Aligarh Muslim University Minority Status Case : Live Updates From Supreme Court [Day 5]

SG: it was nobody's case that BHU - -Hindus were less educated or less outward-looking.

CJI: we will hear them on the administration part.

The Court concludes the hearing for the day 

SG: this would be paying a negative tribute to all those who chose , despite having an option, not to get into the law making but he British parliament. (gives example of IIT Roorkee )

CJI: IIT Roorkee is a very specialised university. You have to understand the purpose of AMU, it is to provide secular education to the community which was the lowest at that time

Khanna J : university gives you a better status as compared to college. Probably what was happening was, there were communities which were inward looking and there were communities which were outward looking, they were absorbing the western education what the thought process would have been that lets get more modern education 

CJI: we must read any with regards to the surrender of rights in a very strict context , surrender of rights even in a preconstitutional era should be accepted with the strictest possible construction because you are really stating that in that sense someone otherwise entitled to that right will be surrendering their right. Post constitution offcourse there's no waiver at all

CJI: we are now dealing with a post constitutional assertion of rights of a minority who found its post constitutional assertion on the basis of institutions founded in pre constitution. If you take a view of legal positivism the answer is very clear, establish-establish by law -not established by Muslims even look at it in a very strict positivist sense then the answer is clear. 

CJI: post constitution must we not bring in all rights realisation in a manner consistent with the constitution

SG: not in the pre constitutional era, there was no concept of minority

CJI: is there some constitutional doctrine, because ultimately anything which happens pre-constitution does it not have to be brought into conformity with the post constitution rights regime.

SG: there are judgements on preconstitutional era on how you surrender your rights and what are the effects in the post constitutional regime

CJI: even if you had a choice, there is one very critical thing, why do people seek recognition? people seek recognition so that your students have employability, credibility etc. There were some institutions which had credible degrees even though they were not recognised by the govt. but is that the price which you may necessary ask the minority to pay?

SG: we cannot, us as a govt, we cannot. Britishers could and they did pay

CJI: that the point really, that's the heart of the matter.

CJI: the logic of this judgement is therefore that if you have been established by the act does not itself indicate that you have not been established by the minority. Post 1956 even though you are established by a minority you still have to go through the route of either the establishment by the law or under law when you get deemed university status. Therefore the circumstance that the route which you followed through law making in now post 1956 is irrelevant to your minority status. Now does that one difference that arose prior to 1956 namely that you had a choice to either go through the legislative route or seeking to establish your own university without any recognition, in other words ...

SG : in those days it was the spirit that people preferred graduates of such universities which were not recognised by the British, IIT Roorkee was a nonlaw made university

Khanna J : as far as employment is concerned, there was hardly any private sector it was all govt. employment.

SG : In Gujarat I know several shipping companies, Mohan singh's father was serving (from non recognised universities) as one of the managers in the shipping countries in Gujarat

CJI: post constitution, that proposition of law is clearly unacceptable... now therefore does a proposition of law which ceases to apply post constitution nonetheless becomes valid merely because it is pre-constitution? 

CJI: now post constitution, the fact you seek recognition from the State is not an indicia of you surrendering your minority status. because post constitution, the law before and after this judgement (basha) is that on seeking financial aid/ recognition you don't surrender your minority status. Practically if your degrees are not recognised its worthless. Post independence ofcourse you set up a university, that's all

SG: its a crime, you cannot set up and to hold out that you are competent to allot degrees is a criminal offence

CJI: but that goes in their favour not yours. I'll tell you why... because post 1956 you cannot set up a university unless it is established by law, therefore there's a mandate of the statute. Therefore the mere fact that you had to take the law-making route could not by itself be a circumstance of you indicating to surrender the minority status 

CJI: the scheme of the statute , the court has looked at in the first and the later part of the judgement on the aspect of administration. on establishment they have followed a broad line of argument that look establishment was by law and the establishment being by law and having approached the legislature, the govt. then passed the law, you didn't establish it yourself.

SG: based on the Dargah committee, the court also examines whether you had the right to continue as a university of your own the answer court gives is yes, why did you surrender your right, because to get degrees conferred and therefore the court refers to Dargah Committee judgement that if before constitution you have surrendered your right, the matter ends; third, that everything that existed prior to the university coming into existence got dissolved by operation of law in the university with a mandate that whatever is now the corpus including the debts will be for the university ...

SG: the ratio propounded before you is that once it is established by an Act, you cease to be a minority institution. Now the UGC requires an Act and therefore there cannot be any minority institutions. No, even after UGC there are minority institutions , I have given examples of how they are created. Here it was a sui generis case, they could have down what others did

SG gives examples of Vishwa Bharati, Gujarat Vidhyapeeth as private university that got status as universities after the UGC Act - that is what Basha says

SG reads from 5 judge bench of Dargah Committee Case