TC – GI 12

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA

RGNUL INTRA MOOT COURT COMPETITION, 2018

BEFORE THE HOUNOURABLE SUPREME COURT OF INDIA

ON BEHALF OF AGAINST

PRATAP BHANU MEHTA & ARUN HISLIM UNIVERSITY

SHOURIE

Petitioner Respondent

Memorandum for Petitioner

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TABLE OF CONTENTS

INDEX OF AUTHORITES ............................................................................... 1

STATEMENT OF JURISDICTION ................................................................. 3

STATEMENTS OF FACTS............................................................................... 4

ISSUES RAISED ................................................................................................. 6

SUMMARY OF ARGUMENTS........................................................................ 7

ARGUMENTS ADVANCED ............................................................................. 8

1. THAT HISLIM UNIVERSITY IS NOT A MINORITY INSTITUTION .................. 8

1.1 THE SUPREME COURT JUDGMENT .................................................................. 8

1.2 NEITHER ESTABLIHSED NOR ADMINISTERED BY HISLIM MINORITY9

2. ADMISSION POLICIES OF HISLIM UNIVERSITY ARE VIOLATIVE OF

FUNDAMENTAL RIGHTS .............................................................................................. 11

2.1 HISLIM UNIVERSITY IS NOT A NATURAL PERSON ................................... 12

2.2 VIOLATIVE OF RIGHTS UNDER ARTICLE 14 ............................................... 13

2.3 VIOLATIVE OF RIGHTS UNDER ARTICLE 29(2) .......................................... 14

.............................................................................................. Error! Bookmark not defined.

3. THAT THE RESERVATION POLICY IS UNCONSTTUTIONAL ....................... 15

PRAYER .............................................................................................................................. 16

MEMORANDUM ON BEHALF OF PETITIONER

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INDEX OF AUTHORITES

CASES CITED

S. NO Case Citation

1. Aligarh Muslim University v. Malay Shukla AIR 2006 (1) AWC 992
2. S. Azeez Basha and Anr. v. Union of India AIR 1968 SC (1) 662
3. Bakhtawar Trust & Ors v. M.D. Narayan & Ors. AIR 2003 SC 8951
4. The Durgah Committee, Ajmer v. Syed Hussain AIR1961 SC1402
Ali And Others
5. Dharam Dutt & Ors. v. Union of India & Ors. AIR 2001 SC 276
6. Hans Muller of Nuremburg v. Superintendent, AIR 1955 (1) SCR 1284
Presidency Jail Calcutta and Others
7. Meerut Development Authority v. Satya Veer AIR 2003 SC 2236
Singh
8. N.T Devin Katti v. Karnataka Public Service AIR 1990 (3) SCC 157
Commission
9. Naresh Agarwal v. Union of India and Ors. AIR 2005 (4) AWC 3745
10. Pannalal Binjraj v. Union of India AIR 1957 SC 397
11. People's Union of Civil Liberties ... v. Union of AIR 2013 (10) SCC 1
India & Anr
12. St. Stephen's College v. University of Delhi AIR1992 SC 1630
13. Sheetansu Srivastava v. Principal, Allahabad AIR 1989 All 117
14. S.P. Mittal v. Union of India and others AIR 1983 SCR (1) 729
15. S.S. Bola & Ors. v. B.D. Sardana & Ors. AIR 1997 (8) SCC 522
16. State of Rajasthan And Ors v. Thakur Pratap Singh AIR 1960 SC 1208
17. State Trading Corporation of India Ltd. v. AIR 1963 1811
Commercial Tax Officer and Ors.
18. Tata Engineering and Locomotive Co. Ltd. v. State AIR 1964 SCR (6) 885
of Bihar and Ors.
19. T.M.A. Pai Foundation v. State of Karnataka AIR 2002 (8) SCC 481

BOOKS REFFERED
S No. Name
1. Indian Constitutional Law, M.P. Jain, 7th edition
2. Constitutional law of India, J.N. Pandey, 51st edition

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3. Constitution of India, V.N. Shukla, 13th edition

