Aligarh Muslim University v. Naresh Agarwal & Ors.

Aligarh Muslim University v. Naresh Agarwal & Ors.

151. Hence, as rightly held in the aforementioned case, using a statutory framework does not necessarily mean that the organization is established by the statute. If that were so, all companies under Companies Act, 2013 would become government companies, leading to an absurd consequence that does not hold water.

152. The Statutes that are used merely as a tool by the minority community to register their institution under the statutory framework do not thus take away the community’s role in bringing the institution into existence.

I.1.2.2. Recognized under the Statute

153. The second kind of Statutes are those that provide recognition to already existing institutions. This is usually true for Statutes providing affiliation to colleges with universities. Once the college affiliates itself to a university, it will have to fulfil the statutory requirements prescribed under the relevant statute of the university. Would such a statutory intervention then mean that the institution has been brought into existence by that Statute?

154. This question has also been lucidly answered by this Court in Executive Committee of Vaish Degree College v. Lakshmi Narain,84 where a similar contention was raised that after being affiliated with the university, Vaish Degree College became a statutory body that was created by the statute. Rejecting this view, the Court held that: “Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character. […] It is, therefore, clear that there is a well-marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words the position seems to be that the institution

84 Executive Committee of Vaish Degree College and Anr. v. Lakshmi Narain and Ors. (1976) 2 SCC 58, para 10.

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concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body[…].” [Emphasis supplied]

155. Hence, if an institution possesses legal existence independent of the statute, then the Statute merely recognizes an existing institution and does not ‘establish’ it. This kind of Statute also does not take away the role of the minority community in bringing the institution into existence. Accordingly, just because a college is affiliated with a university and follows its statutory requirements, it would not deprive the institution of its minority character. This was also stated in St. Stephens (supra), where this Court held: “41. It was contended that St. Stephen’s College after being affiliated to the Delhi University has lost its minority character. The argument was based on some of the provisions in the Delhi University Act and the Ordinances made thereunder. It was said that the students are admitted to the University and not to the College as such. But we find no substance in the contention. In the first place, it may be stated that the State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational institutions of their choice […]” “45. From these and other relevant provisions of the Act and Ordinances, we have not been able to find any indications either in the general scheme or in other specific provisions which would enable us to say that the College is legally precluded from maintaining its minority character. That in matters of admission of students to Degree courses including Honours courses, the candidates

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have to apply to the College of their choice and not to the University and it is for the Principal of the College or Dean of Faculties concerned to take decision and make final admission. It is, therefore, wrong to state that there is no admission to the College but only for the University. The procedure for admission to Post Graduate courses is of course, different but we are not concerned with that matter in these cases.” [Emphasis supplied]

156. It may also be relevant at this stage to examine instances of such universities, which, under law, are mandated to be operationalized by a Statute. We may,in this regard,usefully refer to the University Grants Commission Act, 1956 (UGC Act) which provides as follows: “22. Right to confer degrees— (1) The right of conferring or granting degrees shall be exercised only by a 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. (2) Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree. (3) For the purposes of this section, “degree” means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette.

23. Prohibition of the use of the word “University” in certain cases.— No institution, whether a corporate body or not, other than a University established or incorporated by or under a Central Act, a Provincial Act or a State Act shall be entitled to have the word “University” associated with its name in any manner whatsoever: Provided that nothing in this section shall, for a period of two years from the commencement of this Act, apply to an

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institution which, immediately before such commencement, had the word “University” associated with its name.” [Emphasis supplied]

157. Since the UGC Act mandates that degrees can be conferred only by those universities that are established ‘by or under’ a statute, it is a necessary corollary that the university must be operationalized by a statute itself in order to validly confer the degrees. Given that the legal existence in this context flows directly from the statute, the question thus arises: does this mean that the minority community does not bring such universities into existence, and that they are instead established by the legislature? Indeed, Azeez Basha (supra) says so. Contrarily, the NCMEI Act,as amended from time to time,enables a minority community to establish a university on its own. There being an apparent inconsistency between the two, the question that arises for further consideration is as to which perspective accurately reflects the correct position—Azeez Basha (supra) or the NCMEI Act?

Azeez Basha (supra) v. the NCMEI Act: The curious case of bringing universities into existence

158. In this regard, one needs to note the nuance between legal recognition and other facets of existence. As was discussed before, existence covers other aspects apart from legal sanction. Especially for universities, this Court, in the case of Prof. Yashpal (supra), held that the Statute shall not give legal sanction unless it is satisfied that there exist enough infrastructural facilities within the institution: “44. […] When the Constitution has conferred power on the State to legislate on incorporation of university, any Act providing for establishment of the university must make such provisions that only an institution in the sense of university as it is generally understood with all the infrastructural facilities, where teaching and research on a wide range of subjects and of a particular level are actually done, acquires the status of a university. […]”

45. The State Legislature can make an enactment providing for incorporation of universities under Entry 32 of List II and also generally for universities under Entry 25 of List III. The subject “university” as a legislative head must be

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interpreted in the same manner as it is generally or commonly understood, namely, with proper facilities for teaching of higher level and continuing research activity. An enactment which simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of the UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teaching facility for higher studies or facility for research is not contemplated by either of these entries. Sections 5 and 6 of the impugned enactment are, therefore, wholly ultra vires, being a fraud on the Constitution.”

46. […] In the absence of any campus and other infrastructural facilities, UGC cannot take any measures whatsoever to ensure a proper syllabus, level of teaching, standard of examination and evaluation of academic achievement of the students or even to ensure that the students have undergone the course of study for the prescribed period before the degree is awarded to them.” [Emphasis supplied]

159. Similarly, while Regulation 3.1 of the University Grants Commission (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003 also states that universities have to be established by a statute, the very definition of the term ‘private university’ in Regulation No. 2.1 clarifies that the university is established albeit ‘through’ the legislation, but ‘by’ a private body: “3.1. Each private university shall be established by a separate State Act and shall conform to the relevant provisions of the UGC Act, 1956, as amended from time to time.” “2.1. “Private university” means a university duly established through a State / Central Act by a sponsoring body viz. a Society registered under the Societies Registration Act 1860, or any other corresponding law for the time being in force in a State or a Public Trust or

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a Company registered under Section 25 of the Companies Act, 1956.” [Emphasis supplied]

160. In addition to these provisions, it is also imperative to take into consideration that the role of sponsoring bodies is explicated in further detail in various state legislations. For instance, the Uttar Pradesh Private Universities Act, 2019, sets out in detail the steps that the sponsoring body must take to receive sanction for establishing a university. The body is required to create an endowment fund, possess certain specified areas of land, construct buildings, install equipment, appoint professors, plan curriculum and other activities, make rules for the functioning of the university, and comply with other norms.85 Subsequently, such a body is then required to apply for the sanction by furnishing the requisite details.86 Only once the government is satisfied with the necessary compliances by the sponsoring body, does it grant the sanction and incorporates it under the statute.87 Therefore, even though the final legal existence is sanctioned through the statute, it is the private body which initiates and fulfils other essential roles.

161. A similar situation existed in India prior to independence. During this pre-independence era, the very nature of universities was in a state of flux. Up until the 1920s, universities primarily functioned as administrative units rather than teaching institutions. Accordingly, they were established by the State as government bodies to exercise control over all the colleges in the respective provinces. This factum is acknowledged by the Saddler Commission of 1917-19, which noted: “These territorial limits have been deemed necessary in the past, mainly for the following reasons. In the first place, the functions of the older universities in India have demanded them. So long as each of these universities is engaged, subject to Government control, in administrative rather than teaching functions, it necessarily follows that its

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boundaries should be as far as possible co-terminous with those of a province […] The self-contained provincial university affords some administrative conveniences. Because it exercises direct control over Government colleges, gives grants-in-aid to others, and is deeply interested in the secondary school system, Government is necessarily hampered in carrying out these duties if the affiliation and inspection of colleges within its area and the recognition of schools situated within its territorial jurisdiction are in any respect under the authority or in the hands of another Government and university.”88 [Emphasis supplied]

162. However, in order to expand the scope of education and to accommodate growing demand, there was a legitimate need to change the role of the university from mere administrative bodies to institutions of learning. Hence, while there was hitherto monopoly exercised by government universities,89 it permitted private players to approach the government and seek the setting up of a university. As recognized by the Saddler Commission, BHU was the first of its kind.

