Judgement

KRISHNA IYER, J.: (for himself and on behalf of A. C. Gupta, J.) (Majority view):- Our essay in this appeal is to interpret and apply Art. 30 of the Constitution, illumined by the ratio of the recent leading case on the constitutional rights of minorities vis a vis educational institutions where a Bench of 11 Judges handed down six opinions on the thorny issue. As we proceed to judgment, we are reminded of two famous American observations. Chief Justice Marshall, while deciding the celebrated Mc. Culloch v: Maryland case, (1816 - 19) 4 Wheat 316 at p. 407, made the pregnant remark: We must never forget that it is the constitution we are expounding . Governor Hughes, soon to ascend the U. S. SC, said: We are under a Constitution, but the Constitution is what the Judges say it is . Reverentially guided and bound by great precedents but mindful of the luminous texts and goals of the Constitution itself, we have to attempt the task.

2. The facts of the present case are virtually admitted, the precedent that binds us is of fresh vintage but the legal test when applied to this concrete case-situation is fine, if not baffling. Of course, the only area for judicial exploration is to decoct the rule from the ruling and fit it to the admitted facts.

3. The appellant is a registered society formed by the members of the Muslim community at Shahjehan- pur. Indubitably, the community ranks as a minority in the country and the educational institution run by it has been found to be what may loosely be called a minority institution , within the constitutional compass of Art. 30. The earlier history of the insituation need not detain us and a rapid glance at its evolution is enough. The A. V. Middle School was the offspring of the effort of the Muslim minority resident in Shahjehanpur District. It later became a High School and afterwards attained the status of an Intermediate College. Eventually it blossomed into a degree college affiliated to the University of Agra. In 1948, on the assassination of the Father of the Nation, this college was commemoratively renamed as Gandhi Faiz-e-am College. In August 1964, an application was made on behalf of the college management to the University for permission to start teaching in courses of study including Sociology, Sanskrit , Arabic, military studies, drawing and painting. The University entertained the thought that a new organisational discipline must be brought into the institution and insisted, as a condition of recognition of these additional subjects as course of study, on certain mutation in the administrative body of the college. The bone of contention before us, as was before the High Court, is that this prescription by the University, in tune with Statute 14-A framed by it, is an invasion of the fundamental right guaranteed to the minority community under Art. 30 of the Constitution of India. The High Court has negatived the plea of the management and the appeal issues from that decision.

4. What is the core of the restriction clamped down by Statute 14-A? What is the conscience and tongue of Art. 30? If the former is incongruous with the latter, it withers as void. otherwise, it prevails and binds That is the crux of the controversy.

5. The minority college is administered by a three-tier body organised intra-murally by the Society. No outsider has entered the precincts of management which has all along remained with the members only. The General Council with plenary powers, the Governing body more circumscribed yet effective as policy-maker and the Managing Committee, the day-to-day administrative sub-agency -these are the organs vested with controlling power, under the relevant rules of the Society. The essential point is that the Society is autonomous and its organs administer the institution.

6. The University directive, backed by Statute 14-A, it is contended, forces two persons on the area of administration. This is argued to be a serious erosion of the great right guaranteed