Judicial Dictionary
Article 30(1) of the Constitution of India has since long been the subject matter of scrutiny and exposition in a number of decisions of the Hon’ble Supreme Court. In Azeez Basha -vrs. Union of India : AIR 1968 SC 662, it has been held:
“(19) xx xx xx xx xx It is to our mind quite clear that Article 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.
In this connection our attention was drawn to In re; The Kerala Education Bill, 1957, 1957 SCR 995: (AIR 1958 SC 956) where, it is argued, Supreme Court had held that the minority can administer an educational institution even though it might not have established it. In that case an argument was raised that under Article 30(1) protection was given only to educational institutions established after the Constitution came into force. That argument was turned down by Supreme Court for the obvious reason that if that interpretation was given to Article 30 (1) it would be robbed of much of is content. But that case in our opinion did not lay down that the words “establish and administer” in Article 30 (1) should be read disjunctively so that though a minority might not have established an educational institution it had the right to administer it. It is true the Court spoke of Article 30 (1) giving two rights to a minority i.e. (i) to establish and (ii) to administer. But that was said only in the context of meeting the argument that educational institutions established by minorities before the Constitution came into force did not have the protection of Article 30 (1). We are of 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 Article 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 clam the right to administer it under Article 30 (1). We have therefore to consider whether the Aligarh University was established by the Muslim minority; and if it was so established, the minority would certainly have the right to administer it (sic).”
It has also been pointed out:
“(25). What does the word “established” in Article 30 (1) mean? In Bouvier’s Law Dictionary, Third Edition, Vol.I, it has been said that the word “establish” occurs frequently in the Constitution of the United States and it is there used in different meanings; and five such meanings have been given, namely- (1) to settle firmly, to fix unalterably, as to establish justice; (2) to make or form: as, to establish a uniform rule of naturalization; (3) to found, to create, to regulate: as, Congress shall have power to establish post offices; (4) to found, recognize, confirm or admit as, Congress shall make no law respecting an establishment of religion; (5) to create, to ratify, or confirm, as We, the people, etc., do ordain and establish this constitution. Thus it cannot be said that the only meaning of the word “establish” is to be found in the sense in which an eleemosynary institution is founded and we shall have to see in what sense the word has been used in our Constitution in this Article. In Shorter Oxford English Dictionary, Third Edition the word “establish” has a number of meanings i.e., to ratify, confirm, settle, to found, to create. Here again founding is not the only meaning of the word “establish” and it includes creation also. In Webster’s Third New International Dictionary, the word “establish” has been given a number of meanings, namely, to found or base squarely, to make firm or stable, to bring into existence, create, make start, originate. It will be seen that here also founding is not the only meaning; and the word also means “to bring into existence”. We are of opinion that for the purpose of Article 30 (1) the word means “to bring into existence”, and so the right given by Article 30 (1) to the minority is to bring into existence an educational institution, and if they do so, to administer it. We have therefore to see what happened in 1920 and who brought the Aligarh University into existence.”
In the above cited decision issue before the Hon’ble Supreme Court was as to whether Aligarh Musilim University was established by the Muslim minority.
