Professional Documents
Culture Documents
Best and Winner Team's Memo (Respondent)
Best and Winner Team's Memo (Respondent)
AM 9
AM 9
TABLE OF CONTENTS
Serial No.
Contents
Page No.
1.
Index of Authorities
2.
Statement of Jurisdiction
3.
Statement of Facts
4.
Statement of Issues
11
5.
Summary of Arguments
12
6.
Arguments Advanced
14
7.
The Prayer
28
INDEX OF AUTHORITIES
2
S. NO.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
AM 9
LIST OF CASES
A. Periakkaruppan v. State of Tamil Nadu AIR 1971 SC 2303: (1971) 1 SCC 38
Air India v. Nargesh Meerza AIR 1981 SC 1289
All Saints High School v. Govt. of A.P AIR 1980 SC 1042
Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh
AIR 1986 SC 1490
Anil v. Dean, Govt. Medical College AIR (1985) Bom. 153
Ashok Kumar Thakur v. Union of India (2007) 4 SCC 361 : (2007) 5 JT 276
Azeez Basha v. Union of India 1968 AIR 662, 1968 SCR (1) 833
Balaji v. State of Mysore AIR 1963 SC 649
Bhopalsingh v. State of Rajasthan AIR 1958 Raj. 41
Brahmo Samaj Educational Society v. State of West Bengal (2004) 6 SCC 224
C/M St. John Inter College v. Girdharilal AIR 2001 Gau. 47
Chanchala, D.N. v. State of Mysore AIR 1971 SC 1762 : (1971) 2 SCC 293
D.A.V. College, Jullundur v. State of Punjab (II) AIR 1971 SC 1737 : (1971) 2
SCC 269
D.N Chanchala v. Mysore, 1971 Supp. SCR 608
D.P Joshi v. State of M.B. AIR 1955 SC 334
Dr. Naresh Agarwal v. Union of India 2005 (4) AWC 3745, 2005 (4) ESC 2498
Father Thomas Shingare v. State of Maharashtra AIR 2002 SC
Fr. Sebastian Manickthan v. State of Kerala 2009 KLT 238
Frank Anthony Public School Employees Assocn. Union v. Union of India AIR
1987 SC 311
Gurpreet Singh Sidhu and Ors. v. Punjab University, Chandigarh AIR 1983 P & H
70 (FB)
Hyderabad Asbestos Cement Product v. Union of India 2000 (1) SCC 426
Indra Sawhney v. Union of India AIR 1993 SC 477
Ishwar Singh Bindra v. State of Uttar Pradesh AIR 1968 SC 140
K.C Vasanth Kumar v. State of Karnataka (1985) Supp SCC 714
Kathi Ranning Rawat v. State of Saurashtra AIR 1952 SC 123
Manager, St. Thomas U.P. School Kerala v. Commissioner & Secy. To General
Education Deptt. AIR 2002 SC 756
Manohar Harries Welters v. Basel Mission Higher Education Centre, Dhanbad
AIR (1991) SC 2230
MCD of Delhi v. Tek Chand Bhatia AIR 1980 SC 360
Muthamma C.B. (Miss) v. Union of Induia AIR 1979 SC 1868
Nain Sukh Das v. State of U.P. AIR 1953 SC 384
P.A Inamdar v. State of Maharashtra AIR 2005 SC 3226
3
52.
53.
AWC 992
Tulsamma V. v. Seash Reddi (1977) UJSC 135n
Y. Theclamma v. Union of India (1978) 2 SCC 516
S. NO.
LIST OF BOOKS
1.
2.
3.
4.
5. .
S. NO.
1.
2.
3.
AM 9
AM 9
STATEMENT OF JURISDICTION
The petitioners appeal in the present case under Article 136 of the Constitution of Kooglistan to
initiate the present proceedings in the supreme court of Kooglistan.
AM 9
(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.
