Full Judgment Text
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PETITIONER:
REV. SIDHAJBHAI SABHAI AND OTHERS V.
Vs.
RESPONDENT:
STATE OF BOMBAY AND ANOTHER
DATE OF JUDGMENT:
30/08/1962
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ)
IMAM, SYED JAFFER
SUBBARAO, K.
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION:
1963 AIR 540 1963 SCR (3) 837
CITATOR INFO :
R 1969 SC 465 (11)
RF 1970 SC 259 (20)
R 1970 SC2079 (10)
RF 1971 SC1737 (35)
RF 1974 SC1389 (29,56,82,90,99,120,150,178,21
RF 1975 SC1821 (12)
RF 1979 SC 52 (31)
F 1979 SC 83 (5)
RF 1980 SC1042 (2,3,34,81,93)
F 1983 SC 1 (141)
F 1987 SC 311 (10,11)
RF 1988 SC 305 (7)
RF 1990 SC 695 (5)
ACT:
Fundamental Rights, Infringement of-Right of minorities to
establish educational institutions-Interference with the
right of bare management of an educational institution if an
infringement of the right to property-Nature of Fundamental
right under Art. 30-Constitution of India, Arts. 30(1),
26(a), (b), (c), (d), 19(1) (f).
HEADNOTE:
The petitioners who profess the Christian faith and belong
to the United Church of Northern India are members of a
society which maintain educational institutions primarily
for the benefit of the Christian Community. The society
con. ducts forty-two primary schools and a Training College
for teachers. The teachers trained in the college are
absorbed in the primary schools conducted by the society and
those not so absorbed are employed by other Christian
Mission Schools conducted by the United Church of Northern
India. The cost of maintaining the training college and the
primary schools is met out of donation; received from the
Irish Pres by terian Mission, fee from scholars and
grant-in-aid from the State Government. On May 28, 1935,
the Government-of Bombay issued an order that from the
academic year 1955-56, 80% of the seats in the training
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college., for teachers in non-Government training colleges
shall be reserved for teachers nominated by the Government,
and the Educational Inspector on June 13, 1955, ordered the
Principal of the Training College of the Society, not to
admit without specific permission of the Education
department private students in excess of 20% of the total
strength in each class. The Principal of the college expr-
essed his inability to comply with the order. On December
27, 1955,the Educational Inspector informed the management
that their action in refusing admission to Government nomi-
nated teachers was irregular and against the Government
Policy and he severely warned the society that for
disregarding the orders, no grant would be paid to the
college for the current, year. On March 29, 1956, the
Educational Inspector called upon the Principal not to admit
private candidates to the 1st year class without obtaining
specific permission, failing which
838
severe disciplinary action, such as withdrawal of
recognition of the institution, would be taken. The society
was again informed by letter dated May 9,1956, that having
failed to abide by the conditions set out earlier, the
college will not be paid the education grant. The
petitioners moved the Supreme Court for a writ in the nature
of mandamus or other writ directing the State of Bombay and
the Director of Education not to compel the Society and the
petitioners to reserve 80% or any scats in the training
college for the "Government nominated teachers", nor to
compel the society and the petitioners to comply with the
provisions of rr.5(2),11, 12 and 14 and not to withdraw
recognition of the college or withhold grant-in-aid under r.
14 otherwise. The petitioners claimed that their
fundamental rights guaranteed by Arts. 30(1),26(a). (b),(c)
and (d) and 19(1)(f) and (g) were violated by letters dated
May 28,1955 December 27,1955, and March 29,1956, threatening
to withhold the grant in aid and to withdraw recognition of
the college.
Held, that by the impugned rules and orders no right to
acquire, hold or dispose of property was violated.
Interference with the right of bare management of an
educational institution does not amount to infringement of
the right to property under Art. 19 (1) (f). No attempt was
made by the order of the State to deprive the petitioners of
their rights to property and the fundamental freedom
guaranteed by Art.19(1)(f) was, therefore, not violated; nor
was the right of the petitioners to practice any profession,
or to carry on any occupation, trade or business guaranteed
by Art. 19(1) (g) of the Constitution infringed by the
impugned rules and directions.
