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

Dhavan takes the bench to his written submissions

Dhavan take the bench trough various provisions of the 1981 Amendment Act

Dhavan : many of the provisions which were in the original act have come back, and I have argued the case before the Allahabad HC, and none of them were challenged.   

Dhavan reads the prefatory note under the SOR (statement of reasons and objects)

CJI: so would it be correct to say that by the 1972 Act, the statutes which are substitute, the Muslim character of the University as it existed in 1951 and following the 1965 Act because 72 was never challenged. This now completely becomes a secular management, see what happens to the executive council for instance.

Dhavan : we have to see the 81 changes, because they are the definitive ones.

CJI: what did 81 do, we will now have to see that finally, what was restored under 81 

Dhavan reads the main features of the amendment Bill as per the Statement of Objects and Reasons

The bench sees the Statute A as per 1965 amendment

The bench sees the Statute A as per 1965 amendment

Dhavan mentions how the 65 amendment was a temporary measure, as stated by the then minister Mr Chagla and reinforced in the Statement of Objectives and Reasons of the Act

Dhavan : I am saying that it would have been an alternative had the ratio been confined to 'Establish'.

CJI: Let's assume everything is in your favour, that we uphold that Basha is wrongly decided, even so on the question of 'Establishment', even so that the amendments which were made in 65, they do not get obliterated from the Statute books merely because we say that Basha is wrong, that's an independent exercise of Parliament's legislative power... now look at the problem on our part.

CJI: We will have to therefore say that because Basha was wrongly decided on establishment, there was a challenge to the constitutional validity of 1951 and 65 amendment of before Basha which was not decided. Now we have to decide it today in the absence of any challenge before us. Now if we don't decide it as we possibly cannot after 65 years that means those amendments in 1951 and 65 continue to hold the field today. 

CJI: Dr Dhavan now, we are operating 50- 65 amendment, 69 yrs ago, do we strike down that amendment after a lapse of 60 years?

Dhavan : I am saying you could not have struck it down because of the alternative ratio.

CJI: Basha said it was not established by Muslim minority because it was established by Statutes....

Dhavan : if your lordships were to hold that the statutory intervention part of Basha is incorrect then some of these provisions are invasive

CJI: which means that we have to strike them down today, to uphold the argument. The problem is, I'll tell why, unless we do not strike these provisions down now, these provisions will operate on the statute book

Dhavan: I am not saying that you strike it down now. I am just saying its still a logic consequence 

Dhavan stresses on the functions of the Court - so it becomes an advisory body, that is the big change that is made. Our submission is, once you have decided the question of established by a Statute then everything else my lord... but had that not been decided, that statute part, these should have been struck down. Because that is quite clearly evasive.

Khanna J : Mr Dhavan, the you are accepting that post these amendments there was a change in the administration

Dhavan : Yes

Khanna J : And the minority role as far as the administration in concerned, by these amendments was diluted?

Dhavan: I am saying on de jure.

Khanna J : no no that was something separate. De jure it was certainly diluted if not withdrawn. When you are saying it should be struck you should be accepting that

Dhavan : had the ratio in Basha, the statutory intervention not been decided, had they gone into these questions, these evasive provisions would have been struck down. Thats what I am saying 

Dhavan reads S.19 of the 1951 Act

Dhavan: so all that happens is in accordance with the constitution that's one part and the second part, the Rector/ visitor powers are made subject to the Court and then the Court eventually has to approach that I have already pointed that out.