Introduction
Basic Information
- Court: Supreme Court of India
- Case title: S. Azeez Basha And Anr vs Union Of India
- Date: 20 October, 1967
- Equivalent citations: 1968 AIR 662, 1968 SCR (1) 833, AIR 1968 SUPREME COURT 662
- Author: K.N. Wanchoo
- Bench: K.N. Wanchoo, R.S. Bachawat, V. Ramaswami, G.K. Mitter, K.S. Hegde
Brief History of AMU
1870 Sir Syed Ahmad Khan thought, that the backwardness of the Muslim community was due to their neglect of modern education. He therefore conceived the idea of imparting liberal education to Muslims in literature and science while at the same time instruction was to be given in Muslim religion and traditions also. From school to high school and then to college, he worked hard to nourish this idea. After his death in 1898, the idea of AMU got more power and it came true by 1907. In 1877, the Muhammadan Anglo-Oriental College was founded in Aligarh to promote educational regeneration among Muslims. This institution served as the nucleus for a larger movement led by the Muslim University Association. To establish a formal university, the Muslim University Foundation Committee collected thirty lakh rupees from both Muslim and non-Muslim donors. Consequently, the Aligarh Muslim University Act, 1920, (1920 Act) was passed, incorporating the university and vesting it with the properties of the previous bodies. While the movement was community-led, the judgment clarifies that the university was legally established by the Central Legislature through the 1920 Act.
Case Facts
The Muhammadan Anglo-Oriental College served as the nucleus for establishing Aligarh Muslim University through the 1920 Act. Initially, the university’s supreme governing body, the Court, consisted exclusively of Muslims. However, subsequent legislative amendments in 1951 and 1965 significantly altered this structure, reducing the Court’s powers and removing the requirement that its members be Muslim. These changes shifted administrative control from the community to the Lord Rector and later the Visitor.
Cause of Action
The petitioners challenged the 1951 and 1965 Amendment Acts, claiming they violated fundamental rights under the Constitution. The primary grievance was the infringement of Article 30(1), which grants minorities the right to establish and administer educational institutions. They argued the amendments unconstitutionally deprived the Muslim minority of their right to manage the university. Additionally, they alleged violations of rights regarding equality, association, religion, culture, and the management of property. This case was dealing with constitutional validity of the amendments in original 1920 Act by challenging two amendments, firstly Aligarh Muslim University (Amendment) Act, No. 62 of 1951 (1951 Act) and secondly the Aligarh Muslim University (Amendment) Act, No. 19 of 1965 (1965 Act).
Explanation of Provisions
1920 Act Provisions
The Muhammadan Anglo-Oriental College, Aligarh (College), the Muslim University Association, (Association) and the Muslim University Foundation Committee (Committee) these three societies registered under the Societies Registration Act, 1860 were the initial three organs working for imparting modern education along with Islamic teachings at Aligarh. When 1920 Act was enacted, all these three organisations surrendered their properties and rights to newly established orgnaisation for the above said purpose named as “Aligarh Muslim University” (AMU). AMU was constituted under 1920 Act and as per the preamble of said Act this dissolution took place.
As per Section 3 of 1920 Act, the First Chancellor, Pro-Chancellor and Vice-Chancellor shall be Muslims and they all shall be appointed by the Governor General in Council by publishing a Gazette notification. Section 3 further gives legal person status to the AMU. Section 4 dissolved the College, Association and Committee and transferred and vested all the property, rights, powers and privileges to AMU
Section 5 provides for the powers of the University including the power to hold examinations and to grant and confer degrees and other academic distinctions. Section 6 describes the power to grant diplomas and degrees by AMU and mandated the government recognition of diplomas and degrees. The Court reasoned that because this recognition was granted by the legislature through section 6, the institution attained the status of a university. Section 7 provides for reserve funds and their management. Section 8 made AMU open to all. As per Section 9 Court was empowered to mandate that the Islamic instructions to be given to Muslim students. Functioning of university was codified under Sections 10, 11 and 12.