The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Phirtha Sivamiar of Sri Shiru Mutt, [1954]
S.C.R. 1005 and Sri Dwarka Nath Pewari v. State of Bihar,
A.I.R. (1959) S. C. 249, distinguished.
Held. further, that r.5(2) of the Rules for Primary Training
Colleges and rr. 11 and 14 of the Rules for recognition of
Private Training institutions, in so far as they relate to
reservation, of seats therein under orders of Government and
directions given pursuant thereto regarding reservation of
80% of the scats and the threat to with old grant-in-aid and
recognition of the college, infringed the fundamental
freedom under Art. 30(1).
The right established by Art. 30(1) is a fundamental right
declared in terms absolute : unlike the fundamental freedoms
guaranteed by Art. 19 it is not subject to reasonable
839
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restrictions. It is intended to be a real right for the
protection of the minorities in the matter of setting up
educational institutions of their own choice. The right is
intended to be effective and is not to be whittled down by
so called regulative measures conceived in the interest not
of the minority educational institution, but of the public
or the nation as a whole. Regulations which may lawfully be
imposed either by legislative or executive action must
satisfy a dual test the test of reasonableness, and the test
that it is regulative of the educational character of the
institution and is conducive to making the institution an
effective vehicle of education for the minority community or
other persons who resort to it.
In re, The Kerala Education Bill, 1957, (1959) S.C.R. 995,
distinguished.
JUDGMENT:
ORIGINAL JURISDICTION :Writ Petition No. 76 of 1957.
Petition under Art. 32 of the Constitution of India for
enforcement of Fundamental Rights.
O. S. Pathak, J. B. Dadachanji, Rameshwar Nath, S. N. Andley
and P. L. Vohra, for the petitioners.
H. N. Sanyal, Additional Solicitor-General of India, R.
Ganapathy Iyer and R. H. Dhebar, for, the respondents.
1962. August 30. The Judgment of the Court was delivered
by
SHAH, J.-The petitioners profess the Christian faith and
belong to the United Church of Northern India. They are
members of the Gujarat and Kathiawar Presbyterian Joint
Board-hereinafter called ’the society’-which conducts in the
areas which now form the State of Gujarat,forty two primary
schools and a Training College for teachers, known as the
"Mary Brown Memorial Training College". at Borsad, District
Kaira. The teachers trained in the colleges are absorbed in
the primary schools conducted by the, society and those not
so
840
absorbed are employed by other Christian Mission Schools
conducted by the United Church of Northern ’India. The cost
of maintaining the Training college and the primary schools
is met out of donations received from the Irish Presbyterian
Mission, fee from scholars and grant-in-aid under the
education Code of the State Government. The primary schools
and the college are conducted for the benefit of the
religious denomination of the United Church (if Northern
India and Indian Christians generally, though admission is
not denied to students belonging to other communities. The
training course in the college is of the duration of two
years and originally 25 students were admitted in the First
Year and 25 in the Second Year. Till the year 1952 surplus
accommodation after admitting students who were to qualify
as teachers required for the society’s primary schools, was
available for other students The College was recognised by
the Government of Bombay for training students for the
examination held by the Education Department for granting
certificates for trained teachers.
In each District of the State of Bombay there is maintained
a District School Board and in a Municipal area a Municipal
School Board. These School Boards attend to matters
relating to primary education and conduct schools in the
areas in which they function. To provide , trained teachers
for the schools run and conducted by the School Boards, the
State maintains Training Colleges for teachers
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In November 1952 the Government of Bombay ordered all
private Training Colleges in the State to reserve 60 % of
"seats for training Boards’ School teachers nominated by the
Government." he society protested against the order.
