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

Dhavan : it captures the diversity of India

" 157. For a healthy family, it is important that each member is strong and healthy. But then, all members do not have the same constitution, whether physical and/or mental. For harmonious and healthy growth, it is natural for the parents, and the mother in particular, to give more attention and food to the weaker child so as to help him/her become stronger...." 

Dhavan : 138 is important , it sums up what St Xavier says

138.. Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational institutions. 

Dhavan : what decisions are affirmed by TMA Pai, Mother Provincial is affirmed in para 101. Now comes the famous Dual Test

" 122. The regulation "must satisfy a dual test -- the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conductive to making the institution an effective vehicle of education for the minority community or other persons who resort to it." It was permissible for the authorities to prescribes regulations, which must be complied with, before a minority institution could seek or retain affiliation and recognition. But it was also stated that the regulations made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has to be kept between the two objectives.." 

CJI : para 91 makes the distinction between articles 26 and 30

Dhavan : that's right , and it says it applies to majority institutions, 26

Dhavan reads para 93

"93. Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law?"

Dhavan : so this my lord is elaborated ...

Dhavan reads para 89 on Article 29 and 30 :

" 89. Articles 29 and 30 are a group of articles relating to cultural and educational rights. Article 29(1) gives the right to any section of the citizens residing in India or any part thereof, and having a distinct language, script or culture of its own, to conserve the same...."

Dhavan takes the bench to para 85 :

" 85. Secularism being one of the important basic features of our Constitution, Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated for the payment of expenses for the promotion and maintenance of any particular religion or religions denomination...."

J Khanna : was this aid in context of article 26 or 30?

Dhavan : 30 , it would apply to 26 as well

CJI: it would apply to 26 as well because 26 is the expression for religious or charitable purposes

Dhavan : that's correct 

Dhavan : because secularism is an important part of this judgement , may I take you back to para 57 , it says that charitable institutions cannot be run for profit,

"57.... There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution."

Dhavan : You claim minority status you become charitable, you cannot be profit-making institution

Dhavan on what is a minority reads :

76. If, therefore, the state has to be regarded as the unit for determining "linguistic minority" vis-a-vis Article 30, then with "religious minority" being on the same footing, it is the state in relation to which the majority or minority status will have to be determined.

Dhavan reads from the judgement

54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a government body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.