Aligarh Muslim University Case | Muslims Were Not A 'Minority' Before Independence: Senior Advocate Rakesh Dwivedi Suggests 'Dominance Test' To Identify Minorities
On the sixth day of hearing before the Seven Judge Bench in the matter pertaining to the minority status of the Aligarh Muslim University (AMU), Senior Advocate Rakesh Dwivedi appearing for a respondent contended that Muslims were not a "minority" before Independence. He told the Supreme Court that it is time to define the word "minority", which is not defined in the Constitution. He proposed a test to determine who could be treated as a "minority" before independence and the adoption of our Constitution.
Rakesh Dwivedi commenced his arguments by saying, "That to be a Muslim is one thing and to be a minority is another thing”.
He continued, "For example, if we are in Jammu and Kashmir, majority are Muslims and Muslims are not a minority. The question, therefore, would be- either we proceed on the basis of the assumption which was made in Azeez Basha (1968 AIR 662) that the Muslims in 1920 were a minority and decide whether they are entitled to the benefit of Article 30 or we consider the question on the facts whether they were a minority in 1920, which requires, first of all, determination of the most vital question which somehow has avoided the attention of this Court in most matters, whether they were Christian colleges or whether they were Muslim colleges established before Independence. This Court has proceeded on an assumption that they were a minority".
He further submitted, "So how do we understand this concept of Minority? Do we decide this today in a Bench of 7 judges when your lordships are sitting or do we again, like TMA Pai says, that these questions are leftover to be decided later? This question was squarely there... but all that TMA Pai decided was that minority will be decided state-wise. But what is this minority milords? Is it a numerical question, does it have a qualitative content? Does it require that the people who are now claiming to be a minority understood themselves to be a minority at that time? Only then milords this can be proceeded. So, I either we avoid it... we say that today in India the Muslims are a minority, and therefore we jump to that conclusion that in 1920 also they were a minority".
Chief Justice DY Chandrachud then said, "But nobody has questioned that Mr. Dwivedi".
"That is referred…..this is the question which has not been addressed", Dwivedi responded.
The CJI then said, "The question which has really been addressed before us is whether they(AMU) are established and administered by a minority. The fact that they(Muslims) are a minority today in UP, the fact that they were a minority at that relevant point of time. Because, whether they were a minority or not has to be decided on today's standards. There is no different standard in 1920 as compared to today".
Then Justice Khanna then said, “Before the Constitution, adoption of the Constitution, we didn’t have any concept of minority and majority. Certain rights have been given under the Constitution on which there is no issue in terms of different Articles from 25 to 30. Therefore, the determination whether you are a minority or not has to be done on the basis of a set time period, not in the past. When we refer to an establishment prior to the Constitution, we will have to go back to the point of time when the institute was established, but not with reference to whether that community was a majority or minority at that time, but with reference to who had established. Who is a minority or a majority will be decided on the date when the constitution was adopted possibly what argument you are raising, in case there is a demographic change, what will be the affect is a separate issue”.
Rakesh Dwivedi responded by saying, "Your lordships have categorically held in a number of cases that the fundamental rights are not retrospective. Therefore, only question is- are you entitled to avail the benefit of Article 30 of the Constitution today".
"Will it be retrospective or retroactive", asked Justice Khanna.
Dwivedi replied, "Whether it is retrospective or retro-active only means the law today takes notice of the facts earlier, that is retro-activity. When the law is retrospective it doesn’t mean it operates from that day, but it takes note of the facts as it existed earlier"
He continued, "We are on the question of facts. An assessment whether this community was a minority when it was established. If it was not a minority, and if it did not consider itself to be a minority... let's take Christians milords.. the Christians were the rulers of the time. The British government which was ruling this country, was a Christian government and the Missionaries were brought into this country with a particular purpose, as an arm of imperial rule. And being that, under the Charters of 1813, 1833, the English Education Act, 1945... and the Hunter Commission and all these commissions were really meant to provide an opportunity to the Missionaries to establish the college to create people who were not fair like them but whose tastes were like them. That was their objective".
"Institutions which were established by Missionaries to evangelise, to convert, to make Indians like British and they were given grants of land which were occupied by them. Now is the Constitutional intent to give benefit of Article 30 to these kinds of institutions which were meant for colonisation purpose, for imperial rule purpose?", he asked.
The CJI then remarked, "But that's not the character of AMU. Why should we decide that question?"
In his response, he said, "What was the status and the position of Muslims then? Could it be said that in 1920 they were a minority? The Rule was of the Christian British who were less than the Muslims. Hindus and the Muslims were both subjects. We were not even citizens of Britain…So, therefore, there was a minority rule in India, that is the unfortunate part. Not only in India, but in so many other parts of the globe where the British imperialism was ruling. The position was that a handful number of people were ruling over India for the last several hundred years. So are we to say that the Mughals were in a minority, the British Imperialist were in minority? This will be something very very strange milords, that after being a Republic we are trying to bestow a characteristic, a status of minority on those who were not a minority. The Muslims were more than the rulers, the Christians who were ruling through the Governor General, they were smaller in number than the Muslims. Therefore, I request your lordships to first of all, instead of again avoiding going into these questions, please decide this question. It is too long your milords, for 75 years and more we have been evading this question. And we just assume and stamp these as minority institutions and confer the benefit of Article 30 to them".
He then read the reference order to submit that the question has been referred to the present seven-judge bench.
