# •' :s. AZEEZ BASHA AND ANR v. UNION OF INDIA

- **Citation:** [1968] 1 S.C.R. 833
- **Court:** Supreme Court of India
- **Decided:** 1967-10-20
- **Case number:** Writ Petitions Nos. 84, 174, 188, 241 B and 242 of 1966
- **Bench:** K. N. Wanchoo, R. S. Bachawat, V. R.Amaswami, G. K. Mitter, K. S. Hegdb
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-azeez-basha-and-anr-v-union-of-india-4293
- **Pages:** 26

## Headnote

Aligarh Muslim University Act ( 40 of 1920) as amended by Act
62 of 1951 and Act 19 of 1965-If violative of Arts, 14, lQ.i 25, 26, 29,
30 and 31 of the Constitution-'Establish'
meaning of-Right of
religious minority to administer or maintain-When arises-Fundator perficiens, rights of.
A
B
c
In 1877, the Muhammadan Anglo-Oriental College at Aligarh
(MA.O. College) was started as a teaching
Institution under the D
Allahabad University for the educational regeneration of Muslims
in India Thereafter, the idea of establishing a Muslim University
gathered strength and the Muslim
University Association was
formed. The Government of India informed the Association that
a sum of rupees thirty lakhs should be collected before the University could be established. Therefore, a Muslim University Foun- •
.dation Committee was started and it collected the necessary funds.
The contributions were made by Muslims as well as non-Mμsll.ms.
With the M.A.O. College as a nucleus, the Aligarh Muslim University was then established by the
Alil!arh Muslim University
Act, 1920. The preamble and ss. 3 and 4 of the Act show that the
M.A.O. College, the Muslim University Association and the M11&-
llm University Foundation Committee legally came to lend, and
that the three bodies voluntarily
surrendered whatever property 1
they had to the Aligarh University, so that, all their properties
movable and immovable were vested In the Aligarh University.
Section 23 of the Act provided for the constitution of the Court of
the University. By the proviso to s. 23(1) no penon other than a
Muslim could be a member. of the Court of the UniverSlty, and by
s. 23(2)., the Court of the University was to ba the sup!feme governing body of the University. By su\>4. (3) the Court of the Univer9
slty was given the power of making statutes. Section 13 provided for the Governor General of India to be ~
Lord Rector of the
University and s. 14 provided
that the Governor of the United
Provinces, the members of his Executive Council, the Ministers,
one member nominated by the Governor and one member nominated
by the Minister In charge of Education to be the Vlsltln&. Board
of the University. These persons
were not necessarily Muslims
but they had powers -over the administration of the Univenlty
o\'farriding those of the Court of the University. Further, ss 28(2) B
and 30(3) laid down that no Statute or Ordinance or amendment
or repeal of an existing Statute or C>tdinance ·would have any validity unless It had been approved by the Governor General In
Council. Section 40 gave further powers to the Governor General In
Council to remove any difficulty which might arise In the establishment of the University.
833
834
SUPBJUIE COURT REPORTS
(1968] 1 S.C.R.
A
In 1951, the A!igarh Muslim
University (Amendment) Act,
1951 was passed and it made certain chanl!es in the 1920 Act on
account of the coming into force of the Constitution. Sections 13
and 14 w>ere so anifended that in the place of the Lord Rector, the
University was to have a Visitor and the powers of the Visiting
Board were conferred on the Visitor. The proviso to s. 23(1) was
deleted, with the result that, non-Muslims could also be the mem11ers of the Court of the University.
B
There were further amendments ty Ordinance II of 1965 which
was replaced by the Aligarh Muslim
University (Amendment)
Act, 1965. As a result of those amendments the Court of the University no longler remained the supreme governing body. Many of
its powers w>ere taken away and those of the Executive Council
were correspondingly increased. The Court practically became a
body nominated by the Visitor, every P.!rson holding office immeO diately before the date on which the Ordinance was promulgated
ceased to hold office from the said date, and, until the Court was
reconstituted, the Visitor might by flaneral or special order direct
any officer of the University to exercise the powers and perform
the duties conferred or imposed on the Court.
The petitioners challa

## Text

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•'
:s. AZEEZ BASHA AND ANR.
v.
UNION OF INDIA
October 20, 1967
(With Connected Writ Petitions)
[K. N. WANCHOO, C. J., R. S. BACHAWAT, V. R.AMASWAMI,
G. K. MITTER, AND K. S. HEGDB, JJ.J
Aligarh Muslim University Act ( 40 of 1920) as amended by Act
62 of 1951 and Act 19 of 1965-If violative of Arts, 14, lQ.i 25, 26, 29,
30 and 31 of the Constitution-'Establish'
meaning of-Right of
religious minority to administer or maintain-When arises-Fundator perficiens, rights of.
