AMU Case : To 'Muslims Not Minority In 1920' Argument, Supreme Court Says Present Day Standards Relevant [Day 6]
The issue whether a group constitutes a 'minority' must be decided on the basis of present-day standards and not based on the situation which existed before the commencement of the Constitution of India, observed the Supreme Court on Tuesday (January 30) during the hearing of the case related to the minority status of the Aligarh Muslim University(AMU).The observation of the...
The issue whether a group constitutes a 'minority' must be decided on the basis of present-day standards and not based on the situation which existed before the commencement of the Constitution of India, observed the Supreme Court on Tuesday (January 30) during the hearing of the case related to the minority status of the Aligarh Muslim University(AMU).
The observation of the seven-judge Constitution Bench came in response to an argument made by Senior Advocate Rakesh Dwivedi that Muslims were not a minority at the time of the establishment of AMU in 1920 during the British rule. Dwivedi is appearing for one of the petitioners who had approached the Allahabad High Court challenging the minority status of AMU.
"To be a Muslim is one thing and to be minority in another thing," Dwivedi stated while opening his arguments. He submitted that during the British rule, there was no concept of 'minority'. Hindus and Muslims were equal sufferers under the British rule. Also, Muslims were numerically more than the Christians(British), who were then ruling. Moreover, the founders of AMU, led by Sir Syed Ahmed Khan, was a loyalist to the British empire, and hence, qualitatively, there was no subservience to the ruling group to qualify this group as a 'minority'.
However, the 7-judge bench led by the Chief Justice of India expressed scepticism about the approach of using the Pre-Constitutional circumstances to assess the minority status under the Constitution.
"The question which is today been referred is whether they(AMU) are established and administered by minority ....whether the fact that they are a minority today is relevant.... because whether they were a minority or not has to be decided on the basis of today's standards," CJI Chandrachud said.
"When we refer to an establishment prior to the Constitution, we will have to go back to the point in time when the institution was established but not with respect to whether that community was a majority or a minority that time but with reference to who has established. Who is minority or majority- that will be decided on the date when the Constitution was adopted, " Justice Sanjiv Khanna observed.
Dwivedi replied that it was a settled position that fundamental rights cannot apply retrospectively. He also argued that if the historical facts can be taken into account to ascertain who established AMU, then it can also be ascertained if the group which established it was a minority at that point of time.
CJI Chandrachud observed then that if this argument is accepted, then no institution which was established before the Constitution can claim minority status. Senior Advocate Kapil Sibal (who supports minority status for AMU) then interjected to state that the Supreme Court in the judgment In Re : Kerala Education Bill has held that the protection of Article 30 was available even to the institutions which were established before the Constitution.
CJI Chandrachud said that the concept of 'minority' was not created for the first time in 1950 when the Constitution was adopted.
"When Article 30 says "all minorities", it looks at the sociological and historical position prior to the birth of the Constitution...minorties were not created for the first time in 1950..Article 30 was intended to hold out an assurance that you are protected to the communities which were otherwise joining the mainstream of the Constitution. One article of that protection was the right to establish and administer the institutions of their choice ..." CJI said.
"Nobody is contesting that they are not a minority after the constitution is established...the problem arises when we take these principles back to several decades saying that most of these colleges are established by minorities," Dwivedi said. He asked whether the institutions established by Christian missionaries with the patronage of the British with the objective of conversion should be granted minority status.
Minority as a Political Concept, 3 Tests to Define Minority - Mr. Dwivedi Explains
In a major part of his submission, the senior counsel emphasized the need for the bench to provide relevant indicia of determining 'Minority' for Article 30. In doing so, he proposed 3 tests of determination borrowed from Western Political Philosophy.
These three tests were, firstly, the numerical test that assessed the composition of a community within the larger population; secondly, the test of non-dominance where the community being evaluated should not be in the position of power and thirdly, whether the community claiming the minority status considers itself to be a minority.
During the submissions, there took place an interesting back-and-forth between the Counsel and the bench regarding the factors which define minority. The bench opined that the test of non-dominance has to be seen contextually. The CJI highlighted that the political inclination of the founder of the educational institution alone cannot be the right tool to construe the essence of minority.
CJI: Your approach that the conferment or denial of minority status would depend upon the position of the founder in the dominating ruling group not the position of the minority in relation to the ruling group but the founder...in this case, it was well conceivable that the Muslims were a minority in the constitutional sense but you're saying that because Sir Syed Khan was a sub-judge, etc, therefore, he didn't consider himself to be a minority ....so it has to be the position of that group. It's a group right, it cannot be in relation to the position of the individual qua the rest or… dominance also pertains to the entirety of the community. It cannot be dominance in relation to the founder because the founder was bowing down to the then powers that be either pre or post-independence India, therefore that …”
Dwivedi then underlined that minority as a concept has to be seen from the lens of political relationships that were maintained in the British Era and the Post-British Era. As per him, Article 30 encapsulates the political dynamics in a society when dealing with the idea of a minority.
“Minority is a political concept that relates to somebody in the majority, it's a political relationship which is now enshrined in Article 30 for future purposes”
The CJI however, was quick to observe that a community which is in numerical minority cannot be denied its minority status just because of its political preferences.
