Aligarh Muslim University Minority Status : Live Updates From Supreme Court Hearing [Day 4]

CJI : your argument if stretched will apply to every institution, that unless there is an enabling provision you cannot set up any educational institution in India, cant even set up a primary school... the article 30 right is contingent on an enabling provision of the legislation recognising that right in the statutory term... problem about your argument is that once you say that the right under article 30 is contingent upon an enabling legal framework that will apply to every right or matter of choice

AG: but then to say that because it will apply to every citizen then how do we locate the importance of article 30 then we need to debar from the regular framework and say we have something special for article 30, my answer is NO, therefore any class of educational institution you will have a legal competent

CJI : and does it make any difference if the institution is set up by other under a statute?

AG: there are some states which have called universities legislation eg. Karnataka; therefore the competence part of either the legislature intervenes, or the law intervenes and gives competence 

CJI : AMU was set up pre constitution. Post constitution are there any universities which today have a recognition as a minority institution ?

AG : No

Khanna J : probably after the minorities education act 2005 and 2010, it is possible ? but prior to 2005 according to you there could not have a minority institution 

CJI: in the absence of an enabling legal framework there will be no choice within the meaning of article 30

AG: Article 30, is premised on the availability of a legal framework, otherwise it be a vacuum. Article 30 envisages it because there is a history of setting up an institution including universities. 

Khanna J : suppose tomorrow like UGC act we have another legislation which says that schools will only be established if you register under this Act, then that right will be also under article 30 diluted to that extent, the choice will be diluted

AG: constitution provides for an overarching framework, so the statutes come in and say these are what will you do, that is the set up and class of the institution. Article 30 comes in at a point in time when the competence part of it is answered. Within the broader constitutional framework my choice is unfettered 

AG : the choice part is given to each citizen, but a higher status is given to minority, therefore I say it enables them to reach a level beyond the other common considerations.

AG continues to read from his written submissions

CJI: (article 30) what do you mean by enabling provision? are you saying the choice of the minority?

Khanna J : then you have already dealt with it in article 1

CJI: you see enabling provision is like article 15 where you have a choice to make a provision, 30 is not enabling so far as state is concerned, it is an obligation on the state. It cannot be that I as a state can decide to grant or deny you the status 

Attorney General R Venkataramani opens arguments for the Respondents.

AG reads from his notes

Shamshad refers to examples of multiple group universities set up by the state for minorities

Shamshad : ill conclude by saying that this is minority choice, pls don't make it exclusionary. Siddharth bai said you will not interpret with a cutting down effect. Basha is a cutting down effect..... we follow everything, the effect is that certain seats will go to them.

CJI: the gist is that the conversion of the MAO college into a university under the AMU Act was for the purpose of ensuring that the degrees will be recognised under law. Therefore, the muslim minority itself was proponent of this move, for passing the legislation because you wanted a degree to be recognised and the Act is only for the purpose of recognition; and therefore, you should also look at the antecedent historical circumstances.

CJI: will it be correct to say that the AMU owes its existence to the 1920 AMU Act? because before that there is no university.

Shamshad: there requirement of recognition of that institution existed before 1920, I will say like this, and that is the requirement even today if want to establish a medical college.... a recognised university in the system could be one thing, an institution which has everything which entitles it to be a university could be another thing