Aligarh Muslim University v. Naresh Agarwal & Ors.

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a. Decisions of this Court rendered by a Bench of larger strength are binding on Benches of a less or equal strength; b. If a Bench of lower strength is doubtful about the correctness of a judgment delivered by a Bench of larger strength, it cannot disagree or dissent from the view taken by the larger Bench. In case of doubt, it can invite the attention of the Chief Justice of India to its opinion and request the Chief Justice to list the matter before a Bench, the strength of which is greater than that which delivered the judgment which has been doubted; c. The correctness of the view taken by any Bench can only be doubted by a Bench of equal strength. The matter will then be placed for hearing before a Bench of greater strength; d. There are two exceptions to the rules discussed above: i. The discretion of the Chief Justice is not bound by the rules. As the master of the roster, the Chief Justice may list any case before any Bench of any strength; ii. Despite the rules discussed above, if a particular case has come up for hearing before a Bench of larger strength and that Bench is of the opinion that the judgment of the Bench of lower strength requires reconsideration or correction, or is otherwise doubtful of its correctness, it may dispense with the need for a reference in the terms described above or an order of the Chief Justice and hear the matter for reasons given by it.

38Copy pinpoint38. The position of law laid down in Central Board of Dawoodi Bohra Community (supra) is correct. Decisions of a larger Bench are binding precedent, and judicial discipline and propriety dictate that Benches of lower strength must adhere to such decisions. This will also avoid inconsistencies in the development of law. Questions concerning the correctness of judgments must ordinarily be referred only by a Bench which is equal in strength to the Bench whose judgment is doubted. We also agree with the two exceptions to this rule, as detailed by this Court in Central Board of Dawoodi Bohra Community (supra). They must remain exceptions and not transmogrify into the rule itself.

39Copy pinpoint39. The three issues which required an authoritative pronouncement in Anjuman-e-Rahmaniya (supra), were not directly a point of contention in Azeez Basha (supra). However, the decision would

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have a bearing on them. Doubting the correctness of the opinion in Azeez Basha (supra), without disagreeing with it, the two-Judge Bench requested that the matter may be placed before the Chief Justice of India for being heard by a Bench of seven Judges. This falls within the permissible limits laid down in Central Board of Dawoodi Bohra Community (supra) as explained in point (b) of paragraph 37. Further, the Solicitor General has also stated that he is not pressing the Union’s preliminary objection. The order of reference dated 12 February 2019, too, noted that although a three-Judge Bench could not ordinarily refer a case directly to a seven-Judge Bench, it was doing so in this case because the question was already referred to a Bench of seven Judges but was not answered. The reference order notes: “10. Ordinarily and in the normal course the judicial discipline would require the Bench to seek a reference of this matter by a Five Judges Bench. However, having regard to the background, as stated above, when the precise question was already referred to a Seven Judges Bench and was, however, not answered, we are of the view that the present question, set out above, should be referred to a Bench of Hon’ble Seven Judges.

11. Consequently and in the light of the above, place these matters before the Hon’ble the Chief Justice of India on the administrative side for appropriate orders.”

40Copy pinpoint40. This Court will hear the questions referred to a seven-Judge Bench for these reasons.

ii. The scope of Article 30

41Copy pinpoint41. The fundamental rights enshrined in the Constitution do not operate in silos. In A.K. Gopalan v. State of Madras,25 the majority judgment of this Court held that fundamental rights operate to the mutual exclusion of one another. In other words, each fundamental right was understood as being distinct and unrelated to the others. This view of Part III of the Constitution was later rejected in Rustom Cavasjee

25 AIR 1950 SC 27

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Cooper v. Union of India,26 which held that Part III “weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.”27 Maneka Gandhi v. Union of India28 affirmed that Rustom Cavasjee Cooper (supra) overruled the majority judgment in A.K. Gopalan (supra). Thus, the scope of the right of “minorities to establish and administer educational institutions” must be identified in the background of the other cultural and religious rights guaranteed by the Constitution.

42Copy pinpoint42. Articles 25 to 28 are placed under the heading ‘Right to freedom of religion’. Article 25(1) stipulates that all persons are equally entitled to freedom of conscience, the right to freely profess, practice or propagate religion. This is subject, however, to public order, morality, health and other provisions of Part III of the Constitution. Clause (2) of Article 25 provides that nothing in Clause (1) would affect the operation of any existing law or prevent the State from enacting a law regulating or restricting any economic, financial, political or secular activity, which may be associated with religious practice, and legislation providing for social welfare reform or opening Hindu religious institutions of public character to all classes and sections of Hindus. Article 26 guarantees religious denominations or a section of them, the right to establish and maintain institutions for religious and charitable purposes, manage their own affairs in the matter of religion, to own and acquire movable and immovable property, and administer such property in accordance with law. The rights are subject to public order, morality and health. Article 27 mandates that no one shall be compelled to pay any taxes, the proceeds of which are to be specifically appropriated in payment of expenses for the promotion and maintenance of any particular religion or religious denomination.

43Copy pinpoint43. Article 28, deals with the rights of individuals and secures to them vide clause (3), the right not to take part in any religious instructions that may be imparted in any educational institution recognised by the State or receiving aid of the State funds. The provision stipulates that a person need not attend religious worship conducted in such institution

26 (1970) 1 SCC 248 27 (1970) 1 SCC 248 [52] 28 (1978) 1 SCC 248

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or any premises attached thereto unless he wishes to do so, and if such person is a minor, upon the consent of his guardian. Clause (1) of Article 28 restricts educational institutions wholly maintained out of the State funds29 from imparting ‘religious instructions’. However, clause (2) to Article 28 stipulates that clause (1) will not apply to an educational institution which is administered by the State but was established under an endowment or trust which required religious instruction to be imparted in such institution. The clause recognises the distinction between ‘establishment’ and ‘administration’ of an institution.

44Copy pinpoint44. Articles 29 and 30 under the heading ‘Cultural and Educational Rights’, are two provisions which specifically confer rights on a section of citizens residing in the territory of India or a part thereof, having a distinct language, script, or culture. Some would say that these are in nature of special privileges, yet in substance, they are in the nature of guarantees and protections given by the Constitution not to any specific denomination by identity, but to any section of the citizens which can be distinguished on the basis of language, script or culture. Clause (1) of Article 29 gives them the right to conserve, secure and extol their language, script or culture. The clause underscores the right to conserve and nurture the language, script or culture. Clause (2) of Article 29 is a negative right which stipulates that no citizen shall be denied admission on the grounds of religion, race, caste, language, or any of them in any educational institution maintained by the State or receiving aid out of the State funds.

45Copy pinpoint45. Though the heading of Article 29 states that it is a provision for the protection of the interest of minorities, the substantive portion stipulates that the right is available to “any section of citizens” residing in India and having a distinct language, script or culture of their own. Thus, Article 29 applies to non-minorities as much as it applies to minorities, provided that the sections have a distinct language, script and culture of their own.30 Similarly, Articles 25

29 The expression ‘wholly maintained out of the State funds’ has been interpreted in DAV College v. State of Punjab (II), (1971) 2 SCC 269, to mean an institution which receives grants for its expenditure that may be wholly maintained out of the State funds even though it receives a fee for affiliation or holding examination as quid pro quo. 30 See Ahmedabad St. Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717, (9J) [Chief Justice Ray writing for himself and Justice Palekar [5,6], Justice Khanna [73], Justice Mathew writing for himself and Justice YV Chandrachud [125, 126]; Rev. Father W Proost v. State of Bihar [5J] [1969] 2 SCR 73 [8,9]

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to 28 also do not make a distinction between majority and minority religious sections. The provisions guarantee the right to freedom of religion to both minorities and non-minorities. Article 25 recognises the right of all persons to freedom of conscience and the right to freely profess, practice and propagate religion. Article 26 recognises the right of every religious denomination or any section thereof to manage its religious affairs. The provisions of Article 28 also do not distinguish between a minority and a non-minority educational institution. The provisions apply equally to educational institutions established by religious and linguistic minorities and non-minorities.31

46Copy pinpoint46. The provisions noted above, whether they refer to individual rights or denomination rights are manifestations that India is a pluralistic society with different religions, practices, cultures and languages. These provisions which are in the nature of rights and guarantees, also prescribe the ambit of State interference.

