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Saturday, January 16, 2016

अलीगढ़ मुस्लिम विश्वविद्यालय के अल्पसंख्यक दर्जा प्रदान करने के सम्बन्ध में उच्चतम न्यायालय का एक पुराना निर्णय





PETITIONER:

S. AZEEZ BASHA AND ANR.


Vs.

RESPONDENT:

UNION OF INDIA


DATE OF JUDGMENT:
20/10/1967

BENCH:

WANCHOO, K.N. (CJ)
BENCH:
WANCHOO, K.N. (CJ)
BACHAWAT, R.S.
RAMASWAMI, V.
MITTER, G.K.
HEGDE, K.S.


CITATION:

1968 AIR  662   1968 SCR  (1) 833
CITATOR INFO :
RF     1969 SC 530 (2A)
R     1973 SC 897 (11)
D     1984 SC 981 (9)


ACT:

Aligarh Muslim University Act (40 of 1920) as amended by Act
62 of 1951 and Act 19 of 1965--If violative of Arts, 14, 19,
25,  26,  29,  30 and 31  of  the  Constitution 'Establish'
meaning of-Right  of religious minority  to  administer  or
maintain-When arises-Fundator perficiens, rights of.


HEADNOTE:

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.  Thereafter, the idea of establishing a
Muslim University   gathered strength  and the   Muslim
University Association was formed.  The Government of  India
informed the, Association that a sum of rupees thirty  lakhs
should be  collected before the  University   could   be
established.   Therefore,  a  Muslim  University  Foundation
Committee #as started and it collected the necessary  funds.
The  contributions  were  made by Muslims as  well  as non-
Muslims.   With the M.A.0. College as a nucleus the  Aligarh
Muslim University was then established by the Aligarh Muslim
University Act, 1920.  The preamble land ss. 3 and 4 of the
Act  show  that the M.A.0. College,  the  Muslim  University
Association  and the Muslim University Foundation  Committed
legally came to (end, and that the three bodies voluntarily
surrendered  whatever  properties ,they had to the  Aligarh
University,  so that  all  theit  properties movable and
immovable  were, vested in the Aligarh university  ""Section
23 of the Act provided for the constitution of the court  of
the University. By the proviso to s. 23(1) no person  other
than  a Muslim could be a member  of the  Court  of the
University,  and by :a. 23(2)" the Court of  the  University
was to be the supreme governIng body of the University.   By
sub-s. (3) the Court of the University was given the  Power
of  making statutes.  Section 13 provided for  the  Governor
General of India to be the Lord Rector of the University and
s.  14 provided that the Governor of: the United  Provinces,
the  members  of his Executive Council, the  Ministers, one
member nominated by the Govern and one member nominated  by
the Minister in charge of Education to be the Visiting Board
of  the 'University.  These persons  were  not necessarily
Muslims but they had powers over the administration of the
University overriding those of the Court of the University.
Further,  ss. 28(2) and 30(3) laid down that no Statute  or
Ordinance  or amendment or repeal of an existing Statute  or
Ordinance  would  have any  validity  unless  it  had been
approved  by  the Governor General in Council. Section  40
gave  further powers to the Governor General in Council  to
remove any difficulty which might arise in the establishment
of the University.
834
In 1951, the Aligarh Muslim University (Amendment) Act, 1951
was  passed and it made certain changes in the 1920  Act  on
account of  the  coming into  force  of  the  Constitution.
Sections  13 and 14 are so amended that in the place of the
Lord  Rector, the University was to have a Visitor  and the
powers of the Visiting Board were conferred on the  Visitor.
The  proviso to s. 23(1) was deleted, with the result  that,
non-Muslims  could also be the members of the Court  of the
University.
There were further amendments by Ordinance II of 1965  which
was  replaced by the Aligarh Muslim  University (Amendment)
Act, 1965.  As a result of those amendments the Court of the
University  no longer remained the supreme  governing  body.
Many  of  its  powers  were taken  away and  those  of the
Executive Council were correspondingly increased.  The Court
practically  became a body nominated by the  Visitor,  every
person holding office immediately before the date on  which
the Ordinance was promulgated ceased to hold office from the
said  date,  and,  until the Court  was reconstituted, the
Visitor might by general or special order direct any officer
of  the University to exercise the powers and perform the
duties conferred or imposed on the Court.
The  petitioners challenged the constitutional validity  of
the  1951 and 1965 Acts, on the following !grounds:-(1) the
Muslim minority had established the University and therefore
had  a right  to  administer it under Art.  30(1)  of the
Constitution,  and that the amendments deprived the  Muslim
minority,  of this right in violation of the,  Article; (2)
even  if  the minority had not established  the University,
they  had  a  right  to administer  the  University  as  an
educational   institution  and that  they  were   in fact
administering it after it was established; (3). the right of
the  Muslim  minority  under  Art.  26(a)  to  maintain the
University  as an institution for charitable  purposes, was
violated;  (4) the  right  of the  Muslim  minority  as  a
religious  denomination,  under Art. 26(c) and (d),  to ad-
minister   the movable and  immovable property   of the
University,  was violated; (5) the provisions of the Ad as:
amended are different from those of other Statutes  creating
other universities, and therefore, there was a violation  of
Art.  If (6) the Muslim minority had been deprived of  their
right under Art. 19 to manage the University and to hold the
property which was vested in the University;,(7) the  Muslim
minority  had been deprived of theirs property, namely, the
property vested in the University, in asmuch as the Court of
the University after the 1965 Act was a body very  different
from  the  Court  under the 1920 Act and there was  thus  a
violation  of  Art. 31(1); and (8) the right of the  Muslim
minority  to profess, practise and propagate their  religion
under Art. 25, and, their right to conserve their  language,
script or culture under Art. 29, were violated.
HELD:   (1) The   Aligarh University,   was    neither
established  nor  administered by the  Muslim  minority and
therefore there is no question of any amendment to the 1920
Act  violating Art, 30(1) for that Article does not  at all
apply to the University. [854 H].
The  words  establish and administer in Art. 30(1)  must  be
read  conjunctively. that is, Art. 30(1) postulates  that  a
religious  community  will have the right to  establish and
administer educational institutions of their choice, meaning
ther  by,  that where a religious  minority  establishes  an
educational   institution  It  will'  have  the   right   to
administer  it, but not otherwise.  The word  establish for
the  purpose of the Article means bring into  existence and
educational institutions include universities. But Muslims,
assuming
835
they are a minority based on religion, did not establish the
University.   Before the enacting of the  University  Grants
Commission  Act of 1966, there was no law  in India  which
prohibited and private individual or body from establishing
a  University, that  is an  educational  institution  which
grants its own degrees.; but the private individual or body
could not insist that the degrees must be recognised by the
Government.  Such recognition depended upon the will of the
Government  generally expressed through statute.  Therefore,
there  was nothing in 1920 preventing the  Muslim   minority
from  establishing  a  University; but if they did  so Its
degreea were not bound to he recognised by  the  Government
and  that was why the Aligarh University was established  by
legislation  namely the 1920 Act, and provided by s. 6 that
its  degrees shall 'be recognised by the Government.   Thus,
when  the Aligarh University was established in 1920 and  by
S.  6  of the 1920 Act its degrees had-to be  recognised  by
Government, an institution was brought into existence  which
could not  be brought  into existence  by  any   private
individual  or body. The Act may have been  passed  as  a
result of the efforts of the Muslim minority, but that does
not mean that the University, when it came into being  under
the  1920 Act was established by the Muslim minority. The,
conversion of the M.A.O. College into the University was not
lay  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. [847 F-H; 848
A; 849 C-H; 850 D-H; 851 A-B, C-D; 852 D-E].
St.   David's  College, Lampeter v. Ministry  of  Education,
[1951] All E.R. 559, applied.
In  re: The Kerala Education Bill 1957, [1959] S.C.R. 995,
explained.
Further,  the Muslim minority could not claim any rights  on
the   basis   that  the University  was   an eleemosynary
corporation  and that the minority were in the position  of
undator perficiens, bicause: (i) it is the donors (some  of
whom  were  non-Muslims) and not the  Muslim  minority that
could be said to be in the position of fundator perficiens;
(ii) even the donors could only have visitorial rights under
the  English  Common Law; and (iii) even those rights have
been negatived by the 1920 Act for it specifically conferred
such rights on the Lord Rector and the Visiting Board. [851
E-H].
(2)  The  provisions  of the 1920 Act do not  bear  out the
contention  that  it  was  the Muslim minority  that 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.  It was only  in
one  of them namely the Court of :he University that  there
was  a bar  to the appointment of any one  else  except  a
Muslim. But even with respect to the Court, paragraph 8  of
the Schedule to the Act shows, that even though the  members
of the Court had to be Muslims. the electorate which  electe
the members of the Court were not exclusively Muslims. [853
P-G; 854 F-H].
(3)  Assuming  that  educational  institutions would come
within Art. 26(a) as institutions for charitable  purposes
the  right  under  Art. 26(a) could not be  claimed  by the
Muslim minority,  because,  the right to  maintain  (which
includes the right to administer) will only arise where the
institution  is established by the  religious  denomination.
In this Article also, the words establish and Maintain must
be read conjunctively. [855 B-C, E-F].
L/P(N)7SCI-14
836
(4)Article 26(c) and (d) give power to a religious denomina-
tion 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).
[855 H; 856 A-B].
The  Durgah  Committee Ajmer v. Syed Hussain Ali,  [1962]  1
S.C.R. 383, followed.
(5)Article 14 does not require that the provisions in  every
University  Act must  always be  the  same,  because, each
university must be taken to be a class by itself having its
own  problems and it is for the Legislature to decide what
kind  of  constitution should be conferred on  a  particular
university  established by it. Therefore, there can  be  no
question  of  discrimination on the ground that some  other
University  Acts provide for a different set up.  [856 G-H;
857 C].
(6)Article  19(1)(c) does not give any right to any  citizen
to  manage any particular educational institution.  It only
gives the right to citizens to form associations or  unions,
and  that  right  has  not been touched by  the  1965 Act.
Similarly, Art. 19(1)(f) does not give any citizen any right
to  hold  property  vested  in a  corporate  body  like the
University.   It  only provides that all citizens  have the
right to acquire, hold and dispose of property of their own.
There is nothing in the 1965 Act which in any way takes away
the  right of the Muslims of this country to  acquire, hold
and dispose of property of their own. [857 D-G].
(7)There is no breach of Art. 31(1) for the 1965 Act did not
deprivethe  Muslim  minority of any  property, because the
property  was notvested in the Muslim minority at  any time
after  the  1920  Act came  into  force.   Assuming  'Muslim
minority' is a person for the purposes of Art. 31(1) and the
petitioners  have a right to file the writs on its  behalf,
the 1965 Act made no change in the ownership of the property
which had already vested in the Aligarh University after the
1920 Act came into force. (857 H; 858 F-H].
(8)The amendments made by the 1965 Act in the 1920  Act  do
not  in any  way affect the right, under Art. 25,  of the
Muslims to profess, practise and propagate their  religion;
nor  do they affect their right under Art, 29, to  conserve
their  language,  script or culture which they might  have.
[856 C-E].

JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 84, 174, 188, 241
and 242 of 1966.
Petitions under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
M.R.  M.  Abdul Kari, K. Rajendra  Chaudhuri, and  K.  R.
Chaudhuri, for the petitioners (in W. P. No. 84 of 1966).
837
B.   K. Bhattacharya and M. L Khowaja, for the petitioners
(in W.   P. No. 174 of 1966).
Daniel A. Latifi and M. I. Khowaja,. for the petitioners (in
W.   P. No. 188 of 1966).
K.   L. Gauba and S. Saukat Hussain, for the petitioners (in
W.P. No. 241 of 1966).
S.   Shaukat  Hussain, for the petitioners (in W.P. No. 242
of 1966).
C.   K. Daphtary, Attorney-General, N. S. Bindra, R. H. Dhe-
bar, S. P. Nayar for R. N. Sachthey, foe the respondent (in
W.P. Nos. 84, 174 and 242 of 1966) and the respondents Nos.
1 and 3 (in W.P. No. 188 of 1966).
C.  K. Daphtary, Attorney-General, Lily Thomas, P.C.  Kapur,
R.  H. Dhebar for R. N. Sachthey for the respondent On W.P.
No. 242 of 1966).
The Judgment of the Court was delivered by
Wanchoo, C. J. These five writ petitions raise common  ques-
tions  and  will be dealt with together.   They attack the
constitutionality   of the   Aligarh Muslim   University
(Amendment) Act, No. 62 of 1951 (hereinafter referred to  as
the 1951-Act) and the Aligarh Muslim University (Amendment)
Act,  No. 19 of 1965, (hereinafter referred to as the  1965-
Act). The principal attack is based on the  provisions  of
Art.  30(1)  which lays down that  "all minorities  whether
based  on  religion  or language, shall have  the  right  to
establish  and administer educational institutions of  their
choice".   The case  of all the  petitioners  is  that the
Aligarh Muslim University (hereinafter referred to  as the
Aligarh University) was established by the Muslim  minority
and therefore the Muslims had the right to administer it and
in so far as the Acts of 1951 and 1965 take away or  abridge
any  part  of that right they are ultra vires Art.  30(1).
Besides this  principal  attack,  the two  Acts  are also
subsidiarily  attacked for violating the fundamental  rights
guanteed  under Articles 14, 19, 25, 26, 29 and 31  of the
Constitution. It is unnecessary to set out the  nature  of
the attack under these Articles for that will appear when we
deal with the matter in detail later. suffice it to say that
all  the petitions do not make the attack, under  ill  these
Articles, but the sum total of the subsidiary attack in all
these petitions takes in its sweep all these six Articles.
The  petitions have been opposed on behalf of the  Union  of
India and its main contention is that the Aligarh University
was  established  in 1920 by the Aligarh  Muslim  University
Act,  No. XL of 1920, (hereinafter referred to as the  1920-
Act)  and  that this Establishment was not  by the  Muslim
minority  but  by  the Government of India by  virtue  of  a
statute namely the  1920-Act and,  therefore the  Muslim
minority could not claim any fundamental right to administer
the Aligarh University under Art. 30(1).  It
/P(N)78CI-14(a)
838
     was  further contended that as the Aligarh  University
was established by the 1920-Act by the Government of  India,
Parliament had the right to amend that statute as it thought
fit in the interest of education and 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.  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 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.
It  was further contended that the attack based on  the six
Articles  of  the  Constitution to which  we  have  referred
already had no substance and did not in any manner make the
Acts of 1951 and 1965 unconstitutional. We do not think  it
necessary  at this stage to give in detail the reply of the
Government of India on these points and shall refer to it as
and when the occasion arises.
It  is necessary to refer to the history  previous  to the
establishment of the Aligarh University in 1920 in order  to
understand  the contentions  raised  on  either  side.   It
appears that  as  far back as 1870  Sir  Syed Ahmad Khan
thought,  that the backwardness of the Muslim community was
due  to their neglect of modern  education.   He  therefore
conceived the idea of imparting liberal education to Muslims
in literature and science while at the same time instruction
was  to be given in Muslim religion  and  traditions  also.
With this object in mind, he organised a Committee to devise
ways  and means for educational regeneration of Muslims and
in   May 1872 a society called the Muhammadan Anglo-Oriental
College   Fund Committee  was   started   for   collecting
subscriptions  to realise the goal that Sir Syed Ahmad Khan
had  conceived.   In consequence of the activities  of the
committee  a  school was opened in May 1873.  In  1876, the
school became a High School and in 1877 Lord  Litton, then
Viceroy of India, laid the foundation stone   for the
establishment  of a college.  The Muhammadan Anglo  Oriental
College,  Aligarh  hereinafter referred to  as the  M.A.0.
College)  was established thereafter and was, it is said,  a
flourishing institution by the time Sir Syed Ahmad Khan died
in 1898.
It is said that thereafter the idea of establishing a Muslim
University  gathered strength from year to year at the turn
of   the century and by 1911 some funds Were collected and a
Muslim University  Association was  established  for the
purpose of establishing a teaching University at  Algarh.
Long negotiations took place between the Associationland the
Government  of India, which eventually  resulted  in the-
establishment of the Aligarh University in 1920 by the 1920-
Act.  It may be mentioned that before that a
839
largo sum of money was collected by the Association for the
University  as the  Government of  India  had made  it  a
condition that rupees thirty lakhs must be collected for the
University  before  it could be  established. Further  it
seems, that the existing M.A.0. College was made the  basis
of  the University  and was made over to  the authorities
established  by the 920-Act for the administration  of the
University  along with the properties and funds attached  to
the college, the major part of which had been contributed by
Muslims though some  contributions  were  made  by   other
communities as well.
It  is necessary  now.to  refer  in  some  detail  to the
provisions of the 1920-Act to see how the Aligarh University
came  to be established.  The long title of the 1920-Act  is
in these words:
      "An   Act to  establish and  incorporate   a
      teaching and residential Muslim University  at
      Aligarh".
The  preamble  says that "it is expedient to  establish and
incorporate a teaching and residential Muslim University  at
Aligarh, and to dissolve the Societies registered under the
Societies  Registration Act, 1860, which  are respectively
known as the Muhammadan Anglo-Oriental College, Aligarh and
the Muslim University Association, and to transfer and vest
in the said University all properties and rights of the said
Societies   and   of  the   Muslim   University   Foundation
Committee".  It will be seen from this that the two  earlier
societies,  one of  which was connected  with the  M.A.0.
College and the other had been formed for collecting  funds
for  the  establishment of the University at  Aligarh, were
dissolved  and all their properties and rights and  also  of
the Muslim University Foundation Committee, which presumably
collected funs for the proposed University were transferred
and vested in the University established by the 1920-Act.
Section 3 of the 1920-Act laid down that "the First Chancel-
lor, Pro-Chancellor and Vice-Chancellor shall be the persons
appointed  in this behalf by a notification of the  Governor
General in Council in the Gazette of India-and the  persons
specified  in the schedule [shall be] the first members  of
the Court" and they happened to be all Muslims. Further  s.
3  constituted a body corporate by the name of the  Aligarh
Muslim University  and this body  corporate  was  to have
perpetual succession and a Common Seal and could sue and  be
sued  by that name.  Section 4 dissolved the M.A.0.  College
and  the  Muslim University Association and  all  property,
movable and immovable, and all rights, powers and privileges
of  the two said societies, and all property, movable and
immovable,  and all rights, powers and privileges  of the
Muslim University Foundation Committee were transferred and
'vested in the Aligarh University and were to be applied  to
the  objects and purposes for which the Aligarh  University
was incorporated.
840
All   debts,  liabilities  and obligations,  of  the said
societies and Committee were transferred to the University,
which  was made responsible for discharging  and  satisfying
them. All  references in any enactment to  either  of the
societies or to the said Committee were to be construed'  as
references to the University.  It was further provided that
any will, deed or other documents, whether made or  executed
before or  after  the commencement of the  1920Act,  which
contained any bequest, gift or trust in favour of any of the
said  societies or of the said Committee would, on the com-
mencement of the 1920-Act be construed as if the  University
had been named therein instead of such society or Committee.