163. In due parlance, the University Commission Report of 1929 also acknowledged this change, and it was noted that various learning universities had come into being.90 In order to establish a university whose degree would be recognized by the government, they were required to be established through a statute.91 Universities that were established in native states were also created through the sanction of the ruler.92 Even though some native groups did establish universities

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without the statute, their degrees were not recognized, consequently leading to them being less attractive centres of learning.93

164Copy pinpoint164. That means that while universities were still required to seek a government’s sanction for recognition of degrees, the statutes were limited to their legal existence. There are other essential components as well, to determine the status of a university. As was also briefly explicated in Prof. Yashpal (supra),94 a university in essence, is also an organized body that serves as a centre of higher education by linking students and teachers. For it to exist in that form, it is necessary for someone to ideate, plan, gather the resources, take approvals, and functionalize the institution once the sanction is received.95 This materiality was also briefly alluded to by the University Commission of 1948, when it said that: “The Annamalai University owes its inception to the generosity of the late Annamalai Chettiar of Chettinad. The Banaras and the Aligarh Universities have had large endowments given by princes and commoners. The Calcutta University has had endowments given by such eminent persons as P.C. Ray, Rash Behari Ghose and Tarakanath Palit; while Bombay has had large endowments from the Singhania and Tata Trusts besides endowments from several other philanthropic citizens; the University of Nagpur has had a large endowment under the Laxminarayan Trust, Fund and the Madras University has for the first time been given a generous endowment by Dr. Alagappa Chettiar. The new university at Saugor owes its existence to a donation of Rs. 2,000,000 from Sir Hari Singh Gaur which is regarded as a first instalment.” [Emphasis supplied]

165Copy pinpoint165. Hence, even when the legal existence—i.e., the authority to grant degrees—comes from an external body or legislature, it is an important but not the sole facet that constitutes a University. Further, the legislative object and intent of such a Statute would be a determinative

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factor in ascertaining the nature of the University. If it were solely responsible for the creation of the university, the statute might assume a size larger than the University. Instead, since the concept of a university encompasses numerous other factors beyond legal sanction, these factors also contribute to its existence, and the statute is one of them. Consequently, the presence of this external factor does not render the entire existence attributable to the Legislature.

166Copy pinpoint166. It seems to us that when the UGC Act or colonial laws mandated universities to be created by statutes, those who intended a university, including the minority community, were not absolved from complying with other relevant factors so as to bring the university into being. We therefore do not find any conflict between the amended provisions of the NCMEI Act, UGC Act, and the holding in Prof. Yashpal (supra). Each holds its own independent and distinct field and operates validly within that sphere. The minority community thus can establish a university under Article 30,96 provided it fulfils the norms of the UGC—i.e., gets legal sanction to create the university through a statute. To the extent that Azeez Basha (supra) holds to the contrary, it deserves to be modified and clarified.

167Copy pinpoint167. Having held so,we will now analyse the third category of institutes, which are ‘created by’ the legislature itself. I.1.2.3. Created by the statute

168Copy pinpoint168. The previous section showed that an institution would not owe its existence to the legislature itself, provided that other facets apart from legal operationalization are fulfilled by another body. However, it may also happen that the Government itself may fulfil the other aspects by perhaps ideating the institution, providing funds and infrastructure for its set-up, making its charter documents, and finally operationalizing it through different bodies. In case the leading role in the different factors instantiated in paragraph 141 of this judgement is played by the Legislature itself or through the Executive Government, then it will be said to have brought the institution into existence and not any private individual or community.

169Copy pinpoint169. The distinction between the second and third categories of institutions (i.e., those recognized by statute versus those created by statute) is thus one of degree and a matter of fact. While both types of

96 Uttar Pradesh Private Universities Act, 2019, Section 2(p).

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institutions may appear on paper to be established under a statute, only a thorough analysis of their backgrounds can illuminate whether they belong to the second category—i.e., where the statute merely operationalizes the institution or to the third category—where their very existence is attributable to legislative action. Depending on such analysis, the Court can conclude whether the institution meets the establishment prong under Article 30 or not.

170Copy pinpoint170. To sum up the entire discussion on the spectrum of legislative interference pictorially:

I.2. Establishment shall be for the benefit of the community

171Copy pinpoint171. There can hardly be any quarrel that, for fulfilling the establishment prong, it is not sufficient that the institution was brought into existence by the community, but it must be further proved that it was for the benefit of that community. For this purpose, it is essential to analyse the overall functioning of the institution and the primary

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objective for which it has been established. For instance, where the institution admits members of other communities; also teaches secular courses;97or if it is working merely as a commercial entity that does not admit students of its own community; or working primarily towards the development of its community, it would be antithetical to the very purpose of Article 30 to grant such an institution minority status.

172Copy pinpoint172. This has been clarified by various judgements of this Court, which held that the purpose of Article 30 is to ensure the upliftment of the minority community by providing them with a congenial atmosphere for education.98If the institution is not aligned with this purpose, it would not be covered under the purview of Article 30 and would not enjoy extra administrative autonomy, even if its existence is owed to a minority community.

173Copy pinpoint173. To conclude the discussion on the meaning of ‘establish’, for an institution to fulfil the establishment prong under Article 30, it is necessary for it to have been brought into existence by the minority community and must be working towards the benefit of that community.

J. Issue V: What is the meaning of ‘administer’ in Article 30?

174Copy pinpoint174. The parties are not unanimous on the meaning of the term ‘administer’ as contained in Article 30 of the Constitution. The Appellant sought to assail that the term ‘administer’ essentially refers to who has overall control over the university. The parties argued that the mere fact that the State regulates the institution does not take away the ‘administration’ from the community. The Respondents, on the other hand, proffered that the ‘administer’ prong requires the minority community to control essential factors of the institution, such as admission to the institution, fee structure, appointment of teachers, etc.

175Copy pinpoint175. Before venturing onto understanding what is included in administration, it is necessary to first understand what it does not include. Various judicial precedents, including the decision in TMA Pai (supra), have

97 In Re: The Kerala Education Bill, supra note 58; para 23; Rev. Father W. Proost and Ors. v. State of Bihar and Ors. [1969] 2 SCR 73, para 8; Ahmedabad St. Xaviers College Society and Anr. v. State of Gujarat and Anr., AIR 1974 SC 1389, para 10. 98 In Re: The Kerala Education Bill, supra note 58; Para 32; P.A. Inamdar, supra note 48, para 97.

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held that the term ‘administration’ does not include maladministration. In other words, while the minority community has the right to administer the institution, the regulatory measures imposed by the State that merely regulate the educational standards are not included within the right of ‘administration’.99

176Copy pinpoint176. To this end, the State has the power to prescribe, inter alia: compliance requirements of the government for granting recognition to the university, if they largely and substantially leave unimpaired the right of administration in regard to internal affairs of the institution;100 general laws of the land applicable to all persons, such as laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality, or general regulations regarding welfare of students and teachers;101 regulations requiring transparency and merit in admission procedure;102 regulations restricting charging of capital fee;103 regulations which mandate that there is a govt. nominee in admission process, that fix merit criteria for minority students, or which mandate that the vacant seats shall go to non-minority students;104 etc.

177Copy pinpoint177. Similarly, this Court has held that in a minority institution, there can be a sprinkling of outsiders in administration, and the mere presence of members of the non-minority community does not take away the minority character of the institution.105

178Copy pinpoint178. However, at the same time, there is a core part of ‘administration’ that should remain in control of the minority community. As has been discussed before during the discussion on the conjunctive and disjunctive nature of the test incorporated within the text of

99 Very Rev. Mother Provincial, supra note 71, para 9-10; Gandhi Faiz-e-am-College v. University of Agra and Anr. (1975) 2 SCC 283, para 40; Kolawana Gram Vikas Kendra v. State of Gujarat and Anr. (2010) 1 SCC 133. 100 All Saints High School v. Govt. of A.P. and Ors. (1980) 2 SCC 478, para 5. 101 TMA Pai Foundation, supra note 3, para 136 and 161; P.A. Inamdar, supra note 48. Para 94;Secy., Malankara Syrian Catholic College, supra note 51. 102 TMA Pai Foundation, supra note 3, para 161; Christian Medical College Vellore Assn. v. Union of India (2020) 8 SCC 705. 103 P.A. Inamdar, supra note 48, Para 140; Modern School v. Union of India and Ors. (2004) 5 SCC 583; Father Thomas Shingare and Ors. v. State of Maharashtra and Ors. (2002) 1 SCC 758. 104 Andhra Kesari College of Education v. State of A.P. (2019) 9 SCC 457, para 6.9. 105 In Re: Kerala Education Bill, supra note 58; Society for Unaided Private Schools of Rajasthan v. Union of India (2012) 6 SCC 1, para 57.

