Aligarh Muslim University Minority Status: Live Updates From Supreme Court Hearing [Day 6]

The Court has arisen. Arguments will continue for tomorrow.

NK Kaul: would yourlordships today when neither did any court ever doubt its decision, non of those decisions whether mother provincial, TMA Pai , A. their facts have no bearing at all B. not one of them even remotely has questioned Basha at any stage or form on the issue of administer and establishment of AMU as an institution not held by a minority as held in A Basha.

MK Kaul submitted that TMA Pai framed a question - what are the indicia for treating an educational institution as a minority institution? would an institution be regarded as a minority institution because it is established by a persons concerned belonging to a religious or linguistic minority or its been administered by persons of linguistic and religious minority

NK Kaul refers to the second reference order of 12 Feb 2019

NK Kaul : establish and administer / establish or administer is one of the Basha question; why is Yashpal mentioned here I put a question to myself...yashpal is here because had the provision under S 2f of the UGC Act which said establish or incorporated 

NK Kaul: 1. scope of reference and why its important to see; 2. There is no contradiction within Basha and with other judgements that the appellants relied upon; 3. established for or by the act which I will deal at the end

NK Kaul refers to the issues raised and Court's decision in A Basha

NK Kaul now refers to Anujam-e-Rehmania and the issues raised therein

Dwivedi concludes his submissions.

Sr Adv NK Kaul makes his submissions

there is greater public mischief to happen if Basha is reconsidered in overruled...we are 56 yrs down the line, lastly my lords as I said there is a distinction between established by and established for , in the worst case scenario you will look at the title Muslim university and it would highest be a case where the governor general has established a university for the Muslims. By means directly by provisions of the act and under means something like the deemed university, S 3 UGC Act and finally this statute was recognition and statute of establishment..AMU Act is statute of establishment university not a case where the statute is recognising some college already at the standard of the university. 

Dwivedi reads on the principles of stare decisis

Khanna J : was there any reservation or preference given to Muslims right from 1950-1981?

Dwivedi : no not to my knowledge, subject to correction by the other side. Actually it wasn't required because 80% were already Muslims

Khanna J : after 81?

Dwivedi: after 81, this order came in 2005 which was questioned 

Dwivedi: on stare decisis, it a stand-alone university,one of its kind. Basha is statute specific....

Dwivedi refers to the litigation history since A Basha 

Dwivedi : my last submission is about stare decisis...before this just a reference to one of the queries on legal positivism approach, the submission is that legal positivism doesn't involve any retrospectivity it is only concerned with infusing whether any moral principles can be utilised to interpret statutes...various authors, the gods of legal positivism are not at one, they are varied and in conflict. so its very difficult to choose however my lords the best approach could be of Hart or Austin that is also limited to infusing morale principles. Our court has rejected the infusion of moral principles. However mylord today we are talking about constitutional morality etc so at the highest my lord even if we have to infuse and inject the principles of constitutional morality is would be to interpret the act. But we are faced with an entirely different question therefore that approach with respect to utmost difference will not be appropriate.