Full Judgment Text
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CASE NO.:
Writ Petition (civil) 317 of 1993
PETITIONER:
T.M.A. Pai Foundation & Ors.
RESPONDENT:
State of Karnataka & Ors.
DATE OF JUDGMENT: 31/10/2002
BENCH:
Ruma Pal.
JUDGMENT:
RUMA PAL, J.
With
Writ Petition (Civil) Nos. 252 of 1979, 54-57, 2228 of 1981, 2460, 2582
2584, 3362, 3517, 3602, 3603, 3634-3636, 8398, 8391, 5621, 5035, 3701
3704, 3715, 3728, 4648-4649, 2479, 2480, 2547 and 3475 of 1982, 7610, 4810,
9839 and 9683-84 of 1983, 12622-24 of 1984, 119 and 133 of 1987, 620 of
1989, 133 of 1992, 746, 327, 350, 613, 597, 536, 626, 444, 417, 523, 474, 485,
484 355, 525, 469, 392, 629, 399, 531, 603, 702, 628, 663, 284, 555, 343, 596,
407,737, 738, 747, 479, 610, 627, 685, 706, 726, 598, 482 and 571 of 1993, ----
--------------(D. No.1741), 295 and 764 of 1994, 331, 446 and 447 of 1995, 364
and 435 of 1996, 456,454, 447 and 485 of 1997, 356, 357 and 328 of 1998, 199,
294, 279, 35, 181, 373, 487 and 23 of 1999, 561of 2000, 6 and 132 of 2002,
Civil Appeal Nos.1236-1241 and 2392 of 1977,687 of 1976, 3179- 3182, 1521-
1556, 3042-3091 of 1979, 2929-2931, 1464 of 1980, 2271 and 2443-2446 of
1981, 4020, 290 and 10766 of 1983, 5042-5043 of 1989, 6147 and 5381 of
1990, 71-73 of 1991,1890-1891, 2414 and 2625 of 1992, 4695-4746, 4754-
4866 of 1993, 5543-5544 of 1994, 8098-8100 and 11321 of 1995, 4654-4658 of
1997, 608,3543 and 3584-3585 of 1998, and 5053-5054 of 2000, 5647-5656 of
2001, and 2334 of 2002, Special Leave Petition (C) Nos.9950-9951 of 1979,
11526 and 863 of 1980, 12408 of 1985 8844 of 1986, 12320 of 1987, 14437,
18061-18062 of 1993, 904-905 and 11620 of 1994, 23421 of 1995, 4372 of
1996, 10360 and 10664 of 1997, 1216, 9779-9786, 6472-6474 and 9793 of
1998, 5101, 4480 and 4486 of 2002 and T.C.(C) No. 26 of 1990, T.P. (C)
1014 of 1993.
I have had the privilege of reading the opinion of Hon’ble the
Chief Justice. Although I am in broad agreement with most of the
conclusions arrived at in the judgment, I have to record my
respectful dissent with the answer to Question 1 and Question 8 in
so far as it holds that Article 29(2) is applicable to Article 30(1). I
consequently differ with the conclusions as stated in answer to
Questions 4, 5(b) and 11 to the extent mentioned in this opinion.
Re: Question 1
What is the meaning and content of the
expression "minorities" in Article 30 of the Constitution of
India?
Article 30 affords protection to minorities in respect of limited
rights, namely, the setting up and administration of an educational
institution. The question of protection raises three questions : (1)
protection to whom? (2) against whom? and (3) against what? The
word minority means "numerically less". The question then is
numerically less in relation to the country or the State or some other
political or geographical boundary?
The protection under Article 30 is against any measure,
legislative or otherwise, which infringes the right’s granted under that
article. The right is not claimed in a vacuum it is claimed against a
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particular legislative or executive measure and the question of
minority status must be judged in relation to the offending piece of
legislation or executive order. If the source of the infringing action is
the State, then the protection must be given against the State and the
status of the individual or group claiming the protection must be
determined with reference to the territorial limits of the State. If
however the protection is limited to State action, it will leave the group
which is otherwise a majority for the purpose of State legislation,
vulnerable to Union legislation which operates on a national basis.
When the entire nation is sought to be affected, surely the question of
minority status must be determined with reference to the country as a
whole.
In Re: Kerala Education Bill,1957 1959 SCR 995,
p.1047, the contention of the State of Kerala was that in order
to constitute a minority for the purposes of Articles 29 (1) and 30
(1), persons must be numerically in the minority in the
particular area or locality in which educational institution is or
is intended to be constituted. The argument was negatived as
being held inherently fallacious (p.1049) and also contrary to the
language of Article 350-A. However, the Court expressly
refrained from finally opining as to whether the existence of a
minority community should in circumstances and for the
purposes of law of that State be determined on the basis of the
population of the whole State or whether it should be determined
on the State basis only when the validity of a law extending to
the whole State is in question or whether it should be
determined on the basis of the population of a particular locality
when the law under attack applies only to that locality. In other
words the issue was - should the minority status be determined
with reference to the source of legislation viz., the State
legislature or with reference to the extent of the law’s
application. Since in that case the Bill in question was
admittedly a piece of State legislation and also extended to the
whole of the State of Kerala it was held that "the minority must
be determined by reference to the entire population of that
State". (p.1050)
In the subsequent decision in DAV College V. State of
Punjab (I) , this Court opted for the first principle namely that the
position of minorities should be determined in relation to the
source of the legislation in question and it was clearly said:
"Though there was a faint attempt to
canvas the position that religious or
linguistic minorities should be minorities in
relation to the entire population of the
country, in our view they are to be
determined only in relation to the particular
legislation which is sought to be impugned,
namely that if it is the State legislature
these minorities have to be determined in
relation to the population of the State."