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Article 30 (Issue III), this is necessary to prevent the potential misuse of this provision. The question that now arises is when would ‘administration’ be said to have been taken away from the minority community?

179Copy pinpoint179. To this end, the very concept of ‘administration’ is inherently fluid, and a specific definition is likely to be under inclusive. Determining whether a minority community exercises control over an institution is a factual question that varies from case to case. Although there is no definitive test to ascertain whether administration lies with the minority community, various judicial precedents provide indicators that may be considered relevant.

180Copy pinpoint180. Similar to the test to determine ‘establishment’, these indicators alone may not conclusively establish whether the administration rests with the minority community. Instead, a cumulative and holistic analysis of these factors can assist the court in making its determination.

181Copy pinpoint181. To instantiate, illustrative factors which are likely to take away administration of minority community from the institution include, inter alia: i. Management staff is not answerable to the founders, or an external person has veto over their selection.106 The lack of control over such selection would have significant weight since it is a post of prime importance around which administration revolves, i.e., he/she is the hub on which all spokes of the institution’s wheels are set around.107 ii. There are outside authorities in the governing body of the managing committee 108 with wide powers over the other members;109

106 Very Rev. Mother Provincial, supra note 71, para 19. 107 Secy., Malankara Syrian Catholic College, supra note 51, para 22-28; Board of Secondary Education and Teachers Training v. Jt. Director of Public Instructions (1998) 8 SCC 555, para 3; Ivy C.Da. Conceicao v. State of Goa and Ors. (2017) 3 SCC 619, para 16; The Manager, Corporate Educational Agency v. James Mathew and Ors. (2017) 15 SCC 595; R. Sulochana Devi v. D.M. Sujatha & Ors. (2005) 9 SCC 335, para 26. 108 Dr. T. Varghese George, supra note 73, para 37. 109 All Saints High School, supra note 100.

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iii. Minority community does not have any right over determining the overall fee structure of the institution;110 iv. Minority community does not have the final say over administration, such that over the management committee comprising of members of the minority community, there is an appeal to an outside member;111 v. Minority community does not have any say over the medium of instruction;112 vi. Regulation prescribes reservation for unaided minority institutions;113 vii. Minority community does not have the right to choose the governing body and to choose teachers or admit students;114 viii. Removal of an employee requires the approval of an outside member who has the discretion to withhold such consent;115 ix. The minority community does not have a say in appointment of administrative authorities of the university such as the Vice Chancellor, Pro-Vice Chancellor, Registrar etc.; x. The minority institution entirely depends on government aid; and xi. The minority community does not have the right to deploy properties and assets for the benefit of the institution.116

182Copy pinpoint182. It thus emerges that the minority community must largely be free from external control and must have broad autonomy to mould the institution’s functioning and administration per their idea of what would

110 Icon Education Society v. State of M.P. and Ors., 2023 SCC OnLine SC 289; Islamic Academy of Education v. State of Karnataka and Ors., 2003 6 SCC 697; Cochin University of Science & Technology and Anr. v. Thomas P. John and Ors. (2008) 8 SCC 82, para 16. 111 Lilly Kurian v. Sr. Lewina and Ors., AIR 1979 SC 52. 112 State of Karnataka and Anr. v. Associated Management of English Medium Primary & Secondary Schools and Ors. (2014) 9 SCC 485. 113 Society for Unaided Private Schools of Rajasthan v. Union of India and Anr. (2012) 6 SCC 1, para 62; Pramati Educational & Cultural Trust and Ors. v. Union of India and Ors. (2014) 8 SCC 1, para 55. 114 Dr. T. Varghese George, supra note 73, para 19. 115 G. Vallikumari v. Andhra Education Society (2010) 2 SCC 497, para 17; Frank Anthony Public School Employees’ Assn. v. Union of India and Ors. (1986) 4 SCC 707, para 18. 116 Ahmedabad St. Xavier’s College Society, supra note 97, para 19.

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be best for the community.117 If the long-term administrative factors and the day-to-day sundry decisions do not lie with the community, it would mean that the institution is being administered by an outside authority and not by the minority community. As already elucidated, while the minority community can be subjected to general regulations regarding the betterment of such management, and while there can be a sprinkling of outsiders, administration itself cannot be taken away from the minority community. This is perhaps best explained in Gandhi Faiz-e-am-College v. University of Agra,118 where this Court held: “16. The discussion throws us back to a closer study of Statute 14A to see if it cuts into the flesh of the management's right or merely tones up its health and habits. The two requirements the University asks for are that the managing body (whatever its name) must take in (a) the Principal of the College; (b) its senior most teacher. Is this desideratum dismissible as biting into the autonomy of management or tenable as ensuring the excellence of the institution without injuring the essence of the right? On a careful reflection and conscious of the constitutional dilemma, we are inclined to the view that this case falls on the valid side of the delicate line. Regulation which restricts is bad; but regulation which facilitates is good. Where does this fine distinction lie? No rigid formula is possible but a flexible test is feasible. Where the object and effect is to improve the tone and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure the governing body but to better its performance by a marginal catalytic induction, where no external authority’s fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous management alone is asked for,

117 St. Stephen’s College, supra note 50, para 46. 118 Gandhi Faiz-e-am-College, supra note 99, para 16.

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the provision is salutary and saved, being not a diktat eroding the freedom of the freedom.” [Emphasis Supplied]

183Copy pinpoint183. Notably, for such administration to lie with the community, it is not enough if the decisions are taken by a member of such a community. If these decisions lie with the community but there is an outside authority with the power to change these decisions, it would imply that the minority community does not have pervasive control over the administrator,and its status is merely that of a paper tiger.119 Conversely, if there are outside authorities and the minority community does not have the power to oversee or reverse the decisions of such authorities, it would again imply that control lies externally. In other words, the administration shall cover both the active and the reactive aspects, such that the minority community can take active steps to effect changes in the institution without outside restriction and can also veto decisions taken or changes made from the outside.

184Copy pinpoint184. Consequently, in order to satisfy the requirements of Article 30, a minority community must retain both de jure and de facto control over the institution. It is insufficient for the community to simply have a minority member appointed by the majority for administrative roles; this does not confer genuine control. If the minority member’s position can be revoked at any time by the majority, the real power of administration does not lie with the minority community. Allowing Article 30 protection under such circumstances would create legal unpredictability, as non-minority institutions could temporarily appoint minority members to exploit the benefits. To meet the administration test, the minority community must therefore first have visible de jure control over the institution.

185Copy pinpoint185. Similarly, mere de jure control over the institution may not be sufficient on its own. It is possible that, to secure protection under Article 30, a minority community might be nominally granted administrative power while actual control is exercised behind the scenes by individuals outside the community. Such a scenario would amount to a façade of minority administration, failing to satisfy the test of genuine physical

119 Lilly Kurian, supra note 111.

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control over the management. Thus, the need arises for both aspects of control over the educational institution.

186Copy pinpoint186. To summarize, the test for administration under Article 30 involves identifying who holds effective and overall control within the institution. While external authorities may assist in its administration, the decisive influence and control must rest with members of the minority community. To meet this test, the minority community must exercise both active and reactive control, ensuring that administrative powers are genuinely held in both de jure and de facto terms.

K. Issue VI: Whether the Union of India is obligated to defend the AMU Amendment Act, 1981?

187Copy pinpoint187. Before parting, we would like to fairly acknowledge that both sides to the present dispute, aggressively argued on the issue as to whether the UOI could be allowed to change its stance and challenge its own statute. While the Appellant urged that the UOI and the Learned Attorney General for India are obliged to defend the 1981 Amendment Act, the Respondent maintained that such support would run antithetical to constitutional values.