47Copy pinpoint47. Article 30 consists of three clauses. Clause (1) states that all minorities whether based on religion or language, shall have a right to establish and administer educational institutions of their choice. Clause (1)(a) deals with the provision for compulsory acquisition of any property for an educational institution established and administered by a minority. We are not concerned per se with the said clause. Clause (2) of Article 30 provides that the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority whether based on religion or language.

48Copy pinpoint48. The two crucial expressions which arise for consideration and interpretation in this decision are the words ‘establish’ and ‘administer’ used in clause (1) of Article 30. These two words and expressions have to be interpreted in the context of clause (1) to Article 30 which confers a guarantee and protection to minority communities based on religion or language.

31 See TMA Pai (supra) [88-90;144]; “144 […] As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non- minorities. […] Just as Articles 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the State or receiving aid out of State funds.”

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a. The purpose of Article 30(1)

49Copy pinpoint49. A brief reference to the drafting history of the provision will help us discern the purpose of the provision. On 19 April 1947, the Minorities Sub-Committee (which was appointed to examine and propose changes to the draft clauses of the fundamental rights Committee) submitted the interim report to the Chairperson of the Advisory Committee on Minorities and Fundamental Rights.32 The Minorities Sub-Committee recommended, inter alia, the inclusion of a constitutional provision that stipulated that all minorities, whether based on religion, community or language shall be free to establish and administer educational institutions of their choice.33 However, when the first Draft of the Constitution was submitted by the Drafting Committee to the President of the Constituent Assembly, the provision guaranteed a right to establish and administer educational institutions.34 This change in the language of the provision is crucial to understanding the scope of the provision. The provision guaranteed a purely negative group right to religious and linguistic minorities against the State with the use of the words “shall be free”, that is, the right to ensure that the State does not discriminate against minorities who wish to establish and administer educational institutions. However, upon the use of the phrase ‘right’, the possibility of interpreting the provision as a guarantee of a positive right arose.

50Copy pinpoint50. It cannot be disputed that Article 30(1) guarantees the minority educational institutions, the right to not be discriminated. In fact, Article 30(2) is a facet of the principle of non-discrimination of minorities. The Article provides that the State shall not discriminate in granting aid to educational institutions or discriminate on the ground that it is under the management of a religious or linguistic minority. The question is whether the use of ‘right’ in Article 30(1) also guarantees a ‘special right’ in addition to the right to non-discrimination.

51Copy pinpoint51. While there is no doubt that Article 30 protects the rights of minorities, this Court has in numerous judgments conceptualised varied reasons for the constitutional guarantee. In Ahmedabad St. Xavier’s College

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Society v. State of Gujarat,35 a nine-Judge Bench discussed the objective of the provision in detail. Chief Justice Ray writing for himself and Justice Palekar observed that Article 30 ensures equality between the majority and the minority, which would be denied in the absence of a special provision.36 Justice HR Khanna cast the purpose of the provision in terms of substantive equality and observed that Article 30 guarantees ‘special rights’ to give minorities a ‘sense of security’. The learned Judge observed that the real effect of the provision was to “ensure the preservation of the minority institutions by guaranteeing the minorities autonomy […] in administration.”37 Justice Mathew, writing for himself and Justice YV Chandrachud, also traced the purpose to the guarantee to substantive equality for minorities. The learned Judge observed that it will be impossible to protect the group identity of minorities and prevent the assimilation of identities in the absence of a provision guaranteeing substantive equality.38

52Copy pinpoint52. Justice Mathew referred to the Advisory opinion of the Permanent Court of International Justice on Minority Schools in Albania to draw on the purpose of providing additional guarantees for minorities.39 In this judgment, a crucial principle regarding equality and differential treatment for minority groups was articulated. The Permanent Court of International Justice observed that true equality might necessitate differential treatment to establish equilibrium between different situations: “Whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations. It is easy to imagine cases in which equality of treatment of the majority and of the minority whose situation and requirements are different, would result in inequality. The

35 (1974) 1 SCC 717 36 Ibid [8,9] 37 Ibid [77] 38 Ibid [131-133]; “132.The problem of the minorities is not really a problem of the establishment of equality because if taken literally, such equality would mean absolute identical treatment of both the minorities and the major ities. This would result only in equality in law but inequality in fact. The distinction need not be elaborated for it is obvious that “equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations.” 39 Minority Schools in Albania, Advisory Opinion, PCIJ Series A/B no 64, ICGJ 314 (PCIJ 1935), 6th April 1935, League of Nations; Permanent Court of International Justice.

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equality between the members of the majority and of the minority must be effective, genuine equality…”

53Copy pinpoint53. This perspective underscores the imperative to enable minorities to maintain their distinctive characteristics and fulfil their specific needs. The case in question involved the abolition of all private schools, a measure challenged primarily by the minority. The Court emphasized that the rationale for the protection of minorities aimed at preserving their unique attributes. To achieve this objective, it deemed two aspects crucial. Firstly, it stressed the importance of ensuring that members of minority groups enjoy complete equality with other nationals of the state. Secondly, it emphasized the necessity of providing minority groups with appropriate means for preserving their racial peculiarities, traditions and national characteristics.

54Copy pinpoint54. Distinct and diverse languages and religions have inherent value. It is also indisputable that cultures are often entangled with language and religion. The Constitution recognises that people who practise such religions or speak such languages who find themselves in the minority must not be at a disadvantage because of their numbers.

55Copy pinpoint55. That being said, the purpose of Article 30 is not solely to enable religious minorities to impart religious instruction. Article 30 extends to secular education as well. That minorities may wish to impart secular and religious instruction side by side may be one aspect of the matter. Another equally relevant aspect is that minorities may wish to impart secular education in a manner that is conducive to the practice of their religion or harmonious with it, even if religious instruction does not form part of the curriculum. In this way, the right of linguistic and religious minorities to equality is protected.

56Copy pinpoint56. The nine-Judge Bench in St. Xavier’s (supra) held that Article 30(1) is in pursuance of the anti-discrimination and substantive equality facets of the equality doctrine.40 In TMA Pai (supra), Chief Justice Kirpal writing for the majority of the eleven-Judge Bench observed that a law that discriminates based on whether the institution is established by a minority or a majority is unconstitutional for violation of Article 30. The Chief Justice observed that, however, the provision

40 St. Xavier’s (supra) Chief Justice Ray for himself and Justice Palekar [9]; Justice HR Khanna [77]; Justice Mathew for himself and Justice YV Chandrachud [131-133]

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should not lead to reverse discrimination.41 This observation on a cursory view seems to indicate that the Court has taken a volte- face by shifting from a special rights/substantive equality approach of the provision to an anti-discrimination/formal equality reading of the provision. However, a closer examination reveals that the observations of the majority in TMA Pai (supra) were in line with the precedents that viewed the provision as a guarantee of a ‘special right’. This is evident from the interpretation of the interrelationship between Article 29(2) and Article 30. One of the issues in that case was whether Article 29(2) which provides that no person shall be denied admission in State aided educational institution only on the grounds of religion, race, caste, language or any of them is applicable to minority education institutions. The opinion of the majority held that the denial of admission to non-minorities in minority institutions to a “reasonable extent” is not violative of Article 29(2) since it “preserves the minority character of the institution”.42 Thus, Article 30, beyond preventing the State from discriminating against religious and linguistic minorities who wish to establish educational institutions also guarantees a ‘special protection’.

b. The ‘special protection’ guaranteed by Article 30(1)

57Copy pinpoint57. This purpose of Article 30 was further expanded in PA Inamdar v. State of Maharashtra,43 where a seven-Judge Bench observed that the provision is better understood as a ‘protection’ and/ or a ‘privilege’

41 “138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-à-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St. Xavier’s College case [(1974) 1 SCC 717 : (1975) 1 SCR 173] at SCR p. 192 that : (SCC p. 743, para 9) “The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.” In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.” 42 TMA Pai (supra) [133] 43 (2005) 6 SCC 537

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of the minority rather than an abstract right.44 What is the special guarantee that Article 30 provides educational institutions established by religious and linguistic minorities which is not otherwise available to non-minorities?

