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

1