Aligarh Muslim University vs Naresh Agarwal & Ors.

1.1. 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 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. [Para 83]

1.2. Upon the commencement of the Constitution, citizens received the protective cover of Part III – Article 372 read with Article 13(1) stipulates that laws which pre-date the Constitution are unconstitutional if they contravene the fundamental rights – 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. [Para 84]

2.1. ‘Incorporation’ signifies the legal existence of the institution. In contrast, ‘establishment’ signifies the founding or bringing into existence of the institution – 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 instance of conversion of teaching collages to teaching universities elucidates the distinction between the ‘establishment’ and ‘incorporation’ of educational institutions. [Para 94]

2.2. 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 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). [Para 95]

2.3. 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 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. [Para 112]

2.4. The argument that the test of whether an educational institution is a minority institution must be examined based on whether the community or the group which had established the institution was a minority at the time of its establishment in pre-independent India, is rejected – The purpose of the provision is to ensure that the minorities are able to preserve and promote their linguistic and religious culture – For this purpose, the status of the group/community, that had established the institution, on the date of commencement of the Constitution should be considered – The test of establishment will apply to future situations on the day when new educational institutions are established – The protection under clause (1) of Article 30 cannot be denied to institutions established before the commencement of the Constitution for the reason that at the time of establishment in pre-independent India, the founders were not aware that they would receive protection of Article 30(1). [Para 122]

2.5. ‘establishment’ or formation of an institution can be at any point of time and even before the commencement of the Constitution – If an institution was established before the commencement of the Constitution, the enquiry on the question of ‘establishment’ must relate back to the date when the institution was established or formed to ascertain whether it would qualify as a minority institution upon the commencement of the Constitution. [Para 134]

3.1. To determine who established the institution, the Courts must consider the genesis of the educational institution – For this analysis, the Courts must trace the origin of the idea for the establishment of the institution – The Court must identify who was the brain behind the establishment of the educational institution – Letters, correspondence with other members of the community or with government/State officials and resolutions issued could be valid proof for establishing ideation or the impetus to found and establish – The proof of ideation must point towards one member of the minority or a group from the community. [Para 135]

3.2. The second indicia is the purpose for which the educational institution was established – Though it is not necessary that the educational institution must have been established only for the benefit of a religious or linguistic minority community, it must predominantly be for its benefit – It is not necessary that education must be provided in the language spoken by the minority or on the religion of the minority – For example, it is not necessary that an educational institution established for the Tamils in Uttar Pradesh must necessarily prescribe Tamil as the language of instruction – However, it must be proved that the institution was established for the benefit of the tamil-speaking community – This indicia could be proved by a reference to private communication or speeches about the necessity of establishing an educational institution for the community and a recognition of the educational difficulties faced by the community. [Para 136]

3.3. The third test is tracing the steps taken towards the implementation of the idea – Information on who contributed the funds for its creation, who was responsible for obtaining the land, and whether the land was donated by a member of the minority community or purchased from funds raised by the minority community for this purpose or donated by a person from some other community specifically for the establishment of a minority educational institution are elements that must be considered – Similar questions must be asked of its other assets – Other important questions are: who took the steps necessary for establishing the institution (such as obtaining the relevant permissions, constructing the buildings, and arranging other infrastructure). It is also important to note that the state may grant some land or other monetary aid during or after the establishment of the educational institution – If the land or monies were granted after the establishment, the grant would not have the effect of changing the minority character of the institution – Minority institutions are not barred from receiving aid save at the cost of their minority status – If the land or monies are granted at the time of establishment, the circumstances surrounding the establishment must be considered as a whole to determine who established the institution – The presence of a grant must not be automatically interpreted as leading to the erasure of a claim to minority status. [Para 137]