58Copy pinpoint58. Until the judgment of the eleven-Judge Bench in TMA Pai (supra), the right to establish and administer educational institutions was interpreted as a right that was exclusively available to religious and linguistic minorities by virtue of Article 30. In TMA Pai (supra), the right of every citizen to establish and administer educational institutions was traced to Article 19(1)(g),45 which guarantees the freedom to practise any profession, or to carry on any occupation, trade or business. The eleven-Judge Bench also traced the right of ‘every’ religious denomination (of both the majority and the minority) to establish and administer educational institutions to Article 26(a) which guarantees the right to establish and maintain institutions for religious and ‘charitable’ purposes. Charitable purposes was interpreted to include education.46

59Copy pinpoint59. The rights guaranteed by Articles 19(1)(g) and 26(a) can be reasonably restricted on the grounds in Articles 19(6) and 26 respectively. An educational institution established and administered by any citizen can be regulated on the grounds stipulated in Article 19(6) which includes the ground of professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade, business.47 An educational institution established by a religious

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denomination (without any element of profit48) can be regulated on grounds of public order, morality and health. As opposed to these two provisions, Article 30 does not circumscribe the right on any grounds. This Court has, however, consistently emphasised that the right guaranteed by Article 30 is not absolute.

60Copy pinpoint60. In Rev. Sidhajbhai Sabhai v. State of Bombay,49 a Constitution Bench observed that Article 30 is absolute and cannot be restricted on any grounds such as in Article 19. However, in the very next sentence this Court observed that the right can be restricted on the grounds of efficiency of instruction, discipline, health, sanitation, morality and public order.50 It must be noticed that these grounds resemble the grounds for restraint prescribed in Articles 19(6) and 26.

61Copy pinpoint61. The inconsistency of the observations in Rev. Sidhajbahi (supra) was set right in State of Kerala v. Very Rev. Mother Provincial.51 The six-Judge Bench differentiated between restrictions on the autonomy of a minority institution and the standard of education.52 The former is impermissible in view of the protection under Article 30(1). The latter was traced to the regulation of the profession which is covered by Article 19(6). Thus, regulation of a minority educational institution is permissible on the grounds in Article 19(6). However, the regulation must not infringe the minority character of the educational institution. Article 30(1) is absolute in that sense. Justice Khanna’s concurring opinion in St. Xavier’s (supra) also highlighted this point. The learned Judge observed that reasonable restrictions can be imposed to ensure that a minority educational institution is an institution of excellence. The examples given by the Judge included ensuring regular payment of salaries and audit of accounts.53 The distinction between regulation which affects the minority character and a regulation in pursuance of ‘national interest’ was also drawn by the opinion of the majority in TMA Pai (supra).54 National interest was interpreted to include public safety, national

48 PA Inamdar [6] 49 [1962] 3 SCR 837 50 [1962] 3 SCR 837 [849] 51 (1970) 2 SCC 417 52 Ibid [9, 10] 53 St. Xavier’s [91] 54 TMA Pai (supra) [107]

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security and national integrity, preventing the exploitation of students or the teaching community, and application of general laws such as laws on taxation, sanitation and social welfare.55 The principle that can be inferred from the above precedents is that regulations that may be justified on the grounds stipulated in Articles 19(6) and 26 may fall foul of Article 30 if they infringe the ‘minority character’ of the institution.56 This is the ‘special right’ or ‘protection’ which the Constitution guarantees minority education institutions.

62Copy pinpoint62. The right to administer was considered in some depth in St. Xavier’s (supra) by Chief Justice AN Ray and Justice HR Khanna. Justice Khanna emphasised that the right to administer an institution is to effectively manage and conduct the affairs of the institution. The learned Judge held that it means shaping the institution in congruence with their vision and ideas for best serving the interests of both the community and the institution. Chief Justice AN Ray, on the other hand, observed that the right to administer has four components: (a) the right to choose its managing or governing body; (b) the right to choose the teachers; (c) the right not to be compelled to refuse admission to students; and (d) the right to use its properties and assets for the benefit of its own institutions. The right to administer as guaranteed under Article 30(1) ensures autonomy in administration and the right of choice which may not otherwise be available to a non-minority institution. The right to administration, however, does not grant a carte blanche to flout or disregard the regulations and controls established by statute, which are essential for protecting the larger public interest and maintaining educational standards. Thus, the right to administer is not impaired by factors such as rules and regulations prescribing the proper utilization of State funds, qualifications of the teachers, their remuneration and benefits, eligibility criteria for admission of students, attendance requirements and the threshold to pass the exams conducted by the board/university to which the college or school is affiliated. What is barred is the interference in the internal management and overall control of the institution. At the same time, we must clarify that a minority institution can employ non-minority employees. Non-minority individuals can be teachers or even hold the position of the academic or institution head. To

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hold otherwise, would amount to interference with the choice, as envisaged by Article 30(1).

63Copy pinpoint63. This proposition was clearly elucidated by the seven-Judge Bench in PA Inamdar v. State of Maharashtra57 which was formed to cull out the ratio decidendi of the eleven - Judge Bench in TMA Pai (supra). The degree of interference of the State in the administration of an educational institution differs based on whether the institution receives aid or recognition from the Government or whether the institution was established by a minority. In PA Inamdar (supra), this Court discussed the extent of State interference in an (i) unaided and unrecognised/unaffiliated minority institution; (ii) unaided minority institution seeking recognition; and (iii) aided minority institution. In the case of the first class, the seven-Judge Bench held that the minority ‘can exercise the right to heart’s content’. Institutions that fall within the first class could even fill all the seats with students from their community.58 With respect to the second class, this Court held that the State cannot interfere in the day to day administration, including the essential ingredients of management, admission of students, recruiting staff and charging of fees.59 This Court held that the regulation must be reasonable and for the purpose of ensuring that the institution is effective for the minority and others who resort to it.60 For institutions that fall within the third class, the State can only regulate the proper utilisation of the grant without diluting the minority status of the educational institution.61

64Copy pinpoint64. Thus, the position that emerges is that: (i) the regulations must be relevant to the purpose of granting recognition (in the case of a State- recognised institutions) and aid (in the case of Government aided institutions); and (ii) the effect of the regulation must not infringe the minority character of the institution.

