On January 11, in the Supreme Court, attorney-general Mukul Rohatgi withdrew pending appeals of the Union government that sought to challenge a 2005 ruling of the Allahabad high court and the 1967 apex court ruling in the Basha case which held that Parliament could not legislate a university which had a “minority” character since India is “secular”.
In question was the status of Aligarh Muslim University (AMU). AMU had begun life as the Mohammedan Anglo-Oriental College (earlier school) in 1877, and was incorporated as a university in 1920 under an act passed by the Governor-General in Council (precursor to Parliament), and accepted as such in 1951 by the Parliament of independent India, which made certain changes to the act of 1920 to bring it in line with matters relating to fundamental rights, namely making it clear that a Muslim student at AMU could not be forced to undergo religious instruction (as the 1920 act had held).
The AG’s argument in respect of AMU was also extended to Jamia Millia Islamia in New Delhi — that it cannot be deemed to have a minority character as it took its present life from an act of Parliament. As for Jamia, the facts suggest that the institution was already awarding university degrees as a minority institution even before being incorporated by an act of Parliament.
Apart from the wider politics of the matter that emanates from the AG’s action, what cannot be concealed from view is that the Indian Constitution — which underlines the secular and democratic nature of the Indian republic — itself enjoins that the Parliament of India is competent to enact laws that aid and promote the cultural and educational enhancement of the minority.
Thus, in 1981, Parliament amended the 1920 AMU Act to remove any ambiguities that the Supreme Court had entertained in the Basha judgment for the 1920 act had not automatically drawn a link to AMU’s predecessor institution which had been established by the Muslim minority.
“Minority” pertains to a religious or linguistic minority, and is also guided by concerns of location. For instance, Benares Hindu University (BHU) would qualify as a “minority” institution were it to be located in Kashmir, Punjab, or most states in the Northeast on grounds of both language and denomination. In India’s democratic dispensation, who can be counted upon to ensure the rights and the dignities of the minorities if not the elected legislatures — at the level of the state or the Centre?
If Mr Rohatgi argues otherwise, he lays himself open to the suggestion that his argument is in line with the thinking of the RSS — that there are no minorities in India, an approach meant to restrict state benefits for the minorities.