3.4. An educational institution is a minority educational institution if it is established by a religious or linguistic minority – It is not necessary to prove that administration vests with the minority to prove that it is a minority educational institution because the very purpose of Article 30(1) is to grant special rights on administration as a consequence of establishment – To do otherwise, would amount to converting the consequence to a pre-condition – The right to administer is guaranteed to minority educational institutions to enable them to possess sufficient autonomy to model the educational institution according to the educational values that the community wishes to emphasise – It is not necessary that the purpose can only be implemented if persons belonging to the community helm the administrative affairs – This is so particularly because a minority institution may wish to emphasise secular education. [Para 138]

3.5. The test to be adopted by the Court is whether the administrative set up of the educational institution affirms the minority character of the institution – If the administrative structure of the educational institution does not reflect its minority character or when it does not elucidate that the educational institution was established to protect and promote the interests of the minority, it may be reasonably inferred that the purpose was not to establish an educational institution for the benefit of the minority community – [Para 139]

3.6. The test of administration should be evaluated in praesenti, that is, on the date of the commencement of the Constitution – An institution to be a minority institution must satisfy the criteria of being ‘administered’ as a minority institution on the date of commencement of the Constitution, and being a minority institution on the date of formation – Even if an educational institution was established by the minority for the purposes of the community, one must assess the impact of any subsequent events that altered the character of the institution before the commencement of the Constitution – The statutory incorporation of the institution does not ipso facto amount to a surrender of the minority character of the institution – The Court must pierce the veil to identify if the University was established by a minority for the purpose of promoting the interest of the community – The Court may on a holistic reading of the statutory provisions relating to the administrative set-up of the educational institution deduce if the minority character or the purpose of establishment was relinquished upon incorporation – The question is whether the regulatory measures wrest the administrative control from the founders of the institution – This is a question of fact which must be determined on the facts of each case – The Court must make that determination upon a comprehensive analysis of the administrative framework which includes host of factors such as the representation of the interests of the community in the administrative set-up. [Para 140]

3.7. Taken together, these are the main indicia which assist the Court in determining who established an educational institution under Article 30 – However, the complex nature of establishing an educational institution is not lost on us – Undoubtedly, there can be no straitjacket formula which may be applied – The above indicia of establishment must be considered as a whole, along with any relevant facts which are available to the Court – The matter must be considered in totality and competing factors must be weighed against each other depending on the facts and circumstances of each institution. [Para 141]

3.8. The above indicia must be proved through the submission of cogent material – Reliance must be placed on primary sources such as office documents, letters and resolutions or memorandums issued to implement the resolutions – Secondary sources must only be used to corroborate the primary sources – The onus to prove that the educational institution was established by a minority is on the claimants. [Para 142]

4. The declaration of an institution as one of national importance does not amount to a change in the minority character of the institution – This is for multiple reasons – First, Entries in the Lists in the Seventh Schedule delineate the legislative competence of Parliament and of the legislatures of the States – The State may regulate various aspects of education and educational institutions – The field of legislative competence over universities does not amount to a surrender of minority character – The distribution of legislative competence between Parliament and the State legislatures does not bear upon the minority character of the institution – Second, as a matter of principle, nothing prevents a minority educational institution from being an institution of national importance – The qualities denoted by the terms ‘national’ and ‘minority’ are not at odds with each other nor are they mutually exclusive – The former indicates that the institution has a pan-India or national character, as opposed to relatively more local or regional institutions – It is indicative of the importance of the institution on the national stage – The latter is evidence of the religious or linguistic background of the founders and the constitutional rights which vest in them – Each term indicates distinct attributes which are not antithetical to one another – A university may well be both national and ergo, of national importance, as well as minority in character – There is no reason why a minority educational institution cannot also be an institution of national importance – Third, Entries 63 and 64 provide Parliament with the power to declare an institution to be of national importance – An interpretation that an institution of national importance cannot be a minority institution would amount to rendering the fundamental right guaranteed by Article 30(1) subservient to the legislative power of Parliament – Parliament can in terms of Entries 63 and 64 declare any institution to be of national importance. [Para 148]