4. The Indian constitution, Granville Austin, 2nd edition
5. Constitution of India, Durga Das Basu, 22nd edition
6. The Indian Constitution, Madhav Khosla, 2012
7. Constitution of India, Jagdish Swarup, 2nd edition

STATUTES REFFERED
S. No. Name
1. Societies Registration Act, 1860
2. National Commission for Minority Educational Institutions Act, 2004
3. Central Educational Institutions Act, 2006
4. University Grants Commission Act,1956
5. Aligarh Muslim University Act, 1920

TABLE OF ABBREVATIONS AND SYMBOLS

ABBREVATIONS DEFINITION
AIR All India Reporter
Anr. Another
Art. Article
A.W.C. Allahabad Weekly Cases
Ed. Edition
HC High Court
Hon’ble Honourable
LR Law Reports
Ltd. Limited
No. Number
Ors Others
P. Page
S. Section
SC. Supreme Court of India
SCC Supreme Court Cases
SCR Supreme Court Reporter
UOI Union of India
u/s Under Section
V. Versus
W.L.R. Weekly Law Reports

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STATEMENT OF JURISDICTION

A civil suit has been filed before the honourable court of Indicsthan challenging the
reservation policy made by the Hislim University in favour of the Hislim candidates only on
the strength of it being a minority institution and thus availing the benefits under article
30(1).

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STATEMENTS OF FACTS

-THE PARTIES-
1. Pratab Bhanu Mehta and Arun Shourie, the petitioners, are two Mundus students who
graduated from the Anglo Muslim college, the respondents.
2. Indicsthan is a democratic republic in Asia with a total population of 100 crores
constituted into 50 states. The country has a demographic composition according to
which Mundus, Hislims and Chirtoos comprise of 80%, 15% and 5% of the total
population respectively.
3. In the state of Deccan Pradesh, Hislims are numerically strong and wealthy and comprise
25% of the state population.

-ESTBLISHMENT OF THE COLLEGE-

4. In 1904 a Hislim leader Hisli ul Singh, established the Anglo Hislim College, under the
Societies Registration Act,1860, to provide English education to all members of the
society. Hisli ul Singh was a foreign national born in Zeeran and remained a citizen of
Zeeran till his death. It was affiliated to the University of Deccan for the award of
degrees.

-ENACTION OF THE STATUTE-

5. In 1945, the colonial legislature of Indicsthan enacted a statute Act No. 21 of 1945 to
grant it the status of a University. The administration of the university was vested into
officers and bodies constituted under the act.

-AMENDMENTS-

6. Later in 1951 a substantial change was made to the 1945 Act which enabled the non-
hislims to become members of the court. Other amendments were also made in the later
years which resulted in grave uproar amongst the members of the Hislim community.

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Petitions were filed in the court and the supreme court declared the Hislim University is
not a minority institution.
In the aftermath of the judgment a new amendment was carried out in Act No. 21 of 1945
to declare it as a minority institution.

-CHANGE IN THE ADMISSION POLICY-

7. In 2005 the University changed its admission policy for the admission to Post Graduate
Medical Sources, for which three modes were created:
a) 25 % of the seats were to be filled on the basis of All Indicsthan Entrance
Examination
b) The remaining 75% seats were divided as follows:
I. 25% seats were to be filled on the basis of entrance examination
conducted by Hislim University in respect of its internal candidates.
II. Remaining 50% of the total seats are to be filled from external as
well as internal candidates on the basis of entrance examination to be
conducted by the Hislim University. These 50% seats have since
been reserved under resolution of the Admission committee and
Executive committee of Hislim University in respect of Hislim
candidates only.

-APPROACHING THE COURT-

8. The respondents are in contention with the petitioners because the petitioners, namely
Pratab Bhanu Mehta and Arun Shourie, have claimed that the new admission policy
violates their rights and thus claim violation of Articles 14 and 29(2) of the constitution.
9. The petitioners contend that they have been deprived of their right to participate in the
process of selection for admission to Post Graduate Courses against 50% of the total
seats, reserved for admission through entrance examination conducted by the Hislim
University.
10. The respondents have made the reservation in favour of Hislim candidates on the strength
of it being a minority University entitled to the benefit of Article 30 of the Constitution of
India and this is the bone of the contention between the parties to these petitions.

