Aligarh Muslim University Minority Status: Live Updates From Supreme Court Hearing [Day 6]

Dwivedi: the law today takes notice of facts earlier is retroactivity ...we are on questions of facts, assessment of whether it was minority when it was a minority. Eg- British govt ruling the country then was a Christian govt, wherein missionaries were also brought in that time.

Khanna J : when we refer to an establishment prior to the constitution we will have to go back to the point in time when the institution was established but not wrt whether that community was a majority or a minority that time but with reference to who has established. Whos minority or majority that will be decided on the date when the constitution was adopted, possibly what argument you are raising in case there is a demographic change what will be the effect is a separate issue

Dwivedi: lordships have held in a number of cases that FRs are not retrospective, so therefore the only question is that are entitled to the benefit of article 30 today?

Khanna J : will be retrospective or retroactive then? 

Dwivedi: Does it require that the people who are now claiming minority understood themselves to be minority at that time (1920)? only then my lord this came be proceeded so either we avoid it, we say that today in India the Muslims are a minority and therefore we jump to the conclusion that in 1920 there were a minority

CJI: but nobody has questioned that Mr Dwivedi

Dwivedi: the two referring orders

CJI: the question which is today been referred is whether they are established and administered by minority ....the fact that they are a minority today in UP, the fact that they were a minority in the relevant time .... because whether they were a minority or not has to be decided on the basis of today's standards, there no difference that in in 1920 as compared to today...

Dwivedi: that's precisely the point 

Dwivedi: 1. to be muslim is one thing and to be minority in another thing. eg- in Jammu and Kashmir, the majority are Muslims not minority its in that sense..the question would therefore be that either we proceed with the assumption which was made in A Basha that the Muslims in 1920 were a minority and decide whether they are entitled to the benefit of Article 30. Or we consider the question of facts if they were a minrity in 1920....the courts have proceeded on an assumption (even for Christian or Muslim colleges) that they were a minority) so how do we understand this concept minority? do we decide this today or gain as in TMA Pai it was said that theses questions be decided later 

SG concludes his submissions

Sr Advocate Rakesh Dwivedi opens his arguments for the respondents side 

SG takes the bench to his written submissions

SG refers to the 2005 reservations in AMU - even without reservation approximately 70-80% of students are Muslims . I am not on religion, it s a very very serious phenomena, an institution of national importance must reflect the national structure , w/o reservation this is the position.

Khanna J : Across the board in all universities? do we have the data wrt that ?

SG: all national universities, IITs my lord, I can place it on record all institutions

Khanna J : place the document

SG : I undertake to do that  

SG : lordships may also examine from the point of view of social justice and equality .... social justice will be a very determining factor in deciding this case

SG: last part of 15(5) is an exception to the equality clause and therefore the test to decide the university to be a minority will have to be very strict test ....this amendment after TMA Pai and Inamdar they did not take note of this fact. Where yourlordships have said that 15(5) is an extension of the doctrine of equality because SC/STs etc are not equal they are brought at par with rest of the citizens irrespective of the religion but exception is minority... meaning thereby ...

Khanna J : doesn't this amendment also accept the reasoning in TMA Pai that the minorities are entitled to have reservation in institutions, doesn't it then give than recognition ?

SG: now if AMU being the finest university would not have reservation for ST/SC/ OBC and would have at least 50% reservation for Muslim class so a deserving candidate of SC/ST would not have reservation but a person having all economic everything at his command based on religion will have reservation that led to filing of petitions before the Allahabad HC

SG refers to Article 15 of the Constitution