There, were negotiations between the Education Department of
the Government and the society and it was agreed that the
841
society should admit every year 20 students, 10 in each
class. Accordingly, in June 1953, 10 students were
nominated by the Government and another batch of ten
students was nominated in June, 1954. On May 28, 1955, the
Government of Bombay issued another order that with effect
from the academic year 1955-56, 80 % of the seats should be
reserved by the Management in non-Government Training
Colleges for the District and Municipal School Board
teachers to be nominated by the Government. It was recited
in the order that there were 40,000 untrained primary
teachers employed by District School Boards and Authorised
Municipalities,and some more untrained teachers were likely
to be selected and appointed as primary teachers during the
next academic year and in order that untrained teachers
should have the necessary training as soon as possible,
Government bad decided to expand the existing training
facilities with a view to increasing "the output of trained
teachers" by opening, new Training Colleges and by directing
that 80 % of the seats in non-Government Training Colleges
should be reserved for School Board teachers with effect
from the next academic year (1955-56). On June 13, 1955,
the Educational Inspector, Kaira District addressed a letter
to the Principal of the College informing him that 80 % of
the total number of seats in the training college be
reserved for school Board teachers ,deputed by the
Government," and ordered the Principal not to admit private
students in his institution in excess of 20%of the total
strength in each class without specific permission of the
Education Department. The Principal of the College, by
letter dated June 15, 1955, expressed his inability to
comply with the order. There was correspondence between the
society and the Education Department in the course of which
the Department insisted that 80 % of the seats should be
reserved by the College
842
for school Board teachers and that no fresh admissions
should be made. By letter dated December 27, 1955, the
Educational Inspector, Kaira District informed the
management of the College that the action taken by them in
refusing admission to the School Board teachers was highly
irregular and "against the Government policy", that the
management was severely warned for disregarding the orders
issued in that connection, and that in view of the
management’s defiant attitude it had been decided that no
grant would be paid to the College for the current year
unless the management agreed to reserve 80 % seats for
School Board teachers from 1956-57 and that the management
should maintain only one division of the IInd Year class
during the year 1956-57 and that it should not admit fresh
candidates to the 1st Year without specific permission from
the Director of Education, Poona, failing which severe
disciplinary action such, as withdrawal of recognition of
the institution would be taken. The society submitted on
February 10, 1956 a memorial to the Minister for Education
Government of Bombay protesting against the threat to take
disciplinary action and to withdraw recognition. By letter
dated March 12,1956, the society was informed that in view
of the refusal of the society to reserve seats for the
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school Board teachers, grant for the current year was
withheld. By letter dated March 22, 1956, the society wrote
to the Minister for Education requesting that they be
permitted to fill twelve places in each year and the
remaining places (which amounted to 60 % of the total
strength) be reserved for School Board teachers. By letter
dated March 29, 1956, the Educational Inspector called upon
the Principal of the College not to admit private candidates
to the 1st year class without obtaining previous permission
from the Director of Education, and informed him that the
provisional grant of Rs. 8,000/-
843
sanctioned to the College was on "the distinct understanding
that 80 %of the seats are reserved for School Board teachers
from 1956-57 and necessary residential accommodation is made
available for them." On April 18, 1956, the society was
informed that 80 % of the seats for the 1st year should be
reserved for the School Board teachers annually and the same
be continued next year in the IInd year, that due hostel
accommodation be provided for those teachers, that the
College students should be allowed to observe important
festivals of all religions not "involving rituals as part of
cultural programmes under community living", and the College
should provide some place where all teachers, staff and
students can meet and recite common prayers. By letter
dated May 9, 1956, the Director of Education informed the
society in continuation of letter dated April 18, 1956 that
the Society having failed to assure the Government that they
will abide by the conditions set out in the earlier letter
no deputations of teachers were made to the 1st Year of the
college during the year 1956-57 and that the College will
not be paid the grant. On June 9, 1956, the Director of
Education again wrote to the society calling upon it to
admit all the School Board teachers as may be deputed upto
80 % of the seats in the 1st year class for the year 1956
57, and to provide adequate hostel accommodation for them
and if the society failed to communicate its willingness to
comply therewith within seven days from the receipt of the
letter, the Government would be constrained to withdraw
recognition accorded to the 1st year class of the training
College under Rule 11 for recognition of non-primary
training College framed by the Government under G.R. II
dated November 9, 1949. This letter was written in
pursuance of the authority assumed under two sets of Rules
framed by the Government of
844
Bombay-(i) R tiles for Primary Training Colleges, and (2)
Rules for the recognition of the Private raining
Institutions. By 5(2) of the first set of Rules, it was
prescribed that in non-Government Institutions, percentage
of seats reserved for Board deputed teachers shall be fixed
by the Government and the remaining seats shall be filled by
students deputed by private schools or by private students.
