Aligarh Muslim University Minority Status: Live Updates From Supreme Court Hearing [Day 6]

CJI: your contention that prior to 1947 there was no concept of minority as we constitutionally recognise today, therefore any institution established before 1947 no such institution will be entitled to claim minority status, it will boil down to that.

Dwivedi: it will boil down to that and the only exception in this principle can be drawn is where some community was actually in minority not in power and position like parsis.

CJI: but then again you said that the concept of minority was non existent before 1947

Dwivedi: but they were in the numerical test and non dominance test applied, if we stretch article 30 it was never meant to apply by any principle backwards my lords 

Dwivedi : no there is no question of minority, the relationship was of the imperial ruler and the subject, 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 which was not there, it just a fiction which we are creating

CJI: for instance of 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 minority because it is an important ingredient of the ruling block therefore it will be denied minority status under article 30

Dwivedi: I am talking in terms of the community which was ruling, I am talking of 1920 when a particular community was ruling to the governor general take the community as a whole, neither Muslims nor hindus were part of the govt. we were subjects alike and we equal in the sufferings

CJI: therefore both the hindu and Muslims would fulfill the indicia of minority status 

CJI: 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 : minority is a political concept it relates to somebody in the majority, it s political relationship which is now enshrined in article 30 for future purposes

Khanna J : if we go by the question of dominance, it will have a lot of repercussions otherwise

Dwivedi: the question is to define, the court has been avoiding the definition.

CJI: you approach would be that the conferment or denial of minority status would depend upon the position of the founder in the dominating ruling group not that 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, its a group right it cannot be in relation to the position of the individual qua the rest or ..

Dwivedi : I'm sorry mylords, I said there are three aspect of minority, 1. numerical test, 2. dominance test, 3. did you consider yourself, so that part of the argument was the third test 

Dwivedi takes the bench to written submissions

Dwivedi: the moving spirit of AMU never thought that he is a minority, his spirit was that we are nation, we have to a be loyal to the British event the British thought like that they also thought India was multinational. This concept of minority was not there, at no point in time in 1888 he changed his views...

Dwivedi : the governor-general was the supreme power, it is one thing to say that the university was established by the Muslims, it is another thing to say that the university was established by the governor general in counsel for the Muslims... there is a distinction between by and for, even today if parliament passes an act for tribals to establish a university, it doesn't mean the university was set up by the tribals .... what they do in this case is they change the status from MAO to AMU

CJI: 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 ...

Dwivedi: nobody is contesting that they are not a minority after the constitution is established...the problem arise when we take these principles back to several decades saying that most of these colleges are established .....

Khanna J : we go back in point of time to find out, who are the person who has established that institution. But the question whether they were a minority or not at that time may not be relevant. what is relevant whether on the date when the issue is examined they are minority or not.

CJI: so you are saying that all other universities established prior to indepedence cannot be minorities?

Dwivedi: yes that is my humble submission, by not examining this aspect by assuming ...

CJI: the constitution says that article 30 all minorities...when it says all minorities it looks at the sociological and historical position prior to the birth of the constitution

Dwivedi: it cannot be my lord

CJI : minorties were not created for the first time in 1950 

Dwivedi: 1. Article 30 is safeguard; 2. Article 30 will walk hand in hand with article 29(1) - ascertaining the numerical test, I call this the numerical test , second test is the test of non-dominance , that is the idea under article 30; 3. the community claiming that status should be considering itself to be minority.

Dwivedi gives the example of institutions set up by Christian missionaries - could it be said that we were a minority? the rule was of the British Rule we were neither Muslims or Hindus, we were subjects ....the position was that handful were ruling India, are we to say that Mughals were minority? the Muslims were more than the rulers , the Christians ruling were smaller than Muslims. Again avoiding to go into this question, pls decide this question. Its too long and we are evading the question, we just stamp them as a minority institution and confer the benefit of article 30 to them.

Dwivedi takes the bench to several previous reference orders on the issue of minority institution