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

Dhavan takes the bench to T.M.A. Pai Foundation v. State of Karnataka, (1994) 2 SCC 734

J Datta : (refering to para 50 of the judgement) 50 would necessarily related to minority? the right to establish and administer broadly comprises of all of these rights

Dhavan : my lord in respect of 30

J Datta: 30 so therefore the minority institution would have the right to admit, to set up a reasonable fee structure all these are relatable to minority?

Dhavan : Yes, yes  

Dhavan : the next stage would be to look at the statutes, statutes arising out of the reference which are UGC, YashPal and the National Minority Education Act. then I have some things to say about the Allahabad judgement, Yourlordships are not deciding the appeal only the reference .. so this will be framework

Dhavan : let me first outline my arguments - 1. preliminary arguments about the change of stance; 2. which I am canvassing now, is A Basha internally contradictory and superseded by other decisions. In our submission it is going to be that A Basha is no longer a good law.

Dhavan: the person who starts the case mylord is Sunil Gavaskar after it has been established, you can be Virat Kohli, all these people are Virat Kohlis

(in the discussion of setting argument timings) 

CJI : But it cannot be to the point where the entire administration is non-minority hands... we may not be able to lay down a numerical test, 50/60 % of the administration etc it will be very dangerous to do that. It must be more in the nature of a qualitative test, is the true essence of the administration is such that the minority continues to be in..

Dhavan: and the converse of that argument is that the govt. should not interfere

Dhavan : As Gandhi Faizaazam says if one of the people come in then whats wrong with , of course there was a dissent but that's another matter

CJI : the mere fact that some part of the administration is also looked after by non-minority candidates who have a representation voice by virtue of their service/ association with the institution in that sense will not dilute the minority character of the institution

CJI : finally the point which you made was merely because that institution is regulated by the statutory provision, a statute gives it the color of an incorporated body...does not take away minority character because other parameters are fulfilled namely the establishment and administration and that

Dhavan: That I think is the point my lord, but let me it clear that I said that these institutions must be institutions of excellence, they must accept regulations , all kinds of secular regulations you must accept that's what TMA Pai says .... and no minority can say we don't accept this

CJI : third apart from this you need recognition and affiliation, without recognition etc you are only a shell, you have to award degrees. So all these aspect may be relevant to the existence, the viable existence of an institution but they have no bearing on the establishment. Establishment you said therefore goes to the founding moment, it takes you to a time in the past, administer is not really confined to a moment in the past. Administer is something which is a continuing exercise, so who is in the management of the institution, is the management in the hands of a minority?

CJI reflecting on yesterday's submission on the expression 'establish and administer' under article 30 :

I was just reflecting on that, that has some element of importance for this reason that there maybe a number of circumstances which are necessary for the existence of the institution but don't go to the establishment of the institution for instance - no institution can existence without a grant of land, you cannot construct if you don't get a land. Second you may not function if in today's time you do not have aid, so your existence maybe conditional on the nature of the aid you get.