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

The Court breaks for Lunch

Sibal : the word established in 30(1) is a connotation which relates to the genesis of an institution. establishment in the statutory sense is the recognition for incorporation to grant s degree, these are two separate concepts 

Sibal: in other words, if my right exists under 30 and then I get it incorporated then I lose my right

CJI : What they are saying is that an educational institution includes a University, AMU in the character of a university is established by an Act of the central legislature and because it is established by an act of central legislature notwithstanding all the efforts made by the Muslim community, the establishment is by the act of the legislature and not by Muslim community, that's the logic

Sibal : the word 'establish' under article 30(1) is different from the concept of 'establishment' under an Act , I answer that straightaway 

Sibal takes the bench to Azeez Basha v. UOI

CJI : we can't freeze our version of whether Basha is correctly decide without reference to the entirety of the statutory history governing the AMU...

Sibal : anything that happens after that only reaffirms, the 81 only said that it was a minority institution, whether that is right or wrong is a separate issue

CJI : that's your point, 81 reinforces what according to you is the correct position before 81

Sibal : therefore you can look into it and decide against us and then the question arises

Sibal refers further :

"10. Ordinarily and in the normal course the judicial discipline would require the Bench to seek a reference of this matter by a Five Judges Bench. However, having regard to the background, as stated above, when the precise question was already referred to a Seven Judges Bench and was, however, not answered, we are of the view that the present question, set out above, should be referred to a Bench of Hon’ble Seven Judges.

11. Consequently and in the light of the above, place these matters before the Hon’ble the Chief Justice of India on the administrative side for appropriate orders." 

Sibal Conitnues :

"9. That apart, the decision of this Court in Prof. Yashpal and another vs. State of Chhattisgarh and others2 and the amendment of the National Commission for Minority Educational Institutions Act, 2004 made in the year 2010 would also require an authoritative pronouncement on the aforesaid question formulated, as set out above, besides the correctness of the view expressed in the judgment of this Court in S. Azeez Basha (supra) which has been extracted above."

Sibal now reads the reference of Justice Gogoi

"This Court in S. Azeez Basha and Anr. vs. Union of India has observed as follows:

We are of the opinion that nothing in that case justifies the contention raised on behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established by them. The two words in Art. 30(1) must be read together and so read the Article gives the right to the minority to administer institutions established by it. If the educational institution has not been established by a minority it cannot claim the right to administer it under Art. 30(1). "  

Sibal : assuming for a moment that lordships decide that Basha was wrongly decided, then what are the consequences? That I was a minority institution since the inception.

J SuryaKant: That will not expressly or impliedly approve the 1981 amendment

Sibal : forget the 81, your lordships will give a declaration that I am a minority institution that's all, forget the 81 Act, what is it? your lordships cannot change the nature of minority institution if you say that Basha was wrongly decided? that nature will not change under the 1981 act, The position will not change under the 1981 Act, the 1981 confers something that your lordships have already decided 

CJI : Basha upholds the 195, 1965 amendments, now the Allahabad HC set aside a 1981 amendment on the ground of Basha, now 2 questions arise before us, 1. what would be the consequence of our coming to the conclusion that Basha was wrongly decided on the amendments which were challenged in Basha; 2. if we hold that basha was wrongly decided then what will be impact on the Allahabad HC judgement ....actually if Basha is upheld then the 1981 act becomes subsidiary , 81 act purports to restore the minority character of the institution, if it held not be a minority

Sibal : that's the whole point you cannot rely on Basha to consider the 81 act

CJI : so ultimately our decision on the validity of Basha would impact upon not just the amendment but also has an impact of the Allahabad Judgement

Sibal : that will be decided by another bench, your lordships don't have to go into that