TC- GI-21

IN THE

HONORABLE SUPREME COURT OF INDICSTHAN

MEMORIAL ON BEHALF OF PLAINTIFF

MUNDU& OTHERS..................................PETITIONER

ARUN SHOUIRE & OTHER…………..PETITIONER

HISLIM UNIVERSITY...............................RESPONDENT

Most Respectfully submitted before the Hon’ble judge in the Supreme Court,

Indicsthan

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ....................................................................................................ii

INDEX OF AUTHORITIES..................................................................................................... iv

STATEMENT OF JURISDICTION......................................................................................... vi

STATEMENT OF FACTS ......................................................................................................vii

ISSUES RAISED ...................................................................................................................... ix

 WHETHER IT IS A MINORITY INSTITUTION OR NOT? ................................................................. ix

 WHETHER THE AMENDING ACT CAN OVERRULE THE PREVIOUS JUDGEMENT OR NOT? ......... ix
 WHETHER THE ARTICLE 14 AND 29(2) ARE VIOLATED OR NOT? ............................................... ix
ARGUMENTS ADVANCED................................................................................................11
1. IT IS A MINORITY INSTITUTION
2 IT DOES NOT OVERRULE PREVIOUS JUDGMENT.
PRAYER................................................................................................................................26

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RGNUL INTRA MOOT COURT COMPETITION, 2018
LIST OF ABBREVIATIONS

Hon’ble Honourable

& And

V Versus

SC Supreme Court

AIR All India Reporter

Sc. Section

AWC Allahabad Weekly Cases

ESC Education & Service Cases

All. Allahabad

Lang. Lang.

ALR American Law Reports

SCC Supreme Court Cases

Bom. Bombay

Geo. Geographical

Pol. Political

U.P. Uttar Pradesh

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RGNUL INTRA MOOT COURT COMPETITION, 2018

No. Number

Jan. January

Govt. Government

GO Government organisation

Ltd. Limited

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 RGNUL INTRA MOOT COURT COMPETITION, 2018
INDEX OF AUTHORITIES

Cases

Andhra Pradesh Christian Medical Association v State of Andhra Pradesh, AIR 1986 SC
1490: (1986) 2 SCC 667....................................................................................................... 13
Askar Ali v State of Kerala, 2005 (2) KLT 528. ..................................................................... 13
Azeez Basha v Union of India, AIR 1968 SC 662 .................................................................. 16
Azeez Basha v Union of India, AIR 1968 SC 662. ............................................... 11, 14, 15, 20
Bakhtawar Trust v M.D. Narayan, (2003) 5 SCC 298: AIR 2003 SC 2236. ........................... 16
Bishop SK Patro v State of Bihar, AIR 1970 SC 259. ............................................................. 13
Cauvery Water Disputes Tribunal, 1993 (1) SCC 96(2).......................................................... 16
Dharam Dutt v Union of India, (2004) 1 SCC 172: AIR 2004 SC 1295. ................................ 16
Islamic Academy of Education and Another v State of Karnataka and Others, AIR (2003) 6
SCC 697. .............................................................................................................................. 18
Naresh Agarwal v Union of India, 2005 (4) AWC 3745, 2005 (4) ESC 2489. ................. 14, 16
Nishi Maghu v State of J. & K., AIR 1980 SC 1975. .............................................................. 20
P. Sambha Murthy v State of Andhra Pradesh, (1987) 1 SCC 362 ......................................... 16
P.A. Inamdar v State of Maharashtra, (2004) 8 SCC 139........................................................ 15
People's Union for Civil Liberties v Union of India, (2003) 4 SCC 399: AIR 2003 SC 2363.16
S.P. Mittal v Union of India, AIR 1983 SC 1: (1983) 1 SCC 51 ............................................. 12
S.S. Bola and others v B.D. Sardana, (1997) 8 SCC 522: AIR 1997 SC 3127 ....................... 16
Sankalp Institute of Education v State of U.P.,........................................................................ 22
Sri Prithvi Cotton Mills Ltd. V Broach Borough Municipality, (1969) 2 SCC 283: AIR 1970
SC 192. ................................................................................................................................. 16
St. Stephen’s College vUniversity of Delhi, (1992) 1 SCC 558........................................ 12, 19
State of Bombay v Bombay Educational Society, AIR 1954 SC 561. .............................. 21, 22
State of Madras v Champakam, AIR 1951 SC 226. ................................................................ 22
Suneel Jatley v State of Haryana, (1984) 4 SCC 296. ............................................................. 19
TMA Pai Foundation and Others vState of Karnataka and Others, (2002) 8 SCC 481. ......... 11
Yogendra Nath Singh v State of Uttar Pradesh, AIR 1999 All 356. ....................................... 12