A
B
c
In 1877, the Muhammadan Anglo-Oriental College at Aligarh
(MA.O. College) was started as a teaching
Institution under the D
Allahabad University for the educational regeneration of Muslims
in India Thereafter, the idea of establishing a Muslim University
gathered strength and the Muslim
University Association was
formed. The Government of India informed the Association that
a sum of rupees thirty lakhs should be collected before the University could be established. Therefore, a Muslim University Foun- •
.dation Committee was started and it collected the necessary funds.
The contributions were made by Muslims as well as non-Mμsll.ms.
With the M.A.O. College as a nucleus, the Aligarh Muslim University was then established by the
Alil!arh Muslim University
Act, 1920. The preamble and ss. 3 and 4 of the Act show that the
M.A.O. College, the Muslim University Association and the M11&-
llm University Foundation Committee legally came to lend, and
that the three bodies voluntarily
surrendered whatever property 1
they had to the Aligarh University, so that, all their properties
movable and immovable were vested In the Aligarh University.
Section 23 of the Act provided for the constitution of the Court of
the University. By the proviso to s. 23(1) no penon other than a
Muslim could be a member. of the Court of the UniverSlty, and by
s. 23(2)., the Court of the University was to ba the sup!feme governing body of the University. By su\>4. (3) the Court of the Univer9
slty was given the power of making statutes. Section 13 provided for the Governor General of India to be ~
Lord Rector of the
University and s. 14 provided
that the Governor of the United
Provinces, the members of his Executive Council, the Ministers,
one member nominated by the Governor and one member nominated
by the Minister In charge of Education to be the Vlsltln&. Board
of the University. These persons
were not necessarily Muslims
but they had powers -over the administration of the Univenlty
o\'farriding those of the Court of the University. Further, ss 28(2) B
and 30(3) laid down that no Statute or Ordinance or amendment
or repeal of an existing Statute or C>tdinance ·would have any validity unless It had been approved by the Governor General In
Council. Section 40 gave further powers to the Governor General In
Council to remove any difficulty which might arise In the establishment of the University.
833
834
SUPBJUIE COURT REPORTS
(1968] 1 S.C.R.
A
In 1951, the A!igarh Muslim
University (Amendment) Act,
1951 was passed and it made certain chanl!es in the 1920 Act on
account of the coming into force of the Constitution. Sections 13
and 14 w>ere so anifended that in the place of the Lord Rector, the
University was to have a Visitor and the powers of the Visiting
Board were conferred on the Visitor. The proviso to s. 23(1) was
deleted, with the result that, non-Muslims could also be the mem11ers of the Court of the University.
B
There were further amendments ty Ordinance II of 1965 which
was replaced by the Aligarh Muslim
University (Amendment)
Act, 1965. As a result of those amendments the Court of the University no longler remained the supreme governing body. Many of
its powers w>ere taken away and those of the Executive Council
were correspondingly increased. The Court practically became a
body nominated by the Visitor, every P.!rson holding office immeO diately before the date on which the Ordinance was promulgated
ceased to hold office from the said date, and, until the Court was
reconstituted, the Visitor might by flaneral or special order direct
any officer of the University to exercise the powers and perform
the duties conferred or imposed on the Court.
The petitioners challanged the constitutional validity of the
1961 and 1965 Acts, on the following
grounds :-(1) the Muslim
D -minority had established the University and therefore had a right
to administer it under Art. 30(1) of the Constitution, and that the
amendment& deprived the Muslim minority of th!& right in violation of the Article; (2) even if the minority had not established
the University, they had a right to administer the University as an
educational institution· and that they were in fact administering It
after it was established; (3) the right of the Muslim minority
I: under Art. 26(a) to maintain the University as an institution for
charitable purposes, wu violated; (4) the right of the Muslim minority as a religious denomination, under Art. 26(c) and (d), to ad·
minister the movable and immovable property of the University,
was Violated; (5) the provisions of the Act as amended are different from those of othl!r Statutes creating other universities, and
therefore, there was a violation of Art. 14; (6) the Muslim minority
p
had been deprived of their rilht under Art. 19 to manage the
University and to·hold the property which was vested in ilie University; (7) the Muslim minority had been deprived of their property, namely, the property vested in the University, inasmuch as
the Court of the Univertlty after the 1965 Act was a body . very
different from the Court under the 1920 Act· and there was thus a
Violation of Art. 31(1); and (8) the right of the Muslim minority
to· ·profeas, practitle and propagate their religion under Art. 25,
G and their right to conser11e their language, script or culture under
Art. 29, were violated.
HELD: (1) The Aligarh University was neither established
nor. administered by the M~l!m minority and therefore thene is
n0 question of any amendment to the 1920 Act violating Art. 30(1)
for that Article does not at all apply to the Uni11ersity. [854 H].
