Aligarh Muslim University Case : Live Updates From Supreme Court Hearing [Day 3]

Khurshid ends his submissions. Sr. Adv Shadan Farasat begins his submissions

Farasat: I begin by borrowing from CJI's observations today, as to how to we read article 30? do we read it as a ghetto or is it for a larger purpose ? my submission is in any country a minority craves for two things which are present in article 30, 1. to retain its minority identity 2. while retaining this identity to fully participate in the national life and national mainstream

Khurshid : The political morality that Dworkins talked about is similar to the constitutional morality that your lordships have applied and I submit that an integrated idea of constitutional morality would certainly point to coming to conclusions that minority rights cannot suddenly disappear by way of an artificially restricted interpretation of a word like establish

Khurshid refers to the thesis of Dworkins in his book 'Freedom's Law'

Khurshid : I am emphasising on how Dworkins can influence decision-making in terms of how two conflicting views can be harmonized and judged as to come to a conclusion

Khurshid refers to Justice HR Khanna's dissent in ADM Jabalpur

Khurshid refers to judicial pronouncements on Article 21 and rights of minorities

Khurshid : the next proposition - how your lordships are essentially examining the fundamental rights

Khurshid : (finishes citing the tarana) this is the flavour that all the Muslim community felt for AMU. there were resistance from extreme conservatives, we are talking about pre partition days, extreme conservatives who resisted it and when Sir Syed went out to collect money they said first show us that you can dance like a British, you want to make a university that can compete with oxford why don't you show us that you can first dance like that

Khurshid: the AMU from the time of Mr Nehru to the time of Mr Modi has rich legacy of how the top leadership of the country has seen Aligarh . When Nehru came and asked if AMU didn't have a tarana and then inspired by that a student Majaz Lucknowi (he grew up to an outstanding poet of the country) that night wrote a tarana

Khurshid recites 5 lines of the tarana :

"Yeh mera chaman yeh mera chamman, yeh mera chaman hai mera chaman, apne chaman ka bulbul hoon"

( Iam the nightingale of my garden this is the chaman I belong to )

Jo Taare haram mein raushan hai who shamma yaha bhi jalti hai ( the light that you find in haram sharif in Medina is lit here in the university) 

Khurshid: If its a minority character the restriction will be limited, if not minority then maybe the restriction will be more liberal, but my lords TMA Pai has indicated that where there is an unaided minority institution and unaided private institution the difference in the extent to which you can regulate is very limited. Maximum freedom must be allowed to educational institutions and the maximum freedom needed for minority institutions is to carry the flavour of the minority institution, the cultural ethos of minority institution

Khurshid takes the bench to his written submissions

Khurshid: my second point...the actual administration could well be part of the indicia to decide whether it is a minority institution but it may well be that an institution that is to be administered after its coming into status of a university may have an extent of regulation by which it is restricted to some extent. That will only be enabling provisions restricted by in terms of reasonable restrictions but that may not have any reflection on whether it is a minority character.