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ISSUES RAISED

1. WHETHER THE HISLIM UNIVERSITY IS NOT A MINORITY INSTITUTION?

2. WHETHER THE ADMISSION POLICIES OF HISLIM UNIVERSITY ARE

VIOLATIVE OF FUNDAMENTAL RIGHTS?

3. WHETHER THE RESERVATION POLICY IS UNCONSTITUTIONAL?

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SUMMARY OF ARGUMENTS

1. THAT THE HISLIM UNIVERSITY IS NOT A MINORITY INSTITUTION

It is most respectfully submitted that the Hislim University is not a minority institution.

Firstly, it was declared so by the supreme court of Indicsthan.

Secondly, it was neither established nor administered by hislim minority

2. THAT THE ADMISSION POLICIES OF HISLIM UNIVERSITY ARE

VIOLATIVE OF FUNDAMENTAL RIGHTS.

It is humbly submitted that the admission policies are violative of fundamental rights.

Firstly, university is not a natural person.

Secondly, it is violative of article 14 of the constitution of Indicsthan.

Thirdly, it is violative of article 29(2) of the constitution of Indicsthan.

3. THAT THE RESERVATION POLICY IS UNCONSTITUTIONAL

It is humbly submitted that the reservation policy is unconstitutional.

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ARGUMENTS ADVANCED

1. THAT HISLIM UNIVERSITY IS NOT A MINORITY INSTITUTION

1. It is humbly submitted before the honorable court that Hislim University is not a
minority institution and thus cannot avail the benefits under article 30.

1.1 THE SUPREME COURT JUDGMENT

2. It is submitted before the honourable court that Hislim University is not a minority
institution as In A.k. Prakasam v. Hislim University1, the supreme court of Indicsthan
declared through a divisional bench that Hislim university is not a minority
institution. According to Article 141 Clause 1 of the constitution,
3. The Supreme Court in the exercise of its jurisdiction may pass such decree or make
such order as is necessary for doing complete justice in any cause or matter pending
before it, and any decree so passed or orders so made shall be enforceable throughout
the territory of India in such manner as may be prescribed by or under any law made
by Parliament2.
4. In the Azeez Basha case Supreme Court declared that Aligarh Muslim University was
not a minority institution3. In the case of Naresh Agarwal v. UOI, supreme court
upheld its decision. Supreme court said that “the law declared by the honourable
supreme court in the case of Azeez bash was never questioned by any law review
petition”4, and thus still holds true. Similarly, in the present case, the supreme court of
Indicsthan’s decision also holds true according to article 141 of the constitution. It is
contended that the amendment in act no 21 of 1945 to declare Hislim University as a
minority institution has the effect of virtually over ruling the judgment of the
honourable Supreme Court in the case of A.K.Prakasam5 which is legally not
permissible. In the case of inter-state water dispute quashing the law enacted by the
Kerala assembly, Supreme Court ruled that parliament and assemblies had no power

1
Moot Proposition, Paragraph 6.
2
Constitution of India, 1950, article 141
3
S. Azeez Basha and Anr. v. Union of India, AIR 1968 SC (1) 662
4
Naresh Agarwal v. Union of India, AIR 2005
5
Supra note 1

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to enact laws that nullify judicial judgements. Justice Lodha said, “under the pretence
of power, legislation cannot neutralize the effect of the judgement given after
ascertainment of facts by means of evidence/materials placed by the parties to the
dispute.”
5. With reference to the judgments in the case of “People's Union for Civil Liberties
(Pud) and Anr. v. Union of India and Ors; Bakhtawar Trust and Ors. v. M. D. Narayan
and Ors.; S. S. Bola and Ors. v. B. D. Sardana and Ors., Meerut Development
Authority v. Satya Veer Singh, in the matter of Cauvery Water Dispute Tribunal,
1993 Suppl. (1) SCC 96, it is submitted that the legislative power cannot be extended
so as to over reach/reverse the decision of the Court of law. Hon'ble Supreme Court of
India in the case of N.T. Devin Katti v. Karnataka Public Service Commission and
Ors., held that pending selections would not be governed by the subsequent
amendment in the rules, there is no question of applying new rules or order to the
pending selection”6. The Supreme Court ipso facto has recorded that the Hislim
University was established by an act of legislation and not by minority. Such findings
of the Supreme Court could not be turned over by the amending act. A similar
decision was taken by the Supreme Court in the case of Naresh Agarwal v. UOI7.