Treatises

Jain, MP, Indian Constitutional Law, Eighth edition............................................................... 16

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Pandey J.N. Dr., Constitutional Law of India, Central Law Agency, 43rd edition 2006, p.
73. ......................................................................................................................................... 16
Shukla, V N, Constitution of India, Eastern Book Company, 13th Edition ............................. 20
Databases

SSC Online

Manupatra

Lexis Nexis

Heinonline

VakilNo1.com

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 RGNUL INTRA MOOT COURT COMPETITION, 2018
STATEMENT OF JURISDICTION
The Supreme Court of Indicsthan exercises jurisdiction to hear and adjudicate over the
matter under article 321 of constitution of Indicsthan.

The petitioner humbly submits to jurisdiction of SC which has been invoked by the
respondent. However, the respondent reserves the right to challenge the same. The provision
under which the petitioner has approached the SC is read herein under as-

“Thejurisdiction of the court comprises all the cases which the parties refer to it and all
matters specially provided for in the charter of the United Nations or in treaties and
conventions in force”.

This Hon’ble court has the requisite and subject matter jurisdiction to entertain and
adjudicate this matter as civil courts do not have right to challenge the policies or to declare
the policy as unconstitutional. But the Supreme Court of Indicsthan has right over to
challenge the policies and have jurisdiction to entertain this case.

1
Article 32(1) The right to move the supreme court by appropriate proceedings for the enforcement of the
rights conferred by this part is guaranteed;
(2) The Supreme Court shall have powers to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this part.

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 RGNUL INTRA MOOT COURT COMPETITION, 2018
STATEMENT OF FACTS
 Indicsthan is a secular democratic republic in Asia with a total population of 100
crores. It is constituted of 50 constituent states representing full diversity of religion,
caste etc. Its demographic composition is as Mundus- 80%, Hislims- 15%, Chritoos-
5%.
 In the southern state of Deccan Pradesh there is a substantially wealthy religious
minority of Hislims who constitute 25% of the state population. In 1904 a Hislim
leader and missionary Hisli ul Singh established a college at Kashi district of Deccan
Pradesh to provide English education to the society. Hisli ul Singh was born in
Zeeran and always remained citizen of Zeeran. It was registered under Societies
Registration Act, 1860 and affiliated to University of Deccan for the award of
degrees.
 In 1945, the colonial legislature of Indicsthan enacted a statute Act No. 21 of 1945 to
grant it the status of a University. The long title of said act read as follows:

“WHEREAS it is expedient to establish and incorporate a teaching and residential

Hislim university at Kashi, and to dissolve the Societies register into Societies
Registration Act,1860 and to transfer all the rights and properties of college to the
said university.

Section 2(h) of the 1945 Act defines the University as follows:

“(h) “University” means the Hislim University.”

Section 5(2) of the 1945 Act reads as follows:

“5. The University shall have the following powers of the university:
(1) To promote secular learning in maths, science and literature.
(2) To promote Oriental study and give instruction in Hislim theology and religion
and to impart moral and physical training;”
 Later in 1951 a substantial change was made to the proviso to Section 23(1) of the
1945 Act, by amendment Non-Hislims can now become members of the court. Some
other amendments were made in 1964 and 1965. Petitions were filed in the Court
and Supreme Court speaking through a division bench in A.K. Prakasam v Hislim
University declared that Hislim University is not a minority institution. But in the

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 RGNUL INTRA MOOT COURT COMPETITION, 2018
aftermath of the judgment a new amendment was carried out in Act No. 21 of 1945
to declare it as a minority institution.
 In 2005 university changed its admission policy and for admission to Post Graduate
Medical courses three modes were-
(a) 25% of the total seats to be filled on the basis of All India Entrance Examination
conducted by the All Indicsthan Institute of Medical Sciences.
(b) The remaining 75% of the total seats have been divided to-
 25% of the total seats are required to be filled on the basis of entrance
examination conducted by the Hislim University for internal students.
 The remaining 50% of the total seats are reserved for Hislim candidates
only and to be filled from external as well as internal candidates on the basis
of entrance examination conducted by University.
 Two Mundu students who graduated from the University claimed that their
fundamental rights under article 14 and 29(2) are violated and filed a petition in
supreme court. This reservation of entire 50% of total seats have given rise to the
present writ proceedings. Whether Minority University entitled to the benefit of
Article 30 of the Constitution of India or not is the bone of contention between the
parties.