188Copy pinpoint188. We have pondered over the submissions and are of the view that the controversy has been rendered academic. In our considered opinion, all the legal issues, including those relating to constitutional interpretation have already been answered effectively. In all fairness, the parties also rendered their full assistance in the context of the factual issues as well, especially in terms of whether or not AMU is entitled to the protection of Article 30 of the Constitution. This second limb of the controversy however, will be resolved by the Regular Bench, and to this extent we are respectfully in tandem with the opinion rendered by Hon’ble the Chief Justice of India.

V. Areas of divergence

189Copy pinpoint189. In light of the above discussion, we find ourselves at variance with Hon’ble the Chief Justice of India on the following issues: 189.1. Whether the opinion of the seven-judge bench in Kerala Education Bill (supra) which according to Hon’ble the Chief Justice,

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was followed by a six-judge Constitution bench in Rev. Sidhajbhai Sabhai v. State of Bombay,120 has been overlooked in Azeez Basha (supra)? a. In Kerela Education Bill (supra), this Court, in no uncertain terms opined that: (i) “there is no reason why the benefit of Article 30(1) should be limited only to educational institutions established after the commencement of the Constitution. The language employed in Article 30(1) is wide enough to cover both pre-Constitution and post-Constitution institutions.”; and (ii) “Article 30(1) gives two rights to the minorities, (1) to establish and (2) to administer educational institutions of their choice. The right to administer obviously cannot include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars…” b. In Sidhajbhai Sabhai (supra), the challenge was laid to a government order directing that “80% of the total number of seats in non-Government Training Colleges should be reserved for School Board teachers deputed by the Government…” In this regard, the six-judge Constitution Bench held that “unlike Article 19, the fundamental freedom under Clause (1) of Article 30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities—linguistic or religious—have, by virtue of Article 30(1), an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right...” c. What comes to light in Sidhajbhai Sabhai (supra) is that the bench therein did not rely upon the opinion delivered by

120 Rev. Sidhajbhai Sabhai v. State of Bombay,1963 (3) SCR 837.

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the seven-judge bench in Kerala Education (Bill) and rather distinguished it, as the latter was relied on by the State. The Constitution bench in Sidhajbhai Sabhai (supra) thus took pains to explain that the opinion in Kerala Education Bill (supra) was distinguishable and that it “is not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulations are in the national or public interest, are valid…” d. We now turn to examine whether the five-judge bench in Azeez Basha (supra) failed to follow the principles opined in Kerala Education Bill (supra) or those laid down by the six-judge bench in Sidhajbhai Sabhai (supra). In so far as Kerala Education Bill (supra) is concerned, Azeez Basha (supra) categorically holds that the protection of Article 30(1) was not restricted only to educational institutions established after the Constitution came into force. Such a restrictive interpretation was held to be contrary to the opinion delivered in Kerala Education Bill (supra) and was bolstered with strong language that “if that interpretation was given to Article 30(1) it would be robbed of much of its content’.” The bench further held that the expressions ‘establish’ and ‘administer’ must be read conjunctively, in response to a plea that even if an educational institution was not established by minorities, it could still be administered by them under the ambit of Article 30. This view, which has been consistently affirmed in the later decisions as well, in our considered opinion, is the correct interpretation of Article 30(1). e. As regard to Sidhajbhai Sabhai (supra) it was neither cited nor was particularly relevant in the context of the controversy that arose for consideration in Azeez Basha (supra). f. Most pertinently, the decision in Sidhajbhai Sabhai (supra) is no longer a good precedent, to the extent of disapproval of its view by the 11-judge bench in TMA Pai (supra), in this regard. g. We therefore see no discordance between Kerala Education Bill (supra) and Sidhajbhai Sabhai (supra) on the one hand and Azeez Basha (supra) on the other.

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189.2. Is there any conflict between Azeez Basha (supra) and the principles enunciated in TMA Pai (supra)? a. A conjoint reading of paragraphs 106 to 108 of the draft judgement circulated by Hon’ble the Chief Justice, gives an impression that Azeez Basha (supra) has had some collision with the subsequent eleven-judge Constitution bench in TMA Pai (supra). In this regard, Hon’ble the Chief Justice has relied on paragraph 70 (the majority opinion by Chief Justice Kirpal, as his Lordship then was). We are, however, unable to find any such perceived conflict between the two decisions. TMA Pai (supra) considered the scope of regulating the right of administering government aided private minority institutions from paragraph 82 onwards. Pursuantly, in paragraph 93, the bench therein formulated the following questions: “93. Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law? Des Article 30(1) give the religious or linguistic minorities a right to establish an educational institution that propagates religious or racial bigotry or ill will amongst the people? Can the right under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would the minority while establishing educational institutions not be bound by town planning rules and regulations? Can they construct and maintain buildings in any manner they desire without complying with the provisions of the building by-laws or health regulations?” b. After due discussion and a detailed reference to Kerala Education Bill (supra) and Sidhajbhai Sabhai (supra), the Constitution Bench in TMA Pai (supra) answered these questions in paragraph 107 which reads as follows: “107. The aforesaid decision does indicate that the right under Article 30(1) is not so absolute as to prevent the government from making any regulation whatsoever.

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As already noted hereinabove, in Sidhajbhai Sabhai's case, it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. It will further be seen that in Sidhajbhai Sabhai’s case, no reference was made to Article 29(2) of the Constitution. This decision, therefore, cannot be an authority for the proposition canvassed before us.” [Emphasis supplied]

c. It may thus be seen that the decision in Sidhajbhai Sabhai (supra), which holds that the “fundamental freedom under Clause (1) of Article 30, is absolute in terms; it if; not made subject to any reasonable restrictions” has in fact been expressly disapproved by TMA Pai (supra). In essence, Sidhajbhai Sabhai (supra) has thus lost its binding nature,in that context. 189.3. Whether a two-judge bench would be competent to make a reference to a larger bench of seven-judges? Whether the Constitution bench in Dawoodi Bohra (supra) has been correctly construed by Hon’ble the Chief Justice of India in his opinion? a. In order to avoid any repetition, we wish to mention here that an elaborate answer to the aforesaid question has been given

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under ‘Issue I’ from paragraphs 83 to 99 of our judgement. In essence, the reference by the two-judge bench to a larger bench of seven-judges is totally impermissible; such a recourse is directly in the teeth of the dictum of the Constitution bench in Dawoodi Bohra (supra).Such an attempt by a two-judge bench is hit by: (i) the doctrine of predictability; (ii) the doctrine of finality; (iii) the principle of judicial propriety; and (iv) the doctrine of stare decisis. b. Further, there is no substantial difference between ‘doubting’ a larger bench or ‘disagreeing’ with such a judgement. ‘Doubt’ and ‘disagreement’ both originate from a tentative opinion which is in conflict with the reasons already assigned by the larger bench. There cannot be disagreement without doubting the correctness and there cannot be a doubt unless you disagree with the reasons. c. Most importantly, entertaining a reference by a two-judge bench doubting a larger bench would dilute the authority and position of the Chief Justice of India as enjoyed upon Article 145 read with Order VII Rule 2 of the Supreme Court Rules, 1966, as was then applicable.

189.4. What is the true import of Entry 63 of List I of the Constitution? a. The Seventh Schedule derives its relevance from Article 246 of the Constitution. This provision is included in Chapter I of Part XI of the Constitution, which deals with the relationship between the Union and the State and defines their legislative relations. b. It may be seen that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh schedule, known as the Union List. In this vein, Entry 63 of List I reads as follows: “63. The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the Delhi University; the University established in pursuance of article 371E; any other institution declared by Parliament by law to be an institution of national importance.” [Emphasis supplied]

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c. Entry 63 has two significant components which we can broadly label as procedural and substantive. The former, i.e., the procedural feature, flows from Article 246 and reiterates that the Parliament is the sole Competent Authority for legislating to declare any other institution to be an institution of National Importance d. The first component of Entry 63 is a substantive part, which is a constitutional declaration of BHU and AMU, to be institutions of National Importance. The opening part of Entry 63 manifestly indicates that the Constituent Assembly was determined to confer such an elevated status on both, BHU and AMU. e. The second component of Entry 63 on the other hand, permits the Parliament to declare any other institution also to be an institution of national importance. It seems from the language of Entry 63 that the Parliament has no power to take away the status of an institute of national importance conferred upon BHU or AMU, save and except by following the route of an amendment to the Constitution itself. Though the Parliament can declare any other institution as an institution of National Importance through the route of Article 246; such plenary legislative power cannot be invoked to take away the status of an institution of National Importance, accorded by the Constitution.

