RGNUL Intra Memo 2018

TEAM CODE: GI- 07.

RGNUL INTRA MOOT COURT COMPETITION, 2018

Before

THE SUPREME COURT OF INDICSTHAN
ORIGINAL WRIT JURISDICTION
CASE FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICSTHAN
W.P. NO(s). ____/2018
In the matter of
PRATAP BHANU MEHTA & Ors. ...........................................................……. PETITIONER
V.
UNION OF INDIA.................................................................……….……...…RESPONDENT
Most Respectfully Submitted before the Hon’ble Chief Justice of the Supreme Court of
Indicsthan and other Judges of the Supreme Court of Indicsthan
MEMORIAL ON BEHALF OF THE PETITIONER

DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONER
THE RGNUL INTRA MOOT COURT COMPETITION, 2018
TABLE OF CONTENTS
LIST OF ABBREVIATIONS................................................................................................................. I
INDEX OF AUTHORITIES ................................................................................................................ II
STATEMENT OF JURISDICTION ..................................................................................................... IV
STATEMENT OF FACTS ................................................................................................................... V
ISSUES RAISED ..............................................................................................................................VII
SUMMARY OF ARGUMENTS ....................................................................................................... VIII
BODY OF ARGUMENTS ................................................................................................................... 1
I. THAT THE INSTITUTION ENSCONCED BY THE HISLIM COMMUNITY IS NOT A MINORITY

INSTITUTION ............................................................................................................................... 1
A. Hislim University has been established by the colonial legislature and not by
minority community ........................................................................................................... 1
B. Hislim University is a body incorporate and not a citizen or group to avail the
fundamental right under Art. 30 of the constitution of Indicsthan. .......................... 2
C. Hislim University was run and administered by both Hislims and Non-Hislims. . 3
II. THAT THE LEGISLATURE CANNOT OVERRULE THE JUDGMENT BY THE SUPREME
COURT IN THE CASE OF A.K. PRAKASAM V. UNION OF INDIA. .............................................. 5
A. Basis of Legislation failed to change the basis through which the judgment was
derived ................................................................................................................................... 5
B. The Power to amend the statutory provisions cannot be extended to such an

extent so as to create a situation whereby legislative Act declare constitutionally
valid, could be rendered unconstitutional by subsequent legislative enactment.... 6
III. THAT THE RESERVATION PROVIDED TO THE HISLIM STUDENTS WAS IN

CONTRAVENTION OF THE CONSTITUTION. ............................................................................ 10
A. That the reservation of 50% seats for internal and external candidates being only
Hislim is Invalid. ...............................................................................................................11
B. That Article 30(1) is subject to the limitation imposed by Article 29(2) ..............12
PRAYER ........................................................................................................................................... X
LIST OF ABBREVIATIONS
S. NO. ABBREVIATION EXPANSION
1. Hon’ble Honorable
2. ¶ Paragraph
3. Anr. Another
4. FR Fundamental Rights
5. A.I.R All India Reporter
6. Ors. Others
7. PIL Public Interest Litigation
8. Art. Article
9. ABR All India Reports-
Bombay High Court
Reports
10. SCC Supreme Court Cases
11. UOI Union of India
12. SCs, STs, Scheduled Castes,
OBCs Scheduled Tribes, Other
Backward Classes
13. KHC Kerala High Court
14. SCR Supreme Court Reporter
15. SC Supreme Court
16. Ind. Indicsthan