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 RGNUL INTRA MOOT COURT COMPETITION, 2018
ISSUES RAISED

ISSUE I

 WHETHER IT IS A MINORITY INSTITUTION OR NOT?

ISSUE II

 WHETHER THE AMENDING ACT CAN OVERRULE THE PREVIOUS

JUDGEMENT OR NOT?

ISSUE III

 WHETHER THE ARTICLE 14 AND 29(2) ARE VIOLATED OR NOT?

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 RGNUL INTRA MOOT COURT COMPETITION, 2018
SUMMARY OF ARGUMENTS

 WHETHER IT IS A MINORITY INSTITUTION OR NOT?

The said university is not established by the member of the minority community of that
state and is also not a citizen of India, he belongs to a particular religion that is minority
in Deccan Pradesh as he does not reside there and a citizen of Zeeran, the institution
established by him is only private educational institution and not the Minority
educational institution.
Further the institution when was converted into university from oriental college. The
institution was incorporated and established by the statute of the legislature under Act
No. 21 of 1945 to grant it the status of a University. Hence, when any educational
institution is established by the act of the legislature and the amendments are also made
by the legislature's act it is considered as University owned and controlled by the govt.
not by the minorities.

 WHETHER THE AMENDING ACT CAN OVERRULE THE PREVIOUS

JUDGEMENT OR NOT?
The act of amendment made by the legislature for declaring the institution as minority
institution does not overrule the previous judgment of Supreme Court as the basis on
which the judgment was delivered was not altered fundamentally. The Supreme Court
even after alteration of the basis could not render the previous judgment. Hence the
previous judgment is good law not the amended act by legislature.

 WHETHER THE ARTICLE 14 AND 29(2) ARE VIOLATED OR NOT?

The Article 14 is violated as these two Mundu students are not provided equal
opportunity under the law. They are not treated equally. As the students falls under the
category of reasonable classification because the discrimination is based on the religion
or community. As the Hislim university made the reservation policy based on the
community which is violating the right of other community students. As it is not a
minority institution and totally funded by the govt. so they do not have any right to
make the reservation policy based on religion.
Further, Article 29(2) is violated because according to art. 29(2) no student should be
denied admission on basis if caste, religion etc. But in this case Hislim university which
is a government funded, set up by the act of legislature denied the admission to these
two students on basis of community.

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 ARGUMENTS ADVANCED
The PETITIONER in pursuance of its case submits to the Hon’ble court the following
arguments:
1. IT IS A MINORITY INSTITUTION
1. In our Constitution of India has afforded protection to the minorities in the
country. It is understood that society rights of minorities and weaker sections
need to be safeguarded specialrights for minorities were designed not to create
inequalities but to bring about equality by ensuring the preservation of the
minorityinstitutions and by guaranteeing autonomy in the matter of
administration of these institutions.
Minorities in India do not stand on equal footing with others, which made the
framers of the Constitution, through Article 29 and Article 30, accord special
rights to the people who form religious or linguistic minority in India.
2. The Court in TMA Pai Foundation and Others vState of Karnataka and
Others2held, that geo.entity of State for consideration of the status of minority
for Article 30. But there isalso the dissenting opinion of Ruma Pal, J. who took a
different stand with regard tonumerical position which points that such an
interpretation would be contrary toArticle 29(1) which contains within itself an
indication of the ‘unit’ as far asminorities are concerned, when it says that any
section of the citizens residing inthe territory of India or any part thereof having
a distinct lang., script or cultureof its own shall have the right to conserve the
same. Merely because persons having a distinct lang., script or culture are
resident within the pol. or geo. limits of a State within which they may be in a
majority, would not take them out of the phrase “section of citizens residing in
the territory of India.”3

1.1. Establish and Administer whether to be read Conjunctively under article

30
3. In Azeez Basha v Union of India4, a Constitution Bench of the Supreme Court
has held that the expression “establish and administer” used in Article 30(1) has
to be read conjunctively that is to say, two requirements have to be fulfilled

2
TMA Pai Foundation and Others v State of Karnataka and Others, (2002) 8 SCC 481.
3
TMA Pai Foundation and Others vState of Karnataka and Others, (2002) 8 SCC 481.
4
Azeez Basha v Union of India, AIR 1968 SC 662.

