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

CJI: our law recognises the power of the minority to appoint the head of the institution, no outsider can be foisted.... the element is choice.

SG: I am not saying legally wrong, you should not confine the benefit going to the students to one community.... you cannot deprive the students

Khanna J: if by choice a minority institution agrees to abide by certain terms and conditions in order to establish and get degrees etc, by choice if they do that will they lose the minority status? 

Khanna J : there's one thing, supposing a minority institution appoints a non-minority person as the vice chancellor will it make it non-minority?

SG : it cannot. Your lordships are right, St Stephens does not appoint from the Christian community

SG : de factor status would not change the legal status, eg there had never been a lady Attorney General that doesn't mean it has to be a man

Khanna J : that argument is slightly different. Whether administration can be judged only on the basis of what has happened in the last 103 yrs, any time when chancellors and vice chancellors were non-muslims?

CJI: and why is it that before and post constitution the predominant choice of successive govt. for Chancellors have been Muslims, that has to be borne in mind

SG : by govt. appointing a particular community though the law doesn't require it to do change the character of the university 

SG refers to the governance document and ordinance provisions of the AMU Act 1920

SG: MAO if would have remained MAO college could have definitely raised the claim after the constitution

CJI: where does 'Mao' come

SG: Im sorry I mean Mohammedan Anglo Oriental College ! 

SG reads from his submissions

CJI : all regulatory statutes were intended to provide one objective - nothing should be done to destroy the imperial hegemony of the colonial power. Education is a very important source of cultural power, we have seen it pre-independence, and we have seen it post-indepedence.

SG: 1. the establishment is a fact which is Pre-independence; 2. these are not regulatory but substantive provisions; 3. Administration is a layered exercise, according to something decided by higher authority, ultimate thing would be the statute passed by the ultimate authority

CJI: the law is not that you can claim the right under article 30 only if you establish after the constitution. Now we are reading a here a Pre constitution institution, second an institution governed by the preconstitution statute.......so contrary to what you are saying we are not applying article 50 to a situation preconstitution, to a certain you have to do that exercise, otherwise we will be coming to a conclusion that no preconstitution institution can claim under article 30, that is not the position

CJI : we cannot say that a preconstitution institution cannot claim a right under article 30, obviously they are, so long as they satisfy two yards, namely 1. established by a minority and 2. being administered by minority

Khanna J : they (Britishers) wanted to have supervisory control, they could intervene ...

SG: in the administration. There was no absolute discretionary power conferred in the 1920 Act, and history is proof of it. That We will have two things, - no denominational character and we will have administrative control, and they were in a bargaining position there was no constitution having a minority institution was never a fundamental right... 

SG takes the bench to S.12 of AMU Act 1920

SG : please do not read 1920 Act in the context of Article 30, it is at the period of time when there was no concept of a constitution, fundamental rights etc ..

CJI: what your contention boils down to is this, that this is not a denominational institution when the university was established in 1920 , therefore the subsequent adoption of the Constitution on 26 January 1950 cannot confer upon it a denominational character for the reason that you had surrendered that character