Aligarh Muslim University Case : Live Updates From Supreme Court Hearing [Day 3]

Sibal : now this was (the WP 54-57of Basha) tagged on with TMA Pai

J Khanna : will it be correct to say that if we nullify Basha then the challenge to the 1965 amendments will come into the forum?

Sibal : no my lords the point I am making is different, we are challenging Basha on the day on which it was decided therefore none of this is relevant according to me because the reference is only whether Basha was rightly decided on the day on which it was decided, all these matters are being brought in by the other side 

Sibal refers to the Judgement in (1998) 6 SCC 674

Sibal takes the bench to the Order of Justice Faizal Ali in Anjuman-e-Rahmania Vs. District Inspector of School

Sibal : when the opinions of the Court can be wrong then certainly the opinions of ministers moving a bill can be wrong my lords, I think there's no sanctity to that, the sanctity is to the law and to the constitution.

Sibal : between 68-81 there was a movement to protect the rights of AMU as a minority university, and then the Act of 81 came.

CJI : Mr Sibbal it appears that in the end Mr Chawla says that "I say this institution was not established by minority nor was it being administered by minority", so appears that the position of the then education minister was that this was not an article 30 institution

Sibal : and the govt. defended that position in Basha, then came the 81 Act and the govt is not defending that position. That's why I made that comment yesterday, if there's a parliamentary act, the govt. has to defend it. 

SG Mehta refers to another discussion of the Former Education Minister - 2nd September accordingly to me is an important parliamentary debate which is not on record.

Sibal : this then in 65 was challenged, in a PIL which resulted in Basha in 1968, the AMU and Old Boys Association were not parties, what happened thereafter, this came up in the parliament ....(refers to the statement of the then Education Minister, Mr Chawla)

Sibal : 1899 MAO College by the Old Boys Association was formed, 1920 AMU Act was passed, in fact, the ordinary member of the court had to be appointed by the Old Boys Association, then 51 Act came which amended- made Muslim religious teachings optional , 1965 further amendment - all powers of the court where given to the executive council

CJI : there's a world of literature that opens up when you use your iPad (referring to Sibal's submissions through an IPad)

Sibal : absolutely, there is also a world of abuse that opens up!

CJI : the essential element of article 30 is the conferment of choice on the minority it cannot be read in the reverse to impose an embargo on

Sibal: minorities will not have expertise in running many of these institutions and may have to call people from outside, that's why Stephens says "Have faith ... in whom the founders have faith and confidence" , I have 10 people to run my institution it doesn't make me non-minority because the institution is founded by the minority. The inspiration to set up an institution is that of the minority, steps taken for persuasion are by a minority, the essential initial funding by minority, persuading the authorities to accept that fact by minorities - so the genesis of the institution is a test and the antecedent history