In 1920, Muslims said they were a nation, not minority: Senior advocate

NEW DELHI: Senior advocate Rakesh Dwivedi on Tuesday cited a string of episodes from history to counter Supreme Court's proposition that if Muslims were deemed to be the force behind Aligarh Muslim University in 1920, it could qualify as a minority institution in the post-Constitution era by arguing that Muslims, at that point of time, never considered themselves as a minority but as a 'nation'.
Appearing for a petitioner who had successfully challenged 50% reservation for Muslims in AMU in Allahabad HC, Dwivedi said 'minority' as a concept did not exist during British rule, and it would be presumptuous on the part of the seven-judge bench comprising CJI DY Chandrachud and Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish C Sharma to describe AMU as a minority institution when it was neither established nor administered by Muslims.

He said history showed that Muslims neither considered themselves to be a minority when AMU Act was passed in 1920 nor did the British India government categorise them denominationaly. Granting AMU minority status after more than 100 years would endanger its eminence as an institution of national importance, especially when AMU chose not to challenge for more than 40 years the SC's Azeez Basha judgment of 1967, which had adjudged it to be a non-minority institution, Dwivedi 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," he 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 which was made the basis of the 1940 Lahore Resolution by Mohammed Ali Jinnah. It is this theory of two nations, which emphasised a claim of parity between Hindu India and Muslim India, that led to partition and creation of Pakistan. The theory of two nations does not accommodate the theory of safeguards for a minority," he said.
He said it is also an undeniable historical established fact that from 1935 onwards, AMU teachers and students actively supported the creation of Pakistan as conceived by Jinnah. “When Congress offered safeguards of whatever nature the Muslim league desired, Jinnah retorted that Muslims were a separate nation and not a minority and their resolution for Pakistan was not meant for safeguards but for a separate homeland for Muslims. The British rulers also supported the Theory of Two Nations propounded by Khan and the same was followed by the Muslim League,” the counsel said, and asked, "Given this pre-independence ground situation, could Muslims be considered a minority? Only after the creation of Pakistan did the framers of the Constitution think of giving certain safeguards to Muslims, including Article 30 guaranteeing them the right to establish and administer educational institutions.

Khan, who was a sub-judge in British India government and later became member of the Imperial legislative council, led the movement for establishment of AMU because of his close connection with colonial rulers but despite that the British decided that government would establish and administer AMU set up under a central legislation, he said.
Digging deep into AMU's history, Dwivedi said the Bill for establishment of the university was introduced by Sir Mohd Shafi, the education member in the Imperial legislative council. “He not only introduced the Bill but also moved the motion for reference to a select committee consisting of some British and some Muslim elites like Raja of Mahmoodabad, Shah Nawaz Bhutto (father of Zulfikar Ali Bhutto, former PM of Pakistan) and Nawab Ali Choudhary, Mr. Mohd. Ali and Shafi. They all supported Muslim League and Pakistan,” he said.
Dwivedi said the scheme of the AMU Act denotes a complete departure from the rules and regulations of MAO College, and it is not AMU's case that the scheme of the AMU Act was formulated by them in its essential parts and, hence, it cannot claim that the Muslim Community established AMU.