In D.A.V. College V. State of Punjab (II), Punjabi had
been sought to be enforced as the sole medium of instruction and
for examinations on the ground that it was the national policy of
the Government of India to energetically develop Indian languages
and literature. The College in question used Hindi as the medium
of instruction and Devnagri as the script. Apart from holding that
the State Legislature was legislatively incompetent to make
Punjabi the sole medium of instruction, the Court reaffirmed the
fact that the College although run by the Hindu community which
represents the national majority, in Punjab it was a religious
minority with a distinct script and therefore the State could not
compel the petitioner-College to teach in Punjabi or take
examinations in that language with Gurmukhi script.
But assuming that Parliament had itself prescribed Hindi as
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the compulsory medium of instruction in all educational institutions
throughout the length and breadth of the country. If a minority’s
status is to be determined only with respect to the territorial limits
of a State, non-Hindi speaking persons who are in a majority in
their own State but in a minority in relation to the rest of the
country, would not be able to impugn the legislation on the ground
that it interferes with their right to preserve a distinct language and
script. On the other hand a particular institution run by members
of the same group in a different State would be able to challenge
the same legislation and claim protection in respect of the same
language and culture.
Apart from this incongruity, such an interpretation would be
contrary to Article 29(1) which contains within itself an indication
of the ’unit’ as far as minorities are concerned when it says that
any section of the citizens residing in the territory of India or any
part thereof having a distinct language, script or culture of its own
shall have the right to conserve the same. Merely because
persons having a distinct language, script or culture are resident
within the political and geographical limits of a State within which
they may be in a majority, would not take them out of the phrase
"section of citizens residing in the territory of India". It is a legally
fortuitous circumstance that states have been created along
linguistic lines after the framing of the Constitution.
In my opinion, therefore, the question whether a group is a
minority or not must be determined in relation to the source and
territorial application of the particular legislation against which
protection is claimed and I would answer question 1 accordingly.
Re: Question 8
Whether the ratio laid down by this Court in the St.
Stephen’s case (St. Stephen’s College vs. University of Delhi
[ (1992) 1 SCC 558)] is correct ? If no, what order?
In St. Stephen’s College , the Court decided (a) that the
minorities right to admit students under Article 30(1) had to be
balanced with the rights conferred under Article 29(2). Therefore
the State could regulate the admission of students of the minority
institutions so that not more than 50% of the available seats were
filled in by the children of the minority community and (b) the
minority institution could evolve its own procedure for selecting
students for admission in the institutions. There can no quarrel
with the decision of the court on the second issue. However, as
far as the first principle is concerned, in my view the decision is
erroneous and does not correctly state the law.
Article 30(1) of the Constitution provides that "All minorities,
whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice".
Article 29(2) on the other hand says that "no citizen shall be
denied admission into any educational institution, maintained by
the State or receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them".
Basically, the question is whether Article 30(1) is subject to
Article 29(2) or is Article 29 (2) subject to Article 30(1)? If Article
30(1) does not confer the right to admit students then of course
there is no question of conflict with Article 29(2) which covers the
field of admission into "any educational institution". The
question, therefore, assumes that the right granted to minorities
under Article 30(1) involves the right to admit students. Is this
assumption valid? The other assumption on which the question
proceeds is that minority institutions not receiving aid are outside
the arena of this apparent conflict. Therefore the issue should be
more appropriately framed as: - does the receipt of State aid and
consequent admission of non-minority students affect the rights
of minorities to establish and administer educational institution of
their choice?. I have sought to answer the question on an
interpretation of the provisions of the Constitution so that no
provision is rendered nugatory or redundant ; on an
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interpretation of the provisions in the context of the objects which
were sought to be achieved by the framers of the Constitution;
and, finally on a consideration of how this Court has construed
these provisions in the past.
Both Articles 29 and 30 are in Part III of the Constitution
which deals with ’Fundamental Rights’. The fundamental rights
have been grouped and placed under separate headings. For
the present purposes, it is necessary to consider the second,
fourth and fifth groups. The other Articles in the other groups are
not relevant. The second group consists of Articles 14 to 18
which have been clubbed under ’Right to Equality’. Articles 25
to 28 are placed under the fourth heading ’Right to Freedom of
Religion’. Articles 29 and 30 fall within the fifth heading ’Cultural
and Educational Rights’.