STATEMENT OF FACTS
I
The State of Kooglistan had a population of 17% Muslims. Mr. M Saeeduzzaman was a social
reformer who was concerned with the condition of Muslims who were socially marginalized and
educationally backward and were very poor which placed obstacles before them to enjoy life
with basic amenities. Mr. Saeeduzzaman with the help of non Muslim friends and a land given
on lease from the government established the Mohammedan College, Raahatganj in 1955. The
founder highlighted the aim for the establishment of The College as educational backwardness of
Muslims, lack of provisions for religious instructions in the Institutions run by the State and wish
6
AM 9
of the Muslim community to establish a university for Muslims. The College was run by
Mohammedan College Society.
II
In 1968 Muslims Education Committee passed a resolution to establish a Muslim university at
Raahatganj. In the aforesaid conference Justice S.H Zaidi proposed that degrees of the Muslim
university must be at par with government institutions. Hereinafter the University funds
Committee and University Foundation Committee were found.
III
In December 1970, the government agreed to convert The College into a Muslim university. In
1971, Muslim University association was founded to give practical shape to convert
Mohammedan College into a Muslim university. After this, the Raahatganj Muslim University
act, 1978 was passed by the Parliament. All committees of the Mohammedan College were
dissolved and all the movable and immovable properties owned by the College were transferred
to the newly established Muslim University. All the rights, powers and privileges of the Society
along with debts, liabilities and obligations were transferred to the said University under the Act
of 1978.
IV
The Raahatganj Muslim University Act, 1978 declared that the University is open for all in
matters of admission with recognized degrees, diplomas and certificates. The Act also declared
that the University was also empowered to promote oriental Islamic studies and give religious
instruction in Islamic theology, promote study of religions, civilizations and the culture of
Kooglistan, and to promote educational and cultural advancement of Muslims.
AM 9
The membership of Finance Committee, Academic Council, Executive Council and the
university court as the Supreme Governing Authority of the University was awarded to certain
officers. The membership of the University Court was however restricted only to Muslims. There
was sprinkling presence of non- Muslim members in other authorities. The authorities were
empowered to make Statutes, Ordinances and Regulations for the University. The President was
designated as the Visitor of the University, and was conferred power to inquire into matters of the
University and issue directions in certain circumstances to be followed by the University.
VI
In 2001, a new Constitution was adopted in Kooglistan that provided for:
Prohibition of discrimination in favour or against on the ground of religion and sex (under Art.
45) and; provided for the conservation of script, language and culture and guaranteed the right to
establish and administer educational institution of their choice to the minorities (under Art. 50).
VII
In the light of Article 45 of the Constitution, the statutes dealing with the composition of the
University court was amended and the membership was opened for the followers of any religion.
However the presence of non-Muslim members still remained marginal.
VIII
In February 2007, the University due to the declining number of Muslim students approved the
reservation of 50% seats for Muslims. After admissions according to the aforesaid policy the
non-Muslim students who joined the engineering college felt aggrieved, formed an Equal
opportunity forum and filed a petition in the High Court against the University. RMU defended
its policy, being a minority institution. The High Court however, held that RMU was neither
established nor was administered by the Muslim community. Thereafter RMU appealed to the
Supreme Court of Kooglistan.
8
AM 9
STATEMENT OF ISSUES
I.
II.
AM 9
SUMMARY OF ARGUMENTS
I.
a. The Mohammedan College, Raahatganj (MCR) was established by Mr. Saeeduzzaman with land
given on lease by government of Kooglistan. While funds were being collected for the
establishment, non-Muslim friends of the founder had also contributed. Hence RMU, as it now
exists was not solely established by Muslims, but with the help of non-Muslims and also the
government of Kooglistan. Hence it cannot be termed as a minority institution.
b. Mohammedan College Raahatganj had acquired 50 acres of land from the government of
Kooglistan. The government had also provided financial assistance of Rs. 25000 for this purpose.
After the establishment of RMU, almost entire funds of the University were taken from the
government.
10
AM 9
c. The MCR was converted into Raahatganj Muslim University. The RMU Act, which was passed
in 1978, is an Act of the Parliament. Hence the Legislature of Kooglistan has established the
University rather than members of Muslim Community.
d. The administration of the RMU after under the light of Article 45 of the Constitution of
Kooglistan has been opened for all. Hence all the offices such as Finance Committee, Academic
Council, Executive Council and the University Court have been opened for membership for
followers of any religion. Hence RMU is not administered solely by Muslims and hence is not
a minority institution.
e. Section 6 of the RMU Act, 1978, itself declares that the University is open for all in matters of
admission. Hence RMU cannot be termed a minority institution within the meaning of section 6
of the RMU Act.
