judgement:
s Nos. 84, 174, 188, 241 and 242 of 1966.
Petitions under article 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 section Saukat Hussain, for the petitioners (in W.P. No. 241 of 1966).
section Shaukat Hussain, for the petitioners (in W.P. No. 242 of 1966).
C. K. Daphtary, Attorney General, N. section Bindra, R. H. Dhe bar, section 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 article 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 article 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 , 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 article 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 , 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 section 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 section
(2) of section 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 section 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 section 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, section 25 with the Academic Council and section 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 section 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 section 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 section
(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 section
(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, section 34 for annual report and section 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 section 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 section 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 article 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 section 9 as otherwise the University might have lost the grant which was given to it by the Government of India.
Further section 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 section 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 section 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 section 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 section (6).
The next substantial change was that the proviso to section 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 section 23 (1) of the 1920 Act.
It is remarkable that though the proviso to section 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 section 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 section 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 sections
(2) and (3) of section 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 sections 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 article 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 article 30(1) and what exactly is the right conferred therein on the religious minorities.
It is to our mind quite clear that article 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 article 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 article 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 article 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 article 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 article 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 vs Syed Hussain Ali(1).
In that case the Court observed while dealing with article 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 article 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, article 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 article 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 vs 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 section
(1) of section 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) 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 section
(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 section 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 section 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 section 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 article 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 article 30(1) the word means "to bring into existence", and so the right given by article 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 section 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.
article 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 article 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 article 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 section 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 section 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 section 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 section 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 section 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 article 30(1) for that Article does not apply at all to the Aligarh University.
The next argument is based on article 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 article 26 would take in its sweep educational institutions on the ground that such institutions are institutions for charitable purposes.
It was urged that article 26 will not apply to educational institutions for there is specific provision in article 30(1) with respect to educational institutions and therefore institutions for charitable purposes in cl.
(a) of article 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 article 26(a) as institutions for charitable purposes.
Even so we fail to see how article 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 article 26 to establish and maintain institutions for religious and, charitable purposes.
What we have said with respect to article 30(1) which gives right to minorities to establish and administer educational institu tions of their choice applies equally to cl.
(a) of article 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 article 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 article 26.
Reference is also, made to article 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 article 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 article 26.
But it cannot lay claim under article 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 article 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 article 25 of the Constitution.
The next Article of the Constitution on which reliance is placed is article 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 article 29.
The next Article of the Constitution on which reliance is ,placed is article 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 article 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 article 14 of the Constitution.
The next attack oh the constitutionality of the 1965 Act is based on article 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 article 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, article 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 article 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 , 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 section 4 and section 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 article 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.

summary:
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 .
The preamble land sections 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 section 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 section
(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 section 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, sections 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 section 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 article 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 article 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 article 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 article If (6) the Muslim minority had been deprived of their right under article 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 article 31(1); and (8) the right of the Muslim minority to profess, practise and propagate their religion under article 25, and, their right to conserve their language, script or culture under article 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 article 30(1) must be read conjunctively.
that is, article 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 section 6 that its degrees shall 'be recognised by the Government.
Thus, when the Aligarh University was established in 1920 and by section 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 vs Ministry of Education, , 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 article 26(a) as institutions for charitable purposes the right under article 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 article 26(d).
[855 H; 856 A B].
The Durgah Committee Ajmer vs Syed Hussain Ali, ; , 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, article 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 article 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 article 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 article 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].


judgement:
Appeal No. 1028 of 1967.
Appeal by special leave from the judgment and order dated May 24, 1967 of the Assam and Nagaland High Court in Civil Rule No. 425 of 1966.
Sarjoo Prasad, Barthakur and R. Gopalakrishnan, for the appellant.
Brief facts necessary for present purposes are these.
It appears that the appellant was expelled from the Medical College, Gauhati on October 26, 1966.
It is said that the appellant tendered unqualified apology on October 27, 1966 and attended, classes up to the end of October 1966.
The Principal, however, does not seem to have accepted the apology and when the appellant went on, November 2, 1966, to deposit the fee for the examination which was to be held from November 4, 1966, he was told that as he had been expelled and as the order of expulsion stood no examination fee would be accepted from him It was thereafter that the 815 appellant filed the writ petition on November 3, 1966, out of which the present appeal has arisen.