Rules 11, 12 and 14 of the Rules for the recognition of
Private Primary Training Institutions were as follows:-
" 11. The Institution will have to be kept
open for all students irrespective of caste or
creed. It will be open to Government to
reserve seats for Board deputed teachers to
such extent as is deemed necessary. The
institution will have to give such representa-
tion on its staff and students to Backward
classes as may be fixed by Government."
"12 Women teachers will be admitted in Women’s
Training Institutions. The Head of such
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Institutions should be a woman and not less
than 50 percent of the Assistant Teachers,
should be women. In special cases, men’s
institutions may be allowed to admit women
teachers provided:
(i) Separate classes for women are formed.
(ii) One trained graduate woman
teacher is appointed per class for women
teachers opened in the college.
(iii) Separate residential arrangement
under supervision of a woman teacher are made
for women students in the Hostel.
845
(iv) Satisfactory arrangements are made for
teaching Home Science as an auxiliary craft to
women students.
(v) Separate sanitary arrangements are s
made for women teachers in the college and
hostel premises."
"14. It will be open to the Department to
withdraw recognition or refuse payment of
grant to any private training institution for
non-fulfilment of any of the conditions
mentioned above, for inefficient management
and poor quality of teaching, or for failure
to comply with any of the Departmental
regulation now in force or that may be issued
from time to time by the Government, or by the
Director of Education on behalf of
Government."
The petitioners moved this Court for a writ in the nature of
mandamus or other writ directing the State of Bombay and the
Director of Education not to compel the society and the
petitioners to reserve 80 % or any seats in the training
College for "the Government nominated teachers" nor to
compel the society and the petitioners to comply with the
provisions of Rules 5(2), 11, 12 and 14 and not to withdraw
recognition of the College or withhold grant-in-aid under
Rule 14 or otherwise.
The petitioners are members of a religious denomination and
constitute a religious minority. The society of which they
are members maintains educational institutions primarily for
the benefit of the Christian community, but admission is not
denied to students professing other faiths. They maintain a
college for training women teachers required for their
primary schools. The petitioners claim that their
fundamental rights guaranteed by Arts. 30(1), 26(a), (b),
(c) and (d) and 19 ( 1) (f)and (g) are violated by letters
dated May 28, 1955,
846
December 27, 1955 and March 29, 1956 threatening to withhold
the grant-in-aid and to withdraw recognition of the College.
It is common ground that the Government of Bombay makes
under the Education Code a grant of Rs. 8,000/- annually to
the college. This Code is not framed under any Statute but
consists of a series of administrative directions issued by
the Government of Bombay pertaining to matters educational
and sets out regulations for making grants. The Government
also holds examinations for granting certificates to
successful candidates as trained primary teachers, and
scholars receiving training in recognised institutions alone
are entitled to appear at the examination. Manifestly, in
the absence or recognition by the Government training in the
College will have little practical utility. The College is
a non-profit making institution and depends primarily upon
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donations and Government grant for meeting its expenses.
Without such grant, it would be extremely difficult if not
impossible for the institution to function.
