Aligarh Muslim University Minority Status: Live Updates From Supreme Court Hearing [Day 7]

Sr Adv Guru Krishna Kumar makes his submissions

Kumar : 1. importance of entry 63 and inclusion of AMU; 2. the claim of AMU for minority status on footing that ot withstanding its a pre-constitution institution, it can still avail of article 30 protection has to be seen from two time zones or time frames; 3. fallacies argued in Basha- appellants formulation of what constitutes article 30 right is wrongly conceived; 4. on the effect of the 1981 amendment

NK Kaul : an arguement has been made that entire historical facts have been ignored, they have not been ignored and argument is made that if that logic is accepted then no minority can ever be set up as a university. Firstly there is the NCMEI Act which has its own provision, Secondly, historically it is recognised through SC Judgements that a university can be set only under the UGC Act but the deeming provision provides for any institution to come and seek the deeming status, so this whole argument that minorities right is in dangers is a completely misplaced argument of prejudice and nothing else.

NK Kaul: Lastly...when did you have reservations? the judgement in Basha has been in place for 57 years, you never had reservations till 2004-5 with the then change in govt. which was ultimately struck down by the Allahabad HC judgement, so which reservation is being taken away? what is being done that the secular fabric country is taken away? 

NK Kaul: next, it was said that it may have been established through a statute but it was established by a minority...the semantic distinctions are not borne out from the 1920 Act at all which uses the term an Act to establish and doesn't anywhere avere the fact the govt is merely recognising an existing institution to be a university.

NK Kaul gives the example of St Stephens 

NK Kaul: the next point is that the administrative functions of the AMU are primarily carried out by four bodies - visitor, executive council, academic council and AMU court, now if the 5 key administrative functions as laid down by TMA Pai, the locus of administrative control as executed primarily lies with the executive council and academic council in conjunction with the visitor. The AMU Court is not the supreme body... the argument which is made that 32 Muslims are always meant to be out of the total AMU court, admittedly they are not in majority as the legislation doesn't define them to be in majority what your are seeking to say is that de facto, treat them as minority.

NK Kaul: It cannot be, the legisature if it wanted could have done so... now in fact if they turn out to be more cannot alter a legislative fact that they are not expected to be in legislative majority. The Highest which can be said is that AMU Court is one amongst many administrative bodies which are not minority led

CJI: a point which may still way in your favour is that entry 63 of List I contains a constitutional understanding in regards to AMU and BHU. So it freezes that constitutional understanding as at the date of commencement of constitution. If the constitution adopts a particular understanding of these 2 institutions which says institutions known at the commencement of the constitution as AMU and BHU can a subsequent legislature alter that understanding which is a foundation of 63 ...now entry 63 tells us that these two institutions of national importance are those which were known at the commencement of the constitution. And then can you by a legislative fiat alter that constitutional understanding which forms the basis of 63 

NK Kaul : Don't read established alone, read it in conjunction with what the parliament intend, or what the constituent assembly intend then. When entry 63 List I came in, a university like BHU of national importance w/o any communal tag at all.

NK Kaul : at the same time, ultimatelt there are actions of the parliament as well which are struck down and held ultra vires

CJI: parliament is entitled to say that we take a particular view of the term established, factual view as opposed to a legal view...but parliament can make a distinction between incorporation and setting up and to say that what is meant by established in the actual setting up and not a legal form which is given to it by the incorporation of a university...lets not go into a wider context and dilute the powers of the parliament by laying such a broad proposition that it is not open for the parliament while legislating to take a view of the historical facts to the contrary....

CJI: Mr Kaul you are also appearing on the side of the govt. In the eagerness to uphold the striking down of the 81 amendment let us not do something which substantially cripples down the powers of the parliament. In the effort to sustain the decision of the Allahabad HC and to get over the 1981 amendment , we shouldn't be doing something, I mean, we means You... which really in that sense substantially mute the powers of the parliament in future, we have to be very careful because what we are laying down is law for the future on the powers of the constitutional body  

NK Kaul : this is my submission that by a legislative fiat or legal fiction you cannot take away a historical legislative fact, you cannot alter history.

CJI: the legislature is not bound to take the notice of facts as they emerge as you and would think emerge. Powers are with the legislature, that's what they do everytime in Income Tax

Khanna J : I was just paraphrasing your argument not accepting or rejecting it, because it is also well settled that the legislature can make laws with retrospective effect. Suppose they were of the view that they had a mistaken notion to use the word establish there, they could have always removed it because the court acted upon that basis 

CJI: frankly i have some doubt wrt the first aspect, when the parliament deleted the words established by 1981 amendment, in that sense if you delete the word establishment then the entire incorporation of the university would come to an end. Possibly it is open for the Parliament to take a particular view that the 1920 Act did was to give a form of a statutory university but it does not delete the fact that it was still established by Muslims ... on the later part that 81 doesn't take away Basha you may be on a firmer ground because the 1981 Act makes no change to the administrative provisions of the 1920 Act at all

NK Kaul: my endeavour is to equally persuade on the grounds

Khanna J : something what has been established you cannot change. But then what you are arguing and that too on part of the respondents and the govt is also on that side, is virtually now saying that this part does not vest with the parliament.