It may be mentioned that the High Court was in vacation from September 17, 1966 to November 19, 1966.
Mr. Justice section K. Dutta was nominated as the Vacation Judge for the vacation and certain dates were fixed on which he was to sit and hear urgent civil and criminal appliciations.
One of these dates was October 31, 1966 and another was November 10, 1966.
It was also stated in the order that if there was any matter which was extremely urgent it would be heard on any other day by appointment through the Registrar.
It appears that Mr. Justice Dutta was also working as a Commission of Enquiry during that time.
For that purpose he had to go out of Gauhati, which is the seat of the High Court.
It seems that Mr. Justice Dutta went Away to Sibsagar after the vacation sitting on October 31, 1966.
Therefore on November 2, 1966 he was not available at Gauhati, even though he was the Vacation Judge and even though the order relating to vacation sittings said, that if any matter was extremely urgent it could be heard on any other day by appointment through the Registrar.
As the examination was to be held from November 4, 1966, the filing of the writ petition against the order of expulsion was undoubtedly a very urgent matter, if any order was to be obtained before November 4, 1966.
What the appellant is said to have done was this.
He gave notice to the Gov ernment Advocate on November 2, 1966 at Gauhati as required by the Rules and thereafter went to Sibsagar where Mr. Justice Dutta was holding the Commission of Enquiry and pre sented the writ petition there.
This petition was entertained by Mr. Justice Dutta and be passed interim orders thereon.
A copy of the interim order was prepared at Sibsagar and given to the appellant to be taken to Gauhati where it was to be sealed.
The appellant took the order to Gauhati and after getting it sealed served it on the university.
He was thereupon allowed to sit at the examination subject to the result of the writ petition.
It also appears that thereafter the papers relating to the writ petition were sent to Gauhati and the High Court had occasion to deal with the writ petition and passed miscellaneous orders thereon at Gauhati after the vacation was over.
Eventually, the writ petition came up for hearing in May 1967.
A preliminary objection was raised to the maintainability of the petition on behalf of the respondent.
It was urged that as Mr. Justice, Dutta was holding a Commission of Enquiry he could not act as a Judge of the High Court.
It was also urged in the alternative that even if he had the jurisdiction to.
act as a Judge of the High Court, he could not exercise that jurisdiction while at Sibsagar for the seat of the High Court was at Gauhati.
816 The petition.
was heard by a Bench consisting of the learned Chief Justice and Mr. Justice Goswami.
The learned Chief Justice seems to have held that Mr. Justice Dutta while performing the duties of a Commission of Enquiry could not also perform the duties of a Judge of the High Court.
He further held that in any case as the seat of the High, Court, was at Gauhati, Mr. Justice Dutta could not pass any order as a Judge of the High Court at Sibsagar, which, was not the seat of the High Court.
Finally, the learned Chief Justice made certain remarks as to the "unholy haste and hurry exhibited in dealing with this matter by Dutta J." at Sibsagar and set aside the order of stay granted by Dutta J. on November 3, 1966 and also set aside the order issuing rule nisi, and dismissed the petition.
Goswami J. did not fully agree with the learned Chief Justice, though, he agreed with the order setting aside 'the stay granted ' by Dutta J. and also agreed with.
the order dismissing the writ petition.
He observed that "I shall content ' myself in assuming that Dutta J. had no anxiety other than what prompted him to do in the interest of what his Lordship thought to be justice".
when he passed the order in.
question on November 3, 1966.
But he was of the view.
that a Judge of the High Court could not hold a sitting anywhere in Assam except at the seat of the High Court, namely, Gauhati, and therefore the order passed on November 3, 1966 by Dutta J. was without jurisdiction.
The present appeal has been brought before us by special leave and it is urged on behalf of the appellant that it was not correct to hold that Dutta J. could not act as a Judge of the High Court while he was working as a; Commission of Enquiry and further that Dutta J. had no jurisdiction while at Sibsagar to entertain the petition and to pass the stay order.
We shall deal with the two contentions in that order.