Article 19(1) (f) on which reliance hap, been placed on
behalf of the society does not come to its aid. By that
clause all citizens are declared to have the fundamental
freedom to acquire, hold and dispose of property. But by
the rules and orders impugned no right to acquire, hold or
dispose of property is violated. Interference with the
right of bare management of an educational institution does
not amount to infringement of the right to property under
Art. (1) (f). The decision of this Court in The
Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shiru Mutt (1) on which
reliance is placed by the Society does not lay down any
proposition to the
(1) [1954] S.C. R. 1005
847
contrary. The Court was dealing in that case with the
alleged infringement of the rights of a Mahant in a
religious institution by the, enactment of the Madras Hindu
Religious and Charitable Endowments Act, XIX of 1951. It
was observed that a Mathadhipati of a Math is not a mere
manager and that it would not be right to describe
mahantship as a more office : a superior of a Math has not
only duties to discharge "in connection with the endowment
but he has a personal interest of a beneficial character
which is sanctioned by custom and is much larger than that
of a Shebait in the debater property. x x x x x x Thus in
the conception of Mahantship, as in Shebaitship, both the
elements of office and property, of duties and personal
interest are blended-together and neither can be detached
from the other. The personal or beneficial interest of the
Mahant in the endowments attached to an institution is
manifested in his larger powers to create derivative tenures
in respect to endowed properties; and these and other rights
of a similar character invest the office of the Mahant with
the character of proprietary right which, though anomalous
to some extent, is still a genuine legal right." The word
"property" in Art. 19(1) (f) must doubtless be extended to
all those recognised types of interest which have the
insignia or characteristics of proprietary rights, and a
Mathadhipati has those rights, but it cannot be said that
the petitioners in this case have any such proprietary
rights as are vested in the Mahant of a Math. Nor does the
principle of Sri Dwarka Nath Tewari v. State of Bihar (1)
apply to this case. In Dwarka Nath’s case, by an executive
order the Government of Bihar purported to divest the
trustees of a school of their right to land and building
belonging to the school. The Court held that the applicants
in whom the land and the building of the school were vested
as the Managing Committee of the school could not be
divested of
(1) A. I. R. (1959) S.C. 249.
848
their rights by the mere fiat of an official of the
Government. No attempt is made, by the order of the State
to deprive the petitioners of their right to property, and
fundamental freedom guaranteed by Art. 19(1) (f) of the
Constitution is therefore not violated. Nor is the right of
the petitioners to practice any profession, or to carry on
any occupation, trade or business guaranteed under Art.
19(1)(g) of the Constitution infringed by the impugned rules
and directions.
Article 26 occurs in a group dealing with freedom of
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religion and is intended to protect the right ,’to manage
religious affairs". By cl.(a) of Art. 26, every religious
denomination or any section thereof, has, subject to public
order, morality and health, the right to establish and
maintain institutions for religious and charitable purposes
and in a larger sense ail educational institution may be
regarded as charitable. But in the view we take of the pro-
tection of Art. 30(1), we do not think it necessary to
express any opinion on the, plea that the right of the
petitioners guaranteed by Art. 26 to manage the college is
infringed by the impugned rules and orders issued by the
Government of Bombay.
Serious inroads are made by the Rules and orders issued by
the Government of Bombay upon the right vested in the
society to administer the training College. By Rule 5 (2)
of the Rules for Primary Training Colleges. the Government
is authorised to reserve in ,non-Governmental institutions"
a percentage of seats "for the Board deputed teachers" and
the Management of the institution has the right to admit
students only for unreserved seats. By Rule 11 of the Rules
for recognition of the Private Primary Institutions,
authority is again assumed by the Government to reserve
seats "for Board deputed teachers." By Rule 14, the
Education Department is authorised to withdraw recognition
and to refuse
849
to pay grant to any private institution for nonfulfilment of
the conditions set out in the Rules, for inefficient
management and poor quality of teaching or failure to comply
with the regulations in force or that may be issued from
time to time by the Government or by the Director of
Education on behalf of Government. It is manifest that the
right of the Private Training Colleges to admit students of
their own choice is severely restricted and enforcement of
the restrictions sought to be secured by holding out a
threat to withdraw recognition and to refuse to pay grant.