The rights guaranteed under the several parts of Part III of the
Constitution overlap and provide different facets of the objects
sought to be achieved by the Constitution. These objectives have
been held to contain the basic structure of the Constitution which
cannot be amended in exercise of the powers under Article 368 of
the Constitution. Amongst these objectives are those of Equality
and Secularism. According to those who have argued in favour of
a construction by which Article 29(2) prevails order Article 30,
Article 29(2) ensures the equal right to education to all citizens,
whereas if Article 30 is given predominance it would not be in
keeping with the achievement of this equality and would
perpetuate differences on the basis of language and more
importantly, religion, which would be contrary to the secular
character of the Constitution. Indeed the decision in St. Stephens
in holding that Article 29(2) applies to Article 30(1) appears to
have proceeded on similar considerations. Thus it was said that
unless Article 29(2) applied to Article 30(1) it may lead to "religious
bigotry"; that it would be "inconsistent with the central concept of
secularism" and "equality embedded in the Constitution" and that
an "educational institution irrespective of community to which it
belongs is a melting pot in our national life". Although Article
30(1) is not limited to religious minorities, having regard to the
tenor of the arguments and the reasoning in St. Stephens in
support of the first principle, I propose to consider the argument on
’Secularism’ first. .
Article 30 and Secularism
The word ’secular’ is commonly understood in
contradistinction to the word ’religious’. The political philosophy of
a secular Government has been developed in the west in the
historical context of the pre-eminence of the established church
and the exercise of power by it over society and its institutions.
With the burgeoning presence of diverse religious groups and the
growth of liberal and democratic ideas, religious intolerance and
the attendant violence and persecution of "non-believers" was
replaced by a growing awareness of the right of the individual to
profession of faith, or non-profession of any faith. The democratic
State gradually replaced and marginalised the influence of the
church. But the meaning of the word ’secular State’ in its political
context can and has assumed different meanings in different
countries, depending broadly on historical and social
circumstances, the political philosophy and the felt needs of a
particular country. In one country, secularism may mean an
actively negative attitude to all religions and religious institutions;
in another it may mean a strict "wall of separation" between the
State and religion and religious institutions. In India the State is
secular in that there is no official religion. India is not a theocratic
State. However the Constitution does envisage the involvement of
the State in matters associated with religion and religious
institutions, and even indeed with the practice, profession and
propagation of religion in its most limited and distilled meaning.
Although the idea of secularism may have been borrowed in
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the Indian Constitution from the west, It has adopted its own
unique brand of secularism based on its particular history and
exigencies which are far removed in many ways from secularism
as it is defined and followed in European countries, the United
States of America and Australia.
The First Amendment to the American Constitution is as
follows:
"Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof."
In the words of Jefferson, the clause against establishment
of religion by law was intended to erect ’a wall of separation
between Church and State’. ’Reynolds v. United States’, (1878)
98 U S 145 at p.164.
The Australian Constitution has adopted the First Amendment
in S.116 which is based on that Amendment. It reads: "The
Commonwealth shall not make any laws for establishing any
religion, or for imposing any religious observance, or for prohibiting
the free exercise of any religion, and no religious test shall be
required as a qualification for any office or public trust under the
Commonwealth".
Under the Indian Constitution there is no such "wall of
separation" between the State and religious institutions. Article 16
(5) recognises the validity of laws relating to management of
religious and denominational institutions. Art. 28 (2) contemplates
the State itself managing educational institutions wherein religious
instructions are to be imparted. And among the subjects over
which both the Union and the States have legislative competence
as set out in List No. III of the Seventh Schedule to the
Constitution Entry No.28 are:
"Charitable and charitable institutions,
charitable and religious endowments and
religious institutions".
Although like other secular Governments, the Indian
Constitution in Article 25(1) provides for freedom of conscience
and the individual’s right freely to profess, practice and
propagate religion, the right is expressly subject to public
order, morality and health and to the other provisions in Part III of
the Constitution. The involvement of the State with even the
individual’s right under Article 25(1) is exemplified by Article
25(2) by which the State is empowered to make any law.
"a) regulating or restricting any economic,
financial, political or other secular activity
which may be associated with religious
practice;
(b) providing for social welfare and reform
or the throwing open of Hindu religious
institutions of a public character to all
classes and sections of Hindus.
As a result the courts have upheld laws which may
regulate or restrict matters associated with religious practices if
such practice does not form an integral part of the particular
religion .
Freedom of religious groups or collective religious rights
are provided for under Article 26 which says that:
"Subject to public order, morality and health,
every religious denomination or any section
thereof shall have the right
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(a) to establish and maintain institutions for
religious and charitable purposes.
(b) To manage its own affairs in matters of
religion;
(c) To own and acquire movable and
immovable property; and
(d) To administer such property in accordance
with law.
The phrase "matters of religion" has been strictly
construed so that matters not falling strictly within that phrase may
be subject to control and regulation by the State. The phrase
’subject to public order, morality and health’ and "in accordance
with law" also envisages extensive State control over religious
institutions. Article 26 (a) allows all persons of any religious
denomination to set up an institution for a charitable purpose, and
undisputedly the advancement of education is a charitable
purpose. Further, the right to practise, profess and propagate
religion under Article 25 if read with Article 26(a) would allow all
citizens to exercise such rights through an educational institution.
