By Sandhya Jain
The Allahabad High Court'sdecision to declare the Aligarh Muslim University (Amendment) Act 1981 unconstitutional on grounds that AMU is not a minority institution is likely to heighten the competitive political communalism currently gripping many political parties.
Congress Party stalwarts have already indicated uneasiness with the verdict, and it is well known that the party is fighting with its back to the wall in Bihar, where Union Coal Minister Ram Vilas Paswan has decided to stay aloof from its alliance with Railway Minister Lalu Prasad Yadav on the pretext that he wanted a Muslim as next chief minister.
For Congress, the AMU verdict could not have come at a worse time. The party is already on the back-foot with the Supreme Court for having questioned its decision to quash the controversial Assam IMDT Act, which was the greatest impediment in the task of identifying and deporting aliens from Bangladesh. Congress initially displayed a sullen determination to reinvent the Act in some form or other, until wisdom prevailed and it beat a reluctant retreat. However, with Muslim groups in Assam forming their own political party for elections in 2006, and Congress? excessive reliance upon the Muslim vote to gain office, it remains to be seen how it copes with the grim situation in that State.
The AMU judgment also casts a shadow over the Congress party'srecent propensity to woo Muslims by reserving five per cent government jobs in Andhra Pradesh. In this context, the Allahabad High Court verdict on AMU may be seen as part of a larger judicial impatience with divisive and separatist politics. The Supreme Court'srecent observations on the Jain community'squest for minority status and its directive to the National Minorities Commission to reduce rather than increase the number of minorities, may reflect deeper judicial concerns about national unity.
Justice Tandon'sverdict has effectively demolished the arguments made by Muslim intellectuals earlier this year to the effect that the 50 per cent communal reservations in AMU were consistent with the 2002 Supreme Court judgment in the TMA Pai Foundation versus State of Karnataka case. Actually, if AMU had truly been established by the Muslim community, a 50 per cent reservation for the community would be perfectly justified.
Meanwhile, Justice Arun Tandon has created quite a stir by declaring the reservation of seats for Muslims in AMU'spost-graduate medical courses illegal and quashing the notification issued by Union Human Resource Development Ministry on February 25, 2005 in this regard. Justice Tandon also ruled that the AMU Academic Council'sapproval of reservation of 50 per cent seats in post-graduate medical courses was illegal.
The judgment has created an awkward situation for varsity authorities as the learned judge has declared that admissions made on the basis of the HRD notification were also illegal. The Aligarh Muslim University (Amendment) Act 1981 was an attempt by Parliament to overrule the Supreme Court judgment in the Ajeez Basha case of 1968, when the Apex Court asserted that AMU was not an institution established by the minority community, but had instead been created by Central legislation in 1920. Justice Tandon has pointed out in his verdict of October 4, 2005, that Parliament cannot overrule a Supreme Court judgment but can remove defects in law pointed out by the court in its judgments. Yet, by amending the Act of 1981, the Union Government sought to overrule the Apex Court, and this was unconstitutional.
The judge has directed AMU to complete fresh admissions to the PG medical courses within one month, and this is certain to push the authorities into a collision course with the judiciary. The Allahabad High Court verdict was the result of a writ petition filed by Mr. Malay Shukla & others, who challenged the AMU Amendment Act of 1981 and the February 5, 2005, notification, which allowed a quota for Muslims in the super- specialty medical courses. The petitioners also challenged the decision of AMU'sAcademic Council to reserve 50 per cent seats in post-graduate medical courses for Muslims.
Justice Tandon'sverdict has effectively demolished the arguments made by Muslim intellectuals earlier this year to the effect that the 50 per cent communal reservations in AMU were consistent with the 2002 Supreme Court judgment in the TMA Pai Foundation versus State of Karnataka case. Actually, if AMU had truly been established by the Muslim community, a 50 per cent reservation for the community would be perfectly justified. For, if the government offers land and other concessions to minority-managed trusts to tackle the educational backwardness of a community, it would be wrong if they ignored the community and ran remunerative courses for the general public.
But the larger question that now arises following the Allahabad verdict, and the vote-driven communal politics being pursued by some parties, is whether an India committed to education for all should permit educational institutions to be set up on minority basis. Let us recall that when the AMU controversy broke out earlier this year, one favourite argument of the pro-reservationists was that over the years, the ?all India? character of the student body had disappeared, and the university had become a virtual pocket borough of students of two neighbouring States. This was because the existing 50 per cent reservations for internal candidates from the university'sown SSC and HSC streams were not yielding good students. Thus, the university was being de facto controlled by a handful of families which manipulated the admission process to ensure their supremacy.
If this was the real problem, the situation could have been rectified by improving admission procedures by reducing or eliminating the internal reservations, which were not explicitly communal (though they may have de facto benefitted Muslims). But those favouring 50 per cent reservations by law argued that even without reservations, Muslims comprised around 65 per cent of the student body in most courses; hence reservations did not substantively change the character of the alumni. In that case, where was the need to divide alumni into Muslim and non-Muslim?
The question is pertinent because at a rally in May this year, the Jamiat-Ulema-e-Hind asked UPA chairperson Sonia Gandhi for proportional reservations for Muslims in Parliament and the State Legislatures. Ms. Gandhi did not rebuff this dangerous and divisive move, which raises fears of another Partition, and instead assured Maulana Asad Madani that her party always strove to fulfill Muslim expectations and would continue consultations with him. With her party now tacitly encouraging AMU authorities to challenge the Allahabad High Court verdict, we need to know how far does she intend to go on the road to disintegration?