Aligarh Muslim University Minority Status : Live Updates From Supreme Court Hearing [Day 2]

Sibal refers to how the provision of reservation was there in the educational institutes for SC/STs and OBCs - no reservation was given to the Muslim, Christian, sikh communities.... in the framework of the constitution there was no other way to give an opportunity to those left out to allow for education

J Khanna : I don't think the reference is on this issue ... we are deciding only a limited question of what is meant by the term "to establish and administer" in article 30 , we are not dealing with what is the effect if an institution is declared a minority institution

Sibal : No no I am just giving a background as to why 30 came into being 

Sibal : when Basha came into being in 1968, there are several judgement after Basha which give your lordships what the true meaning of article 30 are, those judicial decisions will have to be taken into account whether Basha was rightly decided or wrongly decided forget the amendments we are not concerned with that.

J Khanna : Mr sibal what is your argument ?

Sibal : my arguement is that please look st it as a pre-constitution act and in light of that test that act under article 30 .... basha judgement came in 1968 now much water has flown down after 1968. I am appearing for the Old Boys Association .... I am asking your lordships to interpret the act in terms of article 30 that's all  

CJI : but has there been a challenge to the validity of the Act itself?

Sibal : when Basha itself is the subject matter of the reference, when you have decide whether basha itself is rightly decided or wrongly decided that will in turn lead your lordships to test the validity of the Act 

The Court resumes

Sibal : this is a 1920 pre constitutional law, pre constitutional laws have to be tested under article 13, if they are inconsistent with any fundamental right they can be struck down. Article 30 if a fundamental right given to minorities, if lordships looks at 1920 act and comes to the conclusion that it violates article 13, it can strike it down 

CJI : there are two seperate issue, 1. that Basha is wrongly decided on the basis of a statute as it stood on the date basha was decided; 2. the basis of Basha is taken away by the amendment of the parliament...

Dhavan : if you see a change in 5C it is a substantive change

CJI : so let us see now which are those changes which the 1981 Act brings about and do those changes take away Basha

J Khanna : Dr Dhavan if you say it is a substantive change then how do you its retrospective?

Dhavan: my respectful submission is that it changes the basis it is not ...overruling 

CJI : s. 1(2) of the 1981 Act is a prima facie indicator that it is prospective because it says it will come into force on such date with such effect , we still take your point that in a given case an act maybe still declaratory... now what we really have to see is this, when parliament introduced the bill in 1981 amendment did they .. one aspect was to change the definition of University but did the substantive provisions of an amendment statute make a fundamental change in the basis of ... because it did not , if it did not make any fundamental changes in the basis of the statute which was interpreted in Basha

J Khanna : Dr Dhavan just remember today youre arguing in particular case but what you're arguing may have repercussions in another matter. lets remember that .

Dhavan : I am before a constitution bench my lords

J Khanna : Yes, there is a distinction between amending a statute to take away the basis of a judgement and an amendment which deals only with the reasoning part not trying to overrule the judgement 

CJI : what happens is it does not say any judgement decree or order, what is does it introduces a new definition of expression 'University' to provide that this is a university which is established by the Muslims of India , originally called the Muslim Anglo Oriental College and which was subsequently incorporated. So the definition traces what in the view of the parliament is the evolution of AMU which will establish and the MAO in the subsequent incorporation, this doesn't override Basha, Parliament can , it could have taken away the basis of Basha, what it really does is merely alter the definition definition that's all.