These rights are not limited to minorities and are available to ’all
persons’. Therefore, the Constitution does not consider the setting
up of educational institutions by religious denominations or sects
to impart the theology of that particular denomination as anti-
secular. Having regard to the structure of the Constitution and its
approach to ’Secularism’, the observation in St. Stephens noted
earlier is clearly not in keeping with ’Secularism’ as provided under
the Indian Constitution. The Constitution as it stands does not
proceed on the ’melting pot’ theory. The Indian Constitution,
rather represents a ’salad bowl’ where there is homogeneity
without an obliteration of identity.
The ostensible separation of religion and the State in the field
of the States’ revenue provided by Article 27 (which prohibits
compulsion of an individual to pay any taxes which are specifically
appropriated for the expenses for promoting or maintaining any
particular religious or religious denomination) does not, however, in
terms prevent the State from making payment out of the proceeds
of taxes generally collected towards the promotion or maintenance
of any particular religious or religious denomination. Indeed, Article
290(A) of the Constitution provides for annual payment to certain
Devaswom funds in the following terms: "A sum of forty-six lakhs
and fifty thousand rupees shall be charged on, and paid out of the
Consolidated Fund of the State of Kerala every year to the
Travancore Devaswom fund; and a sum of thirteen lakhs and fifty
thousand rupees shall be charged on, and paid out of the
Consolidated Fund of the State of Tamil Nadu every year to the
Devaswom Fund established in that State for the maintenance of
Hindu temples and shrines in the territories transferred to that State
on the 1st day of November, 1956, from the State of Travancore-
Cochin." This may be compared with the decision of the U.S.
Supreme Court in Everson V. Board of Education (330 IUS 1)
where it was held that the State could not reimburse transportation
charges of children attending a Roman Catholic School.
Article 28 in fact brings to the fore the nature of the word
’secular’ used in the preamble to the Constitution and indicates
clearly that there is no wall of separation between the State and
religious institutions under the Indian Constitution. No doubt
Article 28(1) provides that if the institution is an educational one
and it is wholly maintained by the State funds, religious
instruction cannot be provided in such institution. However,
Article 28(1) does not forbid the setting up of an institution for
charitable purposes by any
religious denomination nor does it prohibit the running of such
institution even though it may be wholly maintained by the State.
What it prohibits is the giving of religious instruction. Even, this
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prohibition is not absolute. It is subject to the extent of sub-Article
(2) of Article 28 which provides that if the educational institution
has been established under any endowment or trust which
requires that religious instruction shall be imparted in such
institution, then despite the prohibition in Article 28(1) and despite
the fact that the education institution is in fact administered by the
State, religious instruction can be imparted in such institution.
Article 28(2) thus in no uncertain terms envisages that an
educational institution administered by the State and wholly
maintained by the State can impart religious instruction. It
recognises in Article 28(3) that there may be educational
institutions imparting religious instruction according to whichever
faith and conducting religious worship which can be recognised by
the State and which can also receive aid out of State funds.
Similarly, Article 28(3) provides that no individual attending
any educational institution which may have been recognised by
the State or is receiving State aid can be compelled to take part
in any religious instruction that may be imparted in such
institution or to attend any religious worship that may be
conducted in such institution without such person’s consent.
Implicit in this prohibition is the acknowledgement that the State
can recognize and aid an educational institution giving religious
instruction or conducting religious worship. In the United States,
on the other hand it has been held that State maintained
institutions cannot give religious instruction even if such
instruction is not compulsory. (See. Tllinois V. Board of
Education 1947 (82) Law Ed.649).
In the ultimate analysis the Indian Constitution does not
unlike the United States, subscribe to the principle of non-
interference of the State in religious organisations but it remains
secular in that it strives to respect all religions equally, the equality
being understood in its substantive sense as is discussed in the
subsequent paragraphs.
Article 30(1) and Article 14
’Equality’ which has been referred to in the Preamble is
provided for in a group of Articles led by Article 14 of the
Constitution which says that the State shall not deny to any person
equality before the law or the equal protection of the laws within
the territory of India. Although stated in absolute terms Article 14
proceeds on the premise that such equality of treatment is
required to be given to persons who are equally circumstanced.
Implicit in the concept of equality is the concept that persons who
are in fact unequally circumstanced cannot be treated on par. The
Constitution has itself provided for such classification in providing
for special or group or class rights. Some of these are in Part III
itself [Article 26, Article 29(1) and Article 30(1)] Other such Articles
conferring group rights or making special provision for a particular
class include Articles 336 and 337 where special provision has
been made for the Anglo-Indian Community. Further examples are
to be found in Articles 122, 212 and other Articles giving immunity
from the ordinary process of the law to persons holding certain
offices. Again Articles 371 to 371(H) contain special provisions for
particular States.
