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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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-

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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

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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

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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

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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

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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,

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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

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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-

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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

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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

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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

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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

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