190Copy pinpoint190. Having delineated the issues of disagreement with the opinion of Hon’ble the Chief Justice, we may hasten to add that one of the conclusions assigned in Azeez Basha (supra), is such that it deserves to be revisited. We say so for the reasons that: a. In this regard, Azeez Basha (supra) rightly holds that the expression ‘educational institutions’ is of very wide import and would also include universities. It has correctly understood that a religious minority has the right to establish a university under Article 30(1). Azeez Basha (supra) is also right in observing that there was no law in India before the Constitution came into force, which prohibited any private individual or body from establishing a university. Azeez Basha (supra) further holds that no private individual or body could, prior to 1950, insist that the degrees of any university established

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by them must be recognised by government. This position continued even after the enactment of University Grants Commission Act, 1956. b. Azeez Basha (supra) however, seems to be erroneous to the extent it holds that since Section 6 of the Aligarh Muslim University Act, 1920 (AMU Act, 1920) provided that the degrees conferred by the university would be recognised by government, consequently, “an institution was brought into existence which could not be brought into existence by a private individual or body…” Azeez Basha (supra) might therefore not be correct in its entirety and as a general principle of law, to hold that even if the AMU Act, 1920 was passed as a result of the efforts of the Muslim minority it “does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority”. c. In this context, it is our considered opinion that the establishment of a university, whether as a minority institution or as a religion neutral institution of high standard, is a complex and mixed question of law and fact. The legislative intent behind the establishment of a university or an institution will have a significant role in determining the status of such an institution. For instance, if the Preamble or the Statement of Objects and Reasons of a Statute explicitly states that the University or the institution concerned is intended to be established and shall be administered by a minority community, we see no reason as to why such a University or institution would be denuded of its minority character merely because it was created through legislative means. d. Conversely, if the Legislature by itself (particularly, post- Constitution) decides to establish an institution where besides preserving the culture, values, traditions, language and conventions of a religious or linguistic minority community, it promotes other streams of education without any barrier to children belonging to other religions, it will be highly debatable to discern whether such a university can take refuge under the protective umbrella of Article 30.

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191Copy pinpoint191. Having laid down the broad principles to be followed to determine as to whether AMU qualifies as a minority institution within the meaning of Article 30, we leave it for the regular bench to determine such status, in light of the parameters laid down in our opinion. We, therefore,do not deem it appropriate to express any final view as to whether or not AMU is a minority institution within the meaning of Article 30 of the Constitution. Accordingly, we refrain ourselves from determining the factual issue enumerated as ‘Issue No. VII’.

VI. Conclusion

192Copy pinpoint192. Thus, drawing upon the comprehensive analysis presented in the preceding sections, we thus hold that: a. There is no conflict between the seven-judge bench opinion in Kerala Education Bill (supra) and the five-judge Constitution Bench in Azeez Basha (supra) on the other. b. The six-judge Constitution Bench in Sidhajbhai Sabhai (supra), laying down that the right under Article 30 is absolute and unconditional, is not the correct principle of law; the judgement is no more binding in nature and stands effectively overruled in TMA Pai (supra), to that extent. Consequently, Azeez Basha (supra) does not suffer from any legal infirmity on the premise that it did not cite or follow Sidhajbhai Sabhai (supra). c. There is no substantial difference between ‘doubting’ or ‘disagreeing’ with a judgement. That being so, the reference by a two-judge bench in Anjuman (supra) doubting the correctness of the five-judge bench in Azeez Basha (supra) and referring it to a seven-judge bench suffers from multiple illegalities, including judicial impropriety. d. In view of the dictum of the Constitution Bench in Dawoodi Bohra (supra), a two-judge bench has no authority whatsoever to doubt or disagree with a judgement of the larger bench, and directly refer the matter to a bench having a numerically greater strength than the matter so doubted. The reference by the two- judge bench in Anjuman (supra) is nothing but a challenge to the authority of the Chief Justice of India being the master

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of the roster and in derogation of the special powers enjoyed upon under Article 145 of the Constitution read with Order VII Rule 2 of the Supreme Court Rules, 1966 (as was applicable). Consequently, the said reference is not maintainable. However, the subsequent reference dated 12.02.2019, in which the then Hon’ble Chief Justice of India was the presiding judge, is maintainable. e. The reference in Anjuman (supra) to a seven-judge bench for the reconsideration of the five-judge decision in Azeez Basha (supra) is bad in law and ought to be set aside. f. The Constitution Bench in Azeez Basha (supra),when it holds that since Section 6 of the AMU Act, 1920 stipulates that degrees conferred by AMU would be recognised by the Government, it could not have been ‘brought into existence by a private individual or body’, is seemingly incorrect. Accordingly, and for the reasons assigned in paragraphs 190(b) and (c),the said decision to that extent is hereby modified and clarified. g. The minority institutions established in the pre-Constitution era are also entitled to the protection conferred by Article 30. h. Educational institutions, with reference to Article 30 include universities as well. i. In order to seek protection under Article 30 of our Constitution, the minority institution must satisfy the conjunctive test, namely that it was established by a minority community and has been/ is being administered by such a community. j. The true import and meaning of the expressions ‘establish’ and ‘administer’, which comprise the very core of Article 30, are to be construed and understood strictly in accordance with the indicia in paragraphs 141 and 181. k. The question pertaining to whether AMU satisfies the above- mentioned test of ‘establish’ and ‘administer’ so as to seek protection of Article 30 of the Constitution, and which will concomitantly entail a mixed question of facts and law, will be determined by a Regular Bench.

193Copy pinpoint193. The reference is answered in the above terms. Ordered accordingly.

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Dipankar Datta J.

Prologue

1. There is a saying, “the past refuses to lie buried”. Possibly, no other case would demonstrate the validity of this statement more poignantly.

2. A Constitution Bench of 5 (five) Judges of this Court delivered its verdict in the celebrated case of Union of India vs. Tulsiram Patel1 on 11th July, 1985, i.e., a little less than 40 (forty) years back. As the youngest member of the bench, Hon’ble M.P. Thakkar, J. (as His Lordship then was) expressed lament in the following words: “178. A benevolent and justice-oriented decision of a three-Judge Bench of this Court, rendered ten years back in a group of service matters, [D.P.O., Southern Railway v. T.R. Challappan, (1976) 3 SCC 190], is sought to be overruled by the judgment proposed to be delivered by my learned Brother Madon, J., with which, the majority appear to agree. Challappan having held the field for such a long time, it would have been appropriate if a meeting of the Judges constituting the Bench had been convened to seriously deliberate and evolve a consensus as to whether or not to overrule it. A ‘give’ and ‘take’ of ideas, with due respect for the holders of the opposite point of view (in a true democratic spirit of tolerance), with willingness to accord due consideration to the same, would not have impaired the search for the true solution. Or hurt the cause of justice. The holders of the rival view points could have, perhaps, successfully persuaded and converted the holders of the opposite point of view. Or got themselves persuaded and converted to the other point of view.

179. Brother Madon, J., to whom the judgment was assigned by the learned Chief Justice, also appears to suffer heart-ache on the same score, for, in his covering letter dated July 6, 1985 forwarding the first instalment of 142 pages he says:

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‘...I regret to state that the draft judgment could not be sent to you earlier. The reason was that as we did not have a meeting to discuss this matter, I did not know what would be the view of my other Brothers on the large number of points which fall to be determined in these cases, except partly in the case of two of my Brothers with whom by chance I got an opportunity to discuss certain broad aspects....’ If only there had been a meeting in order to have a dialogue, there might have been a meeting of minds, and we might have spoken in one voice. Failing which, the holders of the dissenting view point could have prepared their dissenting opinions. That was not to be. On the other hand, it has so transpired, that, the full draft judgment running into 237 pages has come to be circulated in the morning of July 11, 1985, less than 3 hours before the deadline for pronouncing the judgment. There is a time compulsion to pronounce the judgment, on 11th July, 1985, as the learned Chief Justice who has presided over the Constitution Bench is due to retire on that day, and the judge-time invested by the five Judges would be wasted if it is not pronounced before his retirement. The judge-time would be so wasted because the entire exercise would have to be done afresh. The neck-to-neck race against time and circumstances is so keen that it is impossible to prepare an elaborate judgment presenting the other point of view within hours and circulate the same amongst all the Judges constituting the Bench in this important matter which was heard for months, months ago. I am, therefore, adopting the only course open to me in undertaking the present exercise.

