Referred to Larger Bench XVI: Decades of Decay

It was observed in S. Azeez Basha v. Union of India, (1968) 1 SCR 833 that the words “establish and administer” in Article 30(1) must be read conjunctively and so read it gives the right to a religious minority to administer an educational institution provided it has been established by it; Article 30(1) 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 issue arising in S. Azeez Basha was referred to a Seven Judge Bench on 26.11.1981. Eleven Judges in T.M.A. Pai Foundation, (2002) 8 SCC 481 did formulate the question: “would an institution be regarded as a minority educational institution because it was established by a person belonging to a religious or linguistic minority or it is being administered by a person belonging to a religious or linguistic minority”. The Eleven Judges, however, did not answer the question stating that it will be dealt with by the Regular Bench. The Regular Bench did not answer. Correctness of S. Azeez Basha has remained undetermined for decades and decades. On 12.02.2019, Hon’ble CJI R. Gogoi and Hon’ble Judges L.N. Rao and S. Khanna observed [again] that the question should be referred to a Seven Judge Bench [Aligarh Muslim University v. Naresh Agarwal, [Civil Appeal No. 2286 of 2006].