65Copy pinpoint65. From the discussion above, the following principles emerge : a. The purpose of Article 30(1) is to ensure that the State does not discriminate against religious and linguistic minorities which

57 (2005) 6 SCC 537 58 PA Inamdar (supra) [120]; TMA Pai (supra) [145] 59 Ibid [121] 60 ibid [122] 61 PA Inamdar [123]; TMA Pai [143]

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seek to establish and administer educational institutions (“the non-discrimination” purpose); and b. The purpose of Article 30(1) is also to guarantee a ‘special right’ to religious and linguistic minorities that have established educational institutions. This special right is the guarantee of limited State regulation in the administration of the institution. The State must grant the minority institution sufficient autonomy to enable it to protect the essentials of its minority character. The regulation of the State must be relevant to the purpose of granting recognition or aid, as the case may be. This special or additional protection is guaranteed to ensure the protection of the cultural fabric of religious and linguistic minorities.

iii. Indicia for a Minority Educational Institution

66Copy pinpoint66. To recall, the petitioners while challenging the 1951 and 1965 amendments to the AMU Act in Azeez Basha (supra) argued that the amendments were violative of the right to administration guaranteed by Article 30(1). The Union of India responded to the argument with the submission that the Muslim minority cannot claim the right to administration since it did not ‘establish’ the institution. Opposing this argument, the petitioners in Azeez Basha (supra) submitted that Article 30(1) guarantees the ‘right to administer’ an educational institution to minorities even if it was not established by them, if by “some process, it had been administering the same before the Constitution came into force.” The argument of the petitioners was rejected. This Court held that the words “establish” and “administer” must be read conjunctively, that is, the guarantee of the right to administration is contingent on the establishment of the institution by religious or linguistic minorities. In this context, the following observations were made: “It is to our mind quite clear that Art. 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if

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by some process it had been administering the same before the Constitution came into force. We are not pre-pared to accept this argument. The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words “establish and administer” in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it. … We are of opinion that nothing in that case justifies the contention raised on behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established by them. The two words in Art. 30(1) must be read together and so read the Article gives the right to the minority to administer institutions established by it.” (emphasis supplied)

The Constitution Bench in St. Stephen’s (supra) reiterated this interpretation of the phrases ‘establish’ and ‘administer’ in Article 30(1).62

67Copy pinpoint67. Let us refer to Article 19(1)(a) to understand what it means to conjunctively read two words in a provision. Article 19 guarantees the fundamental right to free speech and expression. The guarantee of the freedom of expression is, however, not dependent on the freedom of speech. They are two separate rights. However, the situation

62 St Stephen’s [28] “It should be borne in mind that the words “establish” and “administer” used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution, is thus a condition precedent for claiming the right to administer the institute.”

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differs with regard to the rights to establish and administer outlined in Article 30. It is settled that the rights to establish and administer must be read conjunctively and not disjunctively. This Court has not doubted this interpretation in any of the judgments subsequent to Azeez Basha (supra).63

68Copy pinpoint68. The question is whether the conjunctive reading of the words “establish” and “administer” would also mean that for an educational institution to be a minority institution, it should have been both established and administered by a minority. In Azeez Basha (supra), the Constitution Bench held that the institution must be both established and administered by the minority. The Constitution Bench framed the following three questions to determine if AMU was a minority educational institution: a. Whether on the reading of the AMU Act, the University was established by the Muslim minority; b. Whether the right to administer the University ever vested in the minority; and c. If (b) is affirmative, whether the right to administer the University was surrendered when AMU was established.

69Copy pinpoint69. The issue before this Bench is the indicia for an educational institution to be a minority educational institution. Should it be proved that the institution was established by the minority, or it was administered by the minority, or both? The petitioners and the respondents agree that the words ‘establish’ and ‘administer’ must be read conjunctively. They argue that administration is a sequitur to establishment. However, they disagree on the test to be applied to identify a minority education institution. The petitioners argue that the only indicia for a minority educational institution is that it must be established by a minority, while the respondents argue that the dual test of establishment and administration must be satisfied.

70Copy pinpoint70. Before proceeding further, it is relevant to note the provisions of the NCMEI Act. The NCMEI Act was enacted in 2004 to constitute a National Commission for minority educational institutions and

63 Manager, St. Thomas UP School v. Commr. & Secy, to general Education Dept. (2002) 2 SCC 497; St. Stephen’s (supra); DAV College trust & Management Society v. State of Maharashtra (2013) 4 SCC 14; SP Mittal v. Union of India (1983) 1 SCC 51

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to provide for matters connected or incidental to it. Section 10 of the NCMEI Act was amended in 2006. The amended provision prescribed a procedure for the establishment of a minority educational institution.64 Thus, there can be no ambiguity about the minority status of educational institutions established after the enactment of NCMEI (Amendment) Act 2006. However, that is not the case for institutions which were established before the 2006 Amendment. How do we identify if an educational institution established before 2006 is a minority educational institution?

71Copy pinpoint71. Article 30 does not prescribe conditions which must be fulfilled for an educational institution to be considered a minority educational institution. Article 30 confers two group rights on all linguistic and religious minorities: the right to establish an educational institution and the right to administer an educational institution. This right can be exercised by an individual belonging to a group or a collection of persons.65 As observed above, the provision guarantees both a positive and negative right. Thus, the provision, in addition to ensuring that the State does not discriminate against the minority community also guarantees the minority educational institution certain guarantees. The institution is guaranteed the right of lesser State regulation and greater autonomy in the administration of the educational institution. The right to establish an educational institution guaranteed to the minority is not a special right. That, as held in TMA Pai (supra) (as explained in the preceding section), is a right which is available to

64 “10. Right to establish a Minority Educational Institution.- (1) Any person who desires to establish a Minority Educational Institution may apply to the Competent authority for the grant of the no objection certificate for the said purpose. (2) The Competent authority shall, - (a) on perusal of documents, affidavits or other evidence, if any; (b) after gving an opportunity of being heard to the applicant, decide every application filed under sub- section (1) as expeditiously as possible and grant or reject the application, as the case may be: Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant. (3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection certificate,- (a) the Competent authority does not grant such certificates; or (b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate, It shall be deemed that the Competent authority has granted a no objection certificate to the applicant. (4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulaitons, as the case may be, laid down by or under any law for the time being in force. 65 Mother Provincial (supra)

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every citizen under Article 19(1)(g) and to minority and non-minority religious denominations under Article 26. The special right that the provision guarantees to religious and linguistic minorities relates to the administration of educational institutions “of their choice”. The expression “of their choice” is of an expansive nature indicating that the choice extends to the full range of educational institutions.

72Copy pinpoint72. Article 30(1) cannot extend to a situation where the minority community which establishes an educational institution has no intention to administer it. A religious or linguistic community may establish an educational institution and yet not administer it. This is evident from Article 28(2) of the Constitution which states that Article 28(1) will not apply to an educational institution which is administered by the State but was established under an endowment or a trust which require religious instruction to be imparted. It is quite possible that a member or a group belonging to the minority community wishes to establish an institution but intends to accept greater State regulation and lesser autonomy for the community. In that case, putting a ‘minority’ tag on such an educational institution merely because it has been established by a person or a group belonging to a religious or linguistic minority would not be permissible under Article 30(1). An educational institution established by a minority, whether linguistic or religious, can give up their right to claim the benefit under clause (1) of Article 30. The right can be given up consciously by waiver. This may occur where administration has been consciously and willingly entrusted to the State. Therefore, to determine whether an educational institution is a minority educational institution, a formalistic test such as to whether it was established by a person or group belonging to a religious or linguistic minority is not sufficient. The tests adopted must elucidate the purpose and intent of establishing an educational institution for the minority. Both the establishment and the administration by the minority must be fulfilled cumulatively for that.66

73Copy pinpoint73. In Azeez Basha (supra), the Constitution Bench referred to the judgment in The Durgah Committee, Ajmer v. Syed Hussain Ali,67 for the proposition that even if a minority established an educational

66 See Section E(v) of this judgment for an expansive elucidation of the indicia. 67 (1962) 1 S.C.P 383

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institution, it may lose the concomitant right of administration in certain circumstances. The relevant observations are extracted below: “We should also like to refer to the observations in The Durgah Committee, Ajmer v. Syed Hussain Ali. In that case this Court observed while dealing with Art. 26(a) and (d) of the Constitution that even if it be assumed that a certain religious institution was established by a minority community it may lose the right to administer it in certain circumstances. We may in this connection refer to the following observations at p. 414 for they apply equally to Art. 30(1): “If the right to administer the properties never vested in the denomination or had been validly surrendered by it or had otherwise been effectively and irretrievably lost to it, Art. 26 cannot be successfully invoked.”

74Copy pinpoint74. In Azeez Basha (supra), in addition to determining if AMU was established by a Muslim minority, this Court also determined whether it was ever administered by them or if the administration was validly surrendered by them, on the basis of the above observations.