Section 13 appointed Governor General as Lord Rector of AMU and empower Lord Rector for inspections. Visiting Board constituted under Section 14 was having members of government officials like the Governor of the United Provinces and ministers. The court emphasized that these authorities had overriding powers over the university’s administration, and their members were not required to be Muslim, indicating that management was not exclusively in the hands of the minority. Section 15 to 21 described officers of AMU.
Section 22 authorities of the University, namely, the Court, the Executive Council and the Academic Council and such other authorities. Section 23 defined the Court of the University. Under section 23(1), a proviso stipulated that no person other than a Muslim could be a member of the Court. Section 23(2) designated the Court as the supreme governing body with the power to review acts of the Executive and Academic Councils. Section 23(3) gave the Court the power to make statutes. The court noted that while the Court’s membership was restricted to Muslims, the electorate for certain seats included non-Muslims.
Section 24 dealt with the Executive Council, Section 25 with the Academic Council and s. 26 with other authorities of the University. Section 27 laid down what the Statutes might provide. Section 28 dealt with the question of the first Statutes and how they were to be amended, repealed and addled to. As per Section 28 AMU Statutes shall be enacted only after assent of the Government. Section 29 provides for ordinances and Section 30 provides for how ordinances are imposed. Ordinances are also having government control. Section 31 provides for making of regulations, consistent with Statutes and Ordinances and do not require government approval.
Section 32 of 1920 Act was related to admission process. Section 33 provided for examinations, s. 34 for annual report and s. 35 for annual accounts. Sections 36 to 38 provided for supplementary matters like conditions of service of officers and teachers, provident and pension funds, filling of casual vacancies and are not material for our purposes. Section 39 provides that vacancy of members shall not invalidate act of an authority of AMU.
Section 40 granted the Governor General in Council the power to remove any difficulty arising in the establishment of the university. This provision, along with others, was cited by the court to illustrate that the very existence and initial functioning of the university were heavily dependent on the central government’s executive authority. Although some of the members were non-Muslims and the AMU was controlled by Government and open to all, the 124 members of the Court of AMU were Muslims.
1951 Act
Section 9 of 1920 Act was deleted by the 1951 Act, which gave power to the Court to make Statutes providing for compulsory religious instruction in the case of Muslim students. This amendment was done in view of Article 28(3) of the Constitution. Section 8 was amended by making AMU open to all as student, teacher, and office holder, etc. Proviso of Section 8 does not abstain Islamic instructions for Muslim persons related to AMU. This section was making AMU secular without abstaining Islamic instructions. Section 13 and 14 were changed as per new constitutional set up.
The most significant change was the deletion of the proviso to section 23(1). Previously, this proviso mandated that only Muslims could be members of the University Court. By removing this restriction, the 1951 Act opened the membership of the Court to non-Muslims, reflecting the secular nature of the state and the university’s status as a public institution.
1965 Act
The 1965 Amendment Act represented a major shift in the university’s governance, triggered by administrative exigencies. The court analyzed these changes to determine if they unconstitutionally stripped the Muslim minority of management rights.
The most drastic change occurred in section 23. The 1965 Act deleted sub-sections (2) and (3), which had previously designated the Court as the supreme governing body with the power to make statutes. Instead, the Court was reduced to a purely advisory body. Its new functions were limited to advising the Visitor or other university authorities on referred matters. As the Court’s authority was curtailed, the powers of the Executive Council were correspondingly increased. The 1965 Act amended sections 28, 29, 34, and 38 to transfer many of the Court’s former administrative and legislative functions to the Executive Council. This effectively centralized management under a smaller body more closely linked to the Visitor.
In turn Statute 8 of AMU was changed drastically. The Act provided that every person holding office as a member of the Court or the Executive Council immediately before May 20, 1965, would cease to hold office. It empowered the Visitor to nominate members to these bodies and to direct university officers to exercise the powers of the Court until it was reconstituted. This turned the Court into a largely nominated body rather than an elected one.