The principles of non-discrimination which form another
facet of equality are provided for under the Constitution under
Articles 15(1), 16 (1) and 29 (2). The first two articles are
qualified by major exceptions under Articles 15 (3) and (4), 16
(3),(4),(4A) and Article 335 by which the Constitution has
empowered the Executive to enact legislation or otherwise
specially provide for certain classes of citizens. The fundamental
principle of equality is not compromised by these provisions as
they are made on a consideration that the persons so ’favoured’
are unequals to begin with whether socially, economically or
politically. Furthermore, the use of the word ’any person’ in
Article 14 in the context of legislation in general or executive
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action affecting group rights is construed to mean persons who
are similarly situated. The classification of such persons for the
purposes of testing the differential treatment must, of course, be
intelligible and reasonable the reasonableness being
determined with reference to the object for which the action is
taken. This is the law which has been settled by this Court in a
series of decisions, the principle having been enunciated as
early as in 1950 in Chiranjit Lal Chowdhury V. Union of India
and Others 1950 SCR 869.
The equality, therefore, under Article 14 is not
indiscriminate. Paradoxical as it may seem, the concept of
equality permits rational or discriminating discrimination.
Conferment of special benefits or protection or rights to a
particular group of citizens for rational reasons is envisaged
under Article 14 and is implicit in the concept of equality . There
is no abridgment of the content of Article 14 thereby but an
exposition and practical application of such content.
The distinction between classes created by Parliament and
classes provided for in the Constitution itself, is that the
classification under the first may be subjected to judicial review
and tested against the touchstone of the Constitution. But the
classes originally created by the Constitution itself are not so
subject as opposed to constitutional amendments.
On a plain reading of the provisions of the Article, all
minorities based on religion or language, shall have the right to
(1) establish and (2) administer educational institutions of their
choice. The emphasized words unambiguously and in
mandatory terms grant the right to all minorities to establish and
administer educational institutions. I would have thought that it is
self evident and in any event, well settled by a series of decisions
of this Court that Article 30(1) creates a special class in the field
of educational institutions a class which is entitled to special
protection in the matter of setting up and administering
educational institutions of their choice. This has been affirmed in
the decisions of this Court where the right has been variously
described as "a sacred obligation" , "an absolute right" , "a
special right" , "a guaranteed right" , "the conscience of the
nation" , "a befitting pledge" , "a special right" and an "article
of faith"
The question then is does this special right in an admitted
linguistic or religious minority to establish and administer an
educational institution encompass the right to admit students
belonging to that particular community?
Before considering the earlier decisions on this, a semantic
analysis of the words used in Article 30(1) indicates that the right
to admit students is an intrinsic part of Article 30(1).
First Article 30(1) speaks of the right to set up an
educational institution. An educational institution is not a
structure of bricks and mortar. It is the activity which is carried
on in the structure which gives it its character as an educational
institution. An educational institution denotes the process or
activity of education not only involving the educators but also
those receiving education. It follows that the right to set up an
educational institution necessarily includes not only the selection
of teachers or educators but also the admission of students.
Second - Article 30(1) speaks of the right to "administer"
an educational institution. If the administration of an educational
institution includes and means its organisation then the
organisation cannot be limited to the infrastructure for the
purposes of education and exclude the persons for whom the
infrastructure is set up, namely, the students. The right to admit
students is, therefore, part of the right to administer an
educational institution.
Third, - the benefit which has been guaranteed under
Article 30 is a protection or benefit guaranteed to all members of
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the minority as a whole. What is protected is the community right
which includes the right of children of the minority community to
receive education and the right of parents to have their children
educated in such institution. The content of the right lies not in
merely managing an educational institution but doing so for the
benefit of the community. Benefit can only lie in the education
received. It would be meaningless to give the minorities the
right to establish and set up an organisation for giving education
as an end in itself, and deny them the benefit of the education.
This would render the right a mere form without any content.
The benefit to the community and the purpose of the grant of the
right is in the actual education of the members of the community.
Finally, - the words ’of their choice’ is not qualified by any
words of limitation and would include the right to admit students
of the minority’s choice. Since the primary purpose of Article
30(1) is to give the benefit to the members of the minority
community in question that ’choice’ cannot be exercised in a
manner that deprives the community of the benefit. Therefore,
the choice must be directed towards fulfilling the needs of the
community. How that need is met, whether by general
education or otherwise, is for the community to determine.
The interpretation is also in keeping with what this Court
has consistently held. In State of Bombay v. Bombay
Education Society , the Court said:
"surely then there must be implicit in
such fundamental right the right to impart
instruction in their own institutions to the
children of their own Community in their
own language. To hold otherwise will be
to deprive article 29(1) and article 30(1) of
the greater part of their contents."
In Kerala Education Bill, 1957, it was said:
"The minorities, quite understandably,
regard it as essential that the education of
their children should be in accordance with
the teachings of their religion and they
hold, quite honestly, that such an education
cannot be obtained in ordinary schools
designed for all the members of the public
but can only be secured in schools
conducted under the influence and
guidance of people well versed in the
tenets of their religion and in the traditions
of their culture. The minorities evidently
desire that education should be imparted to
the children of their community in an
atmosphere congenial to the growth of their
culture. Our Constitution makers
recognised the validity of their claim and to
allay their fears conferred on them the
fundamental rights referred to above."