5. Article 30(1) can be classified as both an anti-discrimination provision and a special rights provision – A legislation or an executive action which discriminates against religious or linguistic minorities in establishing or administering educational institutions is ultra vires Article 30(1) – This is the anti-discrimination reading of the provision – Additionally, a linguistic or religious minority which has established an educational institution receives the guarantee of greater autonomy in administration – This is the ‘special rights’ reading of the provision. [Para 160(b)]

6. Religious or linguistic minorities must prove that they established the educational institution for the community to be a minority educational institution for the purposes of Article 30(1). [Para 160(c)]

7. The right guaranteed by Article 30(1) is applicable to universities established before the commencement of the Constitution. [Para 160(d)]

8. The right under Article 30(1) is guaranteed to minorities as defined upon the commencement of the Constitution – A different right-bearing group cannot be identified for institutions established before the adoption of the Constitution. [Para 160(e)]

9. The incorporation of the University would not ipso facto lead to surrendering of the minority character of the institution – The circumstances surrounding the conversion of a teaching college to a teaching university must be viewed to identify if the minority character of the institution was surrendered upon the conversion – The Court may on a holistic reading of the statutory provisions relating to the administrative set-up of the educational institution deduce if the minority character or the purpose of establishment was relinquished upon incorporation. [Para 160(f)]

10. The following are the factors which must be used to determine if a minority ‘established’ an educational institution:

11. i.

The indicia of ideation, purpose and implementation must be satisfied – First, the idea for establishing an educational institution must have stemmed from a person or group belonging to the minority community; second, the educational institution must be established predominantly for the benefit of the minority community; and third, steps for the implementation of the idea must have been taken by the member(s) of the minority community; and

ii.

The administrative-set up of the educational institution must elucidate and affirm (I) the minority character of the educational institution; and (II) that it was established to protect and promote the interests of the minority community. [Para 160(g)]

The question of whether AMU is a minority educational institution must be decided based on the principles laid down in this judgment – The papers of this batch of cases shall be placed before the regular bench for deciding whether AMU is a minority educational institution. [Para 161]

Held [per Surya Kant, J.]:

1. The minority institutions established in the pre-Constitution era are also entitled to the protection conferred by Article

30. [Para 192(g)]

2. Educational institutions, with reference to Article 30 include universities as well. [Para 192(h)]

3. In order to seek protection under Article 30 of our Constitution, the minority institution must satisfy the conjunctive test, namely that it was established by a minority community and has been/is being administered by such a community. [Para 192(i)]

4. The true import and meaning of the expressions ‘establish’ and ‘administer’, which comprise the very core of Article 30, are to be construed and understood strictly in accordance with the indicia in paragraphs 141 and 181. [Para 192(j)]

5. The question pertaining to whether AMU satisfies the abovementioned test of ‘establish’ and ‘administer’ so as to seek protection of Article 30 of the Constitution, and which will concomitantly entail a mixed question of facts and law, will be determined by a Regular Bench. [Para 192(k)]

Held [per Dipankar Datta, J.]:

1. While the majority opinion seems to have identified establishment as the sole indicium, Hon’ble Surya Kant and Hon’ble Satish Chandra Sharma, JJ – have laid equal stress on administration apart from establishment as the indicia – Inasmuch as the broad criteria which can be used to assess the status of an educational institution is concerned, I express my agreement with the indicia laid out by Their Lordships. [Para 54]

2. Certain broad indicia, which are universally applicable, may be applied prospectively to facilitate identification of minority institutions – However, any indicium or the indicia, as identified or formulated, for treating an institution as a minority institution may not be exhaustive so as to cater to all situations – Previous decisions of this Court have also determined the minority character of educational institutions vis-à-vis Article 30, as per indicia tailored to the specific factual matrices – It could be well-nigh difficult, if not impossible, to fix indicia without regard to a whole lot of relevant facts and circumstances, which might have escaped notice or may not have been visualized – A flexible framework rather than a rigid one-size-fits-all model is always desirable and essential for accurately assessing minority institution status – Having regard to special features that each minority institution is most likely to have, a nuanced approach would be required to identify minority institutions by balancing the general guidelines with unique institutional circumstances – The indicia, which have been proposed, could partly inform classification of minority institutions but a tailored evaluation is all the more necessary to account for distinct characteristics which each such institution is associated with; more so, when AMU is unique in itself and its status is under consideration as a standalone institution. [Para 57]