II.
a. Section 6 of the RMU act lucidly states that the University is open for all. Hence a University
which has been declared by the Parliament of Kooglistan as open for all cannot reserve seats
under the RMU Act.
11
AM 9
c. Fundamental rights including the rights under Article 30 are available to natural persons only,
and not to the juristic person such as RMU. Hence RMU cannot reserve seats for itself.
ARGUMENTS ADVANCED
I.
The answering respondent deferentially submits that Raahatganj Muslim University is not
a minority institution and the order of the High Court ought not to be set aside.
i.
It is most humbly submitted by the respondent that Raahatganj Muslim University is not a
minority institution as it has been established by an Act of Parliament and not by the Muslim
community. In the light of the case of S. Azeez Basha v. Union of India 1in which minority status
of Aligarh Muslim University was challenged it was held that the Act to incorporate AMU may
AM 9
have been passed as a result of efforts of Muslims, but that does not mean that the University
when it came into being by the AMU Act 1920, was a result of effort of Muslim minority.
The Mohammedan College of Raahatganj was converted into R.M.U after a long
negotiation with the Government. With the R.M.U Act 1978, the Raahatganj Muslim
University was finally established by the Parliament of Kooglistan. Hence similar to the
case above, it cannot be held in the case of R.M.U that it has been established by
Muslims.
ii.
It was also held in Azeez Bashas case that there was nothing in the AMU Act, 1920 preventing
Muslim minority from establishing a university, but if they did so it was not bound to be
recognized by the Government. That was why the Aligarh Muslim University was established by
the legislature by the 1920 Act which provided that AMU shall be recognized by the
Government. Hence it is submitted that for R.M.U to be recognized at par with government
institutions, the establishment by the legislature was sought. This fact cannot be denied by the
appellant.
iii.
The Supreme Court has observed that Establishment means bringing into being of an institution
and it must be by a minority community. It matters not if a single philanthropic individual with
his own means, institution or the community at large founds the institution or the community at
large contributes the funds2. It is submitted before the Court that the establishment of RMU was
as a result of the RMU Act, 1978 passed by the Legislature of Kooglistan. Hence bringing into
being was by the Parliament. Hence RMU is not a minority institution.
iv.
The term Minority Educational Institution has been defined in National Commission for
Minority Educational Institutions Act, 20043 as:
Minority Educational Institution means a college or institution (other than a University)
established or maintained by a person or group of persons from amongst the minorities.
2 State of Kerala v. Mother Provincial AIR 1970 SC 2079 ; St. Xaviers College v. State of Gujarat, AIR 1974 SC
1389.
3 Sec 2 (g) of the National Commission for Minority Educational Institutions Act, 2004.
13
AM 9
In Section 2(g), the expressions established or maintained have been used by the
legislature. The word or is normally disjunctive and the word and is normally
conjunctive4 , but at times they are read as vice versa to give effect to the manifest
intention of the legislature as disclosed from the context 5. A Constitutional Bench of the
SC has held that the expression establish and administer used in Article 30(1) was to be
used conjunctively, i.e, two requirements have to be fulfilled under article 30 (1), namely
that the institution was established by the community and its administration was vested in
the community6. Hence to establish that RMU is a minority institution it has to be proved
that RMU is both established7 and administered by the Muslim community.
In the case of S.P Mittal v. Union of India8 it has been held by the Supreme Court that in
order to claim the benefit of Article 30 (1)9, the community must show that (a) it is a
religious/ linguistic minority, (b) that the institution was established by it. Without
specifying these two conditions it cannot claim the right to administer it.10
Since the appellant cannot establish that RMU was established by it, Muslim minority
cannot claim the right to administer it.
4 Hyderabad Asbestos Cement Product v. Union of India 2000 (1) SCC 426.
5 Ishwar Singh Bindra v. State of Uttar Pradesh AIR 1968 SC 140; MCD of Delhi v. Tek Chand Bhatia AIR 1980
SC 360.