17. Prop Proposition
i|Page
MEMORANDUM ON BEHALF OF PETITIONER
INDEX OF AUTHORITIES
 CASES
1. A.K. Prakasam v. Union of India, ¶ 4 Moot Prop. ................................................................ 6, 7
2. Ahmedabad St. Xavier’s College Society v. State of Gujarat, MANU/SC/0088/1974 ........... 11
3. Aligarh Muslim University v. Malay Shukla, MANU/UP/0079/2006 ...................................... 3
4. Azeez Basha & ors. v. Union of India, AIR 1968 SC 662 .................................................. 3, 11
5. Bakhtawar trust v. M.D. Narayan, (2003) 5 S.C.C. 298 (India) ....................................... 6, 6, 8
6. Bharti Vidyapeeth (Deemed University) and Ors. v. S.O. M.H., AIR 2004 SC 1943 ............ 13
7. Cauvery Water Dispute Tribuna, AIR 1993 Supp (1) SCC 96 (2) ................................... 6, 8, 9
8. D.A.V College v. State of Punjab (I), AIR 1971 SC 1731 ...................................................... 11
9. Dharam Dutt v. Union of India, (2004) 1 SCC 712 .............................................................. 4, 7
10. Dr. Naresh Agarwal v. Union of India and Ors., 2005 S.C.C. OnLine All 1705. .......... 3, 9, 12
11. Jagdish Saran v. Union of India, MANU/SC/0067/1980 ................................................. 11, 12
12. Kerala Education Bill, AIR 1958 SC 956 ............................................................................... 12
13. Meerut Development Authority v. Satya Veer Singh, (1997) All LJ 111 (India). ..................... 6
14. P. Sambha Murthy v. State of Andhra Pradesh,(1987) 1 SCC 362 .......................................... 7
15. People's Union for Civil Liberties (PUCL) v. U.O.I, (2003) 4 S.C.C. 399 (India). .............. 6, 7
16. S.P Mittal v. Union of India, AIR 1983 SC 1.......................................................................... 11
17. S.S. Bola v. B.D. Sardena, (1997) 8 S.C.C. 522 (India). ....................................................... 6, 7
18. Sri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality AIR 1970 SC 192 ................... 7
19. St. Stephen’s College v. University of Delhi, MANU/SC/0319/1992 ............................. 4, 5, 13
20. State of West Bengal v. Subodh Gopal Bose, MANU/SC/0018/1953..................................... 12
21. T.M.A Pai Foundation v. State of Karnataka, MANU/SC/0905/2002 ............................. 2, 4, 5
ii | P a g e
22. The State of Madras v. Srimathi Champakam Dorairajan, MANU/SC/0007/1951 ................. 5
23. Trading Corporation of India Ltd. v. Commercial Tax Officer, AIR 1963 SC 1811 ..................... 2
 STATUTES
1. THE CONSTITUTION OF INDIA, 1950.
2. ALIGARH MUSLIM UNIVERSITY ACT, 1920.
3. ALIGARH MUSLIM UNIVERSITY (AMENDMENT) ACT, 1981.
4. THE SOCITIES REGISTRATION ACT, 1860.
 BOOKS
1. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, ED. 14, 2015.
2. V.N. SHUKLA, CONSTITUTION OF INDIA, EASTERN BOOK COMPANY, ED. 12, 2013.
3. M.P JAIN, INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS, ED. 7, 2016.
 DICTIONARY CONSULTED
1. A CONCISE DICTIONARY OF LAW 197 (1983).
2. BLACKS’ LAW DICTIONARY (9TH ED. 2009).
3. P. RAMANATHA AIYAR, ADVANCED LAW LEXICON (3RD ED. 2005).
iii | P a g e
STATEMENT OF JURISDICTION
THE PETITIONERS, PRATAP BHANU MEHTA & ORS., HUMBLY SUBMITS THIS MEMORANDUM FOR THE
PETITION FILED BEFORE THIS HONOURABLE COURT WHEREIN THE PETITIONER INVOKES THE WRIT
JURISDICTION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICSTHAN. IT SETS FORTH THE FACTS
AND THE LAWS ON WHICH THE CLAIMS ARE BASED.
iv | P a g e
STATEMENT OF FACTS
~ BRIEF FACTS ~
1. Indicsthan is a secular democratic republic in Asia with a total population of 100 crores. In
the southern state of Deccan Pradesh there is a numerically strong and substantially wealthy
religious minority of Hislims who constitute 25% of the state population.
2. In 1904, a Hislim leader and missionary Hisli ul Singh, alongwith his local friends,
established a college called Anglo Hislim College at Kashi district of Deccan Pradesh to
provide English education to all members of the society, including members of his own faith.
3. Hisli ul Singh was a foreign national born in Zeeran and remained a citizen of Zeeran till his
death. It was registered under the Societies Registration Act, 1860 and was affiliated to
University of Deccan for the award of degrees. Hislim leadership expressed its desire to
obtain the status of a University so as to enable it to issue its own degrees.
~ EVOLUTION OF SOCIETY INTO UNIVERSITY~
4. 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 the 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 registered
under the Societies Registration Act, 1860, which are respectively known as the
Anglo Hislim College and to transfer to and vest in the said University all
properties and rights of the said College.”
5. 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;"
v|Page
6. Later, 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.
Thus,by the said amendments, Non-Hislims could also become members of the Court. Some
other amendments were made in the staute by Indicsthan’s Parliament in 1964 and 1965.
These resulted in grave uproar amongst the members of Hislim community. 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. 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.
~ FACTS LEADING TO THE DISPUTE ~

7. In 2005 the University changed its admission policy and for admission to Post Graduate
Medical Courses of Hislim University three modes were determined:
a) 25% of the total seats to be filled by the “All Indicsthan Entrance Examination”;
b) The remaining 75% of the total seats have been divided to be filled as follows:
i. 25% of the total seats are required to be filled by“Entrance Examination for
Internal Candidates”; and
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 which are required to be filled from
internal as well as external candidates have been reserved for Hislim
candidates only by the Admission Committee.
~DISPUTE~
8. Two Mundu students who graduated from the University have filed the present petition in
Supreme Court of Indicsthan claiming violation of Articles 14 and 29(2) of the Constitution.
The reservation of 50% so made by the Hislim University in favour of Hislim candidates
only on the strength of it being a minority University and, consequently, entitled to the
benefit of Article 30 of the Constitution of India is the bone of contention between the parties
and has given rise to the present petition.
vi | P a g e
ISSUES RAISED
I. THAT THE INSTITUTION ENSCONCED BY THE HISLIM COMMUNITY IS NOT A

MINORITY INSTITUTION
COURT IN THE CASE OF A.K. PRAKASAM V. UNION OF INDIA.

