Aligarh Muslim University Minority Status: Live Updates From Supreme Court Hearing [Day 7]

Dhavan : Article 30 cannot be read of the existence of the issue of competence. nothing in these schedules of whatever nature, whether its public interest, or whether its national importance will, every single statute and any of the lists will be subject to Article 30 and Articles 19, 21, 26 etc

The Court concludes the arguments for the Day. The submissions will continue for tomorrow.

CJI: in respect of institutions of national importance, there must be some degree of uniformity of the legislative structure therefore exclusive jurisdiction is conferred upon the Parliament under article 245. Now once an institution is declared of national importance, them calling it a denominational institution would somehow seem to detract from that status of an institution of National Importance. Why do you say that there is no antagonism between an institution being of a National Importance and yet having a minority character?

Dhavan : these lists are actually on the question of competence. nothing else, and therefore if the competence rest on national character/aspect, then quite clearly what they are trying to say is that will be declared, it doesn't go further than say it is of national character across states. 

CJI ; prior to the 42nd amendment, entry 11 of the state list dealt with education including universities subject to provisions of entries 63, 64 and 66 of List I and entry 25 of list three. So education was a state subject and entry 23 of list three prior to 42nd amendment read educational and vocational training of labour therefore what entry 63 of the Union list did was once the subject was in entry 63 union list, it was taken out of the fold of state jurisdiction. The exclusive jurisdiction to legislate was conferred upon parliament. What the 42nd amendment did was it deleted entry 11 of state list and substituted entry 11 of the concurrent list because that dealt with vocational and technical training of labour and now post the 42nd amendment you will see entry 25 of list 3 which says education, technical education etc subject to entry 63, 65 , 64, 66.

CJI: therefore ordinarily but for entry 63 of list I the entirety of the field of education would be the state list prior to the 42nd amendment and after the 42nd amendment , then to the concurrent list. In respect to these two institutions - AMU and BHU, the legislative competence is exclusively rested with the parliament 

Dhavan takes the bench to entry 63 of List I of the Constitution

CJI: what is meant by national character, why is it used in the constitution? they seem to suggest that national importance to be in contrast to denominational that their whole argument.

Dhavan : in any case the opposite of national importance/ character, the converse side of this argument is that these institutions were of super excellence. 

Dhavan lists out non-determinative factors including 1. incorporation by or under the statute; 2. recognition of degrees; 3. receive of grant in aid from outside; 4. regulations for promoting excellence; 5. provision of secular education and admission of non-minorities; 6. recognition of the institution of national importance; 7. presence of non-minorities in day-to-day administration.

Dhavan refers to the decision in St Stephens where scriptures, reference to god etc also became an indicia to determine minority status

Dhavan: now an important question, which is consistent with their argument of what is the indicia of minority... we have divided the into 2 parts - 1. factors which are indicative of determining the minority character; 2. the factors which are not determinative of minority character of an educational institution. the determination factors are the founders should be from the minority, the community must be numerically less than 50% of total population of state.  

Dhavan submits on historical antecedents which determine of the character of the minority. 

Dhavan: there is a very interesting book on Napolean and Petel Bale says that we can go into history as an argument without end and this is what has really happened. One side is citing what they believe is surrender and we are citing what was the mood at that particular point in time as explained in the various provisions and the background. What is relevant is when look at the parliamentary history is not the background factors what is relevant is maybe the speech of the minister, the select committee and parliamentary debates.

Dhavan: All the rest of it are not relevant except for an exercise on movement. There has been so much of a difference between what we argued that an entire movement took place and their argument of surrender.... surrender always sounds like a stronger word than a movement but there was no surrender at any point in time, this argument is entirely and totally a play on words and nothing more than that.

Dhavan mentions the transfer of students under MAO college to be the responsibility of AMU- an important example of continuity.