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 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....

AMU Case : To 'Muslims Not Minority In 1920' Argument, Supreme Court Says Present Day Standards Relevant [Day 6]

Anmol Kaur Bawa

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