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 RGNUL INTRA MOOT COURT COMPETITION, 2018
under Article 30(1), namely, that the institution was established by the
community and its administration was vested in the community.
4. The supreme court has stated5, In order to claim the benefit of Article 30(1), the
community must show: (a) that it is a religious/linguistic minority, (b) that the
institution was established by it. Without satisfying these two conditions it
cannot claim the guaranteed rights to administer it.

In the case of St. Stephen’s College vUniversity of Delhi6, it was held thatthe
words ‘establish’ and ‘administer’ used in Article 30(1) are to be
readconjunctively. The right claimed by a minority community to administer
theeducational institution depends upon the proof of establishment of the
institution.The proof of establishment of the institution is thus a condition
precedent for claiming the right to administer the institution.

5. National Commission for Minority Educational Institutions Act, 2004 shows that
in order to claim status of a minority educational institution, it need be proved
that it was established or administered by minority.

Therefore, a minority can claim a right to administer an educational institution

only if has been established by it but not otherwise.

1.2.Establisher of university does not belongto minority community and not a

citizen of India
6. As article 30(1) does not speak of citizens of India, however it has been held that
the minority to claim the protection of this Article must be a minority of persons
residing in the territory of India. Therefore, the foreigners, not resident in India,
cannot claim the right to set up educational institution of their choice.

5
S.P. Mittal v Union of India, AIR 1983 SC 1: (1983) 1 SCC 51.
St. Stephen’s College vUniversity of Delhi, (1992) 1 SCC 558.
6

2
 7. In YogendraNath Singh v State of Uttar Pradesh,7TheGovt. recognised an
institution as a minority institution. This order was challenged in the High Court
through a writ petition. Looking into the antecedent history of institution right
from its inception, the Court concluded that the institution was not established by
a minority institution, and, therefore, it could not be granted minority status even
though presently it was being managed by the minority community. Under article
30(1), the requirements of establishment and management have to be read
conjunctively.
8. In Askar Ali v State of Kerala8,a mere fact that a person belongs to minority
community, by itself, doesn't give an institution that he establishes, the status of
minority institution. Establishment should be with the intention to establish as a
member of minority community. It is the identity and intention of the one who
establishes the minority institution not the beneficiary.
There must exist some positive index to enable the educational institution to be
identified as an educational institution of minorities.9

9. In Bishop SK Patrov State of Bihar10, It was ruled that a minority claiming

privilege under Article 30 should be minority of persons residing in India.
Foreigners not residing in India do not fall within the scope of Article 30(1).
Residents in India and forming the well define religious or linguistic minority
fall under the protection of Article 30. It held that minority under Article 30 must
necessarily mean those who form a distinct and identifiable group of citizens in
India.

10. So, in our case “Hisliul Singh was a foreign national born in Zeeran and
remained a citizen of Zeeran till his death”. On this basis we could say that the

7
Yogendra Nath Singh v State of Uttar Pradesh, AIR 1999 All 356.
8
Askar Ali v State of Kerala, 2005 (2) KLT 528.
9
Andhra Pradesh Christian Medical Association v State of Andhra Pradesh, AIR 1986 SC 1490: (1986) 2 SCC
667.
10
Bishop SK Patro v State of Bihar, AIR 1970 SC 259.

3
 11. Hislim University is not a minority institution as the establisher was not from the
minority community of India and was not the citizen of India. So, the university
cannot deny the admissions to the student on basis i.e. minority institutions have
reservation policy rights or to take their own decisions regarding admissions of
students.

1.3.The university is set up by legislature

12. As if any university is set up by state or central legislature and not by any
minority person then it will not be considered as a minority institution.
13. In the case, AzeezBashavUnion of India11, In 1877, the Muhammadan Anglo-
Oriental College at Aligarh(M.A.0. College) was started as a teaching institution
under the Allahabad University for the educational regeneration of Muslims
in India. Muslim University was then established by the Aligarh Muslim Act,
1920.The Act may have been passed as aresult of the efforts of the Muslim
minority, but that doesnot mean that the University, when it came into being
underthe 1920 Act was established by the Muslim minority. The conversion of
the M.A.O. College into the University was notby the Muslim minority. The
University was brought into being by the 1920 Act and must therefore be held to
have been established by the Central legislature. The amendments made by the
Acts of 1951 and 1965 were perfectly valid as there was no question of their
taking away the right of the Muslim minority to administer the Aligarh
University, for the minority not having established the University could not
claim the right to administer it.
14. Therefore, Muslim minority could not claim to administer it. It is not necessary
that the whole community must be involved in the establishment of an
educational institution. No degree granting institution can be established in India
without a statute. Accordingly, the validity of a statute regulating administrative
arrangements in the University couldnot be adjudged under Article 30(1).
15. It was further contended that the fact that under the provisions of the 1920-Act
the Court of the Aligarh University was, to be composed entirely of Muslims did

