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Posted Online on Saturday 29, October 2005 07:45 IST

Muslim Islamic NewsAligarh Muslim University and the Court Judgement 

By Asghar Ali Engineer

The Milli Gazette Online

29 October 2005

The Allahabad High Court Judgement that Aligarh Muslim University is not a minority institution has shocked the Indian Muslims and not only that but the honourable Court even maintained that it is not a Muslim university in the meaning of the Article 30 of the Constitution and hence the 50% reservation for the Muslims is invalid. Of the course the BJP has welcomed the judgement but what is unfortunate is that even CPI has welcomed it. It is well known that the left is opposed to reservation on religious basis. Whether such reservation should be given or not can be debated but the present judgement of the Allahabad High Court has held that Aligarh Muslim University is not a minority institution at all and it has maintained that the Parliamentary amendment of 1981 declaring AMU as the Muslim University is not valid. Thus this judgement has far reaching consequences.

The AMU has emotional importance for the Muslims of North India. The Mohammedan Anglo-Oriental (MAO) College was established by Sir Syed Ahmad Khan in late 19th century after a long struggle against the Orthodox Muslims, particularly the Orthodox ‘Ulama who were opposed to everything British or of foreign origin. Sir Syed was even declared as ‘Christian’, ‘Yahudi’(Jew) and a kafir. No body would give him donation for the construction of the building. He went from place to place for collecting money. Many will throw even stones and chappals in his bag, instead of money.

It was because of Sir Syed that a modern institution for secular education was established and he (Sir Syed) undertook journey to England during those days to study the pattern of education in Oxford and Cambridge. He tried to establish MAO on the Oxford pattern after fighting against all odds. The North Indian Muslims had already been left half a century behind in modern education. So the MAO College has great historical significance for Muslims of North India. The establishment of MAO College brought about a great change in the destiny of Muslims.

It is true Sir Syed had established a college and not a university and it was in 1920 that the British Parliament converted the MAO into a university through an Act. For that also the Muslim leaders led a campaign and persuaded the British Government in India to give MAO a university status. After independence the Muslims from North India continued the struggle to declare the Aligarh University as a minority institution and it was finally in 1981 that the Indira Gandhi Government agreed to amend the Aligarh University Act and it became Aligarh Muslim University.

The Allahabad High Court, in order to quash the 50% quota for Muslims had to declare the university itself as a non-minority institution as the reservation quota was based on its being a minority institution. However, the Honourable Court has based its judgement on the Supreme Court judgement in Azeez Pasha versus Union of India. According to Mustafa Sherwani the Honourable Supreme Court judgement was based on two questions, firstly, whether the Muslims in India are in fact a religious minority, in contradistinction to Hindus who are considered as majority community, and secondly, whether Sir Syed Ahmad Khan was the founder of Aligarh Muslim University.

As for the first question the Honourable Judges of the Supreme Court held that the religious identity of a community is based on two ingredients – one is the form of belief in some supernatural power while the other being the multi-dimensional system of social relations. About Muslims their Lordships concluded that the Muslims have common beliefs and are quite homogenous whereas the Hindus are divided along caste and sectarian lines and hence every caste and sect is in minority.

Thus the Honourable judges of the Supreme Court concluded that Muslims are one homogenous community and in contrast the Hindus are not. Thus according to this logic Muslims constitute a majority community and Hindus several minority communities. So if Muslims are a minority according to this strange logic, they cannot enjoy a minority status as stipulated in Article 30 of the Constitution.

And for the second question whether Sir Syed Ahmad Khan had established the Aligarh Muslim University it concluded that the MAO College was transformed into University through an Act of Parliament, which was the representative of the whole country. As such the Judgement arrived at the conclusion that neither the Muslims are a minority community nor did they establish the AMU and hence it is not minority institution under the Indian Constitution.

The Allahabad High Court based its judgement on the Supreme Curt judgement and quashed the 50% quota as unconstitutional. If such perverse logic is applied no justice will ever be done. Historically Muslims have been recognised as a minority community and apart from this Muslims are not a homogenous community at all. They too are divided into various sects and follow different doctrines and practices. They are also divided into caste system and do not intermarry. Certain beliefs are common but so are among Hindus. The Supreme Court Judgement in above case has negated the very age-old consensus among all the leaders of freedom-struggle and all the negotiations on the assumption that Muslims are a minority community.

Technically it is true that the AMU was established according to a Parliamentary Act and is financed by the Government of India. But one cannot deny the fact that MAO was established by Sir Syed Ahmad Khan who raised all its infra-structure including buildings and this college fulfilled the needs of North Indian Muslims close to thirty -five years. Moreover it was on the insistence of Muslims themselves that the British Government transformed it into a university.

Later the Indian Parliament also amended the Act in 1981 and recognised the University s a Muslim institution and it continued to be recognised as a minority institution. If one quashes it minority character by using such logic that Muslims are a majority community and Hindus are in minority than one begins to doubt whether the judges have applied their minds properly or have become victims of certain myths being propagated by certain interests. Also, it is well known that Muslims are very backward and in fact slipping even below scheduled castes in all economic and educational indices. One should try to help Muslims through positive action rather than take away even legitimate rights. It is true that there is controversy about reservations on religious basis. Should the entire Muslim community be treated as one and reservations be given to the community as a whole or it should be on the basis of castes. 

Indian Muslims most of whom were converted from low castes retained their caste identities though untouchability was not as severe among them as among Hindus. Many Muslim leaders and activists belonging to lower castes are now struggling for benefits of reservations on caste basis. Today in U.P., Bihar, Maharashtra and other states there is backward caste movement and they are asking for Mandal Commission benefits. They maintain, and rightly so, that until now the Ashraf (the upper caste Muslims like Syeds, Sheikhs, Pathans etc.) have pocketed all the benefits in the name of Muslims and that this cannot be allowed perpetually.

The reservations in various professional courses granted by the Executive Committee of AMU and confirmed by the Human Resources Ministry should be given to Muslims as a whole or to backward caste Muslims only? This is the real question. It is true that the backward caste Muslims have been left high and dry and all the benefits have gone to a small section of upper caste Muslims and democracy and implementation of Mandal Commission has brought new awareness among these poor and OBC Muslims to fight for their rights.

The real debate should not be whether reservations to be given or not but it should be to which sections of Muslims this benefit should go? The Left, which has always been sympathetic towards the plight of Muslims minority should not ask for scrapping the religious-based reservation in toto but should use its influence for getting benefits for the OBC Muslims.

It is true that an overwhelming majority of Muslims today in India belong to OBC and Dalit categories. There are hardly 10 per cent Muslims who might belong to Ashraf categories. Most of the Ashraf migrated to Pakistan in 1947 for greener pastures and it is poor and backward caste Muslims formerly known as kameen zaten (i.e. low caste Muslims) who refused to migrate and remained in their motherland. They do deserve reservations to come up in the life.

Thus in my opinion the reservations granted in professional courses should be retained and their benefit be given to OBC Muslims. The Allahabad Court has of course quashed the reservation. The Government of India should go in appeal to the Supreme Court or if necessary restore it through an Act of Parliament. But with this important proviso that the benefit will mainly go to OBC and Dalit Muslims. If they get such benefits the Indian Muslims will drive concrete benefit and they will be able to come up in life. Like the low caste among Hindus these low caste Muslims have also suffered intensely. This way the communal forces will also not be able to exploit these reservations for Muslims politically. «

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