Article 30(1) provides tbat all minorities have the right to
establish and administer educational institutions of their
choice, and Art. 30(2) enjoins the State, in granting aid to
educational institutions not to discriminate against any
educational instititution on the ground that it is under the
management of a minority, whether based on religion or
language. Clause (2) is only a phase of the
nondiscrimination clause of the Constitution and does not
derogate from the provisions made in el. (1). The clause
is moulded in terms negative : the State isthereby
enjoined not to discriminate in granting aid to
educational institutions on the ground that the management
of the institution is in the hands of a minority, religious
or linguistic, but the form is not susceptible of the
inference that the State is competent otherwise to
discriminate so as to impose restrictions upon the substance
of the right to establish and administer educational
institutions by minorities, religious or linguistic. Unlike
Art. 19, the fundamental freedom under cl. (1) of Art. 30,
is absolute in terms ; it if; not made subject to any
reasonable restrictions of the nature the fundamental
freedoms enunciated in Art. 19 may be subjected to All
minorities, linguistic or religious have by Art. 30 (1) All
absolute right to establish and administer
850
educational institutions of their choice; and any law or
executive direction which seeks to infringe the substance of
that right under Art. 30(1) would to that extent be void.
This, however, is not to say that it is not open to the
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State to impose regulations upon the exercise of this right.
Tile fundamental freedom is to establish and to administer
educational institutions : it is a right to establish and
administer what are in truth educational institutions,
institutions which cater to the educational needs of the
citizens, or sections thereof. Regulation made in the true
interests of efficiency of instruction, discipline, health,
sanitation, morality, public order and the like may
undoubtedly be imposed. Such regulations are not
restrictions on the substance of the right which is
guaranteed they secure the proper functioning of the
institution, in matters educational.
The petitioners do not contend that the absolute terms in
which the Art. 30 (1) is enunciated deprive the State,
especially when it pays grant and affords recognition to it
as an educational institution competent to train students
for the examinations held by the State, to impose reasonable
regulations. But it is contended that these regulations can
only be in the interest of the institution-regulations to
make it an effective educational institution so as to secure
excellence of the training imparted therein-the regulations
cannot be made in the interest of outsiders. Counsel for
the State of Gujarat (upon which State the duty to defend
this petition has since the constitution of the new State of
Gujarat, devolved) contended that the right extends to all
such regulations as may appear to the Government in the
national or public interest, provided that the regulations
do not tend to destry the character of the institution as
one maintained by the minority. Counsel submits that the
State is not bound to make a grant, nor
851
it is bound to recognise the minority institution for
examinations hold by a State : if the State makes a grant or
gives recognition to an institution for the examination held
by it, the State is entitled to impose conditions relating
to admission of students and to withhold grant and
recognition, in the event of the institution failing to
carry out the conditions, such regulation being in the
national or public interest. Counsel concedes that if the
effect of the restrictions is the total destruction of the
character of the institution as an institution administered
by a minority, the restrictions may be regarded as
infringing Art. 30 (1) but not otherwise. In support of his
argument, reliance is placed upon the affidavit of Dr. D.V.
Chickermane who affirmed that "the number of Primary and
Basic Schools in the State run by District School or
Municipal Boards and others was great," primary schools
alone being over 8,900 and the untrained personnel in all
the primary schools was about 40,000 which had to be
progressively reduced in the interests of the public. It
was therefore necessary for the Government and the private
Colleges receiving grant-in-aid from Government to prepare
qualified teachers for these schools in large numbers and if
the private Training Colleges did not train teachers for the
School Boards, it would not be possible for such colleges
to absorb all the teachers trained by them in their own
schools and the training given to extra teachers would
be wasted. Dr. Chickermane further affirmed that in 1955
the Government had decided to step up the programme of
training teachers in the Boards Schools for training 2,000
teachers every year, the intention being To remove the
untrained element in primary schools in the State as early
as possible, and that with this object the Government bad
decided to depute 1,600 teachers to private Training
Colleges and this could be possible only if 80% seats in
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852
the private Training Colleges would be reserved for such
nominees.
The truth of these statements made in Dr. Chickermane’s
affidavit is not denied by the petitioners. They however
submit that the requirement of the State Government of a
large number of trained teachers in the near future is not a
ground on which the infringement of the fundamental right of
the society under Art. 30 (1) to administer its educational
institution could be justified.