We are of opinion that the learned Chief Justice was not right when he held that Dutta J.; could not act as a Judge of the High Court While he was working as a Commission of Enquiry ' Learned Attorney General appearing for the State of Assam did not support that view It also appears that Goswami J. has said nothing on this aspect of the matter; presumably he did riot agree with the view of the learned Chief justice.
Often times, Judges 6f High Courts are appointed under the Commission 'of Enquiry Act to head Commissions for various purposes.
These Commissions are temporary affairs and many a time their sittings are not continuous.
A Judge of the High Court when he is appointed to head a Commission, of this kind does not demit his office as a Judge and when the Commission is not actually sitting he is entitled to sit as a Judge of the High Court.
It is only where a Judge of the High Court is appointed to another post, which is a whole time post that it may be said that on such appointment he can no longer work as a Judge of the High 817 Court for the time being, though even in such a case, when the work is over, he reverts as a Judge of the High Court without fresh appointment.
Such, for example, was the case of Incometax Investigation Commission where the appointments were whole time and a, Judge.
of the High Court appointed as a member of the Investigation Commission could not at the same time work as a Judge of the High Court.
But Judges appointed to head Commissions under the Commission of Enquiry Act stand in a different position altogether.
As we have said, these.
Commissions are temporary and are not whole time posts and their sittings are not even continuous.
In such a case we, are of opinion that a Judge appointed to ' head a Commission of Enquiry remains as part of the High Court and if the Commission of Enquiry is not working continuously he is entitled to sit and ,act as a Judge of the High Court in the intervals.
It is not disputed that Dutta J. was heading a Commission of Enquiry of this temporary nature, and as such we are of opinion that he was entitled to sit and 'act as a Judge of the High Court when ever he had time to do so.
It is remarkable that Dutta J. was appointed Vacation Judge while he was working as Commis sion of Enquiry and that appointment was in our opinion quite in order.
for by heading the Commission of Enquiry, Dutta J. did not demit his office as a Judge of the High Court.
We cannot therefore agree with the observation of the learned Chief Justice that Dutta J. could not have assumed to himself the ' role and duties of a Judge of the High Court exercising jurisdiction as a Bench 'of the High Court.
We also disagree with the view expressed by the learned Chief Justice that it was highly objectionable on the part of Dutta J. to work as a Judge of the High Court while be was heading the Commission of Enquiry.
We are of opinion that where a Judge heads temporary Commissions of Enquiry under the Commission of Enquiry Act.
he remains a part of the High Court and is entitled to sit and, act as a Judge of the High Court whenever be thinks fit.
The appointment of a Judge as Commission of Enquiry does not deprive him of the rights and privileges of a Judge of the High Court.
Whenever he finds time to attend to his duties as a Judge of the High Court while acting as a. Commission of Enquiry, he can do so.
The next question is whether Dutta J. could act as a Judge of the High Court at Sibsagar when Gauhati is the seat of the High Court under the notification issued under article 10 of.
the Assam High Court Order, 1948.
We do not think it necessary to decide this question in the present appeal.
We shall assume that Dutta J. could not pass orders as a Judge of the High Court anywhere else except at Gauhati which is the seat of the High Court.
Even assuming that, all that can be said is that the presentation of the writ petition before Dutta J. at Sibsagar was irregular.
As we have said already.
he was still a Judge of the High Court while holding a Commission of Enquiry at Sibsagar, 818 and if he received the petition at Sibsagar, all that can be said is that the petition was irregularly presented there when it should have been presented at Gauhati.
But assuming that the presentation of the petition at Sibsagar was irregular, the fact remains that the petition was sent to Gauhati later and was dealt with there.
We do not see why the petition should have been dismissed because the ' presentation was irregular.
There is in out opinion no difficulty in holding that the petition was repre sented when it was sent to Gauhati and was dealt with there in the High Court.
The presentation should have been taken in such circumstances to have been made at Gauhati when the petition reached Gauhati and the petition should have been dealt with as such.
Of course, if the presentation of the petition at Sibsagar was irregular, the order passed by Dutta J. would also be irregular, But when the petition came to the High Court thereafter, the irregularity in presentation must be held to have been cured.