1.2 NEITHER ESTABLIHSED NOR ADMINISTERED BY HISLIM MINORITY

6. It is submitted before the honorable court that Hislim University is not a minority
institution as it has neither been established nor administered by the Hislim minority.
7. “The Hislim University was established by the colonial legislature. In 1945, the
colonial legislature of Indicsthan enacted a statute act no 21 of 1945 to grant it the
status of a university”8.
8. To avail the benefits of article 30, the conditions of ‘establishment’ and
‘administration’ are important. The word establish means to bring into existing and so
the rights mentioned under article 30(1) are given to educational institutions which are
bought into existence by minority. The Anglo Hislim College was bought into
existence by the leader of Hislim minority but the university under consideration i.e.
the Hislim University was not ‘bought into existence’ by the Hislim minority. In the

6
Supra note 4
7
ibid
8
Moot proposition, Paragraph 3.

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case of Azeez Basha, the Supreme Court held that Aligarh Muslim University was not
a minority institution as it had been established by an act of legislature and not by the
Muslim minority9. Similarly, in the present case Hislim University is established by a
colonial legislature and not by Hislim leader. The nucleus of the Hislim University
was the Anglo Hislim College, a teaching institution which was converted into a
university by the colonial legislature. This conversion took place by the virtue of the
1945 act and not by the Hislim minority. There existed no Hislim university until the
1945 act was passed by the colonial legislature. This was done to “obtain the status of
a university so as to enable it to issue its own degrees”10.
9. To be able to issue degrees, according to section 22(1) of the university grant
commission, the university must be “established by or under a central act, a provincial
act or a state act or an institution specially empowered by an act of parliament”11. The
Hislim University was thus established by the colonial legislature to enable it to grant
degrees. It was not bought into existence by a private body or an institution as such
private body or institution could not establish a university whose degrees were bound
to be recognized by the government.
10. Article 30(1) of the constitution is ipso facto two-fold. “All minorities, whether based
on religion or language, shall have the right to establish and administer educational
institution of their choice.12” The minority educational institutions could avail the
benefits under the article if the educational institution is established and administered
by minority. It was held in the case of S.P.Mittal v, UOI that the community must
show a) that it is a religious or linguistic minority, b) that the institution was
established by it. Without satisfying these two conditions it cannot claim the
guaranteed rights to administer it13. Article 30 consists of two-part (1) right to
establish (2) right to administer. Both rights are to be read conjunctively. Reference:
T.M.A. Pai Foundation14 and St. Stephen's College15. However, it does not necessary
to follow that every time the citizens of minority community establishes an institution,
they necessarily desire that said institution must be administered by the members of
the minority community only. It is always open to the founder members, who

9
Supra note 3
10
Moot proposition, Paragraph 2.
11
The University Grants Commission Act, 1956, s. 22(1)
12
The Constitution of India, 1950.Article 30(1)
13
S.P Mittal v. Union of India, AIR 1983 SC1
14
T.M.A. Pai foundation v. state of Karnataka, AIR, 2003 SC 355
15
St. Stephen’s college v. university of Delhi, AIR 1992 SC 1630

