1. This Court in S. Azeez Basha and Anr. vs. Union of India (1968) 1 SCR 833, inter alia, has observed as follows:
“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 by some process it had been administering the same before the Constitution came into force. We are not prepared 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 the 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. If the educational institution has not been
established by a minority it cannot claim the right to administer it under Art. 30(1) .â€
2. The judgment of the Allahabad High Court which is under challenge in the present appeal (s) rejects the prayers made on account of the decision of
this Court in S. Azeez Basha (supra).
3. The issue arising in S. Azeez Basha (supra) was referred to a Seven (07) Judges Bench by an order of this Court dated 26th November, 1981
passed in Writ Petition (Civil) Nos. 54Â57 of 1981 [AnjumanÂeÂRahmania & Ors. vs. Distt. Inspector of School & Ors.].
4. The aforesaid writ petitions i.e. Writ Petition (Civil) Nos. 54Â57 of 1981 were heard along with other connected cases {lead beingW rit Petition
(Civil) No.317 of 1993 (T.M.A. Pai Foundation and others vs. State of Karnataka and others) ]by a bench of Eleven (11) judges, the judgment in
which cases is reported in (2002) 8 SCC 481.
5. The question 3(a) which was formulated for an answer in T.M.A. Pai Foundation (supra) which coincidentally reflects the questions referred by the
order of this Court dated 26th November, 1981 passed in Writ Petition (Civil) Nos. 54Â57 of 1981, is as follows:
“3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority
educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s)
belonging to a religious or linguistic minority?
6. However, the Bench did not answer the question stating that it will be dealt with by the Regular Bench.
7. The order of the Regular Bench passed on 11th March, 2003, which, for reasons that we need not dilate, did not answer the aforesaid question 3(a)
formulated in T.M.A. Pai Foundation (supra).
8. The said facts would show that the correctness of the question arising from the decision of this Court in S. Azeez Basha (supra) has remained
undetermined.
9. That apart, the decision of this Court in Prof. Yashpal and another vs. State of Chhattisgarh and others (2005) 5 SCC 420 and the amendment of
the National Commission for Minority Educational Institutions Act, 2004 made in the year 2010 would also require an authoritative pronouncement on
the aforesaid question formulated, as set out above, besides the correctness of the view expressed in the judgment of this Court in S. Azeez Basha
(supra) which has been extracted above.
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.