3. It is no longer res integra that even institutions established prior to the Constitution would be eligible to seek the protection of Article 30(1), as was expressed by this Court in Re: The Kerala Education Bill, 1957. [Para 67]

4. The claim of the appellants cannot stand – AMU was neither established by any religious community, nor is it administered by a religious community which is regarded as a minority community; hence, AMU does not qualify as a minority institution – Protection under Article 30(1) of the Constitution is, thus, not available – This submission of the appellants has no historic, legal, factual, or logical basis. [Para 149]

5. In terms of clause (5) of Article 145 of the Constitution, not only do the references not require an answer, it is also declared that AMU is not a minority educational institution and that the appeals seeking minority status for it should fail. [Para 150]

Held [per Satish Chandra Sharma, J.]:

1. The ‘establishment’ of an institution by the minority is necessary for the said minority to claim right of administration under Article 30 – The words ‘establish’ and ‘administer’ are used conjunctively in Article 30 of the Constitution. [Para 266]

2. The term ‘establish’ in Article 30 means ‘to bring into existence or to create’ and cannot be conflated with generic phrases such as ‘genesis of the institution’ or the ‘founding moment of the institution’. [Para 266]

3. The real positive indicia for determining the question of establishment of an institution would have to be developed on a case to case basis with the following broad parameters in mind:

Firstly, to claim ‘establishment’, the minority community must actually and tangibly bring the entirety of the institution into existence – The role played by the minority community must be predominant, in fact almost complete to the point of exclusion of all other forces – The indicia which may be illustrative and exhaustive in this regard may be the nature of the institution, the legal/statutory basis required for establishing the institution, whether the establishment required any ‘negotiation’ with outside forces, the role in acquiring lands, obtaining funds, constructing buildings, and other related matters must have been held completely by the minority community – Similarly, while teachers, curriculum, medium of instruction, etc. can be on secular lines, however, the decision-making authority regarding hiring teachers, curriculum decisions, medium of instruction, admission criteria, and similar matters must be the minority community – The choice of having secular education in the institution must be made expressly by the minority community, demonstrating the link between institution and the persons claiming to establish it.

Secondly, the purpose of the institution must have been to predominantly serve the interests of the minority community or the sole betterment of the minority community, irrespective of the form of education provided and the mode of admission adopted – Therefore, as per the choice of the minority community, an institution may have secular education, but such secular education and the resultant institution, must be predominantly meant for the overall betterment of the minority community.

Thirdly, the institution must be predominantly administered as a minority institution with the actual functional, executive and policy administration vested with the minority – The minority community should determine the selection, removal criteria, and procedures for hiring teaching, administrative staff, and other personnel – The authority to hire and fire staff must be from the minority community – Further, even if teaching or administrative staff may include non-minority persons, the final authority exercising functional, directional, and policy control over these authorities must be from the minority community – This ensures that the thoughts, beliefs, and ideas of the minority community regarding administration are implemented in reality – This represents the real decisionmaking authority of the institution being of the minority community – In ascertaining the above, it would be open for the Court to look at the true purpose behind each of the above factors and to pierce the veil. [Para 266]

4. The minority community may conceptualize the idea of an institution and may advocate for the same, however, if during exchange or negotiation, the actual institution which was established had primacy of governmental efforts and control, then such institution cannot be held to be predominantly established by the efforts and actions of the minority community. [Para 266]

5. In the pre-independence and pre-UGC era, in the absence of a provision like Section 23 of the UGC Act, 1956, it was open for any institutions to adopt the titles such as ‘university’ or in some cases ‘vidyapeeth’ or ‘jamia’ asserting their capability to grant degrees – The absence of a legislative embargo from private establishment of Universities prior to 1956 would be critical for the scope of enquiry. [Para 266]