CONTRAVENTION OF THE CONSTITUTION.
vii | P a g e
SUMMARY OF ARGUMENTS

MINORITY INSTITUTION
It is respectfully submitted that the Hislim University is not a Minority Institution as it

has been established by a Colonial legislation, namely Act no. 21 of 1945 and not the
minority community as it was claimed. Although, efforts made by the Hislim Community
cannot be ignored, but, the establishment of a University took place because of a piece of
legislation. Further, for a University to be of Minority Character, the same needs to be
established and administered by the Minority, but by way of a prior amendment to the
Act, even non- Hislims could become the part of Court, therefore, the University was
administered by both Hislims and Non Hislims.
It is further submitted that the legislation cannot overrule the judgment of the Hon’ble
Supreme Court in the case of A.K. Prakasam v. Union of India as it has failed to change
the basis through which the judgment was derived. In a plethora of judgments is has been
specifically held that the legislative Acts, which alter the very basis of the earlier
judgment. Any other attempt, like in the present case has happened would sound the
death knell of the rule of law.

It is humbly submitted that the Respondent, Hislim University has made a blatant
violation of the Constitution of Indicsthan by providing for 50% reservation in Post
Graduate Medical Courses in respect of Hislim Candidates only. Providing for such
arbitrary reservation is violative of Art. 14, as it is the primary imperative to provide for
equal opportunity for all across the nation for education and advancement. It has been
noted that the Hislim University is not a minority institution and therefore cannot claim
viii | P a g e
benefit under Art. 30(1). The amendment made so as to declare Hislim University is hit
by Art. 29(2) of the Constitution and as such cannot be legally sustained.
ix | P a g e
BODY OF ARGUMENTS

MINORITY INSTITUTION.
1. The Counsel on the behalf of Petitioners Humbly submits before the Hon’ble Court of
Law that the Anglo Hislim College i.e. the Hislim University is not a Minority Institution
owing to:
[A] That the same has been established by the central legislature,
[B] That the same Institution is a Body corporate and cannot avail Fundamental Right’s
under Article 30 of the Constitution of Indicsthan,
[C] That the same Institute was run and administered by both Hislims and Non-Hislims.
A. HISLIM UNIVERSITY HAS BEEN ESTABLISHED BY THE COLONIAL LEGISLATURE
AND NOT BY MINORITY COMMUNITY
2. In 1945 the Colonial Legislature of Indicsthan enacted a statute Act No. 21 to give Anglo
Hislim College the status of a University i.e. Hislim University.1 It is clear that the Hislim
University is the nucleus of the Anglo-Hislim College at Kashi which was established by
Hisli Ul Singh a Hislim leader2, but the conversion of the same college i.e. Anglo Hislim
College to Hislim University was not done by Hislim Minority but by the act of the
central legislature at that time by an act passed in 1945. There was no Hislim University
existing before the 1945 act was passed. There can be no questions asked to the fact that
the 1945 statute was passed by the efforts of Hislim Minority but the same was passed by
the Central Legislature and not the Hislim Minority. The statute passed by the Colonial
Legislature clearly states that the University was established by Parliament and not by the
Hislim minority.
1
¶ 3, Moot Prop.
2
¶ 2, Moot Prop.
1|Page
3. Art. 30(1) which protects educational institutions brought into existence and administered
by the minority cannot be of much help to the defendants here as the University was
brought into existence by the act of Statute i.e. Parliament. It was held in the case of
Azeez Basha & ors. v. Union of India3 that a University established by the Act of Central
Legislature cannot be deemed to be a minority institute and hence they cannot claim
protection under Art. 30 nor do they have protection under Article 30 of the Constitution
of Indicsthan.
4. Correspondingly, in the case of Dr. Naresh Agarwal v. Union of India4, an analogous

situation arose with respect to the Aligarh Muslim University and the same was also
established by the Act passed by the legislature and as a consequence the University was
held not to be a Minority Institute, here, reliance can be given to the case of Azeez
Basha5. High Reliance has also been placed on the case of Aligarh Muslim University v.
Malay Shukla6 which ratified the Judgement of Azeez Basha7 and held that the same Act
as an Act of Central Legislature and not the Minority Community and hence, the Hislim
University should not be considered a Minority Institute and it is not covered under the
educational institutes established and administered by the Minority Community under
Art. 30 of the Constitution of Indicsthan.
B. HISLIM UNIVERSITY IS A BODY INCORPORATE AND NOT A CITIZEN OR GROUP TO