The issue of admission to minority institutions under Article
30 arose in the decision of Rev. Sidhajbhai Sabhai where the
State’s order reserving 80 per cent of the available seats in a
minority Institution for admission of persons nominated by the
Government under threat of derecognition if the reservation was
not complied with, was struck down as being violative of Article
30(1). It was said that although the right of the minority may be
regulated to secure the proper functioning of the institution, the
regulations must be in the interest of institution and not ’in the
interest of outsiders’. The view was reiterated in St. Xaviers
College when it was said:
"The real reason embodied in Article 30(1)
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of the Constitution is the conscience of the
nation that the minorities, religious as well
as linguistic, are not prohibited from
establishing and administering educational
institutions of their choice for the purpose
of giving their children the best general
education to make them complete men and
women of the country."
In St. Stephen’s College, the Court recognised that:
"The right to select students for admission
is a part of administration. It is indeed an
important facet of administration. This
power also could be regulated but the
regulation must be reasonable just like any
other regulation. It should be conducive to
the welfare of the minority institution or for
the betterment of those who resort to it."
However, in a statement which is diametrically opposed to
the earlier decisions of this Court, it was held:
"The choice of institution provided in Article
30(1) does not mean that the minorities
could establish educational institution for
the benefit of their own community people.
Indeed they cannot. It was pointed out in
Re, Kerala Education Bill that the minorities
cannot establish educational institution only
for the benefit of their community. If such
was the aim, article 30(1) would have been
differently worded and it would have
contained the words "for their own
community". In the absence of such words
it is legally impermissible to construe the
article as conferring the right on the
minorities to establish educational
institution for their own benefit"
(P.607)
This conclusion, in my respectful view, is based on a
misreading of the decision of this Court in Kerala Education Bill.
In that case, there was no question of the non-minority students
being given admission overlooking the needs of the minority
community. The Court was not called upon to consider the
question. The underlying assumption in that case was that the
only obstacle to the non-minority student getting admission into
the minority institution was the State’s order to that effect and not
the "choice" of the minority institution itself and a minority
institution may choose to admit students not belonging to the
community without shedding its minority character, provided the
choice was limited to a ’sprinkling’. In fact the learned Judges in
St. Stephens case have themselves in a subsequent portion of
the judgment (p.611) taken a somewhat contradictory stand to the
view quoted earlier when they said:
" the minorities have the right to admit
their own candidates to maintain the
minority character of their institutions. That
is a necessary concomitant right which
flows from the right to establish and
administer educational institution in Article
30(1). There is also a related right to the
parents in the minority communities. The
parents are entitled to have their children
educated in institutions having an
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atmosphere congenial to their own
religion."
The conclusion, therefore, is that the right to admission
being an essential part of the constitutional guarantee under
Article 30(1), a curtailment of that fundamental right in so far as it
affect benefit of the minority community would amount to the an
infringement of that guarantee.
An Institution set up by minorities for educating
members of the minority community does not cease to be a
minority institution merely because it takes aid. There is nothing
in Article 30(1) which allows the drawing of a distinction in the
exercise of the right under that Article between needy minorities
and affluent ones. Article 30(2) of the Constitution reinforces
this when it says, "The State shall not, in granting aid to
educational institutions, discriminate against any educational
institution on the ground that it is under the management of a
minority, whether based on religion or language". This
assumes that even after the grant of aid by the State to
an educational institution under the management of the
minority, the educational institution continues to be a minority
educational institution. According to some, Article 30(2) merely
protects the minority’s right of management of the educational
institution and not the students who form part of such institution.
Such a reading would be contrary to Article 30(1) itself. The
argument is based on the construction of the word ’management’.
’Management’ may be defined as ’the process of managing’ and
is not limited to the people managing the institution. In the
context of Article 30(1) and having regard to the content of the
right, namely, the education of the minority community, the word
’management’ in Article 30(2) must be construed to mean the
’process’ and not the ’persons’ in management. ’Aid’ by definition
means to give support or to help or assist. It cannot be that by
giving ’aid’ one destroys those to whom ’aid’ is given. The
obvious purpose of Article 30(2) is to forbid the State from
refusing aid to a minority educational institution merely because it
is being run as a minority educational institution. Besides Article
30(2) is an additional right conferred on minorities under Article
30(1). It cannot be construed in a manner which is destructive of
or as a limitation on Article 30(1). As has been said earlier by
this Court in Rev. Sidhabhai Sabhai, clause (2) of Article 30 is
only another non-discriminatory clause in the Constitution. It is a
right in addition to the rights under Article 30(1) and does not
operate to derogate from the provisions in clause (1). When in
decision after decision, this Court has held that aid in whatever
form is necessary for an educational institution to survive, it is a
specious argument to say that a minority institution can preserve
its rights under Article 30(1) by refusing aid.
I would, therefore, respectfully agree with the conclusion
expressed in the majority opinion that grant of aid under Article
30(2) cannot be used as a lever to take away the rights of the
minorities under Article 30(1).
