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

CJI : gives one page of set of submissions  

The hearing for the day concludes 

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Sibal refers to para 18 of TMA Pai 

" 18. With regard to the establishment of educational institutions, three Articles of the Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6)... Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions. There was no serious dispute that the majority community as well as linguistic and religious minorities would have a right under Article 19(1)(g) and 26 to establish educational institutions. In addition, Article 30(1), in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice." 

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Sibal refers to written submissions on the correlation between Article 19(6) and 30 of the Constitution 

Sibal : 1981 amendent is a Parliamentary statute, can the govt. ever make a submission to the court contrary to the parliamentary statute even if it is declared to be void? executive cannot go against parliamentary statute even if it is struck down...they are struck down every day in the HCs can the govt say I will go against the statute? this is for the first time it has arisen my lords 

J Khanna : What you are really saying is that the object and purpose have to be taken into consideration when we interpret the word 'establishment'

Sibal : the genesis of why it's done

J Khanna : legal establishment has to be in terms of law...

Sibal : it is not the statutory recognition, which is the heart of establishment... Basha loses sight of all this completely  

Sibal : I'll tell you the mistake made by the petitioners in the Basha case, when they found that the judge was not agreeable to the fact that it was established by Muslim community, they started arguing that it doesn't matter, even if not established, it was administered which is contrary to 30. so my lords , the reference you will find is therefore established or administered, why because they argued that I am a minority even they don't find I have established but I administer. AMU was there before the court. Thats why that reference was made to that 'or' 

Sibal : I stand here for the diversity of the constitutional ethos of this country, I plead your Lordship don't allow it to be destroyed, no such thing as one size fits all especially in the field of education.

Sibal : the statute is the end product of the establishment process, we start on the ground, that is why the establishment process is important

Sibal : there is disjunct, complete disjunct in the concept of establishment and the concept of recognition, recognition is for the purposes of being a part of the workforce of the community; establishment is for the purpose of ensuring that people of your community can be part of the workforce, its a vehicle for empowerment not a vehicle for destroying the very concept of setting up a minority institution.

Sibal : A degree is only a recognition of your attaining a certain academic expertise to be part of the workforce of this country. It has nothing to do with the establishment of the institution. Without out it, it is of no value, no degree is of value

Sibal gave the example of if one wants to establish a minority design institute, the moment I get the status of a University, one will lose the right to establish- therefore I will not be able to serve the community for which I am putting in the money , for which one I have given land 

Sibal refers to the UGC 1964

J SuryaKant : the right to establish a university which is competence to award a degree is restricted in terms of the provisions of the UGC Act not on account of the judgement as such

Sibal : yes mylords my problem is that 1956 was there when Basha was established and Basha then says you could have set up a university and awarded degrees... The UGC recognises the degree it doesn't recognise the establishment, my lords, kindly see the recognition is for the degree