AVAIL THE FUNDAMENTAL RIGHT UNDER ART. 30 OF THE CONSTITUTION OF
INDICSTHAN.
5. It is humbly submitted before the Hon’ble court that in Azeez Basha8 as well as Dr.
Naresh Agarwal,9 the Hon’ble S.C has taken note of the fact that the foundation of the
Aligarh Muslim University lay in the M.A.O College as well as in the Muslim University
3
Azeez Basha & ors. v. Union of India, MANU/SC/0039/1967: AIR 1968 SC 662.
4
Dr. Naresh Agarwal v. Union of India, MANU/UP/1370/2005: 2005 4 AWC 3745 All.
5
Supra, Note 3.
6
Aligarh Muslim University v. Malay Shukla, MANU/UP/0079/2006: (2006) ILR 1ALL 13.
7
Supra, Note 3.
8
Ibid.
9
Supra, Note 4.
2|Page
Association. Thereafter, having regard to Sections 3, 4 and 6 read with other sections of
the Act,10 whereby AMU was declared to be a body corporate having perpetual
succession and a common seal, it has been held that the AMU was a statutory body
distinct from its members, who had contributed to incorporation of the same.
6. The Hislim University was declared as Body Incorporate, having Perpetual Succession
and Common Seal, Hislim University being a separate statutory body different from its
members who helped in its Incorporation.11 It was Held, in the case of Dharam dutt v.
Union of India12 and Trading Corporation of India Ltd. v. Commercial Tax Officer13 that
with Incorporation, the Corporate Body becomes a legal entity separate from its
members. Fundamental rights which are available to citizens (Article 19, 29 and 30)
under the Constitution of Indicsthan, are not available to Body incorporates, as they do
not fall in the category of citizen. Hislim University was formed by the Act no. 21, 1945
and the same made it a Legal juristic person14, therefore, as such it cannot claim the
Fundamental Rights guaranteed for Citizens under Art. 30 of neither the Constitution of
Indicsthan nor the members of the Minority community can ask for such right in respect
of a body incorporated. Hence, it cannot claim the FR’s under Art. 30 of the constitution
of Indicsthan and consequently it cannot be classified as a Minority Institution.
C. HISLIM UNIVERSITY WAS RUN AND ADMINISTERED BY BOTH HISLIMS AND NON-
HISLIMS.
7. It is humbly submitted that the University Act of 1945 which established the University
was enacted by the Colonial Legislature and the same Act also said that the
administration of the University was vested in officers and bodies constituted under the
Act itself i.e. Academic Council, Chancellor, Pro-Chancellor etc.15 For a university to be
10
ALIGARH MUSLIM UNIVERSITY ACT, 1920.
11
Aligarh Muslim University’s laws are in pari materia to that of the Hislim University.
12
Dharam Dutt v. Union of India, (2004) 1 SCC 712.
13
State Trading Corporation of India Ltd. v. Commercial Tax Officer, AIR 1963 C 1811.
14
Aligarh Muslim University’s laws are in pari materia to the Hislim University.
15
¶ 3, Moot Prop.
3|Page
Minority Institution the same needs to be established and administered by the

Minority16 as mentioned in Art. 30 of the Constitution of Indicsthan. Later on, in 1951 a
subsequent change was made wherein the members of the Court which were meant to be
only Hislims, was deleted and now Non-Hislims could also become members of the
Court.17 So the Hislim University was administered by both Hislims and Non Hislims.
8. Moreover, in the case of Azeez Basha18 it was held that the Aligarh Muslim University
was established by the Central Legislation and the same cannot be administered by
Muslims and hence the University cannot be held as a minority institution, It is
worthwhile to note that as the Hislim University is being established by the colonial
legislature and not by the hislim minority the same cannot be established and
administered by the Hislim Minority and for an institution to be a Minority Institution, it
needs to be both “ESTABLISHED and ADMINISTERED” by the minority19. Also, in the
cases of TMA Pai Foundation & Ors vs State of Karnataka20 and St. Stephen’s College vs
University of Delhi21, it was said that Art. 30(1) consists of two rights:
(i) Right to establish, (ii) Right to administer, and both the rights are to be read
conjunctively.
9. Consequently, in the light of the arguments advanced above, it is submitted that the
Hislim University was administered by statutory bodies that had members of both Hislim
and Non- Hislim Community and for this reason it does not cover under Art. 30(1) of the
Constitution of Indicsthan and hence, is not a Minority Institution.
16
Art. 30, CONSTITUTION OF INDIA, 1950
17
¶ 4, Moot Prop.
18
19
Supra, Note 16.
20
T.M.A Pai Foundation v. State of Karnataka, MANU/SC/0905/2002: AIR 2003 SC 355.
21
St. Stephen’s College v. University of Delhi, MANU/SC/0319/1992: AIR 1992 SC 1630.
4|Page
A. BASIS OF LEGISLATION FAILED TO CHANGE THE BASIS THROUGH WHICH THE
JUDGMENT WAS DERIVED
10. It is humbly submitted before the Hon;ble Court that the legislature cannot overrule the
judgment of the Hon’ble Supreme Court in the case of A.K. Prakasam v. Union of India22
as it has failed to change the basis through which the judgment was derived.
11. With reference to the judgments in the case of People's Union for Civil Liberties
(PUCL) v. Union of India23, Bakhtawar Trust v. M.D. Narayan24, S.S. Bola v. B.D.
Sardena25, Meerut Development Authority v. Satya Veer Singh26, as well as in the much
debated matter of Cauvery Water Dispute Tribunal27, it is submitted that the Legislative
power cannot be extended so as to overreach/ reverse the decision of the Court of law.
12. The legislature, under the Constitution, has power to legislate retrospectively as well as
prospectively. By such exercise of power, the legislature can 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.
13. Conversely, 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. In other
words, the very premises of the earlier judgment should be degraded thereby resulting in
fundamental change of the basis upon which the earlier judgment was founded. It is to be
noted that in the present case, the Hon’ble Court in the case of A.K. Prakasam v. Hislim
22
¶ 4, Moot Prop.
23
People's Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 S.C.C. 399 (India).
24
Bakhtawar Trust v. M.D. Narayan, (2003) 5 S.C.C. 298 (India).
25
S.S. Bola v. B.D. Sardena, (1997) 8 S.C.C. 522 (India).
26
Meerut Development Authority v. Satya Veer Singh, (1997) All LJ 111 (India).
27
Cauvery Water Dispute Tribunal, AIR 1993 Supp (1) S.C.C. 96 (India).
5|Page
University arrived on the conclusion that Hislim University is not a minority institution
on the grounds that it was not established by the minority28.
14. 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 a validating 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.29
15. 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, as has been observed by the Hon'ble Supreme Court in the following
decisions.30
B. THE POWER TO AMEND THE STATUTORY PROVISIONS CANNOT BE EXTENDED TO

