Aligarh Muslim University Minority Status : Live Updates From Supreme Court Hearing [Day 4]

CJI: can a minority institution say that when I establish a university, you must necessarily recognize my right to confer degrees to that university without the provisions of the enabling statute?

Shamshad: no there are regulatory provisions

CJI: So if I have to establish a medical college..

Shamshad: No, I will establish a medical college , I will this much building, these many teachers, accepted curriculums etc if I have done all these then I'm entitled to be recognized and carry on

Shamshad: there are 3 judgements which say that pre independence post-independence doesn't matter, you will interpret FRs to give effect to and for the beneficial interests of the citizens

Shamshad : coming to the third issue of recognition. Basha says such recognition dependent upon the will of the govt generally expressed through a statute, so the entire issue is of recognition. 

Shamshad: the entire thing falls back to recognition. In 1920 ...in 1950, article 30, terminology used was used established so that recognition becomes established. Now how the matter was argued is interesting, in Basha when the matter came before the court it was only with respect to 'administer'. It was UOI which took the stand that sorry this university is not established and the whole debate went in line with established.

Shamshad takes the bench to parts of A Basha

Shamshad: educational institution of their choice - very wide term which relates to setting up of the institution. Setting up can relate to the hisotrical aspects. Once you set up an institution you exercise a choice, that could be primary school / university. After 1950 it becomes an FR, then the entire system is obliged to give effect to that right to choice. Myself registering into the society act will not be termed as 'establishing an insitution'. It will only be a compiance of an insitution of an statute which is existing to promote execellence.

Shamshad : (refers to the Allahabad Order 2006) this is how my matter got closed...statutory modifications have not taken place till now

J Khanna: what is the effect of this order?

Shamshad: whatever the TMA Pai ratio is , all the rules and regulations will have to be brought into confirmation with that ratio....this happened in Anjuman Rehmania as well The entire right has been given to the private agency, they will be given a merit list from which they choose. this is not in conformity with this order, that is the ground for me approaching this court 

Shamshad : 1938 this society was formed informally; 1940 society was registered; I was extended with aid in the pre constitution time, 1950 constitution came into effect; thereafter it was treated as a minority institution till 1970.

Shamshad: 1977 the administration stated in one line that it is not possible to treat you as minority institution...this was repeated on 3 may 1978; 2nd of may 1980 they said you're governing body is not treated as Muslim minority out of 11 members I was told or 1 or 2 are not Muslims, what is the meaning of administration ? background of article 30

SuryaKant J : what was the issue you raised there?

Shamshad : the similar issue of the right to administer, this was the issue in Basha also and same is placed here...when I came in 1981 there were at least 9 judgements which was you can administer

CJI: come again, how many

Shamashad : total 9; Kerala education (7 judges); Siddharth Pai (6 judges) in between Basha (5 judges); Father Cruze (5 judges); R. Patro (5 Judges); Mother Provincial (6 judges); 1971 BAV (5 Judges); 1974 Xaviers (9 Judges); then comes Gandhi Faziam (3 judges 1975) 

CJI: 1 point Mr Sibal has substantially argued...

Shamashad takes the bench to TMA Pai 

CJI: we have heard the substantive arguments before you...we don't want to deny you the opportunity to argue before a 7 judges CB , so please be brief, you can formulate the proposition

MR Shamshad: 1. educational institution of choice includes university; 2. 1920 Act is in the nature of recognition of an institution/ system for the purpose of granting a degree; 3. the entire chapter of Fundamental Rights (FRs) also talk about adjustment of group rights for enforcing affirmative action