25/08/2017 Judgment on the Minority Character of AMU: A Classical Case of Fallacious Legal Reasoning

Judgment on the Minority Character of

AMU: A Classical Case of Fallacious Legal
Reasoning
BY: AYAZ AHMAD
JANUARY 20, 2016 7:32 PM

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The constitutional debate about the minority character of Aligarh Muslim University
(AMU) has its genesis in the Supreme Court judgment of Azeez Basha v. Union of India
(1968 AIR 662). In fact, the judgment of Allahabad High Court in Dr. Naresh Agarwal v.
Union of India substantially relies upon the reasoning of Azeez Basha to declare
unconstitutional the AMU Amendment Act, 1981 which itself was intended to change
the basis of Azeez Basha’s reasoning!

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25/08/2017 Judgment on the Minority Character of AMU: A Classical Case of Fallacious Legal Reasoning

Many attempts have been made in the past by the Parliament, jurists and academicians
through constitutional, legal and rational means to bury the ghost of Azeez Basha, but it
has shown fantastic resilience. This article is yet another attempt to give a decent burial
to the ghost of Azeez Basha with the help of a hypothetical case which highlights the
aws in the reasoning of  Azeez Basha. This hypothetical case has been titled as The
Freedom Fighters v. Union of India and from hereon, the narration seeks to build bridges
with the help of creative freedom available to all ctional works. 

If you believe that Independence of India was the result of hard-fought battle by our
freedom ghters led by the father of our nation Mahatma Gandhi against the British
imperial forces you are wrong! Consider your opinion in the light of a judgment
delivered by the Hon’ble Supreme Court of India in The Freedom Fighters v. Union of
India case. The brief facts of the case are as follows:

“One pseudo-nationalist who never participated in the freedom struggle of India was
denied the bene ts & allowances which accrue to the freedom ghters for the services
rendered by them to the nation with respect to its independence from British
subjugation. Aggrieved by this denial Pseudo-nationalist approached the Court of Law.
His contentions before the Court in support of his case are summarized below:

That the independence of India was brought into existence by British Parliament
through the Independence of India Act-1947. But for this Act, India would have never
attained independence in the eyes of Law. So, actually it is the British Parliament
which was responsible for India’s independence.

The sacri ces of Gandhi Ji & his battery of freedom ghters pales into insigni cance
in comparison with the painstaking work of the British parliamentarians in passing
the Independence of India Act-1947

In the light of above facts it is clear that the claim of Gandhi Ji & his battery of
freedom ghters as the liberator of India are misplaced, misleading & without any
foundation.

As there is a class of person who is getting freedom- ghters allowances & bene ts
despite the fact that there can not be any freedom- ghter in India in view of

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25/08/2017 Judgment on the Minority Character of AMU: A Classical Case of Fallacious Legal Reasoning

Independence of India Act, there is no reason why the same bene ts can not be
extended to the Plaintiff or for that matter, to all Indians or British.

Unequal treatment of the Plaintiff is violation of Article -14, 15 and 16 of the Indian
Constitution”.

               Accepting the contentions of the pseudo-nationalist the court ordered that all
the bene ts, allowances & privileges granted to the alleged freedom- ghters must be
scraped with immediate effect as it is violative of Article -14, 15 and 16! In arriving at
this conclusion the Court relied heavily upon the judgment given by the Supreme Court
in Azeez Basha v. Union of India.

The Court observed that “in Azeez Basha case it was held that Aligarh Muslim
University (AMU) was not a minority institution because it has been established by an
Act of Parliament i.e.; AMU Act -1920 & not by Sir Syed & his battery of social servants.
Therefore AMU can not claim any right, bene t or privilege available to minority
institutions.

On the basis of analogy it is very clear that the reasoning of Azeez Basha requires that in
order to get the privilege of being freedom- ghter one needs to be a freedom- ghter
rst. As there can not be any freedom ghter in view of the Independence of India Act-
1947, no one can legitimately claim the privileges of freedom ghters. If at all anyone
deserves such privilege it is the British Parliament because but for the enactment of the
said Act India would have never attained Independence! Holding otherwise will
tantamount to overruling Azeez Basha case by implication because it would destroy the
very basis on which Azeez Basha ruling is founded. Keeping in mind the need for
consistency we are not willing to depart from the ruling of Azeez Basha. As in case of
AMU it was the Indian Parliament which brought it into existence so also it was the
British Parliament which brought into existence the Independence of India.

Accordingly as Sir Syed & his followers can not be said to have established AMU so also
Gandhi Ji & his followers can not be said to have liberated India from the British.
Consequently the alleged freedom ghters are not entitled to any bene ts, allowances
or privileges which could be granted only to those who brought into existence the
Independence of India”.
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25/08/2017 Judgment on the Minority Character of AMU: A Classical Case of Fallacious Legal Reasoning

The above hypothetical case demonstrates the anomaly that may be created by
adopting hyper-technical interpretation of historical events. Establishment of AMU by
Sir Syed & his followers in order to disseminate modern, professional and secular
education among Muslims is a historical fact as much as the liberation of India by Gandhi
Ji & his followers. Legal technicalities should not be allowed to trump historical facts.
Instead of going by ctional theories, judgment on historical facts should rely upon
historical evidence for proof. Hence, whenever called upon to determine disputes
around historical facts, judicial wisdom should refrain from applying ctional theories to
settle them lest the outcome of judicial process border upon absurdity opening
Pandora’s box for dirty politics. The AMU case, pending before the Hon’ble Supreme
Court has presented a great opportunity to correct the monumental error committed by
it in Azeez Basha case. Let’s hope that this time historical wisdom will prevail over
techno-legal trivialities.

Ayaz Ahmad is Assistant Professor at Glocal Law School.

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Topics: Aligarh Muslim University (AMU) | AMU Amendment Act | Azeez Basha v. Union of India | Dr. Naresh
Agarwal v. Union of India | Supreme Court of India

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