SUCH AN EXTENT SO AS TO CREATE A SITUATION WHEREBY LEGISLATIVE ACT
DECLARE CONSTITUTIONALLY VALID, COULD BE RENDERED UNCONSTITUTIONAL
BY SUBSEQUENT LEGISLATIVE ENACTMENT.
16. In view of the aforesaid judgments of the Hon'ble Supreme Court for judging as to
whether the earlier judgment of the Hon'ble Supreme Court has been rendered
inoperative or no more good law by the subsequent legislative enactment of the
Parliament following two issues arise—
 First, what was the basis of the earlier decision; and
28
CLARIFICATION NO. 14, PAGE 2.
29
Sri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, ((1969) 2 SCC 283 : AIR 1970 SC 192);, S.S.
Bola v. B.D. Sardana, (1997) 8 SCC 522 : AIR 1997 SC 3127;, Bakhtawar trust v. M.D. Narayan, ((2003) 5 SCC
298 : AIR 2003 SC 2236); Dharam Dutt v. Union of India, ((2004) 1 SCC 712 : AIR 2004 SC 1295).
30
People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 : AIR 2003 SC 2363 (¶ 34), P. Sambha
Murthy v. State of Andhra Pradesh, (1987) 1 SCC 362 & Dharam Dutt v. Union of India, reported in (2004) 1 SCC
712 : AIR 2004 SC 1295.
6|Page
 Second, what, if any, may be said to be the removal of that basis. (Reference 4 - ¶
27 of Bakhtawar Trust Case31.
17. In the Constitutional Bench judgment of the Hon'ble Supreme Court in the matter
of Cauvery Water Dispute Tribunal32, it has held as follows:
“THE PRINCIPLE WHICH EMERGES FROM THESE AUTHORITIES IN 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 PARTES 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.”
18. From the aforesaid judgment of the Hon'ble Supreme Court it is to be seen as to whether
the conclusion about establishment of the Hislim University is solely based upon the
interpretation of provisions (which have since been amended) of the Hislim University
Act, 1945, as were existing on the date of consideration or is based upon various factors
and over all reading of the Act itself.
19. If the answer to the question is that the findings are based solely on the provisions (which
have since been amended) of the Hislim University Act, 1945 33, as they then stood the
counsel for the respondents would be justified in contending that the foundation of the
judgment has since been amended/removed by the Parliament, by means of the
Amending Act of 1981, and, therefore, the law laid down by the Hon'ble Supreme Court
in the case of Azeez Basha34 no more holds good.
31
Bakhtawar trust v. M.D. Narayan, ((2003) 5 SCC 298 : AIR 2003 SC 2236).
32
Cauvery Water Dispute Tribunal, AIR 1993 Supp (1) SCC 96 (2).
33
ACT NO. 21 OF 1945, ¶ 4, Moot Prop.
34
Supra, Note 18.
7|Page
20. To that extent the amendment made by the Parliament cannot be said to be a brazen
overruling of the judgment of the Hon'ble Supreme Court. It is only at that stage the
Court has to be seen as to whether the amendments made by the Act of 1981 so
fundamentally alter the basis/foundation of the judgment of the Hon'ble Supreme Court
in the case of Azeez Basha35 or not?
21. In the opinion of the Court the power to amend the statutory provisions cannot be
extended to such an extent so as to create a situation whereby legislative Act, declare
constitutionally valid, could be rendered unconstitutional by subsequent legislative
enactment.36
22. In view of the facts noticed and conclusions arrived by the Hon'ble Supreme Court in the
case of Azeez Basha37 qua the Aligarh Muslim University being brought in existence, it
cannot be said that the said decision was solely based on the interpretation of the
statutory provisions, so as to enable the legislature to declare vide Section 2(1) that the
Aligarh Muslim University has been established by the Muslim minority.
23. The declaration in that regard under Section 2(1)38 is on the fact of it is an attempt to
negate the judgment of the Hon'ble Supreme Court specifically when such declaration
has been made without altering the foundation/basis on which the judgment in the case
of Azeez Basha39 was based. Section 2(1) has the effect of setting aside an individual
decision inter parte. Such an Act on the part of the legislature amounts to exercise of
judicial power, and functioning as an Appellate Court or Tribunal. Reference-Judgment
of the Hon'ble Supreme Court in the case of Cauvery Water Tribunal40 (supra).
35
Ibid.
36
Dr. Naresh Agarwal v. Union of India and Ors, MANU/UP/1370/2005: 2005 4 AWC 3745 All.
37
Supra, Note 18.
38
ALIGARH MUSLIM UNIVERSITY (AMENDMENT) ACT, 1981, ACT NO. 62 OF 1981.
39
Supra, Note 18.
40
Supra, Note 27.
8|Page
24. Section 2(1) (as amended)41 “UNIVERSITY” means *the educational institution of their
choice established by the Muslims of India, which originated as the Muhammadan
Anglo-Oriental College., Aligarh and which was subsequently incorporated as the
Aligarh Muslim University.
41 Ibid.
9|Page