6. The use of the phrase ‘establish and incorporate’ by the Legislature may be relevant in the larger enquiry but cannot be said to be conclusively determinative of the factum of establishment or not by the minority community – If the intention of the Legislature is to establish or incorporate or recognise a minority University, the Legislatures have incorporated suitable provisions to colour the University with a minority identity. [Para 266]

7. There were no rights, fundamental or otherwise, prior to the Constitution coming into force and therefore, there is no question of surrendering any right – The British Indian Government was a supreme Imperial power in the country, and the question of surrender is illusionary and does not arise in the present case – The coming into force of the Constitution and fundamental right after 1950, cannot alter the events that occurred during the decade of 1910-1920 which led to the establishment of the AMU. [Para 266]

8. There is no legal requirement for the AMU ‘Court’ to be manned by the people from the minority community ever since 1951 and therefore, merely because de facto the persons from the minority community may have manned the posts in the institution, would not be relevant to adjudicate the question. [Para 266]

9. The assertion that ‘neutral’ institutions or non-minority institutions would in the natural course of things be ‘majoritarian’ or that Article 30 contemplates constitutionally protecting certain educational spaces from such ‘majoritarianism-bydefault’ tendencies, is wholly erroneous – The purpose of Article 30 is not to create ‘minority only’ ghettos rather provide positive rights to the minorities to establish educational institutions of their choice and kind. [Para 266]

10. Article 30, as a feature of the Constitution, provides important rights which function within the larger penumbra of fundamental rights – There is substantial interplay, intermixing and balancing of rights inter se within the fundamental rights and Article 30 is not absolute and certainly do not exist in a silo. [Para 266]

11. The crux of Article 30(1) lies in its mandate to ensure parity between non-minority [or ‘neutral’] institutions and minority institutions – Its fundamental aim is to prevent any form of discrimination or preferential treatment to non-minority communities, thereby advocating for equal treatment under the law for one and all – This provision underscores that no specific category or type of institution should be disadvantaged or unduly favoured over another within the legal framework. [Para 266]

12. To assume that the minorities of the country require some ‘safe haven’ for attaining education and knowledge is wholly incorrect – The minorities of the country have not just joined the mainstream but comprise an important facet of the mainstream itself. The institutions of national character of the country always serve the interests of the minorities and are diverse centers of learning. [Para 266] B.

Educational Institution – Minority educational institution – Status of AMU vis-à-vis minority rights – Whether the Constitution Bench decision in Azeez Basha was incorrect.

Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna, J.B. Pardiwala and Manoj Misra, JJ.)]: The view taken in Azeez Basha that an educational institution is not established by a minority if it derives its legal character through a statute, is overruled. [Para 161]

Held [per Surya Kant, J.]: The Constitution Bench in Azeez Basha, when it holds that since Section 6 of the AMU Act, 1920 stipulates that degrees conferred by AMU would be recognised by the Government, it could not have been ‘brought into existence by a private individual or body’, is seemingly incorrect – There is no conflict between the seven-judge bench opinion in Kerala Education Bill and the five-judge Constitution Bench in Azeez Basha on the other – The six-judge Constitution Bench in Sidhajbhai Sabhai, laying down that the right under Article 30 is absolute and unconditional, is not the correct principle of law; the judgement is no more binding in nature and stands effectively overruled in TMA Pai, to that extent – Consequently, Azeez Basha does not suffer from any legal infirmity on the premise that it did not cite or follow Sidhajbhai Sabhai. [Para 192(a), (b) and (f)] Held [per Dipankar Datta, J.]: Not only is Azeez Basha a judicial verdict more than half a century old on the status of AMU vis-àvis minority rights, but it has a strong foundational basis and is anchored in robust legal reasoning – The view taken therein, in the given facts and circumstances, is indeed a plausible view which demands due deference rather than the view being overruled at this distance of time. [Para 14]

Held [per Satish Chandra Sharma, J.]: The notion that Azeez Basha categorically prohibits minorities from establishing universities due to statutory requirements is unfounded – The bench in Azeez Basha and present bench are faced with a unique situation and needs to adopt a suitably modulated approach – The judgment in Azeez Basha does not preclude minorities from establishing universities but rather highlights the importance of legislative intent and statutory provisions in determining an institution’s character – The UGC Act or the judgment in Yashpal, in no manner, comes to the aid of the parties challenging the correctness of the judgment in Azeez Basha – The amendment in the NCMEI Act 2004 does not come to the aid of the parties questioning the correctness of the decision in Azeez Basha.

