The judgement in the case of Azeez Basha v. Union of India is not valid In the case of Azeez Basha v.

Union of India1, the petitioner impugned the validity of the Aligarh Muslim University (Amendment) Act, 1965 which amended the Aligarh Muslim University Act, 1920, on the ground that the amendment deprived the Muslim minority community of its right to administer the university established by the community. Before the impugned Act, an amending act of 1951 had deleted the proviso to sec 23(1) of the Act of 1920 according to which the members of the court had to be Muslims. That amendment had not been challenged because in fact the set-up of the university had continued unchanged. Mainly, the effect of the said amendments was that the court ceased to be the supreme governing body of the university and it was not necessary that it should consist exclusively of Muslims. The Supreme Court had held that the Aligarh Muslim University was not established by the Muslim minority community. Instead, it was established by an act of the legislature due to which the Muslims could not claim the right to administer the university and therefore, the two amendments did not violate Art. 30(1) of the Indian Constitution and are perfectly valid. The counsel for the appellants would like to humbly submit that the decision given in the case of Azeez Basha v. Union of India2 is no more a good law due to the following reasons: Firstly, the decision in the Azeez Basha case came before the Aligarh Muslim University Amendment Act, 1981 was enacted which caused a considerable change in the Aligarh Muslim University Act, 1920 with specific reference to Sections 2(1) and 5(2)(c). Sec 2(1) read as university means the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University3. Sec5 (2) (c) read as The university shall have the power to promote especially the educational and cultural advancement of the Muslims of India.4

Therefore, the 1981 amendment clearly shows that the Aligarh Muslim University is established by the Muslims in India and is has been especially established for the purpose of the educational and cultural advancement of the Muslims.
1 2

Azeez Basha v. Union Of India (1968) 1 S.C.R 833 id 3 Aligarh Muslim University Act, 1920 4 Aligarh Muslim University Act, 1920

The plenary power of the parliament can only be challenged on two grounds:5 1. That the legislature has no competence to enact the law 2. That the legislation is hit by the rights guaranteed under part III of the constitution.

The amendment of 1981 cannot be invalid on the ground that the legislature had no competence to enact the law. Dr. Rajiv Dhawan, senior advocate and Mr Gopal Subramanium, senior advocate, Supreme Court of India have raised common contention in the case of Dr. Naresh Agarwal v. Union of India6. They have argued that The legislative competence of Parliament to enact a law in respect of Aligarh Muslim University is referable to Entry 63 of List I of Vllth Schedule to the Constitution of India and therefore the competence of the Parliament to enact a provision like Section 2(1) and5(2)(c) cannot be questioned on the ground of legislative competence. The amending Act of 1981 has been enforced to fulfil the fundamental rights of Muslims, who were in minority in the undivided country prior to independence and in India even after independence with specific reference to Article 30 of the Constitution of India. Such legislations do not create a fundamental right. They only ensure fulfilment of the fundamental right of the minority. The amending Act 1981 recognizes the historical fact as was apparent from the records before the Parliament to the effect that the Aligarh Muslim University was established by the Muslims and therefore the declaration in Section 2(1) read with Section 5(2)(c), being a recognition of historical fact which the petitioners have not been able to demonstrate in any manner to be arbitrary or whimsical, cannot be faulted with. The judgment of the Hon'ble Supreme Court in the case of Azeez Basha (supra) was based on an interpretation of the statutory provisions as were then part of the Aligarh Muslim University Act. The basis of the conclusion arrived at by the Hon'ble Supreme Court having been substituted by the Amendment Act of 1981, the judgment in the case of Azeez Basha (supra) looses all force subsequent to amendments under Act of 1981. Aligarh Muslim University has now been rightly recognised to have been established by a minority community (Muslims). It is submitted that 1920 Act. was only for the purpose of incorporation of an institution which was established by the Muslims, into a University. There was only a change in the form and not in substance by such incorporation.
5

Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

Naresh Agarwal v. Union of India 2005 4 AWC3745

Also, the amendment Act of 1981 does not violate the fundamental rights provided in the Indian constitution. Mr Gopal Subramanium, in the same case, has further argued that the Amendment Act, 1981 is only in furtherance of the commitment of the State to fulfil and protect the rights of the minority community and as such it cannot be said to be hit by any of the Articles contained in Part-III of the Constitution of India. He further argued that The Parliament has not made any attempt to over reach or over rule the judgment of the Hon'ble Supreme Court in the case of Azeez Basha . The Parliament in exercise of its legislative power has brought the Act in tune to recognise the historical facts. Therefore, the amendment of 1981 being within the legislative competence of the parliament cannot be said to be a brazen overruling of the decision of the honourable Supreme Court. Thus, the amendment of 1981, which establishes that the Aligarh Muslim University was established by the Muslims in India and especially for the educational and cultural advancement of the Muslims, is valid as the legislature had the competence to make the amendment and it does not violate fundamental rights provided in the constitution. Secondly, the essential feature of the university was not correctly stated in the case of Azeez Basha v. Union of India. Wanchoo C.J. tore one sentence from its context in the judgement of Vaisey J. in the case of St. Davids College Lampeter v. Ministry of Education7. Had he set out the whole passage from that judgement, as was his clear duty, he would have found that the judgement of Vaisey J. on which he relied negatives the proposition that the only essential feature of a university is the power to confer its own degrees. The statement of the law in Halsbury8 is that the essential feature of a university seems to be that it was incorporated as such by the sovereign power. If this submission is correct, then the whole basis of the Supreme Court judgement disappears, for the only manner in which any community could establish a university was by invoking the exercise of the sovereign power which might either take the form of a charter or an Act of the legislature, and this the Muslim community did. Thirdly, in Azeez Basha v. Union of India, the relevant history regarding the foundation of the Aligarh Muslim University was not taken into consideration. It is relevant to the history of the Aligarh Muslim University to state that five years earlier, the Benares Hindu University Act, 1915 had been enacted. The important thing to note is that the bills for the creation of the Hindu University and the Muslim University were prepared as a result of long
7 8