The effect of this provision was that the Properties endowed
for  the purpose of the M.A.0. College were to be  used for
the Aligarh University after it came into existence.   These
provisions will show that the three previous bodies  legally
came  to an end and everything that they were  possessed  of
was vested in the University as established by the 1920-Act.
Section 5  provides  for  the powers of  the   University
including  the power to hold examinations and to  grant and
confer degrees and other academic distinctions.
Section 6  is important.  It laid down that  "the  degrees,
diplomas   and other  academic distinctions granted   or
conferred  to  or  on persons by  the  University  shall  be
recognised  by the  Government as  are  the  corresponding
degrees, diplomas and other academic distinctions granted by
any  other  University incorporated  under  any enactment".
Section 7 provided for reserve funds including the  sum  of
rupees thirty lakhs. Section's provided  that  "the Uni-
versity shall, subject to the provisions of this Act and the
Ordinances,  be open to all persons of either sex  and  of
whatever  race, creed or  class",  which  shows  that the
University  was not established for Muslims  alone.   Under
section 9  the Court was given the power to  make  Statutes
providing  that instruction in the Muslim religion would  be
compulsory in the case of Muslim students.  Sections 10,  11
and  12 made other provisions necessary for the functioning
of a University but they are not material for our purpose.
Section 13 is another important section.  It provided that
"the  Governor General shall be the  Lord  Rector  of the
University".   Further sub-s. (2) of s. 13  provided- that
"the Lord Rector shall have the right to cause an inspection
to  be made by such person or persons as he may direct,  of
the University, its buildings, laboratories, and  equipment,
and  of any institution maintained by the  University, and
also of the examinations, teaching and other work  conducted
or  done  by the University, and to cause an inquiry  to  be
made in like manner in respect of any matter connected with
the  University.  The Lord Rector shall in every  case give
notice to the University of his intention to cause an ins-
pection or inquiry." After the enquiry, the Lord Rector had
the
841
power  to address the Vice-Chancellor with reference to the
result of  such  inspection  and  inquiry  and the   Vice-
Chancellor  was bound to communicate to the Court the  views
of the Lord Rector with such advice as the Lord Rector might
offer  upon the action to be taken thereon.  The  Court was
then required to communicate through the Vice-Chancellor  to
the  Lord  Rector such action if any as was proposed  to  be
taken  or  was taken upon the result of such  inspection  or
inquiry.  Finally the Lord Rector was given the power  where
the  Court did not, within reasonable time, take  action  to
the satisfaction of the Lord Rector to issue such directions
as   he thought  fit  after  considering  any explanation
furnished or representation made by the Court and the  Court
was bound to comply with such directions.  These  provisions
clearly bring out that the final control in the matter was
with the Lord Rector who was the Governor-General of India.
Then  comes  s. 14 which is again  an  important  provision,
which  provided for the Visiting Board of  the University,
which  consisted  of  the  Governor,  the  members  of the
Executive  Council, the Ministers, one member  nominated  by
the  Governor  and one member nominated by the Minister  in
charge of Education.  The Visiting Board had the  power  to
inspect'  the  University  and to satisfy  itself  that the
proceedings  of the University were in conformity  with the
Act,  Statutes and Ordinances, after giving notice  to the
University  of its intention to do so. The  Visiting  Board
was also given the power, by order in writing, to annul any
proceedings  not  in conformity with the Act,  Statutes and
Ordinances,  provided that before making such an order, the
Board had to call upon the University to show cause why such
an  order should not be made, and to consider such cause  if
shown within reasonable time.  This provision, though not so
all-pervasive  as  the provision in s. 13 of  the  1920-Act,
shows  that the Visiting Board had also certain over-riding
powers in case the University authorizes acted against the
Act,  Statutes and Ordinances. There is no  condition that
the  Lord Rector and the members of the Visiting Board must
belong to the Muslim community.
Sections 15 to 21 are not material$ for our purposes. They
made  provisions for officers of the University and  Rectors
and laid down that "the powers of officers of the University
other  than  the Chancellor, the Pro-Chancellor,  the  Vice-
Chancellor and, the Pro-Vice-Chancellor shall be  prescribed
by  the Statutes and the Ordinances".  Section 22  provided
for  the, authorities of the University, namely, the  Court,
the  Executive Council and the Academic  Council  and such
other authorities as might be declared by the Statutes to be
authorities of the University. Section 23 provided for the
constitution  of the Court, and the proviso  to sub-section
(1)  has been greatly stressed on behalf of the petitioners
which laid down that "no person other than a Muslim shall be
a member
842
thereof".   It may be added here that the  Select  Committee
which went into the Bill before the 1920-Act was passed was
not very happy about this proviso and observed that:
      " in  reference to the  constitution  of the
      Court  we have retained the provision that  no
      person  other  than Muslim shall be  a  member
      thereof. We have done this as we  understand
      that  such a provision is in  accordance with
      the  preponderance  of Muslim  feeling  though
      some of us are by no means satisfied that such
      a provision is necessary."
By section 23(2), the Court was to be the supreme  governing
body of the University and would exercise all the powers  of
the University, not otherwise provided for by the  1920-Act,
the  Statutes, the Ordinances and the Regulations.   It was
given the power to review the acts of the Executive and the
Academic  Councils,  save where such Councils had  acted  in
accordance with powers conferred on them under the Act, the
Statutes  or  the Ordinances and to  direct  that  necessary
action be taken by the Executive or the Academic Council, as
the case might.be, on any recommendation of the Lord Rector.
The power of Making Statutes was also conferred on the Court
along with other powers necessary for the functioning of the
University.
Section 24 dealt with the Executive Council, S. 25 with the
Academic  Council  and s. 26 with other authorities  of the
University.   Section 27 laid down what the  Statutes  might
provide.  Section  28 dealt with the question of  the  first
Statutes  and  how  they were to be  amended,  repealed and
addled to.  There is an important provision in s. 28  which
laid down that "no new Statute or amendment or repeal of  an
existing Statute shall have any validity, until it his been
submitted  through the Visiting Board (which may record its
opinion thereon) to the Governor General in Council, and has
been  approved by the latter, who may sanction, disallow  or
remit it for further consideration." This provision  clearly
shows  that the final power over the administration  of the
University  rested  with the Governor  General in  Council.
Section 29 dealt with Ordinances and what they could provide
and  S. 30  provided which authorities of  the  University
could, make  Ordinances.  Section 30(2) provided that "the
first Ordinances shall be framed as directed by the Governor
General in Council." and sub-s. (3) thereof lald down that
"no  new  Ordinance, or amendment or repeal of an  existing
Ordinance  shall  have any  validity  until  it  has been
submitted though the Court and the Visiting Board (which may
record its  opinion  thereon) to the  Governor General  in
Council,  and has obtained the approval of the latter, who
may   sanction,   disallow   or   remit   it   for   further
consideration". This again shows that even Ordinances could
not  be made by the University withOut the approval  of the
Governor  General In Council.  If any dispute arose  between
the, Executive and the Academic Council as
843
to which had the power to make an Ordinance, either  Council
could  represent  the matter to the Visiting Board  and the
Visiting  Board had  to  refer the  same  to a   tribunal
consisting of three members, one of whom was to be nominated
by  the Executive Council, one by the Academic Council, and
one  was  to be a Judge of the High Court nominated  by the
Lord  Rector.  This again shows that in the matter  of such
disputes,  the Court which is called the  supreme  governing
body  of the University, did not have the power to  resolve
it.   Section  31 provides for the  making  of Regulations,
which had to be consistent with the Statutes and Ordinances.
It  is only  the  Regulations which  did  not require the
approval  of  the  Governor General before  they  came into
force. Section 32 provided for admission of students to the
University  and sub-s. (4)  thereof  provided that "the
University shall not save with the previous sanction of the
