by A. G. NOORANI
September 9, 1962: Prime Minister Jawaharlal Nehru (left) being greeted by M.C. Chagla, the Indian High Commissioner to the United Kingdom, at Heathrow Airport in London. On Republic Day 1962 he wrote an article in The Times (London), which was a tirade on Indian Muslims PHOTO/The Hindu Archives
The Allahabad High Court said in 2005 that it would follow the Supreme Court’s ruling in the Azeez Basha case in 1967. It was dismissive of H.M. Seervai’s critique of the ruling. There is, however, a highly significant judgment by Justices S. Murtaza Fazal Ali and B.R. Mishra of the Supreme Court questioning that ruling and urging its “reconsideration” by “a larger Bench” to be constituted by the Chief Justice of India. This judgment was delivered on November 26, 1981. That bench has not yet been constituted (see box on page 65).
The fons et origo of the 50-year-old controversy, which poisoned the communal atmosphere particularly in Uttar Pradesh, is not the criminal assault on Ali Yavar Jung, the Vice-Chancellor of the Aligarh Muslim University (AMU) on April 25, 1965. It is the ordinance which the Education Minister, M.C. Chagla, got promulgated to suspend AMU’s constitution and further to challenge its long-accepted status as an educational institution founded by the Muslims. It is this assertion made for the first time by a Minister in the Government of India which sowed the seeds of that poison. They could not have been sown by one who himself did not have a poisoned outlook towards the Muslims of India. Chagla was Chief Justice of the Bombay High Court, highly respected for his independence and courtesy. He stood up manfully against the Emergency and won deserved praise.
But his disservice to the nation on a crucial issue and his record as a jobseeker has been neglected. That record deserves to be laid bare to illustrate how an Uncle Tom can damage the public interest. Chagla was a junior in the chambers of Mohammad Ali Jinnah to whom he dedicated his book on the Indian Constitution in force under the Government of India Act, 1919, with characteristically fulsome praise—no man is a hero to his valet but Chagla had put him on a pedestal. The dedication was removed in later editions when the writer fell out with his mentor.
A highly respected contemporary and Chagla’s friend M.C. Setalvad’s comments on Chagla were scathing: “The Law Commission had, after careful consideration, expressed the unanimous view that the practice of a Judge looking forward to or accepting employment under the government after retirement was undesirable as it could affect the independence of the judiciary. We, therefore, recommended that a constitutional bar should be imposed on Judges accepting office under the Union or State governments similar to the bar in the case of the Auditor and Comptroller-General and members of Public Service Commission. Chagla, who was Chief Justice of Bombay and a member of the Commission, had concurred in this recommendation. He had, however, always yearned to be in politics, and had while Chief Justice expressed political opinions which a Judge ought not to. He was so keen to get into politics that soon after the Report was signed by him (‘even before the ink of his signature on the report was dry’—as observed in a letter to the press) he resigned his office to become India’s Ambassador to the United States. His action was characteristic of the self-seeking attitude of many of our leading men” (My Life, Law and Other Times; p. 261; emphasis added, throughout).
What is not known is that he was very willing to demean himself in that quest as this minute by Subirmal Dutt, Foreign Secretary, shows. It is published here for the first time from the archives (see box on page 63).
Profession of leftist views did not inhibit acceptance of a judgeship in the Bombay High Court in 1941. In the famous case of Keshav Talpade—as significant in 1944 during the Quit India Movement as the habeas corpus case was during the Emergency—Chagla joined Chief Justice John Beaumont in deciding against the detainee. Another English judge, Eric Weston, dissented from both and ruled in favour of Talpade. Setalvad characterised Chagla’s stand as “strange”.
Chagla enjoyed no support among Congress Muslims. National politics was none the richer for his presence. In a Lok Sabha debate, in February 1965, on a well-documented Central Bureau of Investigation (CBI) report on Biju Patnaik, former Chief Minister of Orissa, Chagla said: “I would not hang a dog on the basis of an ex parte statement.” The report was based on official records. Chagla promoted his career. He harmed the national interest. Patnaik was later indicted by Justice H.R. Khanna.
Chagla flatly denied, in the Lok Sabha on September 3, 1965, that the AMU was founded by a minority, the Muslims, and was, therefore, entitled to invoke the fundamental right embodied in Article 30(1) of the Constitution which guaranteed its autonomy. But Ali Yavar Jung, himself the Vice- Chancellor, persisted in his defence of the university. At a press conference in Bombay on May 12, 1966, he ably summed up the ethos of the AMU. To quote a report in The Times of India the next day: “Nawab Ali Yavar Jung said that there need be no controversy about the basic character of the university. He saw no contradiction in its being a national Muslim university. It was principally meant for Muslims in the sense that education was provided in their religion, philosophy and traditions. But that did not mean that it was to be run for Muslims exclusively. It must continue to be a national university. He said there was no distinction of religion in the recruitment of teachers. About 40 per cent of the students were non-Muslim.”
The Congress issued a three-line whip to its members in Parliament to secure the passage of the Amendment Act of 1965 which completely deprived the university of its autonomy. It, however, allowed a free vote on the proposal to change the name of the Banaras Hindu University (BHU), as a first step towards a similar move on the AMU. The proposal was defeated in the Lok Sabha on November 15, 1966.
As High Commissioner to Britain, Chagla contributed to The Times (London) on Republic Day 1962 an article, not on the country’s achievements as is expected of its envoy, but a tirade on Indian Muslims. No Indian Ambassador has ever behaved thus to this day. Entitled “Muslims Stand Apart”, the article began with the question, “Is there a Muslim problem in India?”, and proceeded to answer: “If there is a problem it is an emotional one, and it exists largely because of the unwillingness of the Muslims to integrate themselves into the country, and then desire to consider themselves as separate and even to emphasise this separation” (sic).
He proceeded to lament: “They still talk of minorities, of minority rights, and even the most nationalist among them can foregather in a Muslim convention to give expression to their fears and suspicions.” He went so far as to question their loyalty to the country.
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