6 S. Azeez Basha v. Union of India AIR 1968 SC 662 ; Dr. Naresh Agarwal v. Union of India 2005 (4) AWC 3745,
2005 (4) ESC 2498.
7 S. Azeez Basha v. Union of India AIR 1968 SC 662 ; Manager, St. Thomas U.P. School Kerala v.
Commissioner & Secy. To General Education Deptt., AIR 2002 SC 756.
8 AIR 1983 SC 1.
9 Article 30 (1) All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.
10 D.A.V. College, Jullundur v. State of Punjab (II), AIR 1971 SC 1737 : (1971) 2 SCC 269.
14
AM 9
It has been held by the Supreme Court of India that the Government, University and ultimately
the Court can go behind the claim that the institution is a minority institution and to investigate
and satisfy itself whether the claim is well founded or ill founded11.
It is clear by going behind the claim that the institution is a minority institution that RMU
has been established by an Act of the Parliament, namely the RMU Act of 1978. Hence
the claim that RMU is a minority institution is ill founded.
vi.
It was held in Azeez Basha v. UOI12 in which the minority status of Aligarh Muslim University
was challenged, that the AMU Act, 1920 did not bear out the contention that the Muslim
minority was administering the university after it was brought into existence. On the other hand,
the administration of the University was vested in the Lord Rector, the Visiting Board, and the
statutory bodies created by the 1920 Act whose members were not necessarily Muslims 13. The
offices of the Raahatganj Muslim University, such as the Finance Committee, Academic Council,
Executive Council and the University Court were opened for the followers of any religion. 14
Article 45 of the Constitution of Kooglistan in unequivocal language stresses upon prohibition of
discrimination on the ground of religion and hence, after the passing of the new Constitution in
the year 2001 in Kooglistan, the administration of RMU was opened for the followers of any
religion.
11 Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh AIR 1986 SC 1490.
12 1968 AIR 662, 1968 SCR (1) 833.
13 Ibid.
14 Page 8 of the moot proposition.
15
AM 9
Therefore in the present case the RMU Act, 1978 opens administrative offices to all
religions. It is also brought to light that the President of Kooglistan was designated the
visitor of RMU15 under section 12 of the RMU Act, 1978.
Hence the office of the Visitor was without any prejudice to the religion of the holder of
such an esteemed office. Therefore it is concluded that there was no bias for Muslim in
administrative offices.
vii.
It is respectfully submitted that while quoting the case of T.M.A Pai Foundation and Ors. v. State
of Karnataka and Ors.16 in a case17, Although the right to administer includes within it a right to
grant admission to students of their choice under Article 30(1), when such a minority institution
is granted the facility of receiving grant-in-aid, Article 29(2) would apply, and necessarily,
therefore, one of the right of administration of the minorities would be eroded to some extent.
It is well known that the RMU had received since the days of Mohammedan College
grants from the Government. After the establishment of RMU by the RMU Act 1978, the
Government provided almost the entire funds to the University for its smooth
functioning.18 Hence, in view of this decision of the Honble Supreme Court of India, it is
contended that even though minority is entitled to administer its own educational
institution under Article 30 (1), since it has received grant in aid by the Government, its
right to administer shall be eroded to a certain extent. Therefore, an institution, even if it
were a minority institution would not completely be administered by the minority if it has
received funds from the Government.
Almost the entire funds of RMU were provided by the Government and hence RMU
cannot and does not de facto have the power of administration.
viii.
AM 9
In the case of Azeez Basha19, wherein it was held that Article 26(c) and (d) give power to a
religious denomination to own and acquire movable and immovable property, and if it owns or
acquires such property it can administer it in accordance with law. There is nothing in the
amending Acts which in any way bars the Muslim minority from owning, acquiring or
administering movable or immovable property. Assuming that before 1920 the property which
was vested in the University was the property of the Muslim minority, it was voluntarily
surrendered to the corporate body created by the 1920 Act, namely, the Aligarh University.
Therefore, when the Constitution came into force there was no property held by the Muslim
minority. As the Muslim minority did not own the property which was vested in the Aligarh
University on the date of the Constitution, they could not lay any claim to administer that
property by virtue of Art. 26 (d).