Constitution of India
The court interpreted the constitutional provisions by examining whether the 1951 and 1965 Acts infringed upon the specific protections claimed by the petitioners. Each article was addressed as follows:
Article 30(1): Right to Establish and Administer
This was the central point of the judgment. The court interpreted the words establish and administer conjunctively. It ruled that for a minority to have the right to administer an educational institution, it must have also established it. The court defined establish as bringing into existence. Since Aligarh Muslim University was brought into existence by the 1920 Act of the Central Legislature and not by the Muslim minority, the court held that Article 30(1) did not apply.
Article 26: Religious Denomination Rights
The court analyzed Article 26(a), (c), and (d) regarding the rights of a religious denomination. The court held that the right to maintain an institution for charitable purposes also requires the denomination to have established it. The court ruled that the Muslim minority did not own the university’s property when the Constitution came into force. The property had been voluntarily vested in the university as a corporate body in 1920. Therefore, the minority could not claim a right to administer property they did not legally own.
Article 14: Right to Equality
The petitioners argued that the AMU Act amendments were discriminatory because they differed from other university statutes. The court interpreted Article 14 to mean that the legislature is not required to provide identical laws for every university. It held that each university is a class by itself with unique problems, and Parliament is competent to create specific constitutions for them without violating equality.
Article 19: Right to Form Associations and Hold Property
- Article 19(1)(c): The court held that this article protects the right to form associations but does not grant a right to manage a specific educational institution. The 1965 Act did not prevent anyone from forming associations.
- Article 19(1)(f): Regarding the right to hold property, the court reiterated that since the property was vested in the University, a corporate entity, and not the minority, the individual rights of the petitioners were not affected.
Article 25: Freedom of Religion
The court found no merit in the claim that the administrative changes interfered with the right to profess, practice, or propagate religion. It noted that the amendments to the 1920 Act dealt with governance and did not obstruct religious freedom.
Article 29: Protection of Interests of Minorities
The court interpreted Article 29 as the right to conserve a distinct language, script, or culture. It held that the amendments to the university’s administrative structure did not interfere with the Muslim community’s ability to conserve their culture or language.
Article 31: Compulsory Acquisition of Property
The court rejected the claim under Article 31(1), stating that there was no deprivation of property. Since the Court of the University was a statutory body and the property belonged to the University as a legal person, changing the composition of the Court did not constitute an acquisition of private property.
Legislative Competence
The court’s reasoning regarding legislative competence was rooted in the legal origin of the university and the constitutional distribution of powers. The bench concluded that the power to amend the Aligarh Muslim University Act rested solely with Parliament.
The core of the court’s reasoning was that AMU was established by the Central Legislature through the 1920 Act, not by the Muslim minority. The court clarified that while the minority community may have initiated the movement and provided funds, the legal “bringing into existence” of the university required a statute. Since the university was a creature of a central law, the legislature that created it maintained the inherent power to amend or even repeal that law.
The court referred to the legislative entries in the Constitution. Under Entry 63 of List I (Union List) in the Seventh Schedule, AMU is specifically named as an institution of national importance. This gives Parliament exclusive jurisdiction to legislate upon it. The court reasoned that this power includes the competence to alter the university’s administrative structure, change the composition of its governing bodies, and redistribute powers between the Court and the Executive Council.
The petitioners argued that Article 30(1) limited the legislature’s competence, as the state cannot take away the right of a minority to administer an institution it established. However, the court ruled that since the Muslim minority did not legally “establish” the university as defined by the 1920 Act, the protection of Article 30(1) did not apply. Without this constitutional limitation, Parliament’s legislative competence remained absolute and was not restricted by any prior administrative rights claimed by the community.
The court noted that the 1951 and 1965 Acts were valid exercises of legislative power aimed at ensuring the university functioned effectively as a public educational institution. It held that the legislature has the right to decide what kind of constitution should be conferred on a university it creates, and this includes the power to amend that constitution as educational needs evolve.
This is not a legal advice. This article is based on the judgment and order of the Court.
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