Articles 29(2) and 30(1)
Article 29(2) says that "No citizen shall be denied
admission into any educational institution maintained by the State
or receiving aid out of State funds on grounds only of religion,
race, caste, language or any of them".
It is because Article 30(1) covers the right to admit students
that there is an apparent conflict between Article 29(2) and Article
30(1). There are two ways of considering the relationship
between Article 30(1) and Article 29(2), the first in the context of
Article 14, the second by an interpretation of Article 29(2) itself.
Article 29(2) has not been expressed as a positive right.
Nevertheless in substance it confers a right on a person not to be
denied admission into an aided institution only on the basis of
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religion, race etc. The language of Article 29(2) reflects the
language used in other non-discriminatory Articles in the
Constitution namely, clauses (1) and (2) of Article 15 and clauses
(1) and (2) of Article 16. As already noted both the Articles contain
exceptions which permit laws being made which make special
provisions on the basis of sex, caste and race. Even in the
absence of clauses (3) and (4) of Article 15 and clauses (3),(4)
and 4(A) of Article 16, Parliament could have made special
provisions on the forbidden bases of race, caste or sex, provided
that the basis was not the only reason for creating a separate
class. There would have to be an additional rational factor
qualifying such basis to bring it within the concept of ’equality in
fact’ on the principle of ’rational classification’ . For example when
by law a reservation is made in favour of a member of a backward
class in the matter of appointment, the reservation is no doubt
made on the basis of caste. It is also true that to the extent of the
reservation other citizens are discriminated against on one of the
bases prohibited under Article 16(1). Nevertheless such legislation
would be valid because the reservation is not only on the basis of
caste/race but because of the additional factor of their
backwardness. Clauses (3) and (4) of Article 15 like clause 3,4
and 4(A) of Article 16 merely make explicit what is otherwise
implicit in the concept of equality under Article 14.
By the same token, Article 29(2) does not create an absolute
right for citizens to be admitted into any educational institution
maintained by the State or receiving aid out of State funds. It does
not prohibit the denial of admission on grounds other than religion,
race, caste or language. Therefore, reservation of admissions on
the ground of residence, occupation of parents or other bases has
been held to be a valid classification which does not derogate from
the principles of equality under Article 14. [See: Kumari Chitra
Ghosh v. Union of India : 1969(2) SCC 228) . Even in respect
of the "prohibited" bases, like the other non-discriminatory Articles,
Article 29 (2) is constitutionally subject to the principle of ’rational
classification’. If a person is denied admission on the basis of a
constitutional right, that is not a denial only on the basis of religion,
race etc. This is exemplified in Article 15(4) which provides for :
"Nothing in this article or in clause (2) of
article 29 shall prevent the State from
making any special provision for the
advancement of any socially and
educationally backward classes of citizens or
for the Scheduled Castes and the Tribes."
To the extent that legislation is enacted under Article 15
(4) making special provision in respect of a particular caste, there
is a denial of admission to others who do not belong to that
caste. Nevertheless, Article 15(4) does not contradict the right
under Article 29(2). This is because of the use of the word ’only’
in Article 29(2). Article 15(4) is based on the rationale that
Schedule Castes and Tribes are not on par with other members of
society in the matter of education and, therefore, special provision
is to be made for them. It is not, therefore, only caste but this
additional factor which prevents clause 15(4) from conflicting with
Article 29(2) and Article 14.
Then again, under Article 337, grants are made available
for the benefit of the Anglo-Indian community in respect of
education, provided that any educational institution receiving such
grant makes available at least 40% of the annual admissions for
members of communities other than the Anglo-Indian community.
Hence 60% of the admission to an aided Anglo-Indian School is
constitutionally reservable for members of the Anglo-Indian
community. To the extent of such reservation, there is necessarily
a denial of admission to non-Anglo Indians on the basis of race.
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Similarly, the Constitution has also carved out a further
exception to Article 29(2) in the form of Article 30 (1) by
recognising the rights of special classes in the form of minorities
based on language or religion to establish and administer
educational institutions of their choice. The right of the minorities
under Article 30(1) does not operate as discrimination
against other citizens only on the ground of religion or
language. The reason for such classification is not only
religion or language per se but minorities based on religion and
language. Although, it is not necessary to justify a classification
made by the Constitution, this fact of ’minorityship’ is the obvious
rationale for making a distinction, the underlying assumption being
that minorities by their very numbers are in a politically
disadvantaged situation and require special protection at least in
the field of education.
Articles 15(4), 337 and 30 are therefore facets of
substantive equality by making special provision for special
classes on special considerations.
Even on general principles of interpretation, it cannot be
held that Article 29(2) is absolute and in effect wipes out Article
30(1). Article 29(2) refers to ’any educational institution’ the
word "any" signifying the generality of its application. Article 30(1)
on the other hand refers to ’educational institutions established
and administered by minorities’. Clearly, the right under Article
30(1) is the more particular right and on the principle of ’generalia
specialibus non derogant , it must be held that Article 29(2) does
not override he educational institutions even if they are aided
under Article 30(1) .