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establish an institution; to handover the administration of the same to person who may
not belonging to minority community and therefore it is not always necessary that the
right to administer the minority institution would follow automatically once the
institution is established by the minority. We should also like to refer to the
observation in Dargah Committee, Ajmer v. Syed Hussain Ali. In that case this Court
observed while dealing with Article 26(a) and (d) of the Constitution that even if it be
assumed that a certain religious institution was established by a minority community
it, may lose the right to administer it in certain circumstances16.
11. To address the second part of article 30(1), the Hislim University is not administered
by Hislim minority. According to the 1951 amendment, the Hislim University is not
exclusively administered by the Hislim minority. “In 1951 a substantial change was
made to the proviso to section 23(1) of the 1945 act, which requires all the members
of the court would only be Hislims, was deleted. Non Hislims could also be the
members of the court17”. This provision clearly shows that the administration of the
university was not vested in the hands of the Hislim minority, rather it was under the
control of the statutory bodies. It is thus inferred that the Hislim University was
neither established nor administered by the Hislim minority.

2. ADMISSION POLICIES OF HISLIM UNIVERSITY ARE VIOLATIVE OF

FUNDAMENTAL RIGHTS

12. It is humbly submitted before the honorable court that the admission policies of
Hislim University are violative of fundamental rights and against the provisions of the
constitution.
13. In the case of State of West Bengal v. Subodh Gopal Bose18, it has been declared that
Fundamental rights are human rights which are recognized and guaranteed as natural
rights inherent in the status of a citizen of a free country. Part-III of the Constitution
of India with subtitle "Fundamental Rights" contains Article 12 to Article 35. Such
rights are guaranteed against State action, which in turn includes the Parliament and
State Legislature as well as other instrumentalities of the State (Reference Article 12
of the Constitution of India). Any law made in violation of fundamental rights would
be null and void (Reference Article 13 of the Constitution of India). There is a broad

16
The Durgah Committee, Ajmer v. Syed Hussain Ali and ors., AIR 1961 SC 1402
17
Moot proposition, Paragraph 4.
18
State of West Bengal v. Subodh Gopal Bose AIR 1954 SCC 92

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distinction between fundamental rights guaranteed by the Constitution and those

rights which are guaranteed by a Statute. If the Statute deals with the right, which is
not fundamental in character, the Statute can take it away but the Statute cannot take
away a fundamental right. Thus, fundamental rights need no recognition or
conferment by any statutory enactment of the legislature nor any law is necessarily to
be framed by the Parliament for enforcement of such fundamental rights. However, it
may be emphasized that these fundamental rights are also subject to ultimate laws,
which may be made in the interest of the nation.

2.1 HISLIM UNIVERSITY IS NOT A NATURAL PERSON

14. It is humbly submitted before the honourable court that the hislim university is not a
natural person and thus not entitled to the benefits of fundamental rights available to
citizens only.
15. Fundamental rights mentioned in part 3 of the constitution guarantee civil rights to the
citizens. Fundamental rights are divided into two categories viz. persons and citizens.
Rights mentioned under articles 14, 20, 21, 21A, 22, 23, 24, 25, 26 and 28 are
available to all persons whether citizens or foreigners, conversely rights mentioned
under articles 15, 16, 19, 29 and 30 are available to citizens only. When citizens come
together to form a corporation, a distinct legal entity is formed. Suffice is to reproduce
relevant portion of the paragraph 28 of the Constitutional Bench judgment of the
Hon'ble Supreme Court of India in the case of St. Stephen's College v. University of
Delhi19, wherein it has been held as follows:
16. Prior to the commencement of the Constitution of India, there was no settled concept
of Indian citizenship. This Court, however, did reiterate that the minority competent
to claim the protection of Article 30(1) of the Constitution, and on that account the
privilege of establishing and maintaining educational institutions of its choice, must
be a minority of persons residing in India. They must have formed a well-defined
religious or linguistic minority. It does not envisage the rights of the foreign
missionary or institution, however, laudable their objects might be. After the
Constitution, the minority under Article 30 must necessarily mean those who form a
distinct and identifiable group of citizens of India. The corporation or company may