It was open to the High Court to, consider whether the irregular order of stay should be regularised.
Apart from that even if the irregular stay could not be regularised, there was no reason why the petition should have been dismissed merely on the ground that it was irregularly presented, when it finally did reach the High Court at Gauhati.
Whatever therefore may be said a:.bout the order under appeal setting aside the irregular order of stay, we are of opinion that the High Court was not right in dismissing the petition as it did on May 24, 1967.
The petition must be held to have been represented to the High Court when it reached the seat of the High Court at Gauhati and should have been dealt with as such and could not have been thrown out merely on the ground that the original presentation on November 3, 1966 was irregular.
We are therefore of opinion that the order dismissing the petition must be set aside and the High, Court should now go into the question whether the petition should be admitted and whether it should be set down for hearing.
Finally we consider it our duty to refer to certain observations made by the learned Chief Justice with respect to Dutte, J.is handling of the petition.
In this connection reference was made by the learned Cheif Justice to a decision of this Court in Principal, Patna College V. K. section Raman(1).
It is enough to say that the facts of that case are very different from the facts of the present case and the observations on which the learned Chief Justice relies do not apply to the facts of the present case.
In the present case, the petition was presented during vacation when no Judge was actually sitting at Gauhati and in the circumstances the action taken by the appellant in presenting the petition at Sibsagar before Dutta J. who was the Vacation Judge and the only Judge available, after giving notice to the Government Advocate on November 2, 1966 at Gauhati, seen* to have been the only course open to him in the circumstances, for the examination (1) ; 819 was to be held from November 4, 1966 and the appellant came to know on November 2, 1966 when the examination fee was not accepted that he would not be able to sit at the examination.
In the circumstances the observation of the learned Chief Justice that there was "unholy haste and hurry exhibited in dealing with this ' matter by Dutta J." is entirely uncalled for.
Assuming that Dutta J. wrongly took the view that he could entertain the petition and pass the stay order at Sibsagar, he could only act in the way he did in the view that he took, and ' it cannot be said that this was a case of "unholy haste and hurry".
We also cannot agree with learned Chief Justice that the notion of sending a) copy to Gauhati for getting it sealed so that it might be properly authenticated was in any way objectionable.
The situation being what it was, that seems to us to be the only way open, once it is clear that Dutta J. took the view that he could entertain the petition and pass orders thereon even though that view may not be correct.
Nor do we think that the learned Chief Justice was justified in observing that "the whole thing discloses an unnecessary zeal on the part of Dutta J. to assist the appellant".
Once Dutta J. took the view that he had jurisdiction to entertain the petition and pass orders thereon, the order he passed and the steps he took so that the order was served before November 4, 1966 (which was the date of the examination) appear to us to be the only steps that could have been taken, and such steps cannot be said to be opposed to the great traditions that obtain in a High Court; nor can it be said that Dutta J. 's action reflected adversely on the judicial independence and aloofness of that august institution.
There is no reason to hold that any unnecessary zeal was shown by Dutta J. in assisting the appellant when he passed the order which he did, once Dutta J. took the view that he had the jurisdiction to entertain the petition and pass order thereon at Sibsagar.
All that happened thereafter appears to us to be quite proper and cannot in any way reflect on the conduct of Dutta J. in this case.
It is a matter of regret that the learned Chief Justice thought fit to make these remarks in his judgment against a colleague and assumed without any justification or basis that his colleague had acted improperly.
Such observations even about Judges of subordinate courts with the clearest evidence of impropriety are uncalled for in a judgment.
When made against a colleague they are even more open to objections We are glad that Goswami J. did not associate himself with these remarks of the learned Chief Justice and, was fair when he asaumed that Dutta J. acted as he did in his anxiety to do what he thought was required in the interest of justice.
We wish the learned Chief Justice had equally made the same assumption and had I not made these observations castigating Dutta J. for they appear to us to be without any basis.
It is necessary to emphasis that judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint, keeping always in view that the person making the comment is L/P(N)78CI 13 820 also fallible.
Remarks such as these made by the learned Chief Justice make a sorry reading and bring the High Court over which he presides into disrepute.
Even when there is justification for criticism, the language should be dignified and restrained.