Then again Article 29(2) appears under the heading
’Protection of interests of minorities’. Whatever the historical
reasons for the placement of Article 29(2) under this head, it is
clear that on general principles of interpretation, the heading is at
least a pointer or aid in construing the meaning of Article 29(2). As
Subba Rao, J said "if there is any doubt in the interpretation of the
words in the section, the heading certainly helps us to resolve that
doubt." Therefore, if two interpretations of the words of Article
29(2) are possible, the one which is in keeping with the heading of
the Article must be preferred. It would follow that Article 29(2)
must be construed in a manner protective of minority interests and
not destructive of them.
When ’aid’ is sought for by the minority institution to run its
institution for the benefit of students belonging to that particular
community, the argument on the basis of Article 29(2) is that if
such an institution asks for aid it does so at the peril of
depriving the very persons for whom aid was asked for in the first
place. Apart from this anomalous result, if the taking of aid implies
that the minority institution will be forced to give up or waive its
right under Article 30(1), then on the principle that it is not
permissible to give up or waive fundamental rights, such an
interpretation is not possible. It has then been urged that Article
29(2) applies to minority institutions under Article 30(1) much in
the same way that Article 28(1) and 28(3) do. The argument
proceeds on the assumption that an educational institution set up
under Article 30(1) is set up for the purposes and with the sole
object of giving religious instruction. The assumption is wrong. At
the outset, it may also be noted that Article 28(1) and (3) do not in
terms apply to linguistic minority educational institutions at all.
Furthermore, the right to set up an educational institution in which
religious instruction is to be imparted is a right which is derived
from Article 26(a) which provides that every religious denomination
or any section thereof shall have the right to establish and
maintain institutions for religious and charitable purposes, and not
under Article 30(1). Educational institutions set up under Article
26(a) are, therefore, subject to clauses (1) and (3) of Article 28.
Article 30(1) is a right additional to Article 26(a). This follows from
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the fact that it has been separately and expressly provided for and
there is nothing in the language of Article 30(1) making the right
thereunder subject to Articles 25 and 26. Unless it is so construed
Article 30(1) would be rendered redundant . Therefore, what
Article 30 does is to secure the minorities the additional right to
give general education. Although in a particular case a minority
educational institution may combine general education with
religious instruction that is done in exercise of the rights derivable
from Article 26(a) and Article 30(1) and not under Article 30(1)
alone. Clauses (1) and (3) of Article 28, therefore, do not apply to
Article 30(1). The argument in support of reading Article 30(1) as
being subject to Article 29(2) on the analogy of Article 28(1)and
28(3) is, I would think, erroneous.
For the reasons already stated I have held the right to
admit minority students to a minority educational institutions is an
intrinsic part of Article 30(1) . To say that Article 29(2) prevails
over Article 30(1) would be to infringe and to a large extent wipe
out this right. There would be no distinction between a minority
educational institution and other institutions and the rights under
Article 30(1) would be rendered wholly inoperational. It is no
answer to say that the rights of unaided minority institutions
would remain untouched because Article 29(2) does not relate to
unaided institutions at all. Whereas if one reads Article 29(2) as
subject to Article 30(1) then effect can be given to both. And it is
the latter approach which is to be followed in the interpretation of
constitutional provisions. In other words, as long as the
minority educational institution is being run for the benefit of and
catering to the needs of the members of that community under
Article 30(1), Article 29(2) would not apply. But once the
minority educational institution travels beyond the needs in the
sense of requirements of its own community, at that stage it is no
longer exercising rights of admission guaranteed under Article
30(1). To put it differently, when the right of admission is
exercised not to meet the need of the minorities, the rights of
admission given under Article 30(1) is to that extent removed
and the institution is bound to admit students for the balance in
keeping with the provisions of Article 29(2).
A simple illustration would make the position clear. ’Aid’ is
given to a minority institution. There are 100 seats available in
that institution. There are 150 eligible candidates according to
the procedure evolved by the institution. Of the 150, 60
candidates belong to that particular community and 90 to other
communities. The institution will be entitled, under Article 30(1)
to admit all 60 minority students first and then fill the balance 40
seats from the other communities without discrimination in
keeping with Article 29(2).
I would, therefore, not subscribe to the view that Article
29(2) operates to deprive aided minority institutions the right to
admit members of their community to educational institutions
established and administered by them either on any principle of
interpretation or on any concept of equality or secularism.
The next task is to consider whether this interpretation of
Article 29(2) and 30(1) is discordant with the historical context in
which these Articles came to be included in the Constitution.
Before referring to the historical context, it is necessary to keep
in mind that what is being interpreted are constitutional
provisions which "have a content and a significance that vary
from age to age". Of particular significance is the content of the
concept of equality which has been developed by a process of
judicial interpretation over the years as discussed earlier. It is
also necessary to be kept in mind that reports of the various
Committees appointed by the Constituent Assembly and
speeches made in the Constituent Assembly and the record of
other proceedings of the Constituent Assembly are admissible, if
at all, merely as extrinsic aids to construction and do not as such
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bind the Court. Ultimately, it is for this Court to say what is
meant by the words of the Constitution.
The proponents of the argument that Article 29(2) over-
rides Article