75Copy pinpoint75. The context of the above observations in Durgah Committee (supra) and its application to the interpretation of Article 30(1) needs to be clarified. In that case, the constitutional validity of the Durgah Khwaja Saheb Act 195568 was challenged by the Khadims of the tomb for violation of Article 26(c) and Article 26(d) of the Constitution. To offer a brief background, Khwaja Saheb was a saint who came to India at the end of the 12th Century AD and settled in Ajmer. A tomb in the form of a kutcha structure was built immediately after his death. However, there were no endowments at this time. Akbar, the Mughal emperor, took interest in the tomb and rebuilt it. Documents also indicate that eighteen villages were endowed to the Durgah. During this period, a descendant of the Saint functioned as the Sajhadanashin and Mutawalli. During the rule of Shahjahan, the office of Sajhadanashin and Mutawalli were separated. The Mutawalli was solely made responsible for the management of the properties

68 “Durgah Act”

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of the Durgah and was appointed by the Ruler. Over the years, this model was not altered. The Mutawalli was always appointed by the Government in power.

76Copy pinpoint76. Section 4(1) of the Durgah Act dealt with the appointment of a Committee in which the administration, control and management of the Durgah Endowment would vest. The members of the Committee would be appointed by the Central Government. These two provisions were challenged on the ground they were ultra vires Article 26(c) and Article 26(d). In this context, the Constitution Bench observed that the denomination will not have a right to administer the property if it never had the right to administer it; if it had been surrendered; or if it had been irretrievably lost: “37. […] In other words, if the denomination never had the right to manage the properties endowed in favour of a denominational institution as for instance by reason of the terms on which the endowment was created, it cannot be heard to say that it has acquired the said rights as a result of Article 26(c) and (d)…If the right to administer the properties never vested in the denomination or had been validly surrendered by it or has otherwise been effectively and irretrievably lost to it Article 26 cannot be successfully invoked. […]”

77Copy pinpoint77. On the facts of the case, the Constitution Bench observed that the endowments were made on such terms that did not confer the right to manage the properties to the denomination. This Court held that the right to administer the property could not be claimed if the terms of the endowment did not confer administration to the denomination.

78Copy pinpoint78. Azeez Basha (supra) relied on the decision of the Constitution Bench in Durgah Committee (supra) which dealt with clauses (c) and (d) of Article 26 which guarantee the right of any religious denomination to own property and administer such property. They were not made in the context of Article 26(a) by which the right to establish and maintain institutions is conferred on religious denominations.

79Copy pinpoint79. A parallel could have been drawn between the right guaranteed by Article 26(a) and Article 30(1), which is what this Court in Azeez Basha (supra) attempted to do. However, a parallel cannot be drawn between clauses (c) and (d) of Article 26, and Article 30(1).

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The rights differ in nature and scope. Article 26(d) guarantees the right to administer property in ‘accordance with law’. The provision does not confer any special right to administration as in the case of minority educational institutions.

iv. Applicability of Article 30 to a ‘University’ established before the commencement of the Constitution

80Copy pinpoint80. Mr Rakesh Dwivedi, senior counsel appearing for the respondents made two submissions on the application of Article 30 to educational institutions which were established before the commencement of the Constitution. First, he urged that the claimant must prove that they were a linguistic or religious minority when the institution was established and not when the Constitution commenced; and second, before the Constitution was adopted, Universities (unlike schools and colleges which could be established by persons) could only be established by the Imperial Government. Thus, Universities which could not have been established by persons before the Constitution was adopted cannot, according to the submission, claim a right under Article 30. The observations in re Kerala Education Bill,69 Rev. Bishop SK Patro v. State of Bihar70 and St. Stephen’s (supra) that Article 30(1) applies to educational institutions which were established before the Constitution was adopted were distinguished on the ground that those cases dealt with colleges and schools, and not Universities. The learned Attorney General also made a similar argument. He submitted that in the absence of a legal competence to establish a given class of institutions (that is, universities), the question of availing of all attendant rights and claims in relation to Article 30 cannot arise. In the subsequent sections, we will answer the following two questions: a. Whether ‘universities’ established before the commencement of the Constitution are excluded from the purview of Article 30(1); and b. Whether those who established an educational institution have to prove that they were a minority at the time of establishment.

69 [1958] SCR 995 70 (1969) 1 SCC 863

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a. Article 30(1) applies to educational institutions established before the commencement of the Constitution

81Copy pinpoint81. In re the Kerala Education Bill 1957 (supra), a seven-Judge Bench of this Court held that Article 30 applies to educational institutions which predate the Constitution. This Court held that the right to administer guaranteed by Article 30(1) is wide enough to cover educational institutions established both before and after the Constitution was adopted: “22. … 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. It must not be overlooked that Article 30(1) gives the minorities two rights, namely, (a) to establish, and (b) to administer, educational institutions of their choice. The second right clearly covers pre-Constitution schools just as Article 26 covers the right to maintain pre-Constitution religious institutions. …”

82Copy pinpoint82. Although the opinion in that case was rendered in exercise of the advisory jurisdiction of this Court under Article 143, it has immense persuasive value.71 The judgment in Inre Kerala Education Bill (supra) has held the field for many decades. Subsequent decisions of this Court have also relied on it. The decision in Azeez Basha (supra) observed that Article 30 would be “robbed of much of its content” if it were held to apply only to educational institutions established after the commencement of the Constitution.72 The Constitution Bench in SK Patro (supra) also held the same. In that case, an educational institution which was established in 1854 received the protection of the rights guaranteed by Article 30(1).73 In St. Stephen’s (supra), a Constitution Bench held that St. Stephen’s College which was established in 1881 is a minority educational institution for the purposes of Article 30(1).

71 In re Special Courts Bill, (1979) 1 SCC 380 72 Azeez Basha [19] 73 SK Patro [17]

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83Copy pinpoint83. A distinction between educational institutions established before and after the commencement of the Constitution cannot be made for the purposes of Article 30(1). Article 30 will stand diluted and weakened if it is to only apply prospectively to institutions established after the commencement of the Constitution. The protection and guarantee, if made applicable to only institutions established after the commencement of the Constitution, would debase and defile the object and purpose of the provision. The adoption of the Constitution reflects a break from the system of sovereign and potentate government under the colonial regime and the dawn of governance based on the rule of law. It secures to the minority educational institutions, rights under the Constitution from the date of its commencement.

84Copy pinpoint84. The Constitution annihilates the vestiges of colonial rule as reflected in Article 395. Article 395 repeals the two enactments that established the system of governance in pre-independent India: the Indian Independence Act 1947 and the Government of India Act 1935. Article 395 repudiates the chain of colonial continuity and symbolises constitutional autochthony by repealing the Indian Independence Act 1947. At the same time, Article 372 represents the thread of continuity even when a new system of governance is put in place. Article 372 stipulates that all laws which were in force in the territory of India before the commencement of the Constitution will continue in force. However, the only caveat was that the laws must not be inconsistent with the provisions of the Constitution. Laws that are violative of the provisions of Part III would be void to the extent of the inconsistency.74 It is crucial to note that Article 13(1) renders the laws to the extent of contravention void and not void ab initio. Thus, the Constitution does not fully overhaul the system of governance and administration. Rather, it only ensures that the governance is in accordance with the rules prescribed in the Constitution. To put it in legal terms, Article 13(1) has a retroactive effect and not a retrospective effect. A provision is retrospective if it alters the position of law before its enactment/commencement. It is retroactive if it imposes new results for previous actions.75 Upon the commencement of the Constitution, citizens received the protective cover of Part III.

74 Constitution of India, Article 13(1) 75 SEBI v. Rajpur Nagpal (2023) 8 SCC 274 [99-102]

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Article 372 read with Article 13(1) stipulates that laws which pre- date the Constitution are unconstitutional if they contravene the fundamental rights.76 The provisions do not stipulate that laws which pre-date the Constitution cannot receive the additional protection which the fundamental rights offer. The right to administration in Article 30(1) is one such protection.