25. It is humbly submitted by the Plaintiff’s that the Respondent, Hislim University has made
a blatant violation of the Constitution of Indicsthan by providing for 50% reservation in
Post Graduate Medical Courses in respect of Hislim candidates only. Providing for such
arbitrary reservation for Hislim candidates is violative of Art. 14 of the Constitution and
it should be noted that the primary imperative of Article 14 is equal opportunity for all
across the nation for education and advancement as pointed out by Justice Krishna Iyer 42,
“THIS HAS BURNING RELEVANCE TO OUR TIMES WHEN THE COUNTRY IS GRADUALLY BEING
BROKEN UP INTO FRAGMENTS BY NARROW DOMESTIC WALLS” by surrender to narrow
parochial loyalities. Institutions must be educational institutions of the minorities in truth
and reality and not mere masked phantoms like Hislim University which was never set
up by the minority as claimed and instead was the creation of legislation...
26. Here, the Hislim University has unlawfully denied admission to meritorious students by
way of a resolution of the Admission Committee/ Executive Council.43 It has been noted
above that the Hislim University is not a Minority University as under Art. 30 of the
Constitution and it not fundamental on the part of the University to provide such
reservation which denies other students. In order to claim the benefit of Art. 30(1), the
community must show that: (A) that it is a religious44 or linguistic minority45 & (B) that
the institution was established by it.46 Without satisfying these two conditions, it cannot
be claim the guaranteed right to administer it (which circumscribes the right to admit
students).47 If these two conditions are satisfied, which are apparently not wholly being
satisfied in the present case of Hislim University... for it were being satisfied, only in
those cases the right provided in 30(1) extends to institutions like AMU, Hislim
42
Jagdish Saran v. Union of India, MANU/SC/0067/1980: [1980] 2SCR831.
43
¶ 5, Moot Prop.
44
D.A.V College v. State of Punjab (I), AIR 1971 SC 1731.
45
S.P Mittal v. Union of India, AIR 1983 SC 1.
46
47
Ahmedabad St. Xavier’s College Society v. State of Gujarat, MANU/SC/0088/1974: [1975] 1 SCR 173.
10 | P a g e
University which were established prior to the constitution as well as those established
after its commencement.48
27. What is fundamental, as an enduring value of our polity is guarantee to each of equal
opportunity to unfold the full potential of his personality and the primary consideration in
selection of candidates for admission to the medical colleges must, therefore, be merit.
The object of any rules which may be made for regulating admissions to the medical
colleges must be to secure the best and the most meritorious students.49
A. THAT THE RESERVATION OF 50% SEATS FOR INTERNAL AND EXTERNAL
CANDIDATES BEING ONLY HISLIM IS INVALID.
28. It is submitted that, In Dr. Naresh Agarwal v. Union of India50, it was stated that as per
the case of Azeez Basha51 (which is in par materia to the case of A.K. Prakasam v. Hislim
University52) which still holds good even subsequent to the Amendment Act of 1981 (Act
No. 62 of 1981). Aligarh Muslim University (AMU) which is in pari materia to Hislim
University is not a minority institute within the meaning of Article 30 of the Constitution
of India, as it is created by an act of Parliament. Therefore, the Univ. cannot provide any
reservation in respect to the students belongingto a particular religious community. The
reservation provided by the resolution53 of the Admission Committee/ Executive Council
in 2005 is hit by Art. 29(2) of the Constitution of Ind. and as such cannot be legally
sustained.
29. Any law made in violation of fundamental rights would be null and void (Reference to
Art. 13 of the Constitution). Further, it has been declared that FR’s are natural basic
rights which are recognized and guaranteed as natural rights inherent in the status of a
48
Kerala Education Bill, AIR 1958 SC 956.
49
Supra, Note 42.
50
Dr. Naresh Agarwal v. Union of India, MANU/UP/1370/2005.
51
Supra, Note 46.
52
¶ 4, Moot Prop.
53
¶ 5, Moot Prop.
11 | P a g e
citizen of a free country54; therefore, the resolution being in aberration of fundamental