The words establish and administer in Art. 30(1) must be read
B conjunctively. that is. Art. 30(1) postula~s that a religious community· w'11 have the right to establish qnd administer educational
institutions of their choice, meaning thereby, that where a religious
minority establishes an educational
Institution It will have the
right to administer it, but not otherwille. The word establish for
the purpose of the Article means bring into eNtence and educational institution• include universities. But Muslims,
assuming
AZllEZ BASHA
~. UNION (Wanc/wo, 0,J.)
•
they are a minority based on religion, did not establish the UniA
versity. B2fore the enacting of the University Grants Comm!Rlon
Act of 1956, there was no law in India which prohibited any private
individual or body from establishing a University, that is, an educational institution which grants its own deirees; but the privaw
individual or body could not insist that the degrees must be recognised by the Goviirnment. Such recognition depended. upon th.i
w•ill of the Government
generally expressed through statute.
Therefore, there was nothing in 1920 preventing the Musll111 m- a
rity from establishing a University; but if they did so Its degrees
were not bound to t e recognised by the Government,. and that wu
why the Aligarh University was established by legislation, name)J,
the 1920 Act, and provided by s. 6 that its degre.is shall be recognised by the Government. Thus, when the Aligarh University wu
established in 1920 and by s. 6 of the 1920 Act its degrees had to be
recognised by Government, an institution was brought Into exi&- 0
tence which could not be brought into
existence by any private
individual or body. The Act may have been passed as a result of
the efforts of the Muslim minority, but that does not U1ean that the
University, when it came into being under the 1920 Act was established ty the Muslim minority. The
conversion of the 14.A.O.
College into the University was not by the Muslim minority. TM
University was brought into being by the 1920 Act and must therefore be held to have been established by the Central Legislature. D
[847 F-H; 848 A; 849 C-H; 850 D-H; 851 A-B, C-D; 852 D-E] ..
St. David's College, Lampeter v. Ministry of Educcition, [1951)
All E.R. 559, applied.
In re: The KeraZa Education Bm, 1957. [1959] S.C.R. 996, explained.
Further, the Muslim minority could not claim any rights ~ B
the basis that the University was an eleemosynary COJpOration and
that the minority were in the position of fundato.- ~.
blecause: (i) it is the donors (some of whom were non.:Miisllms) and
not the Muslim minority that could be said to be In the position of
fundator fle1'ficiens; (ii) even the donors could only hav,e visltorial
rights under the English Common Law; and (iii) even those rights
have been negatived by the 1920 Act for it specilkally conferred F
such rights on the Lord Rector and the Visiting Board. [851 E-H].
(2) The provisions of the 1920 Act do not bear out the contention that it was the Muslim minority that was administering the
University after it was brought into existence. On the other hand,
the administration of the University was vest.eel in the Lord Rector,
the Visiting Board, and the statutory bOdies created by the 1920
Act whose members were not necessarily Muslims. It was only a
in one of them namely the Court of the University that th..>re was
a bar to the appointment of any one else except a Muslim. But
even with respect to the Courtb paragraph 8 of the Schedule to the
Act shows, that e\l'm though t e members of the Court had to be
Muslims. the electoratP which elected the members of the Court
were not exclusively Muslims. (853 F-G; 854 F-H].
(3) Assuming that educational Institutions would come within
Art. 26(a) as institutions for charitabLa purposes the right under B
Art. 26(a) could not be claimed by the Muslim minority, because,
the right to maintain (which includes the right to administer) will
only arise where the Institution is established by the rellllious
denomination. In this Article also, the words establish and maintain must be read conjunctively. [855 B-C, E-F].
L/P(N)7SCI-1'
836
8UPQKli OOUllT llll'OBTS
[1968] I s.c.11.
A
(4) Article 26(c) and (d) give pow~r to a n~Jigious denomination to own and acquire movable and Immovable property, and if
It owns or acquires such property it can administer it in accordance with law. There is nothing in the amending Acts which in
any way bars the Muslim minority from owning, acquiring or
administering movable or immovable property. Assuming that befot!~ 1920 the property which was vested in the University was the
property of the Muslim minority, it was voluntarily surrendered
to the corporate body created by the 1920 Act, namely, the Aligarh
B University. Th~ore, when the Constitution came into force
the11~ was no property held ty the Muslim minority. As the Mus..
lim minority did not own the property which was vested in the
Aligl\l'h University on the date of the Constitution, they could not
lay any claim to administer that property by virtue of Art. 26(d).
[855 H; 856 A·B].
c
The Durgah Committee Aimer v. S11ed Huuain Ali, [1962] 1 S.C.R.
383, followed.