But in this case we do not see any justification at an for such remarks.
We therefore allow the appeal and) set aside the order of the High Court dismissing the writ petition and send it back to the High Court with the direction that the High Court should reconsider whether the petition should be admitted, taking it as represented on the day it reached Gauhati, and ' if so it should be set down for hearing in due course.
In the circumstances we make no order as to costs.
V.P.S. Appeal allowed.

dataset_name: IN-Abs

summary:
One of the Judges of the High Court of Assam was nominated to be the Vacation Judge for hearing urgent civil and criminal applications when the High Court was closed for vacation from 17th September 1966 to 19th November 1966.
Certain days were fixed as the vacation court days, and if there was an extremely urgent matter the Vacation Judge could hear it on any other day by appointment.
At that time, the same Judge was heading a Commission of Enquiry under the Commission of Inquiry Act, and in connection with that work, on 2nd November 1966, the Vacation Judge went from Gauhati the seat of the High Court, to Sibsagar.
The appellant was a student of a college at Gauhati.
He was expelled from the college on 26th October 1966.
He tendered an.
unconditional apology the next day and attended classes till the end of the month; but, on 2nd November, when he wanted.
to pay the fee for an examination to be held on 4th November, the fee was not received as the Principal of the College had not accepted the apology.
As the Vacation Judge was not available at Gauhati, the appellant went to Sibsagar and presented a writ petition to the Vacation Judge.
The Judge entertained the petition and passed an interim order.
A copy of the interim order was prepared at Sibsagar and given to the appellant to be taken to Gauhati where it.
was sealed and served on the University.
The appellant was then allowed to sit for the examination subject to the result of the writ petition.
Thereafter, the papers relating to the writ petition were sent to the High Court at Gauhati and after the vacation was over, certain miscellaneous orders were passed on the writ petition.
Eventually, it came up for hearing and was dismissed by a Bench consisting of the Chief Justice of the High Court and another Judge.
The Chief Justice held that: (1) the Vacation Judge, while performing the duties of a Commission of Enquiry, could not also Perform the duties of a Judge of the High Court (2) a Judge of the High Court could not hold a,sitting anywhere else except at the seat of the, High Court ' and (3) the Vacation Judge exhibited 'unholy haste and hurry ' and his I action disclosed 'an unnecessary zeal ' on his part to assist the appellant.
The other Judge agreed with the order of dismissal only on the.
second ground.
In appeal to this Court, HELD: (1) Judges of the High Court are of appointed under the Commission of inquiry act to head commission for various head purposes.
These Commissions are temporary affairs and usually their 814 sittings are not continuous.
A Judge of the High Court when lie is appointed to head such a Commission does not demit his office as a Judge nor does the appointment deprive him of his rights and privileges as a Judge of the High Court.
Therefore, there was nothing objectionable on the part of the Vacation Judge working as a Judge of the High Court while he was heading the Commission, for, when the Commission was not actually sitting; he was entitled to sit and act as a Judge of the High Court.
[817 G H; 818 C].
(2) Assuming that a Judge of the High Court could not pass orders as a Judge anywhere else except at the seat of the High Court, the effect of such an assumption in the present case is,.
that the presentation of the writ petition at Sibsagar was irregular and the interim order passed thereon was also irregular.
But, as the petition was sent to Gauhati later and dealt with by the High Court there, the petition must be deemed to have been represented to the High Court, and the irregularity in presentation must be held to have been cured.
It was open to the High Court to consider whether the irregular interim order should be regularised or to deal with the petition on merits.
But it was not open to the High Court to throw out the petition merely on the ground that the original presentation was irregular.
[818 H; 819 A E].
(3) Assuming that the Vacation Judge wrongly took the view that he could entertain the petition and pass the interim order at Sibsagar, he could only act in the way he did in the view that he took, and, in the circumstances, the observations of the Chief Justice were entirely uncalled for.
There was no justification at all for such justification for criticism, the language should be dignified and rejustification for criticism, the language should be dignified and restrained.
[820 B D, G; 821 A].
Principal, Patna College vs K. section Raman, [1966], 1 S.C.R. 974, distinguished.