Aligarh Muslim University Minority Status Case : Live Updates From Supreme Court [Day 5]

SG takes the bench to Parliamentary debate on the 1965 Amendment Debate, refers the to Justice Chagla's narration of AMU's history and why a constitutional status was given

SG reads Maulana Azad's speech

SG mentions Education Minister Mr Chagla's summary in dealing with MP Frank Anthony

CJI: (on Anthony) he was a very vibrant member of the Bar, I have seen him argue as a young lawyer

SG: he was a nominated member of the anglo community .... Justice Chagla said in the debate that you will have to concede that I know a little law including the constitutional law

SG: the position will be like this...if they lose they get a second chance, if we lose, we lose ....your lordships knows the ingenuity my lords, this has been pending for years.

Khanna J : because if we uphold the second and third principles of Basha...even if they succeed on the first part...

SG: We have sufficiently assisted your lordships, it is entirely your lordship's call...

The Court resumes

Khanna J : in case we go into the 81 amendment then this issue will arise whether the amendment made by parliament, subsequently you can withdraw. There are two options - either we accept the ratio of Basha. if we do then there are three conclusions- 1. de jure established by statute and not by minority; 2. established not my minoroty; 3. Not administered by minority community. As far as 1981 Act is concerned, it is only de jure establishment by the statute. it doesn't deal with he other w conclusions. If I am not mistaken when we read Basha it deals with all the three conclusions

Dr. Dhavan : if Basha is considered correct by lorships then we have to take recourse in 81. Thats a separate issue.

SG: that's the whole point

Khanna J : the effect of 81 amendment that may have to be sent back to the HC for a fresh consideration

SG: no, no, no

Khanna J : that will be a separate...lets not open up a debate

The Court breaks for lunch

CJI: what we suggest is, you conclude your arguments, anyway even if we decide to go into the validity of the HC judgement, you said they should open first ... we understand, no difficulty...when we read Basha with you again we will be able to fine tune our own understanding non whether that issue of the Allahabad judgement should or should not be decided together. We'll read Basha with you...on appropriateness we will hear you and then take a call 

Khanna J : this issue had come up earlier. We proceeded on this basis that we are examining the validity of ratio in Basha that no.1; (2) the reason was why we said was because we have to see the status of AMU on the the day the constitution was brought; there were three aspects which we saw in Basha, 1- the effect of statutory enactments of creating a university; 2-the second aspect relates to administration that's the most important legal issue; 3- dehors the amendment in 1981, Basha hold its not established, defacto by minority... so really speaking we need not go into the 81 Act to decide whether Basha was rightly or wrongly decided 

CJI: we will reflect on this, and can decide on whether basha is correct or not without looking at the statute as a composite whole including today ....technically the SG said that 81 amendment is not on the statute list because it has been set aside by the Allahabad HC, but everything is live before our court. Now it may not be live before the 7 judges, its live before the Supreme Court. therefore in deciding whether Basha is right or wrong, Basha itself has interpreted the statute of 81 Act

CJI: can we while deciding upon the correctness of Basha say that we will look at only some of the statute but we will look at it minus the 81 amendment act. that is very artificial for us. 

Suryakant J : just now you said that the 1981 amendment is still operative, then we have to go into that

Sibal: just look at if Basha is right or wrong

CJI: if we say if Basha is wrong then according to you the amendment also recognises what we feel is the correct position, what if we come to the conclusion that Basha is right?

Sibal : then you have to go into 81

CJI: who goes into the 81 amendment?

Sibal : It is not referred to the 7 judges, the three judges bench will hear and go into it 

CJI: theres no stay of the Allahabad judgement.

SG: matter is referred not the judgement

Sibal : what the Chief Justice has said is right, if you say that Basha was right then the question of 81 amendment comes my lord, if basha was wrong 81 amendment need not be discussed