(5i Article 14 does not require that the provisions in every Uni·
versity Act must alv.-.ays be the same, because, each university must
be taken to be a class by itself having ita own problems and it is for
the Legislature to decide what kind of constitution should be conferred on a particular university established by it. Therefore, there
D can be no question of discrimination on the ground that some other
University Acts provide for a different set up. [856 G-H; 857 CJ.
(6) Article 19(1)(c) does not give any right to any citizen to
manage any particular educational institution. It only gives the
right to citizens to form associations or unions, and that right has
not bel.m touched by the 1965 Act. Similarly, Art. 19(1)(f) does not
E give any citizen any· right to hold property vested in a corporate
pody like the University. It only provides that all citizens have the
right to acquire, hold and dispose of property of their own. There
.is nothing in the 1965 Act which in any way takes away the right of
the Mus Ii ms of this country to acquire, hold and dispose of property
of their own. [857 D-G].
(7) There is no breach of Art. 31 (1) for the 1965 Act did not
I' deprive the Muslim minority of any property, because the property
was not vested in the Muslim minority at any time after the 1920
Act came Into force. Assuming 'Muslim minority' is a person for the
purposes of Art. 31(1) and the petitioners have a right to file the
writs on its behalf, the 1965 Act made no change in the ownership
of the property which had already vested in the Aligarh University
after the 1920 Act came into force. [857 H; 858 F-H].
G
(8) The amendments made by the 1965 Act in the 1920 Act do
not in any way affect the right, under Art. 25, of the Muslims to
profess, practise and propagate their religion; nor do they affect
their right under Art. 29, to conserve their language, script or culture which they might have. [856 C-E].
ORIGINAL JURISDICTION: Writ Petitions Nos. 84, 174, 188, 241
B and 242 of 1966.
Petitions under Art 32 of the Constitution of India for the
enforcement of fundamental rights.
M. R. M. Abdul Kari, K. Rajendra Chaudhuri, and K. R.
Chaudhuri, for the petitioners (in W. P. No. 84 of 1966).
AZEEZ BASHA V. t'NlON (Wanc/ioo, LJ,J.)
837
B. K. Bhattacharya and M. I. Khowaja, for the petitioners (in A
W. P. No. 174 of 1966).
Daniel A. Latifi and M. I. Khowaja, for the petitioners (in
W. P. No. 188 of 1966).
K. L. Gauba and S. Saukat Hussain, for the petitioners (in
W.P. No. 241 of 1966).
S. Shaukar Hussain, for the petitioners (in W.P. No. 242 of B
1966).
C. K. Daphtary, Attorney-General, N. S. Bindra, R. H. Dhebar, S. P. Nayar for R. N. Sachthey, for the respondent (in W.P.
Nos. 84, 174 and 242 of 1966) and the respondents Nos. 1 and 3
(in W.P. No. 188 of 1966).
C. K.
Daphtary, Attorney-General, Lily Thomas, P. C.
Kapur, R. H. Dhebar for R. N. Sachthey, for the respondent (in
W.P. No. 242 of 1966).
The Judgment of the Court was delivered by
c
Wanchoo, C. J. These five writ petitions raise common questions and will be dealt with together. They attack the constitution- D
ality of the Aligarh Muslim University (Amendment) Act, No. 62
of 1951 (hereinafter referred to as the 1951-Act) and the Aligarh
Muslim University (Amendment) Act, No. 19 of 1965, (hereinafter
referred to as the 1965-Act). The principal attack is based on the
provisions of Art. 30(1) which lays down that "all minorities, whe- E
ther based on religion or li,1nguage, shall have the right to establish
and administer educational institutions of their choice". The case
of all the petitioners is that the Aligarh Muslim University (hereinafter referred to as the Aligarh University) was established by the
Muslim minority and therefore the Muslims had the right to administer it and in so far as the Acts of 1951 and 1965 take away
or abridge any part of that right they are ultra vires Art. 30(1). r
Besides this principal attack, the two Acts are also subsidiarily
attacked for violating the fundamental rights guaranteed under
Articies 14, 19, 25, 26, 29 and 31 of the Constitution. It is unnecessary to set out the nature of the attack under these Articles
for that will appear when we deal with the matter in detail later; G
suffice it to say that all the petitions do not make the attack under
all these Articles, but the sum total of the subsidiary attack! in all
these petitions takes in its sweep all these six Articles .
. The petitions have been opposed on behalf of the Union of
India and its main contention is that the Aligarh University was
established in 1920 by the Aligarh Muslim University Act, No.