11
Azeez Basha v Union of India, AIR 1968 SC 662.

4
 16. not give any right to, the Muslim community as such to administer the University
which had been administered by the authorities established by the 1920-Act.12
17. The given university too was incorporated and established by the statute Act No.
21 of 1945 by the colonial legislature of Indicsthan and had many amendments
which are also made by the legislature's statute shows that the university was not
a minority educational institution but a university controlled, granted and
administered by the govt.
18. In Naresh Agarwal v Union of India13, the petitioners, who were Hindu Students
were denied admissions to P.G. Medical Courses in A.M.U. for the Session
2005-06, challenged the validity of rule, which declared the A.M.U. a minority
institution and allowed 50 percent reservation to Muslim students. The
Allahabad High Court held that A.M.U. was not a minority institution. The Court
struck down the amendment made to this effect in the statute of A.M.U. for
reservation of Muslim students. The court followed the Aziz Basha case14
wherein the Supreme Court had held that Aligarh Muslim University was
established by an act of Parliament not by any Muslim.
19. In P.A. Inamdarv State of Maharashtra15, The Court held that so long as the
institution retains its minority character by achieving and continuing to achieve
the objectives of (1) conservation of the minority’s religion and lang., and (2) the
giving of a thorough good general education to children belonging to such
minority, the institution would remain a minority institution.
20. Therefore, it will not be considered as a minority institution because the
establisher is not a resident of India and also the institution is set up by the statue
of Indicsthan.

2. THE AMENDING ACT DOES NOT OVERRULE THE PREVIOUS

JUDGEMENT
21. The legislature, under the Constitution, has power to legislate respectively as
well as prospectively. By such exercise of power, the legislature can

12
Azeez Basha v Union of India, AIR 1968 SC 662.
13
Naresh Agarwal v Union of India, 2005 (4) AWC 3745, 2005 (4) ESC 2489.
14
Azeez Basha v Union of India, AIR 1968 SC 662.
15
P.A. Inamdar v State of Maharashtra, (2004) 8 SCC 139.

5
 22. retrospectively remove the basis of a decision rendered by a competent Court,
thereby rendering that, decision ineffective. The power of legislature to remove
the defect which is the cause, for invalidating the law, by the appropriate
legislation is well recognized. However, such legislative power is to be exercised
in a manner that it would no more be possible for the court, to arrive at the same
verdict under the changed law.16
23. In other words, every premise of the earlier judgment should be degraded
thereby resulting in fundamental change of the basis upon which the earlier
judgment was founded. A decision of a Court of law has a binding effect unless
the very basis upon which it is made is so altered that the said decision would not
have been made in the changed circumstances. It is well settled that avalidating
Act may even make ineffective judgment and orders of the competent Court
provided, it by retrospective legislation removes the cause of invalidity or the
basis that has led to those decisions.17
24. However, the Hon'ble Supreme Court has specifically held that the legislature
cannot negate a prior judgment of the Constitutional Court of Law except by
legislative Acts, which alter the very basis of the earlier judgment. Any other
attempt would sound the death knell of the rule of Law.

16
Naresh Agarwal v Union of India, 2005 (4) AWC 3745, 2005 (4) ESC 2489.
17
Sri Prithvi Cotton Mills Ltd. v Broach Borough Municipality,(1969) 2 SCC 283: AIR 1970 SC 192; S.S.
Bola and others v B.D. Sardana, (1997) 8 SCC 522: AIR 1997 SC 3127; Dharam Dutt vUnion of India,(2004)
1 SCC 172: AIR 2004 SC 1295.

6
 By the subsequent legislative enactment of the Parliament following two issues
arise--first, what was the basis of the earlier decision; and second, what, if any,
may be said to be the removal of that basis.18
25. In the Constitutional Bench judgment of the Hon'ble Supreme Court in the matter
of Cauvery Water Dispute Tribunal19, it has held as follows,
“The principle which emerges from these authorities is that the legislature can
change the basis on which a decision is given by the Court and thus change the
law in general which will affect a class of persons and events at large. It cannot,
however, set aside an individual decision inter parties and affect their rights and
liabilities alone. Such an act on the part of the legislature amounts to exercising
the judicial power of the State and to functioning as an appellate court or
tribunal.”