Governor  General-in Council recognise (for the purpose  of
admission  to a course of study for a degree) as  equivalent
to  its own  degrees, any degree  conferred  by  any  other
University or as equivalent to the Intermediate Examination
of  an Indian University, any examination conducted  by any
other  authority".   This  shows  that in  the matter   of
admission  the University could not admit students of  other
institutions   unless  the  Governor  General in   Council
'approved  the degree or  any other examination  of the
institutions  other than Indian Universities established  by
law.  Section 33 provided for examinations, s. 34 for annual
report and  s. 35 for annual accounts. Sections 36  to  38
provided  for  supplementary  matters  like  conditions   of
service of  officers and teachers,  provident and  pension
funds, filling of casual vacancies and are not material for
our  purposes. Section  39  laid  down  that "no  act  or
proceeding  of any  authority of the  University  shall  be
invalidated merely, by reason of the existence of vacancy or
vacancies  among its members". Section 40 is important and
laid down that "if any difficulty arises with respect to the
establishment of the University or any authority of the Uni-
versity or  in connection with the first  meeting  of any
authority of the University, the Governor General in Council
may  by order make any appointment or do  anything  which
appears to  him  necessary  or expedient  for the  proper
establishment of the University or any authority thereof  or
for  the firs meeting of any authority of  the University."
This  again  shows  the power of  the  Governor General  in
Council in the matter of establishment of the University.
This  brings us to the end of the sections of the  1920-Act.
There  is nothing anywhere in any section of the  Act  which
vests  the  administration of the University in the  Muslim
community.   The fact that in the proviso to s. 23(1) it  is
provided that the Court of the University shall consist only
of Muslims does not necessarily mean that the administration
of  the University was vested or was intended, to be  vested
in the Muslim minority. If anything, some of the  important
provisions  to which we have already referred show that the
final power in almost every matter of importance
844
was  in the Lord Rector, who was the Governor General or  in
the Governor General in Council.
Then follows the schedule which provides for the first Sta-
tutes of the Aligarh University. These Statutes provided for
the   Rectors  of  the University,   the   Vice-Chancellor,
Pro-Vice-Chancellor,   Treasurer,  Registrar,  Proctor and
Librarian,  the Court, constitution of the Court, the  first
Court, meetings of the Court and the powers of the  Court,
the Executive Council, the powers of the Executive  Council,
the Academic Council and its powers, departments of studies,
appointments, register   of graduates,    convocations,
Committees and so on.  The annexure to the 1920-Act gave the
names  of the Foundation Members of the Court numbering 124
who  were all Muslims and who were to hold office  for five
years from the commencement of the Court.
Such were the provisions of the 1920-Act.  They continued in
force till 1951 without any substantial amendment.  In 1951,
the  1951-Act  was passed.  It made certain changes  in the
1920Act mainly on account of the coming into force  of the
Constitution. We shall refer only to such changes  as are
material  for our purposes.  The first material change was
the deletion of s. 9 of the 1920-Act which gave power to the
Court  to make Statutes providing for  compulsory  religious
instruction in the case of Muslim students.  This  amendment
was  presume ably made in the interest of the University  in
view of Art. 28(3) of the Constitution which lays down that
"no person attending any educational institution  recognised
by  the State or receiving aid out of State funds  shall  be
required to take part in any religious instruction that may
be  imparted in such institution or to attend any  religious
worship that may be conducted in such institution or in any
premises  attached  thereto unless such person or,  if such
person is  a  minor, his guardian  has given his  consent
thereto."  It was necessary to delete s. 9 as otherwise the
University  might have lost the grant which was given to  it
by  the Government of India.  Further S. 8 of  the  1920-Act
was   amended  and  the new  section  provided that "the
University  shall  be open to persons of either sex  and  of
whatever  race, creed, caste, or class, and it shall not  be
lawful for the University to adopt or impose on any  person,
any  test  whatsoever of religious belief or  profession  in
order to entitle him to be admitted therein, as a teacher or
student,  or  to  hold any office therein,  or to  graduate
thereat,  or  to enjoy or exercise  any privilege  thereof,
except in respect of any particular benefaction accepted  by
the University, where such test is made a condition  thereof
by  my testamentary  or  other instrument  creating such
benefaction". The new S. 8 had also a proviso laying down
that  "nothing in this section shall be deemed to  prevent
religious  instruction being given in the manner  prescribed
by  the Ordinances to those who have consented to  receive
it".  Clearly section 9 was deleted and S. 8 was amended  in
this manner to bring the law into conformity with
845
the  provisions of the Constitution and for the benefit  of
the University so that it could continue to receive aid from
the  Government.  Some amendment was also made in s.  13  in
view  of the changed constitutional set-up and in  place  of
the  Lord  Rector,  the University was to  have a  Visitor.
Section 14 was also amended and the power of  the  Visiting
Board was conferred on the Visitor by addition of a new sub-
s. (6).
The next substantial change was that the proviso to s. 23(1)
which  required that all members of the Court would only  be
Muslims was deleted,.  Other amendments are not material for
our purpose as they merely relate to administrative  details
concerning the University.
It will thus be seen that by virtue of the 1951-Act non-Mus-
lims  could  also be members of the Court.   But  the  Court
still remained the supreme governing body of the  University
as provided by s. 23 (1) of the 1920-Act.  It is  remarkable
that though the proviso to s. 23(1) was deleted, as far back
as  1951, there was no challenge to the 1951-Act till  after
Ordinance  No. 11 of 1965 was passed.  The reason  for this
might be that there was practically no substantial change in
the  administrative set-up of the 1920-Act and it  was only
when  a drastic change was made by the Ordinance  of  1965,
followed  by the 1965-Act, that challenge was made not only
to the 1965-Act but also to the 1951-Act in so far as it did
away  with the proviso to s. 23(1).  It is not our  function
in  the present petitions to consider the policy  underlying
the amendments made by the 1965-Act nor do we propose to  go
into the merits of the amendments made by the 1965-Act.   We
are  in the  present  petitions  concerned  only  with the
constitutionality of the provisions of the 1965-Act.  If the
provisions   are  constitutional,  they were within the
legislative competence of Parliament.
This  brings  us to the changes made in the  1965-Act  which
have  occasioned the present challenge. The main  amendment
in  the 1965-Act was in s. 23 of the 1920 Act with  respect
to  the composition  and the powers of the  Court  of the
University.   Sub-sections (2) and (3) of the 1920-Act were
deleted, with the result that the Court no longer  remained,
the supreme governing body and could no longer exercise the
powers conferred on it by sub-ss. (2) and (3) of s. 23.   In
place  of these two sub-sections, a new subsection  (2) was
put  in, which reduced the functions of the Court  to  three
only,  namely, "(a) to advise the Visitor in respect of any
matter which may be referred to the Court for advice; (b) to
advise any other authority of the University in respect  of
any  matter which may be referred to the Court for  advice;
and (c) to perform such other duties and exercise such other
powers as may be assigned to it by the Visitor or under this
Act".  It further appears from the amendments of ss. 28, 29,
34 and 38 that the powers of
846
the  Executive Council were correspondingly increased. The
Statutes  were also amended and many of the powers  of the
Court  were  transferred by the amendment to  the  Executive
Council.    Further  the  constitution of  the Court was
drastically changed by the amendment of the 8th Statute and
it practically became a body nominated by the Visitor except
for  the Chancellor, the ProChancellor, the members  of the
Executive  Council  who were ex officio members  and  three
members of Parliament, two to be nominated by the Speaker of
the  House  of the People and one by the  Chairman  of the
Council   of  States. Changes were  also  made   in the
constitution of the Executive Council. Finally the 1965-Act
provided  that "every person holding office as a  member  of
the  Court  or the Executive Council, as the  case  may be,
immediately before the 20th day of May, 1965 (on which date
Ordinance No. 11 of 1965 wais promulgated) shall on and from