XL of 1920, (hereinafter referred to as the 1920-Act) and that this R
establishment was not by the Muslim minority but by the Government of India by virtue of a statute namely, the 1920-Act and·
therefore the Muslim minority could not claim any fundamental
right to administer the Aligarh University under Art. 30(1). It
L:P(N)7SCI-14(•)
838
SlJl>BBJfE COURT REPORTS
[1968) 1 S.C,I\
A was further contended that as the Aligarh University was established by the 1920.Act by the Government of India, Parliament
had the right to amend that statute as it thought fit in the interest
of education and the amendments made by the Acts of 1951 and
1965 were perfectly valid as there was no question of their taking
away the right of the Muslim minority to administer the Aligarh
University, for the minority not having established the University
B could not claim the right to administer it.
It was further contended that the fact that under the provisions of the 1920-Act the
Court of the Aligarh University was to be composed entirely of
Muslims, did not give any right to the Muslim c_ommunity as
such to administer the University which ·had been adm;nistered
by the authorities established by the 1920-Act. It was further cone tended that the attack based on the six Articles of the Constitution to which we have referred already had no substance and
did not in any manner make the Acts of 1951 and 1965 unconstitutional. We do not think it necessary at this stage to give in
detail the reply of the Government of India on these points and
shall refer to it as and when the occasion arises.
D
It is necessary to refer to the history previous to the establishment of the Aligarh University in 1920 in order to understand the
contentions raised on either side. It appears that as far back as
1870 Sir Syed Ahmad Khan thought that the backwardness of
the Muslim community was due to their neglect of modern educaE tion.
He therefore conceived the idea of imparting liberal educatbn to Muslims in literature and science while at the same time
instr~ction was to be given in Muslim religion and traditions also.
With this object in mind, he organised a Committee to devise
ways and means for educational regeneration of-Muslims and in
F May 1872 a society called the Muhammadan Anglo-Oriental College Fund Committee was started for collecting subscriptions to
realise the goal that Sir Syed Ahmad Khan had conceived. In
consequence of the activities of the committee a school was opened
in May 1873. In 1876, the school became a High School and in
1877 Lord Lytton, then Viceroy of India, laid the foundation stone
G for the establishment of a college. The Muhammadan AngloOriental College, Aligarh (hereinafter referred to as the M.A.O.
College) was established thereafter and was. it is said. a flourishing institution by the time Sir Syed Ahmad Khan died in 1898.
It is said that .thereafter the idea of establishing a Muslim
University gathered strength from year to year at the turn of
H the century and by 1911 some funds were collected and a Muslim
University Association was established for the purpose of establishin11: a teaching University at Aligarh. Long negotiations took place
Detween the Association and the Government of India, which
eventually resulted in the establishment of the Aligarh University
in 1920 by the 1920.Act. It may be mentioned that before that a
AZEEZ BASHA v.
UNION (IVanchoo, C.J.)
large sum of money was collected by the Association for the University as the Government of India bad made it a condition that A
rupees thirty lakhs must be co~lected for the Unive~si.ty before it
could be established. Further tt seems that the extstmg M.A.O.
College was made the basis of the University and was made over
to the authorities established by the 1920-Act for the administration of the University along with the properties and funds attached
to the college, the major part of which had been contributed ~ B
Muslims though some contributions were made by other communities as well.
It is necessary now to refer in some detail to the provisions
of the 1920-Act to see how the Aligarh University came to be
established. The long title of the 1920-Act is in these words:
c
"An Act to establish and incorporate a teaching and
residential Muslim University at Aligarh".
The preamble says that "it is expedient to establish and incorporate a teaching and residential Muslim University at Aligarh, and D
to dissolve the Societies registered under the Societies Registration
Act, 1860, which are respectively known as the Muhammadan
Anglo-Oriental College, Aligarh and the Muslim University Association, and to transfer and vest in the said University all properties
and rights of the said Societies and of the Muslim University Foundation Committee". It will be seen from this that the two earlier E
societies, one of which was connected with the M.A.O. College and
the other had been formed for collecting funds for the establishment
of the University at Aligarh, were dissolved and all the;r properties
and rights and also of the Muslim University Foundation Committee, which presumably collected funds for the proposed University
were transferred and vested in the University established by the F
1920-Act.
Section 3 of the 1920-Act laid down that "the First Chancellor, Pro-Chancellor and Vice-Chancellor shall be the persons appointed in this behalf by a notification of the Governor General in
Council in the Gazette of India and the persons specified in the G
schedule [shall be] the first members of the Court" and they happened to be all Muslims. Further s. 3 constituted a body corporate
by the name of the Aligarh Muslim University and this body corporate was to have perpetual succession and a Common Seal and
could sue and be sued by that name. Section 4 dissolved the
M.A.0. College and the Muslim University Association and all
property, movable and immovable, and all rights, powers and H
privileges of the two said societies, and all property, movable and
immovable. and all rights, powers and privile~es of the Muslim
University Foundation Committee were transferred and vested in
the AJigarh Universitv and were to be aoolied to the obiects and
purposes for which the Aligarh University was incorporated.
