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

CJI: the consequence of the Interim Order is that AMU says that we will not implement the 50% reservation but the status quo on the date of filing had to be maintained....therefore J. Datta says 2004, the 81 amendment had already been brought into force, therefore the 81 amendment is today as a result of the interim order of our court is operated.

SG: the question is without going into the validity of that judgement, we will not be possible to decide

CJI: prima facie you may right, Mr Sibal just reflect on it 

Dr. Dhavan : my specific submission in the written submissions is that the 81 is valid. Then lordships said let it be decided by another bench, then I didn't complete the argument

CJI: my recollection is that I am not going into that let it ..

SG: yes! and let it be done by the regular bench that was Mr Dhavan;s submission, on our side we said that you have to decide.  

CJI: you also concede and the other side also conceded that the 81 amendment has some bearing on the case ...if we accept that the 81 amendment has some bearing on the minority character of the AMU, because lets face it, the objective of the 81 amendment was to reaffirm the minority character ....can we really decide this without going into the validity of the 81 amendment? otherwise look at this way can our judgement (of 7 judges) be made contingent on what a lesser bench will decide on the validity of the amendment?

CJI: suppose we reverse the judgement of HC, and affirm the validity of 81 amendment. In which case how can we say that we will decide the AMU minority status dehors the amendment and the moment you look at the 81 amendment you have to necessarily look at the Allahabad judgement. So we will all sit down at lunch... 

SG: Basha doesn't say what are apprehending, Basha is a sui generis Aligarh Municipality Case, it records certain factual findings also, which this amendment tends to do away

SG: the Parliament cannot sit in appeal and set aside the judgement, if there a lacunae found by the court that could be filled up

CJI: Basha says AMU was not established by the Muslims minority but by an Imperial Act. does this merely an amendment to the definition of university can take away the basis of Basha? to take away the basis of Basha you have to take away the underlining facts on the basis of which Basha was decided

SG: the argument rejected in Basha is incorporated by way of a definition

CJI: now is 81 Amendment retrospective or prospective?

Dr. Dhavan: our argument in HC was that it was declaratory in nature therefore retrospective 

CJI: it is well settled that the parliament or legislature can take away the basis of a judgement....(gave the example of amending a law which the judgement held as invalid) ... what you cannot do is directly override the judgement, for instance the classic case of MadanMohan Pathak ....can by merely an amendment to the definition can you take away the basis of Basha.... 2L merely alters the definition of the expression University but does the alteration of the definition take away the basis of Basha

CJI: what the 81 amendment does is it doesn't purport to establish the university at all, then 2L says that it was established by the Muslims in India originating as the MAO college Aligarh and which was subsequently incorporated 

SG : for eg Gujarati being a linguistic minority in delhi they may provide for an institution and it may have people from Muslim, hindu etc so what is binding is the linguistic minority character

CJI: but Parsi Gujarati (language) is very different from Gujarati - Gujarati, a little more colorful also

SG: sometimes extra colorful, the Parsi abuse doesn't feel like an abuse

SG continues reading from submissions

CJI : therefore the court say that 28 applies to both minority and non-minority institutions... 28(a) applies once you're wholly funded; 28(b) applies whether you're receiving part aid or full aid, then 28(3) comes in that you cannot compel religious instructions that's the.. and it is not like 30 overrides 28, the prescription in 28 applies to minority institutions aswell