85Copy pinpoint85. What is the scope of Article 30 when read in the context of Article 372 read with Article 13? Any law enacted by the Imperial Legislature which discriminates against linguistic and religious minorities in the establishment and administration of educational institution would be void. This is the scope of the provision vis-à-vis Articles 372 and 13 when Article 30 is purely read as a negative right. But, this Court has also interpreted the Article as a ‘special rights’ provision guaranteeing additional protection to educational institutions established by minorities. Thus, educational institutions established by religious and linguistic minorities before the commencement of the Constitution will also receive the special protection guaranteed by Article 30(1): the right to administration without the infringement of their minority character.

86Copy pinpoint86. If the argument as propounded is accepted, we will have two sets of minority educational institutions, one established before the commencement of the Constitution which is deprived of the guarantee given under Article 30(1), and those established after the commencement of the Constitution which are entitled to the benefit and guarantee given under Article 30(1). We do not think the Constitution envisages such incongruous and unpalatable differences in rights guaranteed under Article 30(1).

b. There is no difference between ‘Universities’ and ‘colleges’ established before the commencement of the Constitution

87Copy pinpoint87. The next argument which needs to be addressed is whether ‘universities’ established before the commencement of the Constitution could receive the protection of Article 30(1). To recall, the petitioners argued that prior to the commencement of the Constitution, the law did not confer the power to establish a university on a person. It was argued that the power only vested in the Imperial Legislature and thus, no person could have “established” a university.

76 See Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128

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88Copy pinpoint88. The educational policy in pre-independent India must be referred to provide a brief context on the distinction between universities and colleges. One of the distinctions between a college and a university is the ability of the latter to confer degrees to students as evidence of their proficiency in subjects which they have studied and for which they are assessed. On 19 July 1854, the Court of Directors of the East India Company submitted a despatch77 to the Governor-General of India in Council on the subject of General Education in India. The despatch recommended the incorporation of Universities by Acts of the Legislative Council of India. The first University established in India was the University of Calcutta. It was established by Act No. II of 1857, passed by the Legislative Council of India. The preamble to the enactment provides that the University at Calcutta was to be established for the purpose of awarding academic degrees to persons who have acquired proficiency in subjects. Subsequently, the Legislative Council of India enacted Act No. XXII of 1857 to establish and incorporate the University at Bombay for the same purpose. In 1857, the University at Madras was established.78 In 1860, an Act was passed to give the Universities of Calcutta, Madras and Bombay, the power of conferring degrees in addition to those degrees provided for in the earlier enactments. The Legislative Council of India passed sixteen other enactments79 for the establishment of universities before the commencement of the Constitution.

89Copy pinpoint89. The University Grants Commission Act 195680 was enacted a few years after the commencement of the Constitution. The UGC Act provides the power to confer degrees even to institutions which are not established by an enactment. Section 2(f) defines a University as educational institutions established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be

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recognized by the Commission in accordance with the regulations made in that behalf under the Act. Section 3 states that the Central Government may, on the advice of the UGC, declare by notification that any institution for higher education shall be deemed to be a University for the purposes of the Act. All the provisions of the UGC Act would apply to deemed-to-be-Universities just as they apply to universities.81 Under the UGC Act, an institution (which is not a university or deemed-to-be university) can be specially empowered by an Act of Parliament to confer degrees.82

90Copy pinpoint90. Two facets emerge from the above discussion. First, only Universities can confer degrees;83 and second, before the enactment of the UGC Act, the University had to necessarily be incorporated by a legislation for the degrees conferred by them to be recognised. Thus, the argument of the petitioners narrows down to one aspect. According to the submission, a member or community belonging to a minority despite making efforts through representation, mobilisation and participation to establish a University cannot be regarded to have ‘established’ a Minority educational institution for the purpose of Article 30(1) only because the University was incorporated through a legislation. A brief analysis of the nature of Universities is necessary to unravel this paradox.

91Copy pinpoint91. The Wood despatch noted that the purpose of universities upon their establishment was to confer academic degrees on students as evidence of attainment of proficiency in the branch of study.84 Universities were instituted, “not so much to be in themselves places of instruction, as to test the value of the education obtained elsewhere”.85 Affiliated colleges and other institutions educated students and sent them to universities where their proficiency was to be tested.86 This limited role of Indian Universities upon their establishment was recognised in the statutory enactments which incorporated the first three Universities in India. The preamble to Act No. II of 1857 which established and incorporated the University at

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Calcutta, Act XXII of 1857 which established and incorporated the University at Bombay, and Act XXVII of 1857 which established and incorporated the University at Madras stipulated that the Universities were established to ascertain (through an examination) those persons who had acquired proficiency in different branches. This was the only power conferred upon Universities.87 The enactments also provided that only candidates who were authorised through a certificate from one of the institutions authorized by them shall be a candidate for the degree.88 However, the University at Punjab incorporated in 1882 had greater scope. In 1869, an institution styled the Lahore University College (and the Punjab University College later) was established in pursuance of the wishes of the Chiefs, Nobles and influential classes of Punjab. Act XIX of 1882 incorporated the University at Punjab by which the college was converted into a University to confer degrees. The University at Punjab was, thus, the first teaching University in India.

92Copy pinpoint92. On 12 January 1902, the Government of India issued a resolution to appoint a commission to “inquire into the condition and prospects of the Universities established in British India; to consider and report upon any proposals […] for improving their constitution and working […]”. The Report of the Commission discussed the necessity of establishing teaching Universities, where better provision for advanced courses of study could be made.89 In 1904, Act No. VIII of 1904 was enacted to amend the law relating to the Universities at Bombay, Calcutta, Madras and Allahabad. Section 3 of the Act provided that the University shall have the power to make provision for, inter alia, the instruction of students and the power to appoint University professors and Lecturers. Universities that were incorporated subsequent to Act No. VIII of 1904 had the power to instruct students in addition to conducting examinations to confer degrees.90 However, teaching universities also had to be incorporated

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through a legislative enactment because they would have the power to confer degrees recognised by the Government.

93Copy pinpoint93. It is in this background that we should decide if Universities established before the enactment of the UGC Act could be covered by Article 30(1). It is true that the intervention of the imperial legislature was necessary to incorporate a university before the commencement of the Constitution. The intervention of the State legislature was necessary after the commencement of the Constitution until the enactment of the UGC Act.91 The intervention of the legislative body was required to ‘incorporate’ universities because the degrees conferred by them would be recognised by the Government. This was required even for the incorporation of teaching universities. However, could it be argued that no person had the power to ‘establish’ a university merely because the intervention of the legislative body was required for the incorporation of the institution? Could it be argued that a university was ‘established’ by the legislature merely because it enacted a legislation incorporating it?

94Copy pinpoint94. The words ‘incorporation’ and ‘establishment’ cannot be used interchangeably. They connote different meanings. ‘Incorporation’ signifies the legal existence of the institution. 92 In contrast, ‘establishment’ signifies the founding or bringing into existence of the institution.93 The possibility of distinguishing the establishment and incorporation of universities arose with the advent of teaching Universities. Two kinds of institutions were incorporated as teaching universities. They consisted of institutions which were established and incorporated at the same time, and institutions in which the establishment of the institution predated its incorporation. Universities in the latter category, however, were teaching colleges converted into teaching universities. The University at Punjab is one such example. The Annamalai University would also fall in this category. In the case of Annamalai University, the Hon’ble Diwan Bahadur Sir S.R.M Annamalai Chettiyar had established and was maintaining colleges around Chidambaram in Tamil Nadu. The college was converted to a University through the enactment of Annamalai

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University Act 1928.94 The ‘establishment’ and ‘incorporation’ of these universities was distinct. The incorporation of the University was necessary to confer degrees recognised by the Government. However, there was an institution that pre-dated the incorporation of the University that continued to exist even after the incorporation. Thus, the instance of conversion of teaching collages to teaching universities elucidates the distinction between the “establishment” and “incorporation” of educational institutions.