8'0
SUPREME coui.·r RBPORTB
(1968) I s.c.R,
A All debts, liabilities and obligations of the said societies and Com·
mittee were transferred to the University, which was made responsible for discharging and satisfying them. All references in
any enactment to either of the societies or to the said Committee
were to be construed' as references to the University. It was further provided that any will. deed or other documents, whether
made or executed before or after the commencement o.f the 1920B Act, which contained any bequest, gift or trust in favour of any
of the said societies or of the said Committee would, on the commencement of the 1920-Act be construed as if the University had
been named therein instead of such society or Committee. The
effect of this provision was that the properties endowed for the
purpose of the M.A.O. College were to be used for the Aligarh
0 University after it came into existence. These provisions will show
that the three previous bodies legally came to an end and everything that they were possessed of was vested in the University as
established by the 1920-Act. Section 5 provides for the powers of
the University including the power to hold examinations and to
D grant and confer degrees and other academic distinctions.
Section 6 is important. It laid down that "the degrees, diplomas and other academic distinctions granted or conferred to or on
persons by the University shall be recognised by the Government
as are the corresponding degrees, diplomas and other academic
•
distinctions granted by any other University incorporated under
any enactment". Section 7 provided for reserve funds including
the sum of rupees thirty lakhs. Section 8 provided th;it "th~ University shall, subject to the provisions of this Act and the Ordinances, be open to all persons of either sex and of whatever race.
creed or class", which shows that the University was not establish-
•
ed for Muslims alone. Under section 9 the Court was given the
power to make Statutes providing that instruction in the Muslim
religion would be compulsory in the case of Muslim students.
Sections 10, II and 12 made other provisions necessary for the
functioning of a University but they are not material for our pur·
pose .
•
Section 13 is another important section.
It provided that
"the Governor General shall be the Lord Rector of the University". Further sub-s. (2) of s. 13 provided that "the Lord Rector
shall have the right to cause an inspection to be made by such
person or persons as he may direct, of the University, its buildings, laboratories, and equipment, and of any institution mainB taincd by the University, and also of the examinations, teaching
and other work conducted or done by the University, and to cause
an inquiry to be made in like manner in respect of any matter
connected with the University. The Lord Rector shall in every
case give notice to the University of his intention to cause an inspection or inquiry." .After the enquiry, the Lord Rector had the
'
c,.
AZEEZ B."BBA 11, UNION (Wmichoo, C,J,)
841
power to address the Vice-Chancellor with reference to the result A
· of such inspection and inquiry and the Vice-Chancellor was
bound to communicate to the Court the views of the Lord Rector
with such advice as the Lord Rector might offer upon the action
to be taken thereon. The Court was then required to communi·
cate tlirough the Vice-Chancellor to the Lord Rector such action
if any as was proposed to be taken or was taken upon the result
of such inspection or inquiry. Finally the Lord Rector was given B
the power where the Court did not, within reasonable time, take
action to the satisfaction of the Lord Rector to issue such directions as he thought fit after considering any explanation furnished
or representation made by the Court and the Court was bound to
comply with such directions. These provisions clearly bring out 0
that the final control in the matter was with the Lord Rector who
was the Governor-General of India.
Then comes s. 14 which is again an · important provision,
which provided for the Visiting Board of the University, which
consisted of the Governor, the members of the Executive Council, D
the Ministers, one member nominated by the Governor and one
member nominated by the Minister in charge of Education. The
Visiting._ Board had the power to inspect the University and to satisfy itself that the proceedings of the University were in conformity
with the Act, Statutes and Ordinances, after giving notice to the
University of its intention to do so. The Visiting Board was also 8
given the power, by order in writing, to annul any proceedings
not in conformity with the Act, Statutes and Ordinances, provided
that before making such an order, the Board had to call upon
the University to show cause why such an order should not be
made, and to consider such cause if shown within reasonable time.
This provision. though not so all-pervasiv~ as the provision in s. r
13 of the 1920-Act, shows that the Visiting Board had also certain over-riding powers in case the University authorites acted
against the. Act, Statutes and Ordinancei. There is no condition
that the Lord Rector and the members of the Visiting Board
must belong to the Muslim community.
Sections 15 to 21 are not material for our purposes. They
made provisions for officers of the University and Rectors and
laid down that "the powers of officers of the University other than
G
the Chancellor, .the Pro-Chancellor, the Vice-Chancellor and· the
Pro-Vice-Chancellor shall be prescribed by the Statutes and the
Ordinances". Section 22 provided for the authorities of the University, name.ly, the Court, the Executive Council and the Academic B
Council and such other authorities as might be declared by the
Statutes to be authorities of the University. Section 23 provided
for the constitution of the Court, and the proviso to sub-section
(I) has been greatly stressed on behalf of the petitioners whirb
la;d down that "no person other than a Muslim shall be a member
SUPRllllE COURT REPORTS
[1968] I S.C.R.