rights enshrined under the Constitution of Ind. will be void, illegal and unenforceable.
30. Although Hislim Univ. is not a minority run institute, but, even if it was one... the extent
for the minorities’ educational institutions to admit students of minority group would
depend on variable factors. The situation would be according to the type of the education
and nature of the institution. Suffice is to point out that higher the level, lesser should be
the reservation.55 Also, the relevant authority for determining the quantum of reservation
in case of Minority University incorporated under Central Statute is the Central
Government,56 unlike the case of Hislim Univ. where reservation was imposed by way of
an internal resolution of the Council.
31. It is submitted that, although in the case of St. Stephen’s College57 it was held that
Minority aided institutions are entitled to make reservations for their own candidates,
which shouldn’t be more than 50% in any case but, the same judgement was later
overruled by a Constitutional Bench in the case of T.M.A Pai58, as the conclusions of the
majority in St. Stephen’s59 were not in harmony with the principles laid down by the court
in T.M.A Pai. Further, in Dr. Naresh Agarwal’s case60 it was stated that reservation of
50% seats for internal and external candidates being only Muslim candidates was not
valid and that no reservation can be provided by the Hislim University for admission of
students on the basis of religion only and any decision in that regard, being hit by Art.
29(2) of the Constitution of Indicsthan, would be patently illegal and without jurisdiction.
B. THAT ARTICLE 30(1) IS SUBJECT TO THE LIMITATION IMPOSED BY ARTICLE

29(2).
54
State of West Bengal v. Subodh Gopal Bose, MANU/SC/0018/1953: [1954] 1SCR587.
55
T.M.A Pai Foundation v. State of Karnataka, MANU/SC/0905/2002: AIR 2003 SC 355.
56
Bharti Vidyapeeth (Deemed University) and Ors. v. State of Maharashtra and Anr, AIR 2004 SC 1943.
57
St. Stephen’s College v. University of Delhi, MANU/SC/0319/1992: AIR 1992 SC 1630.
58
Supra, Note 55.
59
Supra, Note 57.
60
Supra, Note 50.
12 | P a g e
32. It is submitted that the rights conferred by Article 30(1) is subject to the limitation
imposed by Article 29(2), so that if a minority institution receives State aid, like Aligarh
Muslim University does which is in pari materia to Hislim University, it cannot deny
admission to any person outside that minority community only on ground of religion,
caste, etc.61 Further, in the D.A.V College Case62, the same principle was followed by the
Hon’ble Court, where it observed that Art. 30(1) is subject to 29(2).
33. The rights under Art. 30 are not absolute. Art. 29(2) provides that, where any educational
institution is maintained by the State or receives aid out of state funds no citizen shall be
denied admission on the grounds only of religion, race, caste, language or any of them.
The use of the expression “any educational institution established by anyone, but which is
maintained by the State or receives aid out of State funds” brings about an obligation on
the institution under Art. 29(2) for denying admission to a citizen just because he doesn’t
belong to the minority community that has established the institution. In other words, on
a plain reading, state- maintained or aided educational institutions, whether established
by the Govt. or the majority community cannot deny admission to a citizen on the
grounds only of religion, race, caste or language.63 While deciding the validity of an
order in The State of Madras v. Srimathi Champakam Dorairajan64, The court interpreted
Art. 29(2) and held that if admission was refused only on the grounds of religion, race,
caste...etc. any of them, then there was a clear breach of FR’s under Article 29(2). The
said order was construed as being violative of Art. 29(2), because students who didn’t fall
in the particular categories were to be denied admission.
34. It can be contended that Art. 29(2) has made it obligatory even on the minority
institutions, not to deny admission on the ground of religion, race, caste, language or any
of them. Further, the contention of the learned Solicitor General that minority institutes
61
Kerala Education Bill, Supra, Note 48.
62
D.A.V. College v. State of Punjab, AIR 1971 SC 1737.
63
T.M.A Pai, Supra, Note 55.
64
The State of Madras v. Srimathi Champakam Dorairajan, MANU/SC/0007/1951: [1951] 2 SCR 525.
13 | P a g e
could preferably admit students of their own religion or language to the exclusion of
other communities was held to be impermissible in the landmark case of TMA Pai.65
65
T.M.A Pai, Supra, Note 55.
14 | P a g e
PRAYER
Wherefore In the light of the arguments advanced and authorities cited & facts mentioned the
Respondents humbly and respectfully prays before this Hon’ble Court, that it may be pleased to
adjudge and declare that,
I. That the Institution formed by the Hislim Community is not a Minority

Institution;
II. Legislature cannot overrule the Judgment of the Supreme Court in the Case of
A.K. PRAKASAM V. UNION OF INDICSTHAN;
III. That the Reservation provided to the Hislim students is not in consonance to the
Constitution of Indicsthan.
AND, ANY OTHER ORDER WHICH THIS HON’BLE COURT MAY BE PLEASED TO GRANT.
ALL OF WHICH IS HUMBLY SUBMITTED
SD/-
COUNSELS FOR THE PETITIONER
x|Page

RGNUL Intra Memo 2018

Uploaded by

Copyright:

Available Formats

RGNUL Intra Memo 2018

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

RGNUL Intra Memo 2018

Uploaded by

Copyright:

Available Formats

TEAM CODE: GI- 07.