the  said date cease to hold office as such".  It  was also
provided  that until the Court or the Executive Council was
reconstituted, the Visitor might by general or special order
direct any officer of the University to exercise the  powers
and perform the duties conferred or imposed by or under the
1920-Act  as  amended by the 1965-Act on the  Court  or the
Executive Council as the case may be.
The  contention of the petitioners is that by these  drastic
amendments  in 1965 the Muslim minority was deprived of the
right  to  administer the Aligarh University and  that this
deprivation   was  in  violation  of  Art.  30(1)   of the
Constitution; and it is to this question we turn now.
Under  Article 30(1), "all  minorities  whether  based  on
religion  or language shall have the right to establish and
administer  educational institutions of their  choice".   We
shall  proceed on the assumption in the  present  petitions
that Muslims are a minority based on religion. What then is
the  scope  of Art. 30(1) and what  exactly  is  the  right
conferred therein on the religious minorities. It is to our
mind  quite  clear  that Art.  310(1)  postulates  that the
religious   community  will  have  the rig  establish and
administer educational institutions of their choice mentoing
thereby that  where  a religious  minority  establishes  an
educational   institution,  it will  have  the   right   to
administer that.  An argument has been raised to the  effect
that  even  though  the religions  minority  may  not have
established  the educational institution, it will  have the
right  to  administer  it,  if by  some  process  it been
administering  the  same before the Constitution  came into
force. We are not prepared to accept this argument. The,
Artice in our opinion clearly shows that the minority will
have  the  right to administer educational  institutions  of
their  choice provided they have established them,  but not
otherwise.  The Article cannot be read, to mean that even if
the educational institution has been established by somebody
else,  any  religious  minority would have  the  right  to
administer  it because, for some reason or other,  it  might
have been
847
administering  it before the Constitution came into  force.
The words "establish and administer" in the Article must  be
read  conjunctively  and so read it gives the Tight  to the
minority  to administer an educational institution  provided
it  has been  established by it.  In  this  connection our
attention  was drawn to In re, The Kerala  Education  Bill,
1957(1) where, it is argued, this Court had held  that the
minority  can  administer an  educational  institution even
though it might not have established it.  In that  case  an
argument  was  raised that under Art. 30(1)  protection was
given only to educational institutions established after the
Constitution came into force.  That argument wag turned down
by   this  Court  for  the  obvious  reason  that  if that
interpretation was given to Art. 30(1) it would be robbed of
much  of its content.  But that case in our opinion did not
lay  down that the words "establish, and administer" in Art
30(1)  should  be  read disjunctively, so  that,  though  a
minority   might   not have  established   an educational
institution  it had the right to administer it. It is true
that  at  p. 1062 the Court spoke of Art. 30(1) giving two
rights to  a  minority i.e. (i) to establish  and  (ii)  to
administer.   But  that was said only in  the context  of
meeting   he   argument   that educational institutions
established by minorities before the Constitution came into
force did not have the protection of Art. 30(1).  We are  or
opinion that nothing in that case justifies the  contention
raised of  behalf of the petitioners that  the minorities
would have   the  right  to  administer   an educational
institution  even though the institution may not  have been
established,  by them. The two words in Art 30(1)  must  be
read  together and No read the Article gives this  right  to
the  minority to administer institutions established by it,
If the educational institution has not been established by a
minority  it cannot claim the right to administer  it  under
Art. 30(1) We have therefore to consider whether the Aligarh
University was established by the Muslim minority; and if it
was  so established the minority would certainly  have the
right to administer it.
We  should  also like to refer to the observations  in The
purgah Committee,  Ajmer v. Syed Hussain Ali(1).   In that
case  the Court observed while dealing with Art.  26(a) and
(d)  of the Constitution that even if it be assumed  that  a
certain religious institution was established by a  minority
community it may lose the right to administer it in  certain
circumstances. We  may  in this connection  refer  to the
following observations at p. 414 for they appequally to Art.
30(1):
      "If  the right to administer properties  never
      vested in the denomination or had been validly
      surrendered  by  it  or  had  otherwise been
      effectively and irretrievably lost to it, Art.
      26 cannot be successfully invoked."
[1959] S.C.R. 995.   (2) [1962] 1 S.C.P. 383.
848
We shall have to examine closely what happened in 1920 when
the  1920-Act was passed to decide (firstly) whether in the
face  of  that Act  it could- be  said  that the  Aligarh
University   was   established by  the   Muslim   minority,
(secondly) whether the right to administer it ever vested in
the minority, and (thirdly) even if the right to  administer
some  properties that came to the University vested  in the
minority before the establishment of the Aligarh University,
whether it had been surrendered when the Aligarh  University
came to be established.
Before we do so we should like to say that the words  "edu-
cational  institutions" are of very wide import  and  would
include a university also.  This was not disputed on  behalf
of the Union of India and therefore it may be accepted that
a religious minority had the right to establish a university
under  Art.  30(1).   The  position  with  respect  to the
establishment  of Universities before the Constitution came
into  force  in 1950 was this. There was no  law  in  India
which  prohibited  any private individual  or body from
Establishing  a university and it was therefore, open  to  a
private individual or body to establish a university.  There
is  a good, deal on common between educational institutions
which are not universities and those which are universities.
Both teach students and both have teachers for the  purpose.
But   what  distinguishes  a  University  from any   other
educational institution is that a university grants  degrees
of its own while other educational institutions cannot.   It
is  this  granting  of degrees by a  university which dis-
tinguishes   it from  the  ordinary  run   of educational
institutions.  See St. David's College, Lampeter v. Ministry
of  Education(1).   Thus  in  law  in  India  there  was  no
prohibition against establishment of universities by private
individuals   or  bodies  and  if  any university  was   so
established it must of necessity be granting deges before it
could be called a university.  But though such a  university
might  be  granting  degrees  it did  not  follow  that the
Government  of the  country was bound to  recognise  those
degrees. is a matter of fact as the law stood up to the time
the  Constitution  time into force, the Government  was not
bound  to  recognise agrees of universities  established  by
private individuals or bodies and gene-rally  speaking the
Government only recognised degrees universities established
by  it by law. of private individual or body  could  before
1950  insist that the degrees of any university established
by  him or  it must  be  recognised  by  government. Such
recognition  depended upon the will of government  generally
expressed   through   statute. The   importance   of the
recognition of Government in matters of this kind cannot  be
minimized.    This   position  continued  even after the
Constitution  came into force. It is only in 1956  that  by
sub-s. (1) of s. 22 of the University Grants commission Act,
(No.  3 of  1956)  it was laid down  that  "the  right  to
conferring or granting degrees shall be exercised only by a
(1)  [1951] 1 All E.R. 559.
849
University established or incorporated by or under a Central
Act,  a Provincial Act or a State Act: or  an institution
deemed to be a University under section 3 or an institution
specially  empowered  by an Act of Parliament to  confer  or
grant  degrees".  Sub-section (2) thereof  further  provided
that "save as provided in sub-s. (1), no person or authority
shall  confer, or  grant,  or hold  himself  or  itself  as
entitled to confer or grant any degree".  Section 23 further
prohibited   the  use  of  the word  "university"   by   an
educational institution unless it is established by law.  It
was only thereafter that no private individual or body could
grant a degree in India.  Therefore it was possible for the
Muslim minority  to  establish a  university before the
Constitution  came into force, though the degrees  conferred
by  such  a university were not bound to  be  recognised  by
Government.
There was nothing in 1920 to prevent the Muslim minority, if