On passing of the R.M.U Act, 1978 a new legal entity was created, the University.
Similarly as in the discussed case, all the property vested in the Muslim minority by
virtue of the Mohammedan College Raahatganj was voluntarily transferred to the
Raahatganj Muslim University in 197820. Since Muslim minority did not own the
property which was now vested in RMU, from the day of establishment of RMU, they
had no right to administer the property. Hence it is submitted before the Honble Court
that Muslim minority has no right to administer the property of RMU, which it does not
own.
ix.
If the property owned by RMU is assumed to come under Article 26 (a) of charitable institutions,
the right under Article 26 (a) could not be claimed by the Muslim minority, because the right to
19 S. Azeez Basha v. Union of India AIR 1968 SC ; The Aligarh Muslin University v. Malay Shukla S/O Dr. Ramji
Shukla 2006 (1) AWC 992.
AM 9
maintain, which includes the right to administer will only arise if the institution has been
established by the religious denomination21.
x.
In the case of Fr. Sebastian Manickthan v. State of Kerala22 it has been held that minority status
cannot be claimed merely on the fact that the educational institution is administered by a
minority community. The proof of the fact of the establishment of the institution is a condition
precedent for claiming the right to administer the institution23.
It is most humbly submitted that since R.M.U was established by the Act of parliament
which has been clearly stated in the facts, the mere plea of being administered by the
minority would not suffice in granting R.M.U the minority status.
xi.
In Unni Krishnan J.P and Ors. v. Andhra Pradesh and Ors 24 it was held that in case of State
aided minority institutions complete autonomy cannot be claimed. Aid and affiliation, both by
State bring in some amount of regulation as a condition of receiving grant or recognition.
KASLIWAL, J., has expressed the view that if the college is receiving aid out of state funds then
it has to abide by the rigor25.
In re Kerala Education Bill26 the SC said that the fundamental right given to all
minorities under Article 30 (1) to establish and administer educational institution of their
choice does not militate against the claim of the State to insist that in granting aid the
AM 9
State may prescribe reasonable regulations to ensure the excellence of the institutions 2728.
The right of minority to administer its educational institution is not absolute and
regulations can be framed by the State conferring powers on special authority29.
The Raahatganj Muslim University had received almost entire funds from the
government. Hence the plea that RMU is administered by the Muslim community cannot
be maintained. Hence grant in aid has been received by RMU the State of Kooglistan has
to bring about regulation in the administration of the University. The Muslim community
cannot claim complete autonomy in administration.
xii.
It is humbly submitted that section 6 of the RMU Act, 1978 clearly states that the University is
open for all in matters of admission. Hence, ever since the inception of the Raahatganj Muslim
University it was not biased on the basis of religion. In the matters of admission the university
did not place any restriction or quota, hence it cannot be termed as a minority institution.
C. PROCEDURE FOR DETERMINING MINORTIY INSTITUTION HAS NOT BEEN
FOLLOWED
xiii.
It needs to be highlighted that section 2 (f) of the Central Educational Institutions (Reservation in
Admission), 2006 defines a minority educational institution as under:
Minority Educational Institution means an institution established and administered by
the minorities under clause (1) of Article 30 of the Constitution and so declared by an Act
of Parliament or by the Central Government or declared as a minority educational
institution under the National Commission for Minority Educational Institutions Act,
2004.
27 St. John Teachers Training Institute v. State of Tamil Nadu 1993 3 SCC 594.
28 Y. Theclamma v. Union of India (1978) 2 SCC 516.
29 C/M St. John Inter College v. Girdharilal, AIR 2001 Gau. 47.
19
AM 9
This Act was passed by the Indian Parliament and lays down the procedure and the
criterion for determination of a minority institution.
It is therefore concluded that the correct procedure for determination of minority
institutions has not been followed. The University cannot declare itself a minority
educational institution. The status of a minority educational institution has to be granted
by the Central Government. Hence any action of R.M.U under the plea of being a
minority institution cannot stand without first being declared so by the Central
Government, or under the NCMEI Act, 2004.
II.