Restrictions imposed by the Rules and the directions issued
upon the right of the society to administer the Training
College maintained by it, are manifestly not conceived in
the interests of the College. The Additional Solicitor
General appearing on behalf of the State, contends that this
Court has held in the Kerala Education Bill case(1) that the
State may validly impose restrictive measures in national or
the public interest on the right of a minority to administer
its educational institution notwithstanding the protection
of Art. 30 (1), provi. ded such measures are not
annihilative of the character of the minority educational
institutions. The Kerala Education Bill case arose out of a
reference made by the President under Art. 143 of the
Constitution, and this Court was called upon to report
amongst others on the question whether sub-cl. (5) of cl. 3,
sub-cl. (3) of cl. 8 and cls. 9 to 13 of the Bill or any
provisions thereof, offended el. (1) of Art. 30 of the
Constitution. By the impugned clauses of the Bill
establishment of a new school or the opening of a higher
class in any private school could be made only in accordance
with the provisions of the Act and the rules made
thereunder, and any school or higher class established or
opened otherwise than in accordance with
(1) [1939] S.C.R. 995.
853
such provisions was not to be entitled to recognition by the
Government (cl. 3(5) ; all fees collected from the students
in an aided school were, notwithstanding anything contained
in any agreement, scheme or arrangement, to be made over to
the Government [cl. 8 (3) ; and the salary of the teachers
in aided schools was to be paid by the Government (cl-9) ;
the Government was authorised to prescribe qualifications of
teachers in private schools, and the Public Service Commis-
sion was authorised to frame a list, of teachers for
appointment in aided schools (cls. 10 and 11), the
conditions of service relating to scales of pay, pension,
provident fund, insurance and age of retirement applicable
to teachers of Government schools were to apply to teachers
of aided schools, and the Managers of aided schools were
without the previous sanction of the Government prohibited
from dismissing, removing or reducing in rank or suspending-
ding any teachers, and subject to the provisions so enacted
the conditions of service of teachers of aided schools were
to be such as may be prescribed (cl. 12) : the Government
was authorised to take over any aided school if it appeared
that the management thereof had neglected to perform the
duties imposed by or under the Act or the rules made
thereunder or if the Government was satisfied, that was
necessary to do so for standardising general education in
the State or for improving the level of literacy in any area
or for more effectively managing the aided educational
institutions in any area or for bringing education of any
category under their direct control. The schools were
thenceforth to vest in the Government absolutely (cls.14 and
15). By the provisions of the Bill the power to administer
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an- educational institution was practically taken away from
the management. Managers of certain minority schools urged
before the Court in that ease that the protection of Art.
30(1) to minority educational institutions was in terms
absolute,
854
and the State could not competently impose any restrictions
upon the exercise of the right of administration or
management. On behalf of the State of Kerala it was
submitted that by Art. 30 (1) the minorities were merely
invested with the fundamental right to establish and
administer educational institutions of their choice, and
that right could be exercised by them so long as they cared
to do so on their own resources : fundamental right
guaranteed by Art. 30(1) did not extend to getting
assistance from the coffers of the state, and if the
minority institutions desired to obtain aid from the State
they must submit to the terms on which the State offered aid
to all other institutions established by other persons.