A thereof". It may be added here that the Select Committee which
went into the Bill before the 1920-Act was passed was not very
happy about this proviso and observed that:
B
"In reference to the constitution of the Court we
have retained the provision that no person other than
Muslim shall be a member thereof. We have done this
as we understand that such a provision is in accordance
with the preponderance of Muslim feeling though some of
us are by no means satisfied that such a provision is necessary."
By section 23(2), the Court was to be the supreme governing body
of the University and would exercise all the powers of the UniC versity, not otherwise provided for by the 1920-Act, the Statutes,
the Ordinances and the Regulations. It was given the power to
review the acts of the Executive and the Academic Councils. save
where such Councils had acted in accordance with powers conferred on them under the Act, the Statutes or the Ordinances
and to direct that necessary action be taken by the Executive or
D the Academic Council, as the case might be, on any recommendation of the Lord Rector. The power of making Statutes was also
conferred on the Court along with other powers necessary for
the functioning of the University.
'
Section 24 dealt with the Executive .Council, s. 25 with the
B Academic Council and s. 26 with other authorities of the University. Section 27 laid down what the Statutes might provide.
Section 28 dealt with the question of the first Statutes and how they
were to be amended, repealed and added to. There is an important
provision ins. 28 which laid down that "no new Statute or amendment or repeal of an existing Statute shall have any validity, until
:r it has been submitted, through the Visiting Board (which
may
record its opinion thereon) to the Governor General in Council, and
bas been approved by the latter, who may sanction, disallow or
remit it for further consideration." This provision clearly shows
that the final power over the administration of the University
rested with the Governor General in Council. Section 29 dealt with
I
Ordinances and what they could provide and s. 30 provided which
authorities of the University could make Ordinances. Section 30(2)
provided that "the firiit Ordinances shall be framed as directed
by the Governor General in Council ...... " and sub-s. (3) thereof
laid down that "no new Ordinance, or amendment or repeal of
an existing Ordinance shall have any validity until it has been
submitted through the Court and the Visiting Board (which may
B record its opinion thereon) to the Governor General in Council,
and has obtained the approval of the latter, who may sanction.
disallow or remit it for further consideration". This again shows
that even Ordinances could not be made by the University without the approval of the Governor General in Council. If any dispute arose between the Executive and the Academic Council as
AZEEZ BASHA v. l'NlON (Wanchoo, U.J.)
843
to which had the power to make an Ordinance, either Council A
could represent the matter to the Visiting Board and the Visiting
Board had to refer the same to a tribunal consisting of three
members, one of whom was to be nominated by the Executive
Council, one by the Academic Council, and one was to be a
Judge of the High Court nominated by the Lord Rector. This
again shows that in the matter of such disputes, the Court which is
called the supreme governing body of the University, did not B
have the power to resolve it. Section 31 provides for the making
of Regulations, which had to be consistent with the Statutes and
Ordinances. It is only the Regulations which did not require the
approval of the Governor Genera 1 before they came into force.
Section 32 provided for admission of students to the University
and sub-s. (4) thereof provided that "the University shall not save C
with the previous sanction of the Governor General in Council
recognise (for the purpose of admission to a course of study for a
degree) as equivalent to its own degrees. any degree conferred by
any other University .or as equivalent to the Intermediate Examination of an Indian University, any examination conducted by any
other authority". This shows that in the matter of admission the D
University could not admit studentS of other institutions unless
the Governor General in Council approved the degree or any
other examination of the institutions other than Indian Universities established by Jaw.
Section 33 provided for examinations, s.
34 for annual report and s. 35 for annual accounts. Sections 36 to
38 provided for supplementary matters like conditions of service E
of officers and teachers, provident and pension funds.- filling of
casual vacancies and are not material for our purposes. Section
39 laid down that "no act or proceeding of any authority of the
University shall be invalidated merely by reas.oh of the existence of
vacancy or vacancies among its members". Section 40 is important and laid down that "if any difficulty arises with respect to F
the establishment of the University or any authority of the University ~r in connection with the first meeting of any authority of
the Umversity, the Governor General in Council may by order
make any ap~ointment or do anything which appears to him necessary or ex~dtent for the proper establishment of the University or G
any authority thereof or for the first meeting of any authority of
the University." This again shows the power of the Governor
General in Council in the matter of establishment of the University.
This brings us to the end of the sections of the 1920-Act.
There is nothing anywhere in any section of the Act which vests
the administr~tion of the University in the Muslim community.