19
Supra note 15.

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claim rights which are available to all persons, but it may not claim fundamental
rights which are available to citizens only viz. rights mentioned under articles 29 and
30 inter alia. The legal significance of "all citizens" has been explained by the Hon'ble
Supreme Court of India in its judgment in State Trading Corporation of India Ltd. v.
Commercial Tax Officer and Ors.20, with reference to the provisions of Article 5 to
Article 11 of the Constitution of India read with the Citizenship Act, 1955, a
distinction between nationality and citizenship and between natural persons, in
contradistinction to legal juristic persons, covered by the definition of 'Citizens'
entitled to the benefit of the fundamental rights made available to citizens only has
been considered in detail.
17. The said legal proposition has been reiterated in the case of Tata Engineering and
Locomotive Co. Ltd. v. State of Bihar and Ors.21, as well as in the latest judgment of
the Hon'ble Supreme Court in the case of Dharam Dutt and Ors. v. Union of India and
Ors. In the case of Dharma Dutt, Supreme Court held that “as soon as citizens form a
company…, the business which is carried on by the said company or corporation is
not the business of the citizens…, and the rights of the incorporated body must be
judged on that footing alone…”22. Supreme Court upheld its judgement in the case of
Hans Muller v. supdt. Presidency jail, Calcutta23. Hislim University is a corporation
and thus a juristic person. It has its own rights, but those rights are not under articles
29 and 30. Hislim University thus, cannot claim benefits under articles 29 and 30.

2.2 VIOLATIVE OF RIGHTS UNDER ARTICLE 14

18. It has already been contended that Hislim University is not a minority institution and
the reservation of 50% of the seats is violative of the fundamental rights of mundus.
According to article 14 of the constitution, “the state shall not deny to any person
equality before the law or the equal protection of law within the territory of India”. In
case of Nagesh Agarwal v. UOI, Supreme Court said that “the manner in which the
reservation has been effected would be violative of article 14 of the constitution.
Petitioners being fully qualified for being considered against the 50% of the total

20
State Trading Corporation of India Ltd. v. Commercial Tax Officer and Ors., AIR 1963 SC 1811
21
Tata engineering and locomotive co. ltd. v. Stateof Bihar and ors., AIR 1964 SC 885
22
Dharam Dutt and Ors. v. Union of India and Ors., AIR 2001 SC 276
23
Hans muller v. supdt. Presidency jail, Calcutta, AIR 1955 SCR 1284

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seats, have every right to maintain the present writ petition and to insist upon the
Aligarh Muslim University to hold selection for admission against 50% seats through
entrance examination conducted by the Aligarh Muslim University itself in
accordance with law to participate in the said process of selection”24.

2.3 VIOLATIVE OF RIGHTS UNDER ARTICLE 29(2)

19. It is humbly submitted before the honourable Supreme Court that the reservation
provided to the Hislim students for taking admission in the Hislim University is
violative of article 29(2) of the constitution.
20. According to article 29(2), “no citizen shall be denied admission into any educational
institution maintained by the state or receiving aid out of state funds on grounds only
of religion, race, caste, language, or any of them”25. The rights mentioned under
article 29 are the rights which an individual enjoys as a citizen. The right to admission
into an educational institution is a right which an individual citizen has as a citizen
and not as a member of any community or class. In another case of Sheetansu
Srivastava v. principal, Allahabad, the institute denied admission to the general
student even though they secured high percentage of marks in the competitive
admission test held by the institute due to admission policy of reservation of 50 per
cent of seats for the church sponsored students from Uttar Pradesh and all over the
country and the reservation of the sets was challenged26.
21. The court held that such denial of admission to the students who were higher in merit
in the competitive test held for admission on the basis of the admission policy of the
institution is liable to be quashed being violative of article 29(2) of the constitution.
The court reasoned that a minority may have religious right to impart education so as
to maintain its identity and culture but no religion preaches separatism. There can be
no reason in the claim that the government aided institutions should be permitted to
confines its educational activities to the student of their own community. Therefore
both on general approach and constitutional prohibition under article 29(2) the
reservation policy of the institution cannot stand. Similarly, in the present case the
university being state owned cannot reserve 50% of the seats for any particular
community. Hence any discrimination against any citizen in matters of admission is

24
Supra note 4
25
The Constitution of India, 1950, Article 29(2)
26
Sheetansu srivastava v. principal, Allahabad, AIR 1989 ALL 117

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violative of fundamental rights of the citizen and he is liable to move the court. The
Hislim University is established and administered by statute, henceforth; such
discrimination against citizen is against the provisions of article 29(2).