“For instance, a political party in a state may regard that minority as a very valid constituent of its vote block, does that mean that therefore though numerically in the minority because it is an important ingredient of the ruling block, therefore, it will be denied minority status under Article 30?”
It was then clarified by Dwivedi that what he meant was that in 1920, the only ruling community was that of the Imperial Crown, under the direct command of the then Governor-General.
“Neither Muslims nor Hindus were part of the govt. We were subjects alike and we were equal in the suffering.”
As a follow-up, the CJI then pointed out that by that logic both the Hindus and Muslims would fulfil the indicia of minority status.
Dwivedi replied that in the pre-constitution regime, the only relationship that existed was that of the Imperial Ruler and the Subjects. He argued that “we were all subjected in the same manner, SG already said that there was no concept of minority, we are trying to foist something backwards on a statute made by an Imperial power. It is just a fiction which we are creating”
Dominance A Function Of Socio-economic Advancement; Article 30 Premised On Sociological Factors In Pre- Constitution Era
The discussion during the hearings diverted to breaking down the concept of 'dominance' and how time is a relevant factor in influencing the application of the three proposed tests on defining minorities.
The bench was of the view that dominance is a fluid concept and that position of power can fluctuate with time and socioeconomic factors.
Justice Khanna remarked that “dominance can keep on varying from time to time, if we talk about political dominance it can vary from time to time”
The CJI further added that “dominance is also a function of socioeconomic advancement. What if there's a community which does not have the benefit of education as the Muslims were at that time, the community was not highly advanced socially, economically etc.”
Countering the contention of the respondents that there existed no concept of the minority before the coming of the constitution, the CJI spotlighted that it was the sociological differences prior to 1950 which enabled the formation of Article 30 in the first place. In a rally of question-answers, the CJI and Dwivedi analyzed the socio-political events of partition and the making of Pakistan as prerequisites to the need to protect minorities in India.
As per Mr. Dwivedi, from the angle of Western education, everybody was a minority. Since only 5 major universities existed at the time of Independence, it would not be correct to say that the Hindu community was more educated than the Muslims.
“We were all in the same position. It's not that the Hindus had Western education and the Muslims did not have.”
Brewing on to this submission, the CJI drew the attention of the senior advocate on the underlying importance of January 26, 1950. The CJI asked as to what change took place on 26 January 1950 that the Muslims which according to Dwivedi didn't have minority status suddenly got minority status after 1950.
Dwivedi explained that the formation of Pakistan upon the advocacy of the Two Nation theory had created a fear amongst the Muslims of being culturally dominated by the Hindus who were now in majority in the post-partition India.
He expressed, “Those left behind... they were dependent upon the rule of majority under the constitution of India. Which is likely to be elements most often from the Hindu community”
CJI then asked, “But that begs the question, what does Article 30 recognize in terms of a minority?”
Answering the same, Dwivedi said that Article 30 recognizes those groups of persons such as Muslims who subscribe to a different religion, culture, script language and, therefore need protection
Picking from there, the CJI said, “These are sociological features which existed prior to 1950” , thus impressing upon the fact that all the differences as identified by Dwivedi in terms of language/ culture/religion were not created overnight but existed in the society even before the making of the constitution. It is these pre-existing socio-cultural differences that Article 30 intended to protect.
To illustrate that 'numerical test' alone may not be sufficient to ascertain minority status, Dwivedi gave the example of the State of Kerala. He stated that in Kerala no single community has a population above 50% and that different communities of Hindus, Muslims and Christians separately constituted only 33-35% of the population. He contended that applying the simple numerical test alone wouldn't suffice the meaning of 'Minority'.
“Let's take Kerala for example, there is nobody in majority, let's assume that Hindus, Muslims, Christians each of them is 33% or 35% how do you decide who is a minority? So please decide, these questions will come.... electoral politics will play out in its own way but will you decide? If you simply have a numerical test then how do you decide Kerala - nobody is above 50% nobody is in the majority? So, we need a definition because high time. It's 2024. If we still don't decide the definition of minority which the framers did not decide. So, we need a definition. The best test is the objective test....”
Enunciating on the principles of Stare decisis, the senior counsel rested his case by contending that the decision in A Basha for more than 50 years has not been challenged in any other rulings of the Supreme Court and it was crucial that Basha's observations not be negated as “ There is greater public mischief to happen if Basha is reconsidered in overruled...we are 56 years down the line”
The bench led by CJI DY Chandrachud comprising Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and SC Sharma is hearing a reference arising out of the 2006 verdict of the Allahabad High Court which held that AMU was not a minority institution. In 2019, a 3-judge bench of the Supreme Court referred the issue to a 7-judge bench. One of the issues which arise in the case is whether a University, established and governed by a statute (AMU Act 1920), can claim minority status. The correctness of the 1967 judgment of the Supreme Court in S. Azeez Basha vs. Union Of India (5-judge bench) which rejected the minority status of AMU and the 1981 amendment to the AMU Act, which accorded minority status to the University, also arose in the reference.
Case Details : ALIGARH MUSLIM UNIVERSITY THROUGH ITS REGISTRAR FAIZAN MUSTAFA vs. NARESH AGARWAL C.A. No. 002286 / 2006 and connected matters
Also from yesterday's hearing : AMU Institution Of National Importance, Minority Status Will Exclude SC/ST/OBC Reservations : Centre Tells Supreme Court
Reports of previous hearings :