The Allahabad High Court and Aligarh Muslim University

Independent India's founding fathers had intended affirmative action for India's scheduled castes and scheduled tribes to integrate them into the national mainstream. However, they had not envisioned that this would be continued indefinitely. Nor had they anticipated that "reservations" would eventually include minority religious groups. The Congress-led administration in Andhra Pradesh recently reserved 5% of all public sector jobs for the Muslim community. Religion-based reservations are sensitive given the constitutional separation of state and religion in India, not to mention the sequence of events that led to partition.

This said, India needs to ensure equal opportunity for all segments of its population. Muslims constitute 13.4% of India's population but remain under-represented in the public sector and universities. Indian politicians are compelled to respond to these issues given the imperatives of the electorate. The Government introduced religion-based reservation despite the constitutional implications. The courts appear to have intervened to stop the politicization of reservations.

The Supreme Court ruled in the Azeez Basha vs. Union of India case in 1968 that Aligarh Muslim University (AMU) was not entitled to the benefits accorded to "minority institutions". It explained that AMU was established by central legislation in 1920 making it a public institution. The Muslim community had not established it as a private body. While this interpretation is indeed correct on technical grounds, the AMU had its origins in the late 1800s with Syed Ahmed Khan establishing the Anglo-Muhammedan Oriental College in Aligarh. This institution influenced pre-partition Muslim politics in the Indian subcontinent and provided the intellectual space for the creation of Pakistan. AMU retains an emotive resonance for Urdu-speaking Muslims in North India. Unfortunately, it is also dependent on public funds for its continued existence.

The Congress administration in 1981 passed the Aligarh Muslim University (Amendment) Act of 1981 to over-turn the Supreme Court judgement of 1968. This was in light of demands from the Muslim community and the need of the Congress party to reinforce its political constituency in that community. The new statute reiterated the minority character of AMU. This enabled reservations on religious grounds vis-à-vis university admissions. The Act described the University as "the educational institution established by the Muslims of India" intended to "promote the educational and cultural advancement of the Muslims of India." The Government had since provided land, public funds and other concessions to AMU. The Union Human Resources Development Ministry went one step further to issue a notification on February 25, 2005 explicitly reserving seats for Muslims in AMU's post-graduate medical courses. The University subsequently reserved 50% of seats in post-graduate medical courses for Muslim students. This was unnecessary in that Muslims already constituted 65% of the overall AMU student body though less in the post-graduate medical stream.

Mr. Malay Shukla filed a writ petition in the Allahabad High Court challenging this decision. Justice Arun Tandon of the Allahabad High Court ruled on October 4, 2005 that the Aligarh Muslim University (Amendment) Act of 1981 was unconstitutional. He added that parliament had no right to overturn the 1968 Supreme Court verdict although it had the authority to remove defects in the law pointed out by the apex court in its judgement. He over-ruled religion-based reservation in AMU's post-graduate medical courses. The AMU is likely to contest this judgement in the Supreme Court.

This verdict is relevant for several reasons. The Indian constitution upholds the separation of state and religion. Can public funds be explicitly used to subsidize student reservation for Muslims? This said, one is also confronted with the relative educational backwardness of Muslims. Can economic criteria be used rather than religious ones to ensure equity in tertiary education and the public sector? Can such criteria be operationalized?

There is a deeper question as well. If the Indian constitution is neutral on the issue of religion, denominational educational institutions should remain outside the purview of the state. Such institutions should not receive public funds though subject to broader regulation of education standards. I would further argue that private Hindu educational institutions be entitled to the same exemptions that private minority educational institutions enjoy.

In the interim, AMU might have two options ahead i.e. to (i) transform itself into a fee-levying private institution with flexibility on student recruitment; or (ii) play by the rules of a Government-financed institution i.e. no use of public funds to favor the admission of students belonging to one religion. It is a difficult call but one that needs to be made in a depoliticized environment.