180. ‘Challappan’, in my opinion, has been rightly decided. And there is no compulsion to overrule it— ***” I regret to find myself in the same unenviable position Hon’ble M.P. Thakkar, J. was placed in Tulsiram Patel (supra).

3. Hearing of these appeals and petitions commenced on 9th January,

2024. Spread over 8 (eight) days of marathon hearing, learned senior counsel/counsel advanced erudite arguments in respect of

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a reference which this Bench of 7 (seven) Judges has been called upon to answer. Judgment was reserved on 1st February, 2024. The task of authoring the judgment had not been assigned to me, which obviously left me with no other option but to wait for the draft opinion to reach my residential office. While the wait continued, it is only on 17th October, 2024 that the draft opinion authored by the Hon’ble the Chief Justice of India2, being the presiding Judge of the Bench, numbering 117 pages was placed on my desk. Aware of the deadline of 10th November, 2024 (the day the HCJI would demit office) within which the final judgment had to be pronounced, the task of reading the learned dissertation started right away squeezing out time from the long hours that had to be spent in getting ready for the matters on board for each day and in conducting proceedings in court. No sooner had I completed reading the draft opinion, came a revised draft opinion of the HCJI spread over almost the equal number of pages. It reached my residential office in the evening of 25th October, 2024, i.e., on the eve of the short Diwali break. Inter alia, there was one very significant change in the revised draft. While in the first draft “the test laid down” by a Constitution Bench of 5 (five) Judges of this Court in S. Azeez Basha and Anr. vs. Union of India3 “to determine if an educational institution is entitled to the guarantee under Article 30(1)” of the Constitution of India4 was proposed to be overruled, in the revised draft the view taken in Azeez Basha (supra) “that an educational institution is not established by a minority if it derives its legal character through a statute” has been proposed to be overruled. The effect of the revised draft opinion of the HCJI is the defenestration of the view taken in Azeez Basha (supra) that Aligarh Muslim University5 is not a minority institution. Such view has stood its ground for the last more than 50 (fifty) years. It is the only decision of this Court where Article 30(1) was considered and law laid down keeping establishment and administration of a pre- independence era university in perspective as distinguished from schools and colleges, which have been the subject matter of other Constitution Bench decisions. Utilising the short Diwali break, the

2 HCJI, hereafter 3 (1968) 1 SCR 833 4 Constitution 5 “AMU” or “University”, hereafter, depending upon the context

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draft opinions were read many times over together with perusal of the materials on record to decide whether the erudite opinion of the HCJI commended acceptance by me. On 2nd November, 2024, came another few pages from the office of the HCJI containing corrections effected in quite a few of the paragraphs of the revised draft opinion in track changing mode with paragraph 72 being altogether deleted.

4. Difficult though it is to disagree with any opinion penned by the HCJI, which has always been a product of thorough research and high intellect and is thoughtfully expressed, I could not persuade myself to completely agree with the opinion expressed in the revised drafts and the whole of the proposed conclusions recorded therein. This is when I had decided to pen my own opinion encapsulating my thoughts in brief having regard to the very short time at my disposal.

5. While on the task of preparing the draft opinion and completing it for circulation, arrived separate draft opinions of Hon’ble Surya Kant, J. and Hon’ble Satish Chandra Sharma, J. on 6th November, 2024. Rummaging through the draft opinions penned by Their Lordships, I felt inclined to substantially agree with the thoughts and conclusions expressed therein. However, in view of disagreements on a couple of points, coupled with my inability to be ad idem with the noteworthy progressive approach of the HCJI, writing a separate opinion (which was already in progress and was nearing completion) seemed all the more the better, the safer and the easier option.

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venue for a purposeful and effective dialogue where members of the bench could freely express their points of view, an attempt to share thoughts and to exchange opinions, a ‘give’ and ‘take’ of ideas, in true democratic spirit to build up a consensus - all these seem to have taken a backseat, having regard to the immense pressure of work which we, the HCJI and the other Judges on the bench, have undertaken during the time ever since the judgment was reserved. Judicial and administrative works of varied nature, which I need not dilate here, also weighed me down to such an extent that sending a request to the HCJI for a meeting of all the colleagues at this stage would have been too late to make a difference (if at all it were to happen). Alas, without any insightful and constructive discussion of the rival contentions in the presence of all the members comprising this Bench of 7 (seven) Judges, it is only individual opinions of 4 (four) Judges that could be crafted and circulated for perusal and approval.

7. That being said, after circulation of my draft opinion, all the Judges forming the quorum had the occasion to meet together for a little while on 7th November, 2024, when it emerged that the opinion of the HCJI, as circulated, had the concurrence of 3 (three) Judges6 and I was part of the minority trio (3 out of 7) with a distinct perspective. As the narrative would reveal, my view diverges from the other 2 (two) Judges in the minority.

8. Since it was revealed in the aforesaid meeting that my view did not align with the majority, my draft opinion warranted certain changes and such changes have been incorporated in this final opinion without changing the core foundation thereof.

The Reference

9. This Constitution Bench of 7 (seven) Judges has been constituted by the HCJI pursuant to a reference made by a bench of 3 (three) Judges of this Court vide order dated 12th February, 20197 in Aligarh Muslim University vs. Naresh Agarwal and Ors.8 Though the said order is ostensibly the referral order necessitating constitution of this Bench, in reality, the reference has its roots in an order dated

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26th November, 1981 passed by a bench of 2 (two) Judges of this Court in Anjuman-e-Rahmania and Ors. vs. Distt. Inspector of School and Ors.9. I am inclined to the view, based on my reading of the orders in Anjuman-e-Rahmania (supra) and Aligarh Muslim University (supra), that the former order could well qualify as the referral order for the reference and the latter the re-referral order for the re-reference (to be referred hereafter as such for clarity). The reasons, therefor, are not far to seek and would unfold as one proceeds to read this opinion.

10. At the outset, I find it significant to record that this Bench has been addressed by at least half a dozen senior counsel/counsel on why the decision in Azeez Basha (supra) ought to be reconsidered and overruled. In the context of the decision dated 5th January, 200610 rendered by the High Court of Judicature of Allahabad11 in an intra- court appeal12, the issue assumes some importance and it is indeed essential to consider whether Azeez Basha (supra) should at all be reconsidered merely because of the two referral orders coupled with the fact that the issues are before a Constitution Bench of 7 (seven) Judges of which the HCJI is the presiding Judge. If the orders of reference are found to be ex facie flawed and non-est, as the learned Solicitor General and other senior counsel who addressed the Bench on behalf of the respondents have urged us to hold, the re-reference would be plainly incompetent.

11. In the cacophony of dissonant notes, one ought not to forget that the hallmark of a judicial pronouncement is its stability and finality. I am reminded of what the HCJI speaking for the bench in Supertech Ltd. vs. Emerald Court Owner Residents Association13 said, - “judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather”.There cannot be any doubt that this Court has extensive powers to correct an error or to review its decision, but such correction / review ought not to be at the cost of the doctrine of finality. An issue of law can be overruled by a subsequent decision but a decision on questions of fact should not be reopened once it

9 Writ Petition (Civil) Nos. 54-57 of 1981 10 2006 SCC OnLine All 2207 11 High Court, hereafter 12 Special Appeal No. 1324/2005 13 (2023) 10 SCC 817

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has been finally sealed in proceedings relating to the same subject matter.