26. In the case20, the Hon'ble Supreme Court has held that two questions ought to be
answered for judging as to whether the basis, upon which the earlier decision of
the Court was based, had been changed for the purposes of coming to a
conclusion that the earlier law declared by the Court is no more good law. The
questions are (a) what was the basis of the earlier decision, and (b) what if any
may be said to be the removal of that basis.
27. From the judgement of Azeez Basha21, the Hon'ble Supreme Court in this case22
held that the basis has not been so fundamentally altered so as to come to a
conclusion that if the amendments made under the 1981 Act had been there
before the Hon'ble Supreme Court at the time of decision of Azeez Basha23 the
judgment would have been otherwise.
28. The Court is of the opinion that the judgment of the Hon'ble Supreme Court in
the earlier case was based on over all consideration of the provisions of the Act

18
Bakhtawar Trust v M.D. Narayan, (2003) 5 SCC 298: AIR 2003 SC 2236.
19
Cauvery Water Disputes Tribunal, 1993 (1) SCC 96(2).
20
Bakhtawar Trust v M.D. Narayan, (2003) 5 SCC 298: AIR 2003 SC 2236.
21
Azeez Basha v Union of India, AIR 1968 SC 662.
22
Naresh Agarwal v Union of India, 2005 (4) AWC 3745, 2005 (4) ESC 2489.
23
Azeez Basha v Union of India, AIR 1968 SC 662.

7
 29. and the historical background, in which Aligarh Muslim University was brought
in existence. Such basis, on which the aforesaid judgment was founded has not
been so fundamentally altered under Act of 1981 so as to create a situation that
in the changed circumstances the Court could not have rendered said judgment.
30. Hence the act of amendment made by the legislature under its competence does
not overrule the previous judgment of Supreme Court given in case A.K
Prakasam v Hislim University. This judgment is still a good law and the
institution is not a minority institution.

3. THE ARTICLE 14 AND 29(2) ARE VIOLATED

3.1 ARTICLE 14 IS VIOLATED

28. Article 14 says, “The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India” 24. The concept of
equality, guaranteed in Article 14, as enshrined has made every one equal before
the law. The fundamental rights are guaranteed to minority and majority as well.
“According to Article 14 of the Constitution, all persons shall be equally
subjected to the law and that among equals; law shall be equal and shall be
equally administered. The underlying object of Article 14 is to secure to all
persons, citizens or non-citizens, the equality of status and opportunity referred
to in the preamble to our constitution”25.

29. Articles 15 and 16 prohibit discrimination only on certain grounds. Both these
Articles are guarantee against discrimination of any kind and it can be asserted
that no member of a minority community will be handicapped simply because he
belongs to any particular minority group. Thus, other things being equal,
minorities have every right in India to be appointed to any public office, however
high; they have a common citizenship and these rights along with their cultural
and educational rights will go long way in safeguarding the interests of
minorities.

24
Pandey J.N. Dr., Constitutional Law of India, Central Law Agency, 43rd edition 2006.
25
Jain, MP, Indian Constitutional Law, Eighth edition.

8
 30. Basically, Article 14 forbids the class- legislation but it does not forbid
reasonable classification. The classification, however, must not be arbitrary,
artificial or evasive but must be based on some real and substantial distinction
bearing a just and reasonable relation to the object sought to be achieved by the
legislation. Article 14 applies where equals are treated differently without any
reasonable basis.

31. These two Mundu students also falls under reasonable classification. As there is
test to see where it will apply.
Test for reasonable classification
The classification must not be arbitrary, artificial or evasive. It must always rest
upon some real and substantial distinction bearing a just and reasonable relation
to the object sought to be achieved by the legislature. Classification to be
reasonable must satisfy two conditions-
(1) The classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of
the group.
(2) The differentia must have a rational relation to the object sought to be achieved
by the act.

32. The differentia which is the basis of the classification and the object of the Act
are two distinct things. What is necessary is that there must be nexus between
the basis of classification and the object of the Act which makes the
classification. It is only when there is no reasonable basis for a classification
that legislation making such classification may be declared discriminatory.