The answering respondent most deferentially submits that RMU does not possess the
right to reserve seats for Muslim minority.
20
AM 9
The Raahatganj Muslim University Act, 1978 in clear and lucid terms states that the University is
open for all in matters of admission30. This is mentioned in section 6 of the RMU Act, 1978.
The Act has been passed by the Parliament of Kooglistan. The Act does not mention any
provision that enables the university to pass an arbitrary action such as reservation of
50% seats. The Act was passed with the intention of the legislature to keep admissions
open for all students, irrespective of any bias in the University. Hence the action of the
University to reserve 50% of the seats for Muslims is unwarranted. Such an action is ultra
vires the RMU Act, 1978.
B. RESERVATION OF SEATS IN RMU IS VIOLATIVE OF THE CONSTITUTION.
ii.
AM 9
This shows how a reservation on the basis only of religion is not permitted within the
Constitution of Kooglistan.
iii.
It is humbly submitted that in the case of State of Madras v. Champakam Dorairajan34, it was
held that the communal government order of the Madras government fixing the proportion of
students of each community that could be admitted to state educational institutions was ultra
vires under Article 29(2)35. Even Article 15 (4) which was enacted as a result of this case allows
reservation for socially and educationally backward classes of citizens or SC and ST, which is a
reasonable classification. 15(4) is a mere enabling provision creating no right in favour of any
person, while Article 29(2) enunciates a Fundamental Right to equality in the matter of
admission to a public educational institution.36 This clause offers protection to all citizens,
whether they belong to majority or minority groups.37 Article 15(4) too extended may even
destroy the guarantee under Article 15(1).38
Discrimination on the basis of religion is also prohibited by Article 15 of the Indian
Constitution39. It is submitted that classification on the basis of religion is unreasonable
classification40. A measure such as reservation on the basis of religion by the Raahatganj
Muslim University is only going to divide the students of Kooglistan and will alight the
fire of disharmony among them.
34 AIR 1951 SC 226.
35 Article 29 (2) states that no citizen shall be denied admission into any educational institution
maintained by or receiving aid from the state on grounds only of religion, race, caste, or language.
36 Anil v. Dean, Govt. Medical College, AIR (1985) Bom. 153.
37 State of Bombay v. Education Society, (1955) 1 SCR 568 : AIR 1954 SC 561.
38 State of A.P. v. Sagar P., AIR 1968 SC 1379.
39 Prohibition of discrimination on grounds of religion.
40 D.P Joshi v. State of M.B, AIR 1955 SC 334; Nainsukhdas v. State of U.P, AIR 1953SC 384; State of
Rajasthan v. Pratap Singh AIR 1960 SC 1208.
22
iv.
AM 9
It has been held by the Punjab-Haryana High Court in Gurpreet Singh Sidhu and Ors. v. Punjab
University, Chandigarh41 that, What, however, calls for notice herein is that Article 29(2) is
couched in the language of prohibition which is limited in terms and not in those of the
conferment of a general or generic right of equality. The prohibition here is specific and confined
to four grounds alone on which discrimination for admission into educational institutions
receiving aid out of the State funds is barred. These are in terms those of religion, race, caste and
language.
R.M.U bases its reservation on the ground of religion. Such reservation is has been barred
by the Supreme Court. The declaration of law made by Supreme Court cannot be
forsaken under any pretext by any authority42. Such a ground is also a clear and
unabashed violation of the Constitution of Kooglistan which prevents discrimination on
the basis of religion43.
v.
In St. Stephens College v. University of Delhi44, the SC has held that in view of the importance
which the Constitution attaches to protective measures to minorities under Article 30 (1), the
minority aided educational institutions are entitled to prefer their community candidates It is
brought before the notice of this Honble Court that the entitlement to make quota is granted to
the minority institutions, when they are minority aided. The State cannot impose any restriction
on the right of the minorities to administer educational institutions so long as such institutions
are unaided by the State, except to the limited extent that regulation can be made for ensuring
excellence in education.45
AM 9
RMU however, is not minority aided as after the establishment of RMU, by the passing
of the RMU Act, almost the entire funds to the University were provided by the
Government.46
vi.