The fact that m the proviso to s. 23()) it is provided that the Court B
of the University shall consist only of Muslims does not necessarily m7an that the administr~tion of the University was vested or
was mtended: to be vested !n. the Musli.m minority. If anything,
some of the important .Prov1s1?ns to which we have already referred show that the final power m almost every matter of importance
844
SUl'RllKE COURT RllPORTS
[1968) l S.C.R.
A was in the Lord Rector, who was the Governor General or in the
Governor General in Council.
Then follows the schedule which provides for the first Statutes of the Aligarh University. These Statutes provided for the
Rectors of the University, the Vice-Chancellor, Pro-Vice-Chancellor, Treasurer, Registrar, Proctor and Librarian, the Court,
B constitution of the Court, the first Court, meetings of the Court
and the powers of the Court, the Executive Council, the powers
of the Executive Council, the Academic Council and its powers,
dep~rtments of studies, appointments, register of graduates, convocations, Committees and so on. The annexure to the 1920-Act
gave the names of the Foundation Memb.ers of the Court number0 ing 124 who were all Muslims and who were to hold office for
five years from the commencement of the Court.
Such were the provisions of the I 920-Act. They continued
in force • : 1951 without any substantial amendment. In 1951,
the 1951-Act was passed. It made certain changes in the 1920D Act mainly on account of the coming into force of the Constitution.
We shall refer only to such changes as are material for our
purposes. The first material change was the deletion of s. 9 of
the 1920-Act which gave power to the Court to make Statutes providing for compulsory religious instruction in the case of Muslim
students. This amendment was presumably made in the interest
E of the University in view of Art. 28(3) of the Constitution which
lays down that "no person attending any educational institution
recognised by the State or receiving aid out of State funds shall be
required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that
may be conducted in such institution or in any premises attached
F thereto unless such person or, if such person is a minor, his guardian has given his consent thereto." It was necessary to delete
s. 9 as otherwise the University might have lost the grant which
was given to it by the Government of India. Further s. 8 of the
1920-Act was amended and the new section provided that "the
University shall be· open to persons of either sex and of whatever
G race, creed, caste, or class, and it shall not be lawful for the University to adopt or impose on any person, any test whatsoever. of
religious belief or profession in order to entitle him to be admitted
therein, as a teacher or student, or to hold any office therein, or
to graduate thereat, or to enjoy or exercise any privilege thereof,
except in respect of any particular benefaction accepted by the
University, where such test is made a condition thereof by any
H testamentary or other instrument creating such benefaction". The
new s. 8 had also a proviso laying down that "nothing in this section shall be deemed to prevent religious instruction being given
in the manner prescribed by the Ordinances to those who have
consented to receive it". Clearly. section 9 was deleted and s. 8
was amended in this manner to bring the law into conformity with
AZEEZ BASHA v.
~NION (Wanc/ioo, C.J.)
845
the provisions of the Constitution and for the benefit of the Univer: A
sity so that it could continue to receive aid from the Government.
Some amendment was also made in s. 13 in view of the changed
constitutional set-up and in place of the Lord Rector, the University was to have a Visitor. Section .14 was also amended and the
power of the Visiting Board was conferred on the Visitor by addition of a new sub-s. (6).
The next substantial change was that the proviso to s. 23(1)
which required that all members of the Court would only be Muslims was deleted. Other amendments are not material for our
purpose as they merely relate to administrative details concerning
the University.
It will thus be seen that by virtue of the 1951.-Act non-Muslims could also be members of the Court. But the Court still re·
mained the supreme governing body of the University as pi:ovided
B
c
by s. 23 ()) of the 1920-Act. It is remarkable that though the proviso to s. 23(1) was deleted, as far back as 1951. there was no
challenge to the 1951-Act till after Ordinance No. II of 1965 was D
passed. The reason for this might be that there was practically no
substantial change in the administrative set-up of the 1920-Act and
it was only when a drastic change was made by the Ordinance of
1965, followed by the 1965-Act, that challenge was made not only
to the 1965-Act but also to the 1951-Act in so far as it did away B
with the proviso to s. 23()). It is not our function in the present
petitions to consider the policy underlying the amendments made
by the 1965-Act; nor do we propose to go into the merits of the
amendments made by the 1965-Act We are in the present petitions concerned only with the canstitutionality of the provisions
of the 1965-Act. If the provisions are constitutional. they were F
within the legislative competence of Parliament.
This brings us to the changes made in the 1965-Act which
have occasioned the present challenge. The main amendment in
the 1965.Act was in s. 23 of the 1920-Act with respect to the composition and the powers of the Court of the University. Sub-secG
lions (2) and (3) of the 1920-Act were deleted, with the result that
the Court no longer remained the supreme governing body and
could no longer exercise the powers conferred on it by sub·ss. (2)
and (3) of s. 23. In place of these two sub-sections, a new subsection (2) was put in, which reduced the functions of the Court
to three oJ?ly.