He then explained his test for determination of "minority". He submitted, “I am placing three characteristics, which are absolutely essential. Why was Article 30 needed as a safeguard or protection? Because of fear of domination by the majority. So it is a safeguard. Article 30 will walk hand in hand with Article 29(1). It can walk separately also. It is up to the religious minority concerned to decide how far they wish to go. These are not simple provisions of reservation, the object is to enable them to maintain their character as a religious minority. ...To reduce it to reservation, is to completely kill this Article 30 and equate it with (Articles) 16, 14 and 15. So being a protective safeguard, what follows is, there is an idea of domination in-built in this. The fear of the minority that its character, that is culture, that is language, that is script, may be overridden and demolished by the majority. So, therefore, a minority is that which is less in number than the ruling majority”.
Then Justice Khanna asked, “How will you apply this test?”.
“Who was ruling at that point of time. Were you less than them or more than them”, replied Dwivedi.
“I call this a numerical test. If the Christians are ruling, aggregate all the Christians, aggregate all the Muslims of various sets and decide whether they are less in number or not…”, he added further.
"The second test is the test of non-dominance. So, if that particular community, though being less in numbers, if it is a ruling power, then it cannot be a minority. Less in number and non-dominant. Because that is the idea underlying Article 30. If you are ruling, you don’t need a safeguard. That is the qualitative test. The third is that the community which is claiming that status should be considering itself to be a minority. The group which is founding the institution should be considering itself to be a minority”, Dwivedi submitted.
“The founders should consider themselves to be a minority?”, asked Justice Khanna.
“Yes, if they reject that claim and seek some other status without these three factors being considered in 1920, we will be looking at the history in a blinkered way, in a partial way”, said Dwivedi in response.
To that Justice Khanna said that the question of whether the founders of the institution were a minority or not when they established the institution may not be relevant and that what would be relevant is whether on the date when the issue is being examined, they were a minority.
Dwivedi said that we are going back in history to determine how established, how it was established etc. but we are reluctant to see whether the founders were a minority at that point in history. "We want to consider everything in the history, but not part of the history which is absolutely necessary", he submitted. He said that the Constitution under Article 30 gave a prospective right to minorities and we have extended it retrospectively through judgments.
The CJI then said that we have to look at the minority status of the founders of the institution at the time of birth of the Constitution and not at the time of the founding of the institution.
Dwivedi responded by saying that either we look only at the statute establishing the institution or look at the history as a whole.
When asked by CJI whether there was no minority at all pre-independence as per his test, he said that everybody was "subject" and there were no minorities then. He said no institution established pre-independence is a minority institution. He also said that Parsis would qualify to be minorities even pre-independence as per his test.
Senior Advocate Rakesh Dwivedi then pointed out the definition of "minority" by the United Nations. He submitted that the idea of "dominance" is actually flowing from Article 30, otherwise Article 30 is not required.
Justice Khanna then said that if we go by the question of "dominance", it will have some repercussions otherwise. “This Court has been avoiding definition. Let's define it appropriately, then in every case, it can be applied”, Dwivedi responded.
During this argument, the Senior Advocate also said, “Minority is a political concept. It relates to some group which is in majority. It is a political relationship which is now enshrined in the Constitution in the form of Article 30 for futuristic purposes”. He also submitted that in 1920 a particular community was ruling and taking that community as a whole, neither the Muslims or Hindus were part of the government and were subjects who were equal in their sufferings. He said that there is no question of minority then and that the relationship was of that of an imperial ruler and subjects who were treated alike. "There was no concept of minority then. We are trying to foist something backwards on a statute made by an imperial power which was not there. This is just a fiction which we are creating. How do we do it? What principle milords", he submitted.
The CJI then asked if Dwivedi's arguments are accepted, no institution pre-Constitution will be entitled to claim minority status. Dwivedi then said that Parsis, for example, will qualify as a minority pre-independence, if his tests are applied.
The CJI also said that "dominance" is also to be seen in the context of socio-economic advancement. "What if there is a community which did not have the benefit of education as the Muslims were at that time? Community which was not highly advanced, socially, economically, educationally...", the CJI asked.
Dwivedi responded by saying that from the angle of western education, everybody were backward. It is not that Hindus had western education which Muslims did not have.
The CJI then asked what changed for Muslims after the adoption of the Constitution that they became a minority. Dwivedi responded that those who were left behind after partition were subject to "rule of the majority" after the Constitution. He submitted that there has to be some definition of minority. He said that numerical test alone will not suffice. He gave the example of Kerala where no religion is in majority and without a definition, there cannot be a minority in Kerala. He said that Article 30 was meant to protect the minority from the fear of dominance of Hindus post-partition. He said that we must look at history wholesomely.
He also argued that there are judgments which say that fundamental rights don't apply retrospectively and hence the principles which govern them also cannot be applied retrospectively.
The Constitution Bench hearing the matter comprises Chief Justice DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice Satish Chandra Sharma.
Earlier, the Constitution Bench heard heated arguments on whether a law officer can argue against a law made by a Parliament. During the arguments of the Petitioners, Advocate Shadan Farasat appearing for petitioners argued that if the University ceases to be a minority institution, then that would hamper the education of Muslim women in India. Solicitor General Tushar Mehta objected to the argument saying that it belittles Muslim women. Senior Advocate Kapil Sibal appearing for a Petitioner (Old Boys Association), previously argued that since the minority community could not have been empowered through reservation, there was no other way to give an opportunity to those left out, except through Article 30.