4. THAT THE RESERVATION POLICY IS UNCONSTTUTIONAL

22. It is humbly submitted before the honourable Supreme Court that the reservation of
seats for hislim students is against the provisions of the constitution.
23. It has been contended that the Hislim University is not a minority institution and thus
it is not entitled to the benefits under article 30. The reservation of 50% of seats for
the Hislim citizens is violative of the provisions of the constitution of Indicsthan.
According to article 15(1), “the state shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them.27”
24. If prejudice is disclosed, the law must be stuck down as being violative of the
constitutional prohibition. In the case of State of Rajasthan v. Pratap Singh, Supreme
Court invalidated a notification under the police act, 1861 which in imposing the
compulsory levy on the inhabitants of a certain locality had exempted all Muslim and
Harijan residents28. In the present case, Hislim University has reserved upto 50% of
the seats for the members of Hislim committee. This reservation is violative of the
provision of prohibition of discrimination. Hislim university is neither established nor
administered by minority and therefore, the reservation upto 50% of seats is
unconstitutional. In the case of AMU v. Malay Shukla29, the Supreme Court of India
in the Ajeez Basha30 case in 1968 had already taken the view that AMU was not a
minority institution and enactment of a law by Parliament couldn’t overrule the
judgement.
25. In October 2005, Justice Arun Tandon said that the AMU amendment was
unconstitutional and it was not a minority institution. He also said that reservation of
seats for postgraduate medical courses and the 50% quota approved by the AMU
Academic Council in the PG medical courses were illegal. Therefore, from the
academic session 2006-07, the old format was followed eliminating the provision for
reservation. Soon after this decision, the counsels for the Centre and the AMU

27
The Constitution of India, 1950, Article 15
28
State of Rajasthan and ors. v. Thakur Pratap Singh, AIR 1960 SC 1208
29
Aligarh Muslim university v. Malay Shukla, AIR 2006 AWC 992
30
Supra note 3

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proposed an application for stay on the order. However, the demand was rejected.
Later the single bench order was challenged and it moved to division bench. Hislim
university is managed by the central government and is state owned, therefore, it
cannot discriminate against citizen on any ground. In another case of Sheetansu
Srivastava v. principal, Allahabad, the institute denied admission to the general
student even though they secured high percentage of marks in the competitive
admission test held by the institute due to admission policy of reservation of 50 per
cent of seats for the church sponsored students from Uttar Pradesh and all over the
country and the reservation of the sets was challenged31. The court held that such
denial of admission to the students who were higher in merit in the competitive test
held for admission on the basis of the admission policy of the institution is liable to be
quashed being violative of article 29(2) of the constitution. The court reasoned that a
minority may have religious right to impart education so as to maintain its identity
and culture but no religion preaches separatism. There can be no reason in the claim
that the government aided institutions should be permitted to confines its educational
activities to the student of their own community.
26. Therefore, both on general approach and constitutional prohibition under article 29(2)
the reservation policy of the institution cannot stand. Similarly, in the present case the
university being state owned cannot reserve 50% of the seats for any particular
community. The state should provide equality of opportunity and should prohibit
discrimination viz. articles. 16 and 15 respectively.

31
Supra note 25

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MEMORANDUM ON BEHALF OF PETITIONER
 RGNUL INTRA MOOT COURT COMPETITION, 2018

PRAYER

It is hereinafter most humbly prayed before the supreme court of Indicsthan that, in the light
of arguments advanced, authorities cited and facts mentioned, the Hon’ble Court may be
pleased to adjudicate and declare that:

1. Hislim university is not a minority institution.

2. The admission policies are violative of fundamental rights.
3. The reservation of seats is unconstitutional.
And any other relief that the Hon’ble Court may be pleased to grant in the interest of
justice, equity and good conscience.

All of which is humbly submitted.

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MEMORANDUM ON BEHALF OF PETITIONER