12. Also, the doctrine of stare decisis has to be given due credence. Hon’ble H.R. Khanna, J (as His Lordship then was) while being part of a Constitution Bench and agreeing with the majority opinion in Maganlal Chhaganlal (P) Ltd. vs. Municipal Corpn. of Greater Bombay,14 made telling observations reading as follows: “22. I must also utter a note of caution against the tendency to lightly overrule the view expressed in previous decisions of the Court. It may be that there is a feeling entertained by certain schools of thought, to quote the words of Cardozo, that ‘... the precedents have turned upon us and are engulfing and annihilating us — engulfing and annihilating the very devotees that worshipped at their shrine. So the air is full of new cults that disavow the ancient faiths. Some of them tell us that instead of seeking certainty in the word, the outward sign, we are to seek for something deeper, a certainty relative and temporary, a writing on the sands to be effaced by the advancing tides. Some of them even go so far as to adjure us to give over the vain quest, to purge ourselves of these yearnings for the unattainable ideal, and to be content with an empiricism that is untroubled by strivings for the absolute.’ (See page 9 Selected Writings of Benjamin Nathan Cardozo by Margaret E. Hall.) At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious set back if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in

14 (1974) 2 SCC 402

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the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law. This Court may, no doubt, in appropriate cases overrule the view previously taken by it but that should only be for compelling reasons. ***” (emphasis supplied)

Sadly, these are dicta which very few tend to remember not to speak of applying the same.

13. I have noted that as per the draft opinion of the HCJI, the question as to whether AMU “is a minority educational institution must be decided based on the principles laid down in this judgment”. In view of such proposed order, and since it is also the majority opinion now and thus final, it is a foregone conclusion that history would be rewritten and declaration of AMU by this Court as a minority educational institution is only a matter of time.

14. Not only is Azeez Basha (supra) a judicial verdict more than half a century old on the status of AMU vis-à-vis minority rights, but it has a strong foundational basis and is anchored in robust legal reasoning. It has withstood, so to say, the vagaries of wind and weather and stands tall as a pyramid in the desert. The decision was rendered by Judges of the pre-independence era who, apart from being no less knowledgeable than us, were people having grown up while India was struggling for independence and (must have) witnessed such struggle from close quarters. I cannot lay claim to match their wisdom and experience; but without being unduly overawed by the stature of the Judges on the bench and viewing the reasons assigned in Azeez Basha (supra) for not declaring AMU as a minority educational

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institution, a University which was established in 1920 and whose status from inception till the Constitution came into effect has remained unchanged, I consider it prudent to say that the view taken therein, in the given facts and circumstances, is indeed a plausible view which demands due deference rather than the view being overruled at this distance of time. A relook at it for recasting of the opinion cannot be resorted to, as I presently propose to demonstrate,without throwing asunder all the established doctrines in the wake of referral orders which themselves bear the mark of invalidity on their foreheads.

15. However, before I venture to consider the orders of reference/re- reference, a glance at what Azeez Basha (supra) decided would not be inapposite.

16. In Azeez Basha (supra), this Court considered the legal sustainability of the 1951 and 1965 amendments to the Aligarh Muslim University Act, 192015. These amendments were challenged as violative of the Fundamental Rights enumerated, inter alia, under Articles 26 and 30 of the Constitution. In such decision, it was held by this Court both on facts as well as law that AMU cannot be declared a minority institution. It was held that AMU was not established by a minority community, as it was the creature of a statute. The right under Article 30(1) was interpreted so as to give the linguistic and religious minorities the right to administer the institutions which were established by the minority community. Building on this argument, the Court further stated that a minority would not enjoy the rights of administering the institution not established by it, merely because it might have been administering it before the Constitution came into force. The phrase “establish and administer” in Article 30 has to be read conjunctively and there is no precedent which holds that it can be read disjunctively. The Court further went on to hold that in 1920, there was nothing to stop the Muslim community from establishing a university if they so desired. The nucleus of AMU was Mohammedan Anglo-Oriental College16, an institution under the Allahabad University. The conversion of MAO College to AMU was not undertaken or effectuated by the Muslim community, but by the force of statute. Therefore, this Court declared that AMU was established by the Central Legislature of British India.

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17. Through Azeez Basha (supra), this Court distinguished its earlier Constitution Bench decision in Re: Kerala Education Bill.17 An argument was raised therein that only minority institutions established post the commencement of the Constitution could be granted the protection under Article 30(1). This Court in Re: Kerala Education Bill (supra) held that any institution, whether established before or after the commencement of the Constitution,could be afforded the protection under Article 30(1) as Article 30(1) would lose much of its content if interpreted so narrowly. But it was pointed out that in Re: Kerala Education Bill (supra), this Court never held that the terms “administer” and “establish” can be read disjunctively.

18. The decision in Azeez Basha (supra) was doubted in Anjuman- e-Rahmania (supra), and was referred to a bench of 7 (seven) Judges for reconsideration. That proceeding germinated from an unconnected writ petition filed by an institution registered under the Societies Registration Act, 186018 and was hardly related to the issue of the minority character of AMU. In fact, the question of law arising for decision in the writ petition under Article 32, briefly captured in the order dated 26th November, 1981, would show that there was no factual similarity with that in Azeez Basha (supra).

19. It is, therefore, considered proper to read the referral order in its entirety for facility of proper understanding of what the bench of 2 (two) Judges in Anjuman-e-Rahmania (supra) had in mind and what was the ultimate direction. The said order reads as follows: “After hearing counsel for the Parties, we are clearly of the opinion that this case involves two substantial questions regarding the interpretation of Article 30(1) of the Constitution of India. The present Institution was founded in the year 1938 and registered under the Societies Registration Act in the year 1940. The documents relating to the time when the institution was founded clearly shows that while the institution was established mainly by the Muslim community but there were members from the non-muslim community also who participated in the establishment process. The point that arises is as

17 1959 SCR 995 18 Societies Act, hereafter

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to whether Act. 30(1) of the Constitution envisages an institution which is established by minorities alone without the participation for the factum of establishment from any other community. On this point, there is no clear decision of this court. There are some observations in S. Azeez Basha & ors. Vs. Union of India 1968 (1) SCR 333, but these observations can be explained away. Another point that arises is whether soon after the establishment of the institution if it is registered as a Society under the Society Registration Act, its status as a minority institution changes in view of the broad principles laid down in S. Azeez Basha’s case. Even as it is several jurists including Mr. Seervai have expressed about the correctness of the decision of this court in S. Azeez Basha’s case. Since the point has arisen in this case we think that this is a proper occasion when a larger bench can consider the entire aspect fully. We, therefore, direct that this case may be placed before Hon. The Chief Justice for being heard by a bench of at least 7 judges so that S. Azeez Basha’s case may also be considered and the points that arise in this case directly as to the essential conditions or ingredients of the minority institution may also be decided once for all. A large number of jurists including Mr. Seervai, learned counsel for the petitioners Mr. Garg and learned counsel for respondents and interveners Mr. Dikshit and Kaskar have stated that this case requires reconsideration. In view of the urgency it is necessary that the matter should be decided as early as possible we give liberty to the counsel for parties to mention the matter before Chief Justice.” (emphasis supplied)

20. Ever since the mid-fifties of the last century, the entire functional strength of Judges of the Supreme Court of India has never assembled to decide any case. The last time the entire strength of 8 (eight) Judges did assemble was in 1954, when the Constitution Bench decided two writ petitions under Article 32 of the Constitution in M. P. Sharma vs. Satish Chandra.19 It is well known that while discharging its judicial

19 (1954)1 SCC 385

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duties, owing to administrative exigency and practical expedience, the Supreme Court of India functions through separate benches. Although voices of the benches could be different on a common point of law, yet, the reasons and the ultimate conclusions are treated as the view-point of the Supreme Court. No matter the strength, all these voices bear the symbol of the Supreme Court. It is also well known that it is the power of the Chief Justice of India, on the administrative side, to determine appropriate numerical strength of the benches. However, the mere fact of this Bench having a numerical strength of 7 (seven) Judges and presided over by none other than the Chief Justice of India does not necessarily make it competent to decide the re-reference, if the orders of reference/re-reference are found to be seriously flawed and no such reference/re-reference should have or could have been made in the first place. I presently proceed to assign my view-point in support of my conclusion that the reference as well as the re-reference is incompetent.

21. The discussion on why the order in Anjuman-e-Rahmania (supra) is completely flawed and, thus, should not have any bearing on the re-reference must start with the decision in Lala Shri Bhagwan vs. Shri Ram Chand.20 Deprecating the approach of a Single Judge of the relevant high court, who had taken upon himself the task of deciding whether earlier decisions of Division Benches of the same high court ought to be reconsidered and revised based on his perception that such decisions stood impliedly overruled by a decision of this Court, Hon’ble P.B. Gajendragadkar, CJ. (as His Lordship then was) speaking for a bench of 3 (three) Judges observed: “18. *** It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, needed to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That

20 [1965] 3 SCR 218

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is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself.”