The Court rejected the extreme contentions advanced by the
Managers of the educational institutions and by the State,
and observed that the right to administer did not include a
right to maladminister, and the minority could not ask for
aid or recognition for an educational institution run by
them in unhealthy surroundings, without any competent
teachers possessing any semblance of qualification, and
which did not maintain even a fair standard of teaching or
which taught matters subversive of the welfare of the
scholars. The constitutional right to administer an
educational institution of their choice, it was observed,
does not necessarily militate against the claim of the State
to insist that in order to grant aid the State may prescribe
reasonable regulations to ensure the excellence of institu-
tions to be aided, but the State could not grant aid in such
a manner as to take away fundamental right of the minority
community under Art. 30(1). It was pointed out that under
the Directive Principles of State Policy, under Articles 41
to 46 it was the duty of State to aid educational
institutions and to promote the educational interest of
minorities
855
and weaker section of the people. Again, in the
circumstances prevailing in the country, no educational
institution could, in actual practice, be maintained without
aid from the State and if it could not get it unless it
surrendered its rights, it would, because of pressure of
financial necessities, be compelled to give up its right
under Art,. 30(1). The State could not disregard or
override the fundamental right by employing indirect methods
of achieving exactly the same result. Even the legislature
could not do indirectly what in certainly could not do
directly,and the effect of the application of some of those
provisions of the Bill was substantially to override the
provisions of Art. 30(1). The Court then entered upon an
examination of cls. 9, 10, 11, 12 and 13 and observed that
they constituted serious inroads on the right of
administration and appeared "perilously near violating that
right", but considering that those provisions were
applicable to all educational institutions and that the
impugned parts of cls. 9, 11 and 12 were designed to give
protection and security to the ill-paid teachers who were
engaged in rendering service to the nation and to protect
the backward classes, the Court was prepared to treat cls.
9. 11(2) and 12(4) as permissible regulations which the
State might impose on the minorities as a condition for
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granting aid to their educational institutions. But, it was
observed, the clauses which authorised the taking over of
management, and vested the schools absolutely in the
Government, purported, in effect, to annihilate the
educational institutions of their choice could not be
sustained under Art. 30(1). It was therefore held that
notwithstanding the absolute terms in which the fundamental
freedom under Art. 30(1) was guaranteed, it was open to the
state by legislation or by executive direction to impose
reasonable regulation. The Court did not, however, lay down
any test of reasonableness of the regulation. The Court did
not decide that public or national
856
interest was the sole measure or test of reasonableness : it
also did not decide that a regulation would be deemed
unreasonable only if it was totally destructive of the right
of the minority to administer educational institution. No
general principle on which reasonableness or otherwise of a
regulation may be tested was sought to be laid down by the
Court. The Kerala Education Bill case therefore, is not an
authority for the proposition submitted by the Additional
Solicitor General that all regulative measures which are not
destructive or annihilative of the character of the
institution established by the minority, provided the
regulations are in the national or public interest, are
valid.
The right established by Art. 30(1) is a fundamental right
declared in terms absolute. Unlike the fundamental freedoms
guaranteed by Art. 19, it is not subject to reasonable
restrictions. It is intended to be a real right for the
protection of the minorities in the matter of setting up of
educational institutions of their own choice. The right is
intended to be effective and is not to be whittled down by
so-called regulative measures conceived in the interest not
of the minority educational institution, but of the public
or the nation as a whole. If every order which while
maintaining, the formal character of a minority institution
destroys the power of administration is held justifiable
because it is in the public or national interest, though not
in its interest as an educational institution, the right
guaranteed by Art. 30(1) will be but a "teasing illusion", a
promise of unreality. Regulations which may lawfully be
imposed either by legislative or executive action as a
condition of receiving grant or of recognition must be
directed to making the institution while retaining its
character as a minority institution effective as an
educational institution.
(1) (1959) S.C.R. 995.
857
Such regulation must satisfy a dual test the test of
reasonableness, and the test that it is regulative of the
educational character of the institution and is conducive to
making the institution an effective vehicle of education for
the minority community or other persons who resort to it.
We are, therefore, of the view that the Rule 5(2) of the
Rules for Primary Training Colleges, and Rules 11 and 14 for
recognition of Private Training institutions, insofar as
they relate to reservation of seats therein under orders of
Government, and directions given pursuant thereto regarding
reservation of 80% of the seats and the threat to withhold
grant-in-aid and recognition of the college, infringe the
fundamental freedom guaranteed to the petitioners under Art.
30(1).
The petitioners will therefore be entitled to writs in terms
of prayers (a), (b), (c) and (d) insofar as they relate to
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reservation of seats tinder orders of Government, subject to
the modification that reference to cl.12 of the rules in the
prayers will be deleted in the writ. The petitioners will
entitled to the costs of the petition.
Petition allowed.
858