All India Muslim Forum
Centre Filing Appeal on AMU before the Division Bench: A Question
4 November, 2005:
The decision of the Central government as reported on Hindustantimes.com
today to file special petition before the Division Bench of the Allahabad High Court, challenging the single judge verdict of 4th october, may apparently look a welcome step. However, the basic legal implications involved are bound to unfold a different
unsavoury story during the days to come.
The decision of Justice Arun Tondon is based upon the rationale of Aziz Basha versus Union of
India (1968) wherein the Honourable Supreme Court had held that since the present shape of Aligarh Muslim University was brought into existence by the Parliamentary measure in 1920, and not by the Muslims of India, and, therefore, it cannot enjoy the protection of Minority Institution within the parameters of Article 30 of the Constitution. Though the minority character of AMU was restored by the AMU Amendment Act, 1981, but the reasonings of Justice Tondon clearly demonstrate that the logic laid down by the Honourable Supreme Court in Aziz Basha's case was not specifically and distinctly nullified and overruled by this Parliamentary legislation.
If it is so, can the the Division Bench of the Honourable High Court have the jurisdiction to overrule the ratio decidendi, no matter right or wrong, articulated by the Highest Court of the
land. It is almost certain that in view of the strict compartmentalisation of the precedents within which our judicial system functions, the Division Bench will ultimately have to follow the dictum of Aziz Basha's case. Should it happen, then again to the Supreme Court, and the whole process will consume years and years together, while the future of the university and those students who are studying in various courses under the reservation quota will keep hanging in the air.
In view of all this legal rigmarole, the government, if it is really sincere to the AMU cause, must forthwith constitute an expert committee to draft the legislation in a totally unambiguous language regarding the minority character, and get it passed during the winter session of the Parliament. If after 24 years, i.e. from 1981, the legal shortcomings may be subjected to such a rigorous scrutiny as undertaken by Justice Arun Tondon, who can predict that a similar situation will not emerge in future.
Sd/- Dr. Mustafa Kamal Sherwani
All India Muslim Forum
C - 177, Sector, 'J', Aliganj, Lucknow, India; Phone : (++91-522) 2363062, 2362071, 2328677; Mobiles: 9415011911,