Aligarh Muslim University Minority Status: Live Updates From Supreme Court Hearing [Day 8]

Sibal : its not a twin test, thats not the test, whether I am administering. And throughout these days all are arguing show me if its administering. Its not required by 30. You will never get that my lords. That way there will be no minority institutions left in this country. Apply this even to the institutions after 2005 all the provisions that are here in the 81 Act are there in 2005- inspection, emergency etc, so what are we trying to do? apply a test which will destroy the entire minority structure of education in this country? .... I have a right to administer, not a duty that I must administer everything. No judgment of this court since 1950 has held this. 

Sibal now refers to para 50 of the decision in TMA PAI Foundation & Ors vs State Of Karnataka & Ors to enunciate the 4 tests on adminsiter -

50. The right to establish and administer broadly comprises of the following rights:-

(a) to admit students:

(b) to set up a reasonable fee structure:

(c) to constitute a governing body;

(d) to appoint staff (teaching and non-teaching); and

(e) to take action if there is dereliction of duty on the part of any employees.

Sibal - these are the five indicia of administration, that was 11 judges 

Sibal: (referring to Article 30) the right that acrues to me is the right to administer the institution as I please of my choice. I don't think any minority institution in this country is administered by minorities. You apply the wrong test, you get the wrong answer. Take St. Stephens, how many teachers are minority? not even 5%, administration, 5%....whats the relevance? this whole numerical argument is irrelevant to Article 30. Take St Stephens in context of DU statute example, I am not part of the syndicate, I am not part of the executive council, I am not part of the academic council, that's means I am not a minority institution? what tests are we applying, never before in the history of this Court have these tests been applied. Thats why there are no judgments cited mylords.

Sibal : so my lords the mistake in Basha was that when Basha said you have not established this university as a minority, then the counsel argued but I am administering it. And Basha said you are not. Thats not the test. So governor general , rector does this etc, I ask myself if Iam enacted by an Act of the Central legistive council will there not be a substrucutre to see whether I am not maladministering ?

Dhavan submitted that 34 out of 37 Vice Chancellors have been Muslim.

Sr Adv Kapil Sibal now makes his submissions

Dhavan: he said that we not just examine the provisions of the Statute but also how it works itself out. Now the de facto- de jure are not opposites, they are composites. Therefore when we mention the de facto argument it is how the act has worked itself out and that is a consideration your lordships will consider when your lordships examine how it works out.

Dhavan now reads from wittten submissions. 

Dhavan : lordhsips question earlier, indicated that the 81 Act maybe half- hearted, there are two responses- first the numerical argument in the court. But we don't have to look at the court, we have to look at the purposes of the University. And these are writ large, I'll read out of the amended Act , the purposes yourlordships will find in the original act - to promote oriental and Islamic studies and to give instructions in Muslim theology and religion and to impart moral and physical training. Now what was added mylord in 72 was to promote the study of religion, civilization and culture in India and see which is important which comes in 81- to promote specially the educational, cultural advancements of Muslims in India.

Dhavan: so I am making a distinction mylord between the powers and composition of court in one hand and the purposes of the statute read as a whole. It is the purposes of the statute which will also run along side, we cannot read the Act minus the purposes of the Statute. This is the fundamental distinction we wish to make , that you go by the purpose, you go by the empowerment and to that extend the statute is crystal clear. The second point draws on, Justice as he then was Justice Mukherjee in the Bhopal Case. 

The Court breaks for lunch

CJI: a thing that is worrying us is the 1981 amendment does not restore the position prior to 1951. In other words, the 81 amendment does a half hearted job ...they were placating that sentiment. But when it actually came to the brass stacks, they didn't go back to the positions prior to 1951. And what they did was it brought the Muslim voice into the AMU administration as we see it. But it still stops short, even the Parliament which had the power to do, it still stop short from taking us back to the 1920 Act. They made a few concessions but they never took it back to 1920, it could be reflected upon.

Dhavan: there are two elements, firstly the democratic elements, the students etc were throbbing that is consistent with the fact that some democratic elements had to be brought in. We get a voice mylords. suppose these were non Muslims, they might be subjected to challenge on the de facto aspect. 

Dhavan continues to refer to written submissions

Dhavan : the de facto argument becomes important. If the no.s that had been appointed were de facto Muslims and we don't in that stage in anyway...

Bench is seen discussing  

Sr Adv Rakesh Dwivedi interjects to mention about a Report

Mr Sibal : ultimately it is a constitutional issue it not a numerical issue... if I establish I have the right to administer...the test is not whether I am administering or not.

Dhavan: I do not want to get into the question of committees, by and large they are in our favour, a para or two will not make a difference. If my learned friend wants to do a sur-rejoinder now, the answer would be very different. I don't think so now that we go into the committees

CJI: now what is the next limb of the arguments?