C.

Judicial discipline – Preliminary objection to reference – Whether two-Judge Bench of Supreme Court in Anjumane-Rahmaniya could not have referred the correctness of the decision rendered by the Constitution Bench in Azeez Basha directly to a Bench of seven Judges.

Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna, J.B. Pardiwala and Manoj Misra, JJ.)]:

1. In Central Board of Dawoodi Bohra Community, a Constitution Bench discussed the legal precepts which apply to orders of reference and reiterated the position of law as below: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: 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, 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. [Para 37]

2. The position of law laid down in Central Board of Dawoodi Bohra Community 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 – They must remain exceptions and not transmogrify into the rule itself. [Para 38]

3. The three issues which required an authoritative pronouncement in Anjuman-e-Rahmaniya, were not directly a point of contention in Azeez Basha – However, the decision would have a bearing on them – Doubting the correctness of the opinion in Azeez Basha, 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 – 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 (wherein a three-Judge Bench of this Court observed that the correctness of the question arising from the decision in Azeez Basha was unanswered, and then referred the matter to a seven-Judge Bench), 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. [Para 39]

4. The reference in Anjuman-e-Rahmaniya of the correctness of the decision in Azeez Basha was valid – The reference was within the parameters laid down in Central Board of Dawoodi Bohra Community. [Para 160(a)]

Held [per Surya Kant, J.]:

1.1. The two-judge bench in Anjuman, after expressing doubt about the correctness of Azeez Basha and its principles, referred the matter for reconsideration to a larger bench – Additionally, the bench in Anjuman specifically stated that the larger bench reviewing Azeez Basha — A decision by a five-judge bench—Should consist of seven judges – The decision further directed that the matter be placed before the Hon’ble Chief Justice for appropriate directions – Such a reference is not consistent with the established norms of judicial propriety. [Paras 90, 91]

1.2. The principles enunciated in Dawoodi Bohra re-enforce the provisions of the Supreme Court Rules referred to earlier, and also reiterate the well-established principles based upon doctrines of predictability, consistency, finality and the principle of stare decisis – The two-judge bench in Anjuman, ought to have understood and applied the law, consistent with these principles – The two-judge bench in Anjuman being of lesser strength than the five-judge bench in Azeez Basha, lacked the authority to explicitly question the correctness of Azeez Basha and refer the matter to a seven-judge bench. [Para 93]

1.3. In Anjuman, the bench not only referred the matter but also specified the numerical strength of the bench to which it should be referred, with a further direction that the matter be placed before the Chief Justice for the limited purpose of notifying the composition of the seven-judge bench – This effectively impaired the Chief Justice’s authority as the master of the roster – Allowing such a practice would enable benches of lesser strength, such as a two-judge bench, to undermine the decisions of larger benches, potentially even an eleven-judge bench – This would also place the Chief Justice in an untenable position, who would be bound by a judicial order while acting in an administrative role, leading to procedural complications and embarrassment. [Para 94]

2. There is no substantial difference between ‘doubting’ or ‘disagreeing’ with a judgement – That being so, the reference by a two-judge bench in Anjuman doubting the correctness of the five-judge bench in Azeez Basha and referring it to a seven-judge bench suffers from multiple illegalities, including judicial impropriety. [Para 192(c)]

