On 30th January, senior advocate Rakesh Dwivedi unleashed a historical bombshell in the Supreme Court of India during the hearing on the minority status of Aligarh Muslim University (AMU). Dwivedi delved into the pre-partition history, challenging the Supreme Court’s proposition on the minority status of AMU. He was appearing on behalf of a petitioner who successfully contested the 50% reservation for Muslims in AMU in the Allahabad High Court. A seven-judge bench led by Chief Justice DY Chandrachud is hearing the matter.
Dwivedi contested the very concept of “minority” attached to the Muslim community in India. Citing Sir Syed Ahmad Khan, founder of AMU, he asserted that before partition, specifically in 1920 when AMU was established, Muslims did not consider themselves a minority in India but called themselves a “nation”.
Dwivedi: we say that today muslims are a minority and we jump to the conclusion that they were a minority in 1920 as well..
— Bar & Bench (@barandbench) January 30, 2024
CJI: whether they were a minority or not has to be decided on todays point..
Justice Khanna: who is the majority and minority will be decided on the…
Dwivedi argued that when AMU was established during British rule in India, the concept of minority was non-existent. He warned that if the university is granted minority status, it may jeopardise the institution’s eminence. He emphasised that Syed Ahmed Khan considered Muslims to be a separate nation, which was evident in the establishment of the Muhammadan Anglo-Oriental (MAO) College.
To support his argument, Dwivedi pointed out that AMU did not challenge the Supreme Court’s Azeez Basha judgment of 1967 for 40 years. Notably, the Azeez Basha judgment adjudged AMU to be a non-minority institute. He said, “Sir Syed Ahmad Khan had established Muhammadan Anglo-Oriental (MAO) College, whose foundation was laid by Lord Lytton. Khan considered Muslims to be a separate and distinct nation which had once ruled over India.”
Furthermore, he highlighted Khan’s contributions to the two-nation theory that Allama Iqbal further supported, leading to the partition of India and the formation of Pakistan in August 1947. Dwivedi unearthed the roots of AMU and pointed out that the Imperial legislative council during British rule played a significant role in the establishment of AMU. He stated how prominent figures like Mohammed Shafi, Shah Nawaz Bhutto and Raja of Mahmoodabad played a vital role in establishing the university. These prominent figures actively backed the Muslim League and the formation of Pakistan as well.
CJI, however, did not agree with Dwivedi. He said the relationship of Syed Khan with the government was not material in the current case. He said, “Saying that the founder was in touch with the ruling powers then is not a means to say that the group is not the minority. A political party in a state may regard a minority as an important vote bank. So can we say that it fulfils all criteria of being a minority, but since it is an imp vote bank, can we say it is not a minority, then it becomes very subjective.”
CJI: see Sir Syed Ahmad Khan's relationship with govt is not material here. it is about the group rights here. the group was minority, speaking in constitutional sense. saying that the founder was in touch with the ruling powers then is not a means to say that the group is not…
— Bar & Bench (@barandbench) January 30, 2024
Dwivedi said, “Khan did not consider Muslims to be a minority merely because they were numerically less than Hindus. Khan is considered the father of the two-nation theory, which was later seconded by poet Allama Iqbal at the 1930 Muslim League session in Allahabad and made the basis of the 1940 Lahore Resolution by Mohammed Ali Jinnah. It is this theory of two nations, which emphasises parity between Hindu India and Muslim India, that led to the partition and creation of Pakistan. The theory of two nations does not accommodate the theory of safeguards for a minority.”
“Given this pre-independence ground situation, could Muslims be considered a minority?” he questioned. Notably, Khan was a sub-judge during British rule. Later, he became a member of the Imperial Legislative Council. He led the movement to establish AMU as he was close to the Britishers. However, the British government decided to establish and administer AMU under a central legislation.
Legal dispute over the Minority status of AMU
The legal controversy concerning Aligarh Muslim University’s minority status began in 1967, when the Supreme Court (in S. Azeez Basha and others v. Union of India), led by then Chief Justice of India KN Wanchoo, was evaluating revisions made to the AMU Act of 1920 in 1951 and 1965. These changes influenced how the university was administered.
Furthermore, a rule stating that only Muslims could be members of the University Court was eliminated, allowing non-Muslims to participate. The modifications also lowered the jurisdiction of the University Court while increasing the powers of AMU’s Executive Council.
These changes to the AMU’s organization were challenged in the Supreme Court. The petitioners argued essentially that Muslims founded AMU and hence had the authority to administer it. On October 20, 1967, when examining a challenge to these revisions, the Supreme Court ruled that AMU was not created nor administered by the Muslim minority.
The Supreme Court ruled that Muslims may have established a university in 1920, but this would not have assured that the degrees earned there would be legally accepted by the Indian government.
As a result, the court underlined that AMU was formed through a central Act to ensure that the government recognized its degrees. “So while the Act may have been passed as a result of the efforts of the Muslim minority, it does not imply that the University, under the 1920 Act, was established by the Muslim minority,” the SC ruled.
Furthermore, the Supreme Court concluded that the university was not entirely operated by Muslims in accordance with the 1920 Act. Instead, its administration was delegated to the Lord Rector and other statutory organizations. The University Court, which had only Muslim members, was also elected by a non-Muslim electorate, the Supreme Court stated.
The Supreme Court verdict sparked national Muslim protests. In 1981, political authorities introduced an amendment to the AMU Act that expressly confirmed the minority status. The modification added Sections 2(l) and 5(2)(c), stating that the university was “an educational institution of their choice established by the Muslims of India” and “subsequently incorporated” as the AMU.
In 2005, the AMU further introduced a policy that reserved 50% of postgraduate medical seats for Muslim candidates. This was challenged in the Allahabad High Court, which, the same year, reversed the reservation and declared the 1981 Act invalid. The court determined that the AMU could not maintain an exclusive reservation because, according to the Supreme Court’s decision in the S. Azeez Basha case, it was not classified as a minority institution. In 2006, a series of eight petitions, including one from the Union government, challenged the High Court’s verdict in the Supreme Court.
In 2016, the NDA government told the Supreme Court that it was dropping its case, stating that “as the executive government at the Centre, we can’t be seen as setting up a minority institution in a secular state.”
On February 12, 2019, a three-judge bench led by the then-CJI Ranjan Gogoi referred the case to a seven-judge bench. On Tuesday, the Bench, which included Chief Justice of India DY Chandrachud, Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra, and Satish Chandra Sharma, began hearing the case.