it so chose, to establish a university; but if it did so the
degrees of such a university were not bound to be recognised
by Government. It may be that in the absence of recognition
of  the degrees granted by a university, it  may  not have
attracted many students, and that is why we find that before
the  Constitution came into force, most of the universities
in  India  were established by legislation. The  Aligarh
University   was  also in  the same  way  established   by
legislation and it provided under s. 6 of the 1920-Act that
"the  degrees-, diplomas and  other  academic distinctions
granted or  conferred to or on persons by  the  University
shall be   recognised by  the  Government  as   are the
corresponding degrees,   diplomas   and   other   academic
distinctions  granted by any other  university incorporated
under any enactment." It is clear therefore that even though
the  Muslim  minority could have established at Aligarh  in
1920 a university, it could not insist that degrees  granted
by  such  a university should be recognised  by Government.
Therefore  when the Aligarh university was  established  in
1920 and by s. 6 its degrees were recognised by Government,
an institution was brought into existence which could not be
brought into existence by any private individual or body for
such   individual  or  body  could  not insist   upon the
recognition  of the  degrees conferred by  any  university
established, by it.  The enactment of s.6 in the 1920-Act is
a  very important circumstance which shows that the  Aligarh
University  when it came to be established in 1920  was not
established  by the Muslim minority, for the minority  could
not  insist on the recognition by Government of the  degrees
conferred by any university established by it.
It is true, as is clear from the 1920-Act, that the  nucleus
of  the Aligarh University was the M.A.O College, which was
till  then  a  teaching institution  under  the   Allahabad
University.   The conversion of that college (if we may use
that  expression) into a university was however not  by the
Muslim minority; it took place
850
by  virtue of the 1920-Act which was passed by the  Central
legislature.  There was no Aligarh University existing till
the  1920Act was passed.  It was brought into being  by the
1920-Act and must therefore be held to have been established
by  the Central Legislature which by passing  the  1920-Act
incorporated  it.  The fact that it was based on the  M.A.0.
College, would make no difference to the question as to who
established the Aligarh University.  The answer to our mind
as  to who established the Aligarh University is  clear and
that is that it was the Central Legislature by enacting the
1920-Act  that established the said University. As we have
said  already, the Muslim minority could  not establish  a
university whose degrees were bound to be recognised by Gov-
ernment   as  provided by  s. 6  of  1920-Act.  that one
circumstance  along with the fact that without the  1920-Act
the University in the form that it had, could not come into
existence shows clearly that the Aligarh University when  it
came into existence in 1920 was established by, the  Central
Legislature  by the 1920-Act.  It may be that  the  1920-Act
was  passed  as a  result of  the  efforts  of the  Muslim
minority.    But  that does  not  mean that  the   Aligarh
University  when it came into being under the  1920-Act was
established by the Muslim minority.
A  good deal of argument was addressed, to us on the  nature
of  eleemosynary  corporations and  the difference  between
fundatio  incipiens  and  fundatio  perficiens and  certain
English cases were cited in support thereof.  It was  urged
that the word "establish" in the 1920-Act amounted only to,
a  case of fundatio incipiens and that so far  as  fundatio
perficiens was concerned,, that was the Muslim minority.  We
do  not think it necessary to go into these distinctions  of
the  English law; nor.do we think it necessary to  consider
the nature of eleemosynary corporations.  Suffice it to say
that even if we assume that those who contributed money and
property  which was vested in the Aligarh  University (and
some of them were non-Muslims) were in the  post of fundatio
perficiens, they could only have visitorial rights under the
English common law.  But Muslim minority as such could not
claim to be fundatio perficiens for that right would only be
in the donors and no others.  Further even these  visitorial
rights must be held to have been negatived by the  1920-Act
for  it specifically  conferred such rights  on,  the Lord
Rector and the Visiting Board and no others.  Some  argument
was  also  based on some cases of the Supreme Court  of the
United States of America which depended upon the  provisions
of  the Constitution of that country  which  Prohibits im-
pairment  of  contracts.  It is profitless to refer  to the
cases cited in that behalf for our Constitution has no such
fundamental right.  Further we cannot under any circumstance
read the 1920-Act as a kind of contrast.
What does the word "establish" used- in Art. 30(1) mean?  In
Bouvier's  Law Dictionary, Third Edition, Vol. I,  it has
been
851
said  that  the word "establish" occurs frequently  in the,
Constitution  of the United States and it is there  used  in
different meanings; and five such meanings have been  given,
namely (1)  to settle firm , to  fix unalterably,  as  to
establish  justice; (2) to make or form: as, to establish  a
uniform rule of naturalization; (3) to found, to create,  to
regulate-,  as, Congress shall have power to establish post
offices;  (4)  to found, recognize, confirm  or admit: as,
Congress  shall make no law respecting an  establishment  of
religion;  (5) to create, to ratify, or confirm, as We, the
people, etc., do ordain and establish this  constitution.
Thus  it  cannot be said that the only meaning of  the word
"establish"  is to found in the sense in which an  eleemosy-
nary institution is founded and we shall have to see in what
sense  the  word has been used in our Constitution  in this
Article.   In  Shorter Oxford English Dictionary,   Third
Edition,  the  word "establish" has at number  of  meanings,
i.e. to ratify, confirm, settle, to found, to create. Here
again  founding is  not  the  only  meaning  of  the word
"establish"  and  it includes creation also.   In  Webster's
Third New International Dictionary, the word "establish" has
been  given a number of meanings, namely, to found  or base
squarely,  to make firm or stable, to bring into  existence,
create, make, start, originate.  It will be seen that here
also  founding is not the only meaning; and the  word also
means "to bring into existence".  We are of opinion that for
the  purpose  of Art. 30(1) the word means  "to bring into
existence",  and  so the right given by Art.  30(1)  to the
minority   is  to  bring  into existence   an educational
institution,  and if they do so, to administer it.  We have
therefore  to see what happened in 1920 and who brought the
Aligarh University into existence.
From  the  history we have set out above, it will  be  clear
that  those  who were in-charge of the M.A.O.  College, the
Muslim University  Association and  the  Muslim  University
Foundation  Committee  were keen to bring into existence  a
university  at Aligarh.  There was nothing in law  then  to
prevent them  from  doing so, if they so  desired  without
asking Government to help them in the matter. But if they
had  brought into existence a university on their  own, the
degrees of that university were not bound to be  recognised
by  Government. It seems to us that it must have been felt
by  the persons concerned that it would be no  use  bringing
into  existence a, university, if the degrees  conferred  by
the said university were not to be recognised by Government.
That  appears  to  be the reason  why  they  approached the
Government  for bringing  into existence  a  university  at
Aligarh, whose degrees would be recognised by Government and
that  is why we find s. 6 of the 1920-Act laying  down that
"the  degrees, diplomas, and  other  academic distinctions
granted or  conferred, to or on persons by  the  university
shall  be  recognised, by the Government........ It  may  be
accepted  for present purposes that the M.A.O. College and
the Muslim University Association and the Muslim  University
Foundation  Committee were institutions established  by the
Muslim minority
852
and  two of them were administered. by Societies  registered
under the Societies Registration Act, (No. 21 of 1860). But
if the M.A.0. College was to be converted into a  university
of  the kind whose degrees were bound to be  recognised  by
Government, it would not be possible for those who were in-
charge of  the M.A.0. College to do so.  That is  why the
three  institutions  to which we  have  already   referred
approached  the Government to bring into existence  a uni-
versity whose degrees would be recognised  by Government.
The 1920-Act was then passed by the Central Legislature and
the university of the type that was established thereunder,
namely, one whose degrees would be recognised by Government,
came  to  be  established.   It was  clearly  brought into
existence by the 1920-Act for it could not have been brought