RGNUL INTRA MOOT COURT COMPETITION, 2018

THE SUPREME COURT OF INDICSTHAN

ORIGINAL WRIT JURISDICTION

CASE FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICSTHAN

W.P. NO(s). ____/2018

MEMORIAL ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITIES ................................................................................................................ II

STATEMENT OF JURISDICTION ..................................................................................................... IV

STATEMENT OF FACTS ................................................................................................................... V

ISSUES RAISED ..............................................................................................................................VII

SUMMARY OF ARGUMENTS ....................................................................................................... VIII

BODY OF ARGUMENTS ................................................................................................................... 1

I. THAT THE INSTITUTION ENSCONCED BY THE HISLIM COMMUNITY IS NOT A MINORITY

B. The Power to amend the statutory provisions cannot be extended to such an

III. THAT THE RESERVATION PROVIDED TO THE HISLIM STUDENTS WAS IN

S. NO. ABBREVIATION EXPANSION

16. Ind. Indicsthan

1. A.K. Prakasam v. Union of India, ¶ 4 Moot Prop. ................................................................ 6, 7

2. Ahmedabad St. Xavier’s College Society v. State of Gujarat, MANU/SC/0088/1974 ........... 11

3. Aligarh Muslim University v. Malay Shukla, MANU/UP/0079/2006 ...................................... 3

5. Bakhtawar trust v. M.D. Narayan, (2003) 5 S.C.C. 298 (India) ....................................... 6, 6, 8

8. D.A.V College v. State of Punjab (I), AIR 1971 SC 1731 ...................................................... 11

9. Dharam Dutt v. Union of India, (2004) 1 SCC 712 .............................................................. 4, 7

11. Jagdish Saran v. Union of India, MANU/SC/0067/1980 ................................................. 11, 12

12. Kerala Education Bill, AIR 1958 SC 956 ............................................................................... 12

14. P. Sambha Murthy v. State of Andhra Pradesh,(1987) 1 SCC 362 .......................................... 7

16. S.P Mittal v. Union of India, AIR 1983 SC 1.......................................................................... 11

19. St. Stephen’s College v. University of Delhi, MANU/SC/0319/1992 ............................. 4, 5, 13

20. State of West Bengal v. Subodh Gopal Bose, MANU/SC/0018/1953..................................... 12

21. T.M.A Pai Foundation v. State of Karnataka, MANU/SC/0905/2002 ............................. 2, 4, 5

22. The State of Madras v. Srimathi Champakam Dorairajan, MANU/SC/0007/1951 ................. 5

~ EVOLUTION OF SOCIETY INTO UNIVERSITY~

(1) To promote secular learning in maths, science and literature.

~ FACTS LEADING TO THE DISPUTE ~

I. THAT THE INSTITUTION ENSCONCED BY THE HISLIM COMMUNITY IS NOT A

III. THAT THE RESERVATION PROVIDED TO THE HISLIM STUDENTS WAS IN

I. THAT THE INSTITUTION ENSCONCED BY THE HISLIM COMMUNITY IS NOT A

It is respectfully submitted that the Hislim University is not a Minority Institution as it

III. THAT THE RESERVATION PROVIDED TO THE HISLIM STUDENTS WAS IN

I. THAT THE INSTITUTION ENSCONCED BY THE HISLIM COMMUNITY IS NOT A

A. HISLIM UNIVERSITY HAS BEEN ESTABLISHED BY THE COLONIAL LEGISLATURE

AND NOT BY MINORITY COMMUNITY

4. Correspondingly, in the case of Dr. Naresh Agarwal v. Union of India4, an analogous

B. HISLIM UNIVERSITY IS A BODY INCORPORATE AND NOT A CITIZEN OR GROUP TO

Minority Institution the same needs to be established and administered by the

A. BASIS OF LEGISLATION FAILED TO CHANGE THE BASIS THROUGH WHICH THE

JUDGMENT WAS DERIVED

B. THE POWER TO AMEND THE STATUTORY PROVISIONS CANNOT BE EXTENDED TO

BY SUBSEQUENT LEGISLATIVE ENACTMENT.

 First, what was the basis of the earlier decision; and

“THE PRINCIPLE WHICH EMERGES FROM THESE AUTHORITIES IN THAT THE

LEGISLATURE CAN CHANGE THE BASIS ON WHICH A DECISION IS GIVEN BY THE

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

III. THAT THE RESERVATION PROVIDED TO THE HISLIM STUDENTS WAS IN

A. THAT THE RESERVATION OF 50% SEATS FOR INTERNAL AND EXTERNAL

CANDIDATES BEING ONLY HISLIM IS INVALID.

citizen of a free country54; therefore, the resolution being in aberration of fundamental