23. The principle is simple. Whether it be the Supreme Court, or the high courts, it is beyond any shadow of doubt that a decision of a bench of greater strength is binding on a bench of lesser strength. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by courts of coordinate authority or of superior authority. This is not to say that the bench of lesser strength is denuded of the authority or competence to distinguish the decision of greater strength based on consideration of facts that are involved.

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in Central Board of Dawoodi Bohra Community vs. State of Maharashtra.21Hon’ble R.C. Lahoti, CJ. (as His Lordship then was), speaking for the Bench held: “12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms: (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given

21 (2005) 2 SCC 673

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by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh 22 and Hansoli Devi23.” (emphasis supplied)

25. In Hansoli Devi (supra), the Constitution Bench of 5 (five) Judges followed the earlier decision of the Constitution Bench of 5 (five) Judges in Pradip Chandra Parija vs. Pramod Chandra Patnaik.24 It was held in Pradip Chandra Parija (supra) that judicial discipline and propriety demands that a bench of 2 (two) learned Judges should follow a decision of a bench of 3 (three) learned Judges. But if a bench of 2 (two) learned Judges concludes that an earlier judgment of a bench of 3 (three) learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a bench of 3 (three) learned Judges setting out the reasons why it could not agree with the earlier judgment and if the bench of 3 (three) learned Judges also comes to the conclusion that the earlier judgment of a bench of 3 (three) learned Judges is incorrect, then a reference could be made to a bench of 5 (five) learned Judges. In view of such decision, the Constitution Bench in Hansoli Devi (supra) held the very reference itself made by 2 (two) learned Judges to be improper.

26. Campaign for Judicial Accountability and Reforms vs. Union of India 25 is also a Constitution Bench decision of recent origin of 5 (five) Judges. In a somewhat different context, the bench ruled that “there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench”.

27. These decisions of high authority seek to reinforce the principles of judicial discipline, propriety and comity, which have been followed by the courts since time immemorial. Permitting a bench of lesser strength to doubt a decision given by a bench of greater strength

22 (1989) 2 SCC 754 23 (2002) 7 SCC 273 24 (2002) 1 SCC 1 25 (2018) 1 SCC 196

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and to refer a given issue to a still larger bench would be in the teeth of principles which are well-established and well-entrenched. Doctrines of precedents and stare decisis provide a level of certainty to individuals appearing before the court and bring a degree of objectivity in a largely subjective decision-making process. The litigant needs to have confidence that the legal position which has been chiselled on the tapestry of law by legal precedents will not be unceremoniously blown away through subsequent judicial commands, which could be ill-advised, like the vagaries of wind and weather. It would behove this Court to remember the legal maxim interest republicae ut sit finis litium, i.e., it is in the interest of the State that there be an end to litigation, and the importance of not disturbing legally sound precedents without following the procedure established by law.

28. Although Pradip Chandra Parija (supra), Hansoli Devi (supra) and Central Board of Dawoodi Bohra Community (supra) are later decisions and were not in existence when the order in Anjuman- e-Rahmania (supra) was made by the bench of 2 (two) Judges, it matters little. The principle flowing from Lala Shri Bhagwan (supra) bound the bench of 2 (two) Judges in Anjuman-e-Rahmania (supra). The law laid down, in the decisions post Anjuman-e-Rahmania (supra), is neither expressly nor even impliedly made to operate prospectively. Besides, it seems elementary though it requires to be restated that a bench sitting in a combination of 2 (two) Judges is bound by what is laid down by a Constitution Bench of 5 (five) Judges and should the bench of lesser strength have valid reasons to disagree with the view expressed by the latter bench of 5 (five), the former bench of 2 (two) cannot straightway make a reference for being placed before a Constitution Bench of greater numerical strength. I am left to wonder how the bench of 2 (two) Judges in Anjuman-e-Rahmania (supra) could at all request that the case be placed before a bench of at least 7 (seven) Judges. Without a doubt, what the bench in Anjuman-e-Rahmania (supra) did was not only plainly impermissible in law but the referral order answers the test for holding a judgment per incuriam. If “doubting the correctness of the opinion in Azeez Basha (supra), without disagreeing with it” could permit the bench in Anjuman-e-Rahmania (supra) to request the Chief Justice of India to place the matter for being heard by a bench of 7 (seven) Judges and such a course of action were held to be permissible and within the limits of Central Board of Dawoodi

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Bohra Community (supra), as proposed in the majority opinion (paragraph 39 of the revised draft) - I am afraid, tomorrow, a bench of 2 (two) Judges, referring to opinions of jurists [as in Anjuman- e-Rahmania (supra)] could well doubt the ‘basic structure’ doctrine and request the Chief Justice of India to constitute a bench of 15 (fifteen) Judges. The reasoning in the majority opinion, with due respect, appears to be based on an incomplete reading of paragraph 12(2) of Central Board of Dawoodi Bohra Community (supra), extracted supra. Though the second sentence of the said paragraph is a bit ambiguous, but the same- read harmoniously with the other sentences - would lead to the inevitable conclusion that even in case of a doubt being expressed by a bench of 2 (two) Judges in respect of the ratio laid down by a bench of 5 (five) Judges, the case on a reference being made (with sufficient reasons) ought to be first placed before a bench of 3 (three) Judges, and not to a bench of either 5 (five) or 7 (seven) Judges. If, indeed, the proposed view in the majority opinion were accepted, all the precedents referred to above would stand overruled and a legal principle, which hitherto no bench of this Court did, would be laid down and, in the process, the floodgates for unmeritorious references opened. In my humble view, that would be an incorrect and improper approach. Hence, for the foregoing reasons and for all intents and purposes,the order of reference in Anjuman-e-Rahmania (supra) must be regarded as completely flawed and non-est.

29. One other interesting feature draws attention. The bench in Anjuman- e-Rahmania (supra), perceiving the matter to be urgent, granted liberty to the counsel for the parties to mention the matter before the Chief Justice of India for an early decision but the file seems to have gathered dust ever since. There is hardly any material on record to suggest that either the incumbent Chief Justice of India or any of the successive Chief Justices of India for the next 20 (twenty) years, thought it fit to direct the office to dust the dust for a bench of 7 (seven) Judges to be constituted to decide the issue that was referred, assuming that question 3(a) formulated for an answer by the Constitution Bench of 11 (eleven) Judges in T.M.A. Pai Foundation and ors. vs. State of Karnataka and ors.26 was inspired by the order in Anjuman-e-Rahmania (supra). Res ipsa loquitur!

26 (2002) 8 SCC 481

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30. The contention that the said order in Anjuman-e-Rahmania (supra) was acted upon and the bench in T.M.A. Pai Foundation (supra) being called upon to address question 3(a) could be traced to the order in Anjuman-e-Rahmania (supra),apart from being incorrect, pales into insignificance for primarily two reasons. In T.M.A. Pai Foundation (supra), initially 9 (nine) questions were framed,27 later 10 (ten) questions were framed 28and finally 11 (eleven) questions were framed by the bench of 11 (eleven) Judges. Neither does one find reference in the said orders framing questions to any decision/ order of this Court including Anjuman-e-Rahmania (supra) nor is the order in Anjuman-e-Rahmania (supra) referred to in the entire judgment in T.M.A. Pai Foundation (supra). To say that question no. 3(a) was framed because of Anjuman-e-Rahmania (supra) appears to be thoroughly misconceived. While T.M.A. Pai Foundation (supra) did not answer question 3(a), the Regular Bench too was not persuaded to decide the same as it appears from its order dated 11th March, 2003 in Shahal H. Musaliar and Anr. vs. Union of India and Ors.29 The proceedings in Anjuman-e-Rahmania vs. District Inspector effectively stood closed by the order of this Court dated 11th March 2003.

27 (2002) 8 SCC 713 28 (2002) 8 SCC 712 29 Writ Petition (C) No.331 of 2005 30 (2003) 6 SCC 697 31 (2005) 6 SCC 537

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