95Copy pinpoint95. The word ‘establish’ as used in Article 30(1) cannot and should not be understood in a narrow and legalistic sense. The words used in clause (1) of Article 30 have to be interpreted in view of the object and purpose of the article, and the guarantee and protection it confers. The guarantee and protection are not dependent on the basis or the manner in which the legal requirements were/are complied with, rather it concerns the persons who have founded and created the establishment. The incorporation by a statute or the procedure and requirements in law are not determinative factors. The persons behind it, that is, the promoters and founder(s) are important. They should belong to a linguistic or a religious minority. There will always be individuals and groups instrumental in catalysing and setting up the institution. Thus, giving a legal character to an educational institution through state or sovereign action, it does not ipso facto follow that the university so established deprives the group of persons/individuals the guarantee under clause (1) of Article 30 of the Constitution. Universities are as much educational institutions as schools and colleges. The interpretation in Azeez Basha (supra) confers a legalistic meaning to the word ‘established’, sans the context of clause (1) of Article 30. No distinction exists between universities and other educational institutions such as schools and colleges for the purpose of Article 30(1).

96Copy pinpoint96. The following conclusions emerge from the discussion above: a. The teaching universities and colleges serve the common function of educating students. No distinction between the two can be drawn for the purposes of Article 30(1) which guarantees minorities the right of greater autonomy in the administration of educational institutions to curate a model of education which best serves the interests of the community; and

94 See the preamble of the Annamalai University Act 1928

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b. The submission that a person did not have the power to ‘establish’ a university before the enactment of the UGC Act is rejected. The words establishment and incorporation cannot be interchangeably used. They connote different meanings. The former refers to founding an institution, which in the case of teaching colleges that were converted to universities would refer to any person or community who undertook the efforts the establish the teaching college.

c. The minority character of the institution is not ipso facto surrendered upon the incorporation of the University

97Copy pinpoint97. The Solicitor General argued that Azeez Basha (supra) — correctly understood — holds that the Muslim minority surrendered its rights as a denominational institution before the Constitution was adopted by approaching the imperial legislature to recognise the degrees. He argued that the decision tacitly recognised the fact that two broad groups existed during the freedom struggle. The first of these groups was determined to conduct their affairs without assistance from or reference to the imperial legislature. It set up institutions which granted degrees which were not recognised by the imperial government. They did not seek recognition of the degrees granted by their institutions at that time. Instead, such institutions (and the degrees granted by them) were recognised post-independence. Examples of such universities include Shantiniketan; the predecessor of IIT Roorkee. In contrast, the second group chose to collaborate with the imperial government and sought recognition of the degrees awarded by its universities. Having approached the imperial government for such recognition, the second group surrendered their denominational status (comparable to minority status under Article 30). It was submitted that the founders of AMU formed a part of the second group. While MAO College may have been of a denominational character, it has been urged that the incorporation of the institute as AMU resulted in the surrender of rights. Since we are only dealing with the principles of law, we will address this argument without referring to the factual aspects submitted by the learned Solicitor General. In short, the argument is that the minority character of an educational institution is surrendered upon the incorporation of the institution.

98Copy pinpoint98. The minority character of institutions cannot be rejected if they were conferred a legal character by a statute enacted prior to 1950. The

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enactment was necessary to award degrees recognized by the British government, allowing graduates to gain degree recognition and secure employment. The enactment of the statute is a ministerial and a legislative act, which confers juristic personality as well as legal rights in terms of the law in force. The statute grants the power to the educational institution to confer the degrees. The incorporation by way of statute is a legal requirement. That being the case, we will not accept the argument that compliance with legal requirement would tantamount to the ‘establishment’ of an institution by the Legislature, and thereby the linguistic and religious minority forgo the guarantees and protection under clause (1) of Article 30 of the Constitution.

99Copy pinpoint99. In the same vein, the state may also provide for the mode by which educational institutions may be set up or established. For instance, it may require that a society registered under the Societies Registration Act or a public trust constituted in accordance with law is a pre- requisite to establishing a school.95 The state may also issue a certificate of recognition to the school (or other educational institution) meeting the relevant criteria. It may also require schools to register with the authorities.96 Certain steps as mandated by law may be a sine qua non for setting up educational institutions.

100Copy pinpoint100. In the absence of these prerequisites (such as registration with the competent authorities), the educational institution will have no

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existence in the eyes of the law. It is only upon compliance with these requirements that the institution assumes the legal form mandated by the regulatory provisions of the law.

101Copy pinpoint101. It is true that many persons or groups founded universities which awarded degrees which were not recognised by the imperial government. The existence of this option and the fact that others chose this path in colonial times cannot shape the contours of the right under Article 30 in independent India. This is because the recognition of degrees was and is essential not only to the success of the university but more importantly, to the success of its graduates. Recognition of the degrees or qualifications held by persons who have completed courses from universities is essential to professional development. It is impossible to avail of employment opportunities if the degree that one holds is not recognised.

102Copy pinpoint102. This interpretation has also found support in numerous judgments of this Court. Judgments of this Court have previously expounded on the importance of recognition or affiliation of a College. It is only with the affiliation of the college with the University that a student could be awarded a degree upon the completion of the course of study. The degree, beyond being a testament of a personal achievement, is necessary for their professional growth. In in re the Kerala Education Bill 1957 (supra), this Court expounded on the importance of recognition and observed as follows: “32. […] Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the rights under Article 30(1) cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Article 30(1). We repeat that the legislative power

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is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending clause becomes law.”

103Copy pinpoint103. In Rev. Sidhajbhai (supra), this Court reiterated that regulations which may impose conditions for the recognition of the educational institution must be directed towards making the institution effective, while retaining its character as a minority institution. The dual test laid down in this case to assess the validity of such regulations is that the regulations must be reasonable and regulate the educational character of the institution while being conducive to making it an effective vehicle of education. An educational institution does not lose its minority character merely because it subjects itself to regulatory measures essential to avail the benefit of recognition/affiliation, or grant in aid, provided these controls are designed to maintain the standards of education and larger public interest.

104Copy pinpoint104. The decision of the seven Judge Bench in In re the Kerala Education Bill (supra)was followed by a six Judge Bench in Rev. Sidhajbhai Sabhai (supra). This aspect was overlooked in Azeez Basha (supra) which was decided by a bench of five judges. The importance of recognition and affiliation cannot be understated. The position of law even at the time of the decision in Azeez Basha (supra), as held in re the Kerala Education Bill 1957 (supra), was that recognition on terms tantamount to the surrender of the right to administer the institution was a violation of Article 30(1). For Azeez Basha (supra) to hold that the minority character of the institution is surrendered upon enactment by central imperial legislation is to hold that the recognition of its degrees would result in the denial of the right under Article 30, reducing the choice available to a religious or linguistic minority. This would be in the teeth of settled law on the subject as well as Article 30(1). Azeez Basha (supra) failed to notice this aspect of the decision in In re the Kerala Education Bill 1957 (supra) discussed above and the decision in Rev. Sidhajbhai (supra).

105Copy pinpoint105. Further, the decisions of this Court subsequent to Azeez Basha (supra) have not disturbed the relevant part of the precedents in In

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re the Kerala Education Bill 1957 (supra) and Rev. Sidhajbhai (supra). Azeez Basha (supra) is the lone case which stands apart in the long line of cases on this subject. In St. Xavier’s (supra), the majority of the nine-Judge Bench held that an unconstitutional condition of surrendering the minority character in exchange for affiliation or recognition cannot be imposed.