into   existence  otherwise.   It  was thus   the   Central
Legislature   which  brought  into  existence  the   Aligarh
University  and must be held to have  established  it.   It
would not be possible for the Muslim minority to establish a
university  of the  kind whose degrees were  bound  to  be
recognised by Government and therefore it must be held that
the  Aligarh  University was brought into existence  by the
Central Legislature and the Government of India.  If that is
so,  the Muslim minority cannot claim to administer it, for
it was not brought into existence by it.  Art. 30(1),  which
protects educational institutions brought into existence and
administered by a minority, cannot help the petitioners and
any amendment of the 1920-Act would not be ultra vires Art.
30(1)  of  the Constitution.  The  Aligarh  University not
having been  established  by the  Muslim  minority, any
amendment of the 1920-Act by which it was established, would
be  within  the legislative power of Parliament subject  of
course to the provisions of the Constitution. The  Aligarh
University  not having been  established  by the   Muslim
minority,  no  amendment of the Act can be  struck  down  as
unconstitutional under Art. 30(1).
Nor do we think that the provisions of the Act can bear out
the  contention that it was the Muslim minority  which was
administering  the Aligarh University, after it was  brought
into existence. It is true that the proviso to s. 23(1)  of
the 1920-Act said that "no person other than a Muslim  shall
be  a  member of the Court", which was declared to  be the
supreme governing body of the Aligarh University and was  to
exercise  all  the powers of the University,  not  otherwise
provided  for by that Act.  We have already referred to the
fact  that  the Select Committee was not  happy about this
provision and only permitted it in the Act out of  deference
to the wishes of preponderating Muslim opinion'.
It appears from paragraph 8 of the Schedule that even though
the members of the Court had to be Muslims, the electorates
were not exclusively Muslims.  For example, sixty members of
the Court had to be elected by persons who had made or would
make donations of five hundred rupees and upwards to or for
the purposes of the University. Some of these persons were
and could
853
be  non-Muslims.   Forty persons were to be elected  by the
Registered  Graduates  of the University, and  some  of the
Registered Graduates were and could be non-Muslims, for the
University  was open to all persons of either sex  and  of
whatever  race, creed or class. Further fifteen members  of
the  Court were to be elected by the Academic  Council, the
membership of which was not confined only to Muslims.
Besides there were other bodies like the Executive  Council
and the Academic Council which were concerned with the admi-
nistration  of the  Aligarh University and  there  was  no
provision in the constitution of these bodies which confined
their  members only to Muslims. It will thus be  seen that
besides the fact that the members of the Court had to be all
Muslims,  there was nothing in the Act to suggest  that the
administration of the Aligarh University was in the  Muslim
minority  as  such.   Besides the  above,  we  have  already
referred to s. 13 which showed how the Lord Rector,  namely,
the Governor General had overriding powers over all  matters
relating  to  the administration of  the  University. Then
there was s. 14 which gave certain over-riding powers to the
Visiting  Board.  The Lord Rector was then the Viceroy and
the  Visiting Board consisted of the Governor of the  United
Provinces,  the members  of  his  Executive  Council, the
Ministers,  one member nominated by the  Governor  and one
member nominated  by the Minister in charge  of  Education.
These people were not necessarily Muslims and they had over-
riding powers over the administration of  the University.
Then  reference may be made to s. 28(2) (c) which laid down
that  no new Statute or amendment or repeal of an  existing
Statute,  made by the University, would have  any  validity
until  it  had been approved by  the  Governor General  in
Council who had power to sanction, disallow or remit it for
further' consideration. Same powers existed in the Governor
General in  Council  with respect  to Ordinances.   Lastly
reference  may be made to s. 40, which gave  power  to the
Governor  General in Council to remove any difficulty  which
might  arise in the establishment of the University.   These
provisions   in   our opinion clearly   show   that the
administration was also not vested in the Muslim  minority;
on  the other hand it was vested.in  the  statutory  bodies
created by the 1920-Act, and only in one of  them,  namely,
the  Court,  there was a bar to the appointment of  any one
else except a Muslim, though even there some of the electors
for  some  of  the members  included  non-Muslims.   We are
therefore of opinion that the Aligarh University was neither
established  nor  administered by the  Muslim  minority and
therefore there is no question of any amendment to the 1920-
Act being unconstitutional under Art. 30(1) for that Article
does not apply at all to the Aligarh University.
The  next argument is based on Art. 26 of the  Constitution.
that  Article Provides that every religious denomination  or
any
854
section thereof shall have the right (a) to  establish and
maintain   institutions   for religious   and   charitable
purposes...... (c) to own and acquire movable and  immovable
property; and (d) to administer such property in  accordance
with law.  A question was raised Whether Art. 26 would take
in  its sweep educational institutions on the ground that
such institutions are institutions for charitable  purposes.
It  was urged that Art. 26 will not  apply  to educational
institutions  for there is specific provision in Art.  30(1)
with  respect  to  educational institutions  and  therefore
institutions  for charitable purposes in cl. (a) of Art.  26
refer to institutions other than educational ones.  There is
much to be said in favour of this contention.  But we do not
propose to decide this question for present  purposes.   We
shall  assume that educational institutions would also come
within Art. 26(a) as institutions for charitable  purposes.
Even  so we fail to see how Art. 26 helps  the petitioners.
Clause (a)  of that  Article gives  the  right  to  every
religious  denomination and  the Muslim  minority  may for
present purposes be assumed to be a religious denomination
within the 'meaning of Art. 26-to establish  and  maintain
institutions  for religious and, charitable purposes. What
we have said with respect to Art. 30(1) which gives right to
minorities to establish and administer educational  institu-
tions of their choice applies equally to cl. (a) of Art.  26
and  therefore we are of opinion that the words,  "establish
and  maintain" must be read conjunctively and it  is only
institutions  which  a religious  denomination establishes
which 'it can claim to maintain.' It is not necessary to  go
into  all  the' implications of the word "maintain";  it  is
enough for  present  purposes to say that  the  right  to
maintain   institutions for  religious 1  and   charitable
purposes  would include the right to administer them. But
the right under el. (a) of Art. 26 will only arise where the
institution  is established by a religious denomination and
it  is in that event only that it can claim to maintain it.
As  we have already held, the Aligarh University  was not
established by the Muslim minority and therefore no question
arises of its right to maintain it within the meaning of cl.
(a) of Art. 26.
Reference is also, made to Art. 26 clauses (c) and (d) which
give  the right to a religious denomination "(c) to own and
acquire   movable  and immovable  property,  and   (d)   to
administer such property in accordance with law".  So far as
that  is concerned it is enough to say that Muslim  minority
does  not own the movable and immovable property  which was
vested in the Aligarh University by virtue of the  1920-Act
and therefore cannot claim to administer any  such,property.
Clauses (c) and (d) give power to the religious denomination
to own and acquire movable and immovable property and if  it
owns  or acquires such movable or immovable property it can
administer  such property in accordance with law.   But the
Muslim minority did not own the property which was  vested
in, the Aligarh University on the date the Constitution came
855
into  force, and it could not lay claim to  administer that
property  by virtue of Art. 26(d).  For the rest,  there  is
nothing in the impugned amendment Acts which in any way bars
the   Muslim   minority from  owning or   acquiring and
administering movable or immovable property if it so desires
for purposes of Art. 26.  But it cannot lay claim under Art.
26(d)  to  administer the property which was vested  in the
Aligarh University by the 1920-Act, for it did not own that
property when the Constitution came into force.
The next attack on the constitutionality of the 1965-Act  is
under  Art. 25 of the Constitution.  That  Article  provides
that  "subject to public order, morality and health  and  to
the  other provisions of this Part all persons are  equally