33. It is held in Islamic Academy of Education and Another v State of Karnataka

and Others26, that the concept of equality is not a doctrinaire approach. It is a
binding thread which runs through the entire constitutional text. An
affirmative action may, therefore, be constitutionally valid by reasonable
articles 15(4) and 16(4) and various directive principles of state policy, but the
court cannot ignore the constitutional morality which embraces in itself the
doctrine of equality. It would be constitutionally immoral to perpetuate

26
Islamic Academy of Education and Another v State of Karnataka and Others, AIR (2003) 6 SCC 697.

9
 inequality among majority people of the country in the guise of protecting
constitutional rights of minorities and constitutional rights of the backward
and downtrodden. All the rights of these groups are part of the right to social
development which cannot render national interest and public interest
subservient to right of an individual or right of the community. If a measure
tends to perpetuate inequality and makes the goal of equality a mirage, such
measure should not receive the approval of the court. The court, in such
circumstances, has to mould the relief by indicating what would be the
reasonable measure or action which furthers the object of achieving equality.

34. In St. Stephen's College v University of Delhi27, considered technical profession

in general and medical profession in particular in all countries and in all ages
have been considered to be a noble profession. To acquire excellence, these
professions demand a very high calibre, which criterion can be satisfied only
by the meritorious students. If one wants to attain high standard and maintain
uniformity of standard, the right of selection of candidates for any professional
course cannot be left to the discretion of any individual management and there
must be single standard for all the institutions.

35. So far as the minority institutions are concerned, the merit criterion would have
to be judged like a pyramid. At the kindergarten, primary, secondary levels,
minority may have 100% quota. At this level merit may not have much
relevance at all but at the level of higher education and in particular,
professional education and postgraduate-level education, merit indisputably
should be a relevant criterion. At the post-graduation level, where there are few
seats, the minority institutions may not have much say in the matter.

36. In Suneel Jatley v State of Haryana28, the reservation of 25 seats for admission
to M.B.B.S and B.D.S. course for students who were educated from classes I to
VIII in common rural schools was held to be violative of Article 14 and invalid
as the classification between the rural educated and urban educated students for
this purpose was wholly arbitrary and irrational having no nexus to the object

St. Stephen’s College vUniversity of Delhi, (1992) 1 SCC 558.

27
28
Suneel Jatley v State of Haryana, (1984) 4 SCC 296.

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 sought to be achieved of providing extra facilities to students coming from
rural schools to enter medical college. The same govt. prescribes standards of
education, equipment, grants and facilities including the qualification of the
staff for being employed in urban and rural schools imparting instructions from
first to eight standards. Thus, all the students if classes IX to XII, those coming
from rural schools and those from urban are similarly placed yet there are
artificially divided by a reference to a part even wholly unrelated to the object
sought to be achieved and hence the reservation based on such classification
was held to be constitutionally invalid.

37. In Nishi Maghu v State of J. & K.29, the Court held that the classification made
on the basis of regional imbalance was vague in absence of identification of
areas suffering from such imbalance and accordingly selection of candidates
for admission to MBBS course form this category was arbitrary and violative
of Article 14 of the constitution and hence invalid. The order creating this
category did not identify the areas which suffer from imbalance nor did it
supply any guidelines for the selection by Committee. But as regards selection
of candidates on the basis of ‘social castes’ the Court held that the
classification was valid as it was based on nature and occupation and not on
‘caste’ and does not offend Article 14 or 15.

38. In Hislim University also the admission policy was based on the reservation of
50% seats to the Hislim candidates. Therefore, the policy is violating the
Article 29(2) which says no student should be denied admission on basis of
religion, caste, sex etc but in Hislim university the admission policy was
completely based on religion and hence discriminating the rights of other caste
students.

39. In case30 it was held;

The professional institutions are indisputably being governed by statutes like

MCI Act, the AICTE Act and the UGC Act. In terms of the provisions of the
statutes and regulations framed thereunder, the professional institutions are
required to maintain certain standards. They cannot be deviated or departed

29
Nishi Maghu v State of J. & K., AIR 1980 SC 1975.
30
Azeez Basha v Union of India, AIR 1968 SC 662.

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 from. In the context of giving admissions to meritorious students, it cannot be
said that students belonging to the minority community shall be admitted
without reference to merit. Courts would not encourage establishment of
pseudo-minority institutions imparting professional courses. The statutory rules
and regulations, thus, must be equally applied to all the professional
institutions whether aided or unaided, whether run by a minority or a non-
minority. In the matter of maintenance of these institutions must be equally
treated.
40. In the University the admission policy made is of professional medical post
graduate course and hence there is arbitrariness. All the students should be
admitted on the basis of merit and there should be equality which is violated in
this admission policy of the University.