3. In view of the dictum of the Constitution Bench in Dawoodi Bohra, a two-judge bench has no authority whatsoever to doubt or disagree with a judgement of the larger bench, and directly refer the matter to a bench having a numerically greater strength than the matter so doubted – The reference by the two judge bench in Anjuman is nothing but a challenge to the authority of the Chief Justice of India being the master of the roster and in derogation of the special powers enjoyed upon under Article 145 of the Constitution read with Order VII Rule 2 of the Supreme Court Rules, 1966 (as was applicable) – Consequently, the said reference is not maintainable – However, the subsequent reference dated 12.02.2019, in which the then Hon’ble Chief Justice of India was the presiding judge, is maintainable. [Para 192(d)]

4. The reference in Anjuman to a seven-judge bench for the reconsideration of the five-judge decision in Azeez Basha is bad in law and ought to be set aside. [Para 192(e)]

Held [per Dipankar Datta, J.]:

1.1. It has been considered uniformly to be an act of breach of judicial propriety and discipline if a bench of lesser strength [of

2 (two) Judges] casts doubt in respect of a decision rendered by a bench of greater strength [of 5 (five Judges] and a request is made to the Chief Justice of India to constitute a still larger Bench [of 7 (seven Judges] – This concept was extensively ratiocinated in Central Board of Dawoodi Bohra Community vs. State of Maharashtra. [Para 24]

1.2. If “doubting the correctness of the opinion in Azeez Basha, without disagreeing with it” could permit the bench in Anjumane-Rahmania to request the Chief Justice of India to place the matter for being heard by a bench of 7 (seven) Judges and such a course of action were held to be permissible and within the limits of Central Board of Dawoodi Bohra Community, as proposed in the majority opinion - I am afraid, tomorrow, a bench of 2 (two) Judges, referring to opinions of jurists [as in Anjuman-e-Rahmania] could well doubt the ‘basic structure’ doctrine and request the Chief Justice of India to constitute a bench of 15 (fifteen) Judges – The reasoning in the majority opinion, with due respect, appears to be based on an incomplete reading of paragraph 12(2) of Central Board of Dawoodi Bohra Community – Though the second sentence of the said paragraph is a bit ambiguous, but the same read harmoniously with the other sentences would lead to the inevitable conclusion that even in case of a doubt being expressed by a bench of 2 (two) Judges in respect of the ratio laid down by a bench of 5 (five) Judges, the case on a reference being made (with sufficient reasons) ought to be first placed before a bench of 3 (three) Judges, and not to a bench of either 5 (five) or 7 (seven) Judges – If, indeed, the proposed view in the majority opinion were accepted, all the precedents referred to above would stand overruled and a legal principle, which hitherto no bench of this Court did, would be laid down and, in the process, the floodgates for unmeritorious references opened – That would be an incorrect and improper approach – Hence, the order of reference in Anjuman-e-Rahmania must be regarded as completely flawed and non-est. [Para 28]

2. The essence of the law laid down in State of Kerala vs. Very Rev. Mother Provincial, which is a decision of the Constitution Bench of 6 (six) Judges of this Court rendered more than half a century back, and has never been doubted by any subsequent bench, is that the minority institution should have been established for the benefit of a minority community by a member of that community – Attention of the bench of 2

(two) Judges in Anjuman-e-Rahmania was not invited to this and one is left to wonder whether the reference would have at all been made if Very Rev. Mother Provincial was cited – There being no reference in Anjuman-e-Rahmania of Very Rev. Mother Provincial, a binding decision, certainly the said decision of the Constitution Bench had not been placed before the bench of 2 (two) Judges by the set of counsel appearing before it who agreed with the bench on the question of (in)correctness of Azeez Basha – Also, there cannot be any comparison of chalk and cheese – The case dealt with by Azeez Basha and the one arising for decision in Anjuman-e-Rahmania were fundamentally different and in stark contrast with each other – Therefore, even on merits, there was no good reason to make a reference for being placed before a bench of 7 (seven) Judges which Anjumane-Rahmania ordered. [Para 42] Held [per Satish Chandra Sharma, J.]: The bench of two judges in Anjuman-e-Rehmania & Ors v. Distt. Inspector of School & Ors. could not have referred the matter to a bench of seven Hon’ble Judges directly, without the Hon’ble Chief Justice of India, being a part of the bench. [Para 266]