It has been held by the Supreme Court in Indra Sawhney47 and other cases48 that reservation
cannot exceed 50%. And the reservation of 50% in these cases was cumulative of all socially and
educationally backward in total. Hence reservation of 50% exclusively for Muslims is
unreasonable, when maximum limit has been set as 50% by the Supreme Court. It has also been
held that test for economic backwardness must be applied before granting reservation49. Hence it
is submitted before this Honourable Court that reservation as high as 50% of seats for Muslims
without having any regard to the above factors would frustrate the very purpose of reservation.
vii.
Even a minority institutions right to manage its institution is subject to limitations. Though
Article 30 itself does not lay down any limitations upon the right of a minority to administer its
educational institutions, this right is not absolute50, but must be subject to reasonable
regulations51 for the benefit of the institution as the vehicle of education for the minority
45 Father Thomas Shingare v. State of Maharashtra, AIR 2002 SC 463 ; Frank Anthony Public School
Employees Assocn. Union v. Union of India, AIR 1987 SC 311 ; Manohar Harries Welters v. Basel
Mission Higher Education Centre, Dhanbad, AIR (1991) SC 2230.
46 Para 4 of the moot proposition.
47 AIR 1993 SC 477.
48 M.R Balaji v. State of Mysore, AIR 1963 SC 649; Ramesh Chander v. Punjab, 66 A. Punj. 476; D.N
Chanchala v. Mysore, 1971 Supp. SCR 608.
49 K.C Vasanth Kumar v. State of Karnataka.
50 St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389.
51 All Saints High School v. Govt. of A.P., AIR 1980 SC 1042.
24
AM 9
community52, consistent with the national interest53. Minority communities do not have any
higher rights than majority. They have merely been conferred additional protection.54
C. RESERVATION OF 50% SEATS IS UNREASONABLE
It is submitted that 50% reservation for Muslims is not constitutional.
viii.
It was held in the case of T.M.A Pai Foundation v. State of Karnataka55 that even if it is possible
to fill up all the seats with students of the minority group, if aid is granted to the institution, the
institution will have to admit students of non-minority group to a reasonable extent. Hence, both
by the Constitution and the RMU Act, the reservation of 50% of the seats was unconstitutional
and unreasonable.
ix.
In order to satisfy the requirement of Article 15(4), the class must be both socially and
educationally backward.56 The Supreme Court has held that the State would not be justified in
ignoring altogether the advancement of the rest of the society in its zeal to promote the welfare
of the backward classes57. Even the quantum of reservation under 15(4) should not be so
excessive as to be unreasonable.58
AM 9
The Mandal Commission report recommended reservation upto 50% cumulatively for
SC, ST and OBCs. Hence reservation exclusively for Muslims as steep as 50% is not
justified even according to the Commission report.
x.
It is submitted that the backward classes in 15 (4) include SCs, STs and other socially and
educationally backward classes. On this point the cases of State of Andhra Pradesh v. U.S.V
Balram59 and K.C Vasanth Kumar v. State of Karnataka60 have been followed by the Courts. As
regards to the limit of reservation, the majority has held that total reservation shall not exceed
50%. Reservation should not be based on a classification which had no rational relation to the
object to be secured61.
Hence if reservation has been restricted to 50% cumulatively for SCs, STs and OBCs,
then the same extent of reservation only for one category, i.e, Muslims is unreasonable.
THE PRAYER
59 AIR 1972 SC 1875 ; A. Periakkaruppan v. State of Tamil Nadu, AIR 1971 SC 2303: (1971) 1 SCC 38
60 (1985) Supp SCC 714.
61 State of Kerala v. R. Jacob, AIR 1964 Ker 316; Ram Krishna Singh v. State of Mysore AIR 1960 Mys.
388; State of Madras v. Champakam Dorairajan AIR 1951 SC 3743.
26
AM 9
Wherefore in the light of the issues raised and arguments advanced, reasons given and authorities
cited, this Honourable Court maybe pleased to:
B. Declare that the reservation of 50% seats by Raahatganj Muslim University for Muslims
is unconstitutional and cannot be enforced.
And any other relief that this Honble Court may be pleased to grant in the interests of justice,
equity and good conscience.
27