St. Davids College Lampeter v. Ministry of Education (1951) 1 All E.R. 559 rd Vol. 13, 3 ed. P. 707

negotiations between the representatives of those communities and the Government. The statement of objects and reasons attached to those bills so recites. The representatives of the communities are referred to as the promoters of the bills. The two universities represented a departure from the universities which had been established till then, because they were established with the avowed object of imparting religious instruction to members of the community for whom they were founded. The two universities had glaring similarities too. Sec 9 of the Banaras Hindu University Act provided that the court was to be the supreme governing body of the university and except for the first court, it was to consist exclusively of Hindus, a provision similar to that contained in sec 6 of the Act of 1920 that the court was to be the supreme governing body of the university and was to consist exclusively of Muslims. Again, statute 23 of the first statutes of the Hindu University (Sch. 1 of the Act) provided for the creation of faculties, and further provided that the members assigned to the faculty of theology had to be Hindus. On the same lines, sec 9 of the 1920 Act conferred power on the court to make statutes providing that instruction in Muslim religion be compulsory for Muslim students. Sec 5 conferred on the Muslim University the power to promote oriental and Islamic studies and give instruction in Muslim theology and religion. It is humbly submitted that the above history leads to one conclusion and one conclusion only, namely, that the Hindu University was established by Hindus for Hindus, though it was open for non- Hindus to join the University. Similarly, the Muslim University was established by Muslims, for Muslims, though non-Muslims could be admitted. The fact that non-Muslims could be admitted does not derogate from this conclusion because, where grants are made from public funds, public policy requires that members of other communities should not be totally excluded. In fact, in In Re: The Kerala Education Bill, 19579, Das C.J observed that an institution established and managed by a community did not lose its character as a minority institution because a sprinkling of members of the other communities were admitted to it. Fourthly, the meaning given by the court to the word establish10 is not correct. It is humbly submitted that in the context the correct meaning of the word establish is clear from the definition of the verb to found namely, set up or establish.11 The Muslim community established the University and provided it with its total endowments. The Muslim community provided lands, buildings, colleges and endowments for the University and without these, the University as a body corporate would be an unreal abstraction. Even if the definition given by
9

(1959) S.C.R. 995 Hari Manderji v. Magadh University (77) A. PAT. 12, 17 11 Concise oxford dictionary
10

the court were correct, namely, to bring the university into existence, it is humbly submitted that the Muslim community brought the University into existence in the only manner in which a university could be brought into existence, namely, by invoking the exercise by the sovereign authority of its legislative power. Moreover, the court repeated more than once12 that the Muslim community could not have insisted on Government recognizing the degrees and the diplomas awarded by the Muslim University and therefore, it could not be said that the Muslim community established the University. However, the court overlooked the fact that the very object of establishing a University for a community would be defeated if its degrees were not recognized by the Government. What C.J Das said in the Kerala opinion13 in reference to schools established and managed by religious minorities directly applies to universities so established and managed: There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. As to the view of the Supreme Court that notwithstanding that the court of the university was the supreme governing body and that it was to consist entirely of Muslims, the management of the University was not vested in the Muslim community because of the various provisions of the AMU Act, it is humbly submitted that the Supreme Court failed to distinguish between the management of an institution and powers of supervision and control designed to secure that the management was properly carried out. In the Kerala opinion14, Das C.J observed that the power to manage an educational institution did not involve the power to mismanage it. The various provisions referred to in the courts judgement in Azeez Basha v. Union of India15 merely enable the Rector and the Visitor to see that the supreme governing body of the university did not misgovern the university.

12 13

(68) A.SC P 671 (1959) S.C.R. 995, 1053 14 [1959]1SCR995 15 1968 SCR (1) 833

Finally, had the Aligarh Muslim University not been established by and for the Muslims, it would not have been called Aligarh Muslim University. This fact has been overlooked by the court while giving its decision. Therefore, due to the above reasons, the judgement given in Azeez Basha v. Union of India is wrong and thus, it is no more a good law.