106Copy pinpoint106. Presently, the decision of eleven Judges in TMA Pai (supra) holds the field on the subject and is binding on this Court. It, too, unequivocally affirms the proposition of law discussed above. One of the many relevant paragraphs in this regard is extracted below: “70. … The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful, the institution must be recognized. At the school level, the recognition or affiliation has to be sought from the educational authority or the body that conducts the school-leaving examination. … A college or a professional educational institution has to get recognition from the university concerned, which normally requires certain conditions to be fulfilled before recognition. It has been held that conditions of affiliation or recognition, which pertain to the academic and educational character of the institution and ensure uniformity, efficiency and excellence in educational courses are valid, and that they do not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting recognition should not be such as may lead to governmental control of the administration of the private educational institutions.” (emphasis supplied)

107Copy pinpoint107. Compliance with the legal requirement to secure a benefit provided by the State cannot be on terms that require the relinquishment of fundamental rights. An interpretation that leans towards this consequence must not be adopted. Thus, the minority character of an educational institution could not have been denied merely because it was converted to a University through a legislative enactment.

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108Copy pinpoint108. In Azeez Basha (supra), this Court recognised the efforts of the Muslim community towards the establishment of AMU’s predecessor, the MAO College, as well as towards the enactment of the AMU Act but held that the central imperial legislature established AMU, and not the Muslim community. In effect, it held that the enactment of the AMU Act rendered any previous action undertaken by the Muslim community towards the establishment of AMU irrelevant.

109Copy pinpoint109. The reasoning of the Court hinged on the fact that the Muslim minority could have established a university and awarded degrees but could not have insisted upon governmental recognition of its degrees. The Court held that the fact that AMU was brought into existence by a statute which mandated the recognition of its degrees meant that the central imperial legislature established it. Since the correctness of the reasoning of the Court is being considered in these proceedings, it is extracted below: “22. There was nothing in 1920 to prevent the Muslim minority, if it so chose, to establish a university; but if it did so the degrees of such a university were not bound to be recognised by Government. … The Aligarh University was also in the same way established by legislation and it provided under Section 6 of the 1920 Act that “the degrees, diplomas and other academic distinctions granted or conferred to or on persons by the University shall be recognised by the Government as are the corresponding degrees, diplomas and other academic distinctions granted by any other university incorporated under any enactment”. It is clear therefore that even though the Muslim minority could have established at Aligarh in 1920 a university, it could not insist that degrees granted by such a university should be recognised by Government. Therefore when the Aligarh University was established in 1920 and by Section 6 its degrees were recognised by Government, an institution was brought into existence which could not be brought into existence by any private individual or body for such individual or body could not insist upon the recognition of the degrees conferred by any university established by it. The enactment of Section 6 in the 1920 Act is a very important circumstance which shows that the Aligarh University when it came to be established in 1920

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was not established by the Muslim minority, for the minority could not insist on the recognition by Government of the degrees conferred by any university established by it.

23. … There was no Aligarh University existing till the 1920 Act was passed. It was brought into being by the 1920 Act and must therefore be held to have been established by the Central Legislature which by passing the 1920 Act incorporated it. The fact that it was based on the M.A.O. College, would make no difference to the question as to who established the Aligarh University. The answer to our mind as to who established the Aligarh University is clear and that is that it was the Central Legislature by enacting the 1920 Act that established the said University. As we have said already, the Muslim minority could not establish a university whose degrees were bound to be recognised by Government as provided by Section 6 of 1920 Act : that one circumstance along with the fact that without the 1920 Act the University in the form that it had, could not come into existence shows clearly that the Aligarh University when it came into existence in 1920 was established by the Central Legislature by the 1920 Act. It may be that the 1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority.”

110Copy pinpoint110. In Azeez Basha (supra), this Court observed that the term ‘establish’ means ‘to bring into existence’ and not any of the other dictionary meanings that is, to ratify, confirm, settle, found, or create. Adopting a formalistic interpretation, the Bench held that AMU was not established by the Muslim minority since it was brought ‘into existence’ by the Central Legislature. In Mother Provincial (supra), another Constitution Bench which was decided before Azeez Basha (supra) interpreted the word ‘establish’ to mean to found an institution, which offers a broader interpretation.97 In our view, it is inconsequential

97 8. […] Establishment here means the bringing of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds.” (emphasis supplied)

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whether the word means ‘to bring into existence’ or ‘to found’. We have held above that the enactment of a legislation to incorporate a university would not repudiate the minority character. The Court must pierce the veil of the statute to identify if the institution intended to retain its minority character even upon incorporation.

111Copy pinpoint111. The respondents further submitted that the long title and the preamble of the enactment must be used to determine if the minority established the institution. A comparison was drawn between the preamble of the AMU Act and statutes by which other universities were incorporated. For example, the preamble of the Annamalai University Act 1928 stipulates that the founder of the college, Shri Annamalai Chettiyar, handed over the college with the property and a fund of twenty thousand rupees to the local Government for the establishment of a University. The preamble also recognises that he and his heirs would be entitled to certain powers and privileges in the University. However, in contrast, the preamble of the AMU Act 1920 stated that it is an enactment to ‘establish’ and ‘incorporate’ a University.

112Copy pinpoint112. We do not agree with this submission. It cannot be argued that a university was established by Parliament merely because the long title and preamble of the statute incorporating the university states that it is an Act to establish and incorporate. If such a formalistic interpretation is adopted, fundamental rights would be made subservient to legislative language. The preamble of the Annamalai University Act certainly provides context to the incorporation of the University and brings out the distinction between incorporation and establishment. However, the courts in the absence of such an elaborate preamble must not be ready to conclude that Parliament established the University. The courts must identify the circumstances surrounding the incorporation of the University (including through a reading of the statute) to identify who established the university. Formalism must give way to actuality and to what is real.

113Copy pinpoint113. The written submissions filed on behalf of the Union of India place reliance on Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye98 to argue that the term ‘establish’ means “coming into existence by virtue of a statutory enactment”. It suggests that the institution owes

98 (2010) 4 SCC 378

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its existence to the legislature if the long title to an enactment states that it is an act to “establish and incorporate”.

114Copy pinpoint114. In Dalco (supra), the question before this Court was whether companies incorporated in terms of the Companies Act 1956 were bound by the norm contained in Section 47 of the same enactment. Section 47 stipulated that an ‘establishment’ shall not dispense with or reduce in rank an employee who acquires a disability during their service.99 Section 2(k) of the same statute defined ‘establishment’ in the following terms: “2. Definitions.—In this Act, unless the context otherwise requires,— … (k) ‘establishment’ means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956) and includes Departments of a Government;” (emphasis supplied)

115Copy pinpoint115. After analysing the precedents, this Court held that Section 2(k) referred to companies which owe their existence to a statute. It held that without such a statute, the company would not exist. It held that the term “established by or under” in Section 2(k) referred to companies which are created by statutes and not ones which are merely governed by statutes after coming into existence. This court, therefore, held that companies incorporated and registered under the Companies Act 1956 are not necessarily established by it.

99 Section 47, Companies Act 1956: “47. Non-discrimination in government employment.—(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”

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116Copy pinpoint116. Dalco (supra) does not have a bearing on the interpretation of the term “establish” in Article 30 because it was concerned with the interpretation of the term “established by or under a Central, Provincial or State Act” as it occurs in a parliamentary statute. The words “establish and incorporate” in the long title of enactments must be read together holistically to understand the import of the expression. The other cases100 relied on by the Union of India in this respect are not applicable to the question before us for similar reasons.

d. ‘Minority’ as on the commencement of the Constitution

117Copy pinpoint117. Mr Dwivedi submitted that an educational institution to be a minority educational institution must have been established by a linguistic or religious minority at the time of establishment. He proposed that the following tests must be satisfied to determine if the community was a minority: a. The numerical test:101 Which community ruled the country when the university was established? Is the community which seeks to claim the right under Article 30 a minority compared to the former? b. The qualitative test of non-dominance:102 Even if the community which seeks to claim the right under Article 30 was in a numerical minority, was it in a non-dominant position in the state at the point of time at which the institution was established? c. The test of self-assessment: Did the specific persons who established the educational institute consider themselves to be a minority?

118Copy pinpoint118. A preliminary question must be answered before addressing the feasibility and legality of adopting the above tests. What should be the relevant point to determine if the educational institution that was founded before the commencement of the Constitution was

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