3.2 THE ARTICLE 29(2) IS VIOLATED

41. As Article 29 is related to cultural and educational rights of minorities. It is
defined
"Article 29: Protection of interest of minorities.
(1) Any section of the citizensresiding the territory of India or any part thereof
having a distinctlang., script or culture of its own shall have the right to
conserve the same.
(2) No citizen shall be deniedadmissioninto any educationalinstitutionmaintained
by the State or receivingaid out of State funds on grounds only of religion,
race, caste, lang. or any of them"31.

42. Article 29(2) prohibits discrimination in matters of admission into educational

institutions on grounds only of religion, race, caste, lang. or any of them. This
provision guarantees the rights of individual irrespective of the community to
which he or she belongs.

The right guaranteed under this Article is not restricted to minorities but extends to
all citizens whether belonging to majority or minority.

31
Shukla, V N, Constitution of India, Eastern Book Company, 13th Edition.

12
 43. In the case State of Bombay v Bombay Educational Society32, Education Society
of Bombay has been running a recognised Anglo-Indian School called Barnes
High School at Deolali which receives aid from the State of Bom. J and G are
its Directors. English is used in the said school as the medium of instruction.The
mother tongue of the Anglo-Indians is English. The State of Bombay issued a
circular order on 6th Jan., 1954, headed “Admission to Schools teaching
through the medium of English”. Later on, the one person comes for admission
and denied because his mother tongue is Gujrati. So, the supreme court struck
down an order of the Bombay Govt. banning admission of those whose lang. is
not English into schools having English as a medium of instruction because it
denied admission solely on the ground of lang.The order, the court said, would
not be valid, even if the object for making it was the promotion or advancement
of national lang.

44. Article 29(2) is broad and unqualified. It confers a special right on all citizens
for admission into the state maintained or aided educational institutions. To
limit this right only to minority groups will amount to holding that the citizens
of the majority group have no right to be admitted into an educational institution
for the maintenance of which they contribute by way of taxes33.

45. In Sankalp Institute of Education v State of U.P.34,the right to establish and

administer educational institution of their choice included the procedure and
method of admission and selection of students.A minority institution may have
its own procedure and method of admission as well as selection of students, but
such a procedure must be fair and transparent, and the selection of students in
professional and higher education colleges should be on the basis of merit. The
procedure adopted or selection made should not be tantamount to mal-
administration. Even an unaided minority institution ought not to ignore the

32
State of Bombay v Bombay Educational Society, AIR 1954 SC 561.
33
State of Bombay v Bombay Educational Society, AIR 1954 SC 561.
34
Sankalp Institute of Education v State of U.P.,2016 SCC All 1145:ALR (SUM 46).
13
 merit of the students for admission, while exercising its right to admit students
to the colleges aforesaid, as in that event, the institution will fail to achieve
excellence. Thus, “merely, because Article 30(1) has been enacted, minorities
educational institutions do not become immune from the operation of regulatory
measures because the right to administer does not include the right to
maladministration”. Here, in the case, the Hislim University is causing mal-
administration by including the biased process of admission. Thus, along with
the article 29(2), it is violating the article 30 as well.

46. In State of Madras v Champakam35,The communal GO of the State of Madras

allotted seats in medical and engineering colleges in the State proportionately to
the several communities. A candidate belonging to majority community, who
could not be admitted to an engineering college challenged the GO as being
inconsistent with article 29(2). The supreme court held that the classification in
the GO was based on religion, race and caste which is inconsistent with article
29(2).

47. In Hislim University also these students were denied admissions on the basis of
different community and religions they belong.

35
State of Madras v Champakam,AIR 1951 SC 226.
14
 PRAYER

Wherefore, in the light of the facts presented, issues raised, arguments advanced and
authorities cited, it is most humbly prayed before the Hon’ble Supreme court that if may be
adjudge and declare that:

1. the admission to the Mundu students in the university should be given as article 30
does not give them any right to make reservations.
2.Previous judgment is a good law and the amending act does not overrule it.

And pass any other order, direction or relief that the court may deem fit in the best interests
of 'Justice, Equity and Good Conscience.'

For this act of kindness, the petitioner shall duty bound forever prays.

SD/-

COUNSELS FOR PLAINTIFF

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