accordance with the Act, Statutes or ordinances {S13(6)}.
- The Court has power to frame Statutes, but they do not come into force unless approved by the Visitor {S28(6)}.
- Ordinances are to be framed by the Executive Council, subject to some control by the Academic Council {S29(3) to (5)} but they can be suspended or disallowed by the Visitor {S29(6)}.
- Regulations can be made by the authorities of the University, but they are under control of the executive Council {S31(3)}.
- Every Statute, Ordinance, and regulation is also under control of the parliament as they are to be placed before it and both houses can annul or suggest modification in the same. They are to be given effect {S31(5)}.
- Annual reports are to be submitted to the Visitor and to the central Government and have to be laid before both Houses of the Parliament {S34(1)}. Same is the case with the Annual accounts and balance sheet {S35(4)}.
- A dispute between an employee or a student with the University has ultimately to be referred to the Tribunal consisting of one member by the employee or the student and one by the Executive council and chairman by the Visitor.
- The teaching and non-teaching staff is to be appointed on the recommendation of the selection committee as defined by Statute 27.
Thus, it is clear that AMU is not administered by a minority.
#AMU #AligarhMuslimUniversity #MuslimReservation
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