entitled  to freedom of conscience and the right  freely  to
profess, practice and propagate religion." We have not been
able to understand how the amendment made by the 1965-Act in
the 1920-Act in any way affects the tight freely to profess,
practice  and  propagate  religion.  It may  be added that
'learned counsel for the petitioners did not seriously press
the  contention that  the 1965-Act was ultra  vires  as  it
violated Art. 25 of the Constitution.
The  next Article of the Constitution on which reliance  is
placed is Art. 29.  That Article provides that "any  section
of  the citizens residing in the territory of India or any
part  thereof having a distinct language, script or  culture
of  its own shall have the right to conserve the same".   We
have not been able to understand how the amendments made  by
the  1965-Act in the 1920-Act in any way interfere with the
right  of  the Muslim minority to  conserve  any  distinct
language,  script  or culture which they might have. Here
again we may add that no serious argument was raised  before
us on the basis of Art. 29.
The  next Article of the Constitution on which reliance  is
,placed is  Art.  14. Here  again  we  are  not  able  to
appreciate what the discrimination is which has been brought
about by the amendments of the 1965-Act.  It seems that the
charge of discrimination is based on the provisions of the
Benaras   Hindu   University  Act,   which   University   is
established'  by  an Act of its own.  We do not think that
Art.  14 requires that the provisions in  every,  University
Act must always be the same. Each University has problems of
its own and it seems to us that it is for the legislature to
decide ,what kind of constitution should be conferred on  a
particular  university established by it.  There can  be  no
question  of  discrimination on the ground that some  other
University  Acts  provide for some different set  up. Each
university  must  be taken to be a class by itself  and the
legislature  has  a  right to make such provision  for its
constitution  as  it  thinks  fit  subject  always  to the
provisions of the Constitution. The mere fact that  certain
provisions   in a  statute  creating  one  university are
different from provisions in another
856
statute creating another university cannot mean that  there
is  discrimination.   It has been urged in  this  connection
that  other universities, such as, Delhi,  Agra,  Allahabad,
Patna  and Benaras, have certain elective element while the
amendment  of 1965. has done away with the elective  element
so  far as the Aligarh University is  concerned.   We have
already said that we are not, concerned with the policy  of
the  legislature  in  enacting the 1965,'-Act; nor  are  we
concerned with the merits of the provisions of the'1965-Atc
All  that  we need say is that simply because  there  is  no
elective  element  in  one university while  there  is such
element in" another university it cannot be said that  there
is  discrimination,  for,  as we  have said  already, each
university is a class by itself and may require a  different
set  up according  to the  requirements  and needs  of  a
particular  situation. We therefore. see no, force  in the
attack on  the constitutionality of the  1965-Act  on the
ground that it is hit by Art. 14 of the Constitution.
The next attack oh the constitutionality of the 1965-Act  is
based  on  Art. 19, and the argument seems to  be  that the
statute deprives  Muslims of their right to  acquire, hold
and,dispose of property and to form associations or  unions.
The  argument has merely to be stated to deserve  rejection.
We  cannot understand how the 1965-Act deprives the  Muslim
citizens of this country,, of the right to form associations
or  unions.-  There is nothing in the 1965-Act which  takes
away that right, nor is there anything in' the 1 to 1965-Act
which  takes away the right of the Muslim citizens  acquire,
hold and dispose of property But it is said that the  Muslim
minority  has  been  deprived of the  right  to manage the
Aligarh University and the right to hold the property  which
was vested in the Aligarh University by the 1920-Act.  There
is  no force in this contention either, for  Art.  19(1)(c)
does  not  give any  right to any  citizen  to manage any
particular educational institution.  It only gives the right
to a citizen to form associations or unions.  That right has
not  been touched by the 1965-Act Similarly, Art. 19  (1)(f)
does  not give right to any citizen to hold property  vested
in  a  corporate  body like the university.   All  that  it
provides  is  that all citizens have the right to  acquire,
hold and dispose of property of their own.  There is nothing
in the 1965Act which in any way takes away the right of the
Muslims of  this country to acquire, hold  and dispose  of
property of their own
Lastly reliance is placed on Art.31(1) which provides that
"no  person  shall  be deprived of  his  property  save  by
authority,  of law."  We  may assume that  the   "Muslim:
minority"  is  a person for purposes of Art. 31(1)  and the
petitioners have a right to file these writs on its  behalf.
It  is urged Oat the Muslim minority has been  deprived,  of
their  property, namely. the property vested in the  Aligarh
University,  by the 1965-Act inasmuch as the Court now is  a
very  different body from the Court as it was, under, the
1920-Act.  It is difficult to understand this argument.   It
is clear
857
from  the history which we have set out above and  from the
provisions of the 1920-Act that the two societies which were
registered  under  the Societies  Registration Act,  1860,
namely, the  M.A.O.  College  and  the Muslim   University
Association,  voluntary surrendered whatever  property they
had  including the college buildings etc.. to the  corporate
body   created by  the  1920-Act,  namely,   the   Aligarh
University.   The  third  body, namely,  Muslim  University
Foundation  Committee  also  surrendered the  money  it had
collected  in pursuance of the Government direction that  it
will only establish a university if rupees thirty lakhs were
collected   for the  purpose. The  same  was   apparently
collected, the major part from Muslims but some contribution
was made by non-Muslims also.  That fund was also made over
to the corporate body, namely, the Aligarh University  which
was  brought into existence by the 1920-Act.  This is  clear
from  the  preamble  of the.1920-Act  and  also  from the
provisions  contained in s. 4 and s. 7 thereof.   Therefore,
when  the Constitution came into force on January 26,  1950,
there  was  no property which was held by the  Muslim  mino-
rity  as  such, for the property had already vested  in the
corporate body, namely, the Aligarh University brought into
existence by the 1920-Act.  Even assuming that before  1920,
the property which was surrendered to the Aligarh University
was  the property of the Muslim minority, what happened  in
1920 put an end to the rights of the Muslim minority to hold
the property and all that was done with the consent of those
who  can be said to have held the proPerty on behalf of the
Muslim minority before 1920. There is no attack on the 1920-
Act and it is not urged that any part of that Act was in any
way  ultra  vires  the Constitution-Act which  was  then  in
force. Therefore, when the present Constitution came into
force  on January 26, 1950 the Muslim minority did not have
any  right in the property which was vested in the  Aligarh
University by the 1920-Act.  The 1965-Act has made no change
in  the ownership of the property which was vested,  in the
Aligarh University.   Even  after the 1965-Act  came into
force, the property still continues to be vested in the same
corporate  body,  (namely the Aligarh University).   In the
circumstances, it cannot be said that the 1965-Act  deprived
the Aligarh University of the property vested in it.  As for
the  Muslim minority they had already given up the  property
when  the Aligarh University was brought into  existence  by
the 1920-Act and that property was vested by the Act in the
Aligarh University.  The Muslim minority cannot  now  after
the  Constitution  came into force on January 26,  1950 lay
claim  to  that property which was vested  in the  Aligarh
University by the 1920-Act and say that the 1965-Act  merely
because it made some change in the constitution of the Court
of  the Aligarh University deprived the Muslim minority  of
the  property, for the simple reason that the  property was
not  vested  in the Muslim minority at any  time  after the
1920-Act came into force.  The argument that there has been
breach of Art. 31(1) has therefore no force.
858
We are therefore of opinion that there is no force in any of
these petitions.  It is not disputed that the 1951 and 1965-
Acts are within the competence of Parliament unless they are
hit,  by  any of the constitutional provisions to  which  we
have  referred above.  As, they are not hit by any of  these
provisions,  these  Acts are good and are not liable  to  be
struck down as ultra vires the Constitution.  The  petitions
therefore   fail   and are  hereby   dismissed.    In the
circumstances we make no order as to costs.
V.P.S.     Petitions dismissed.
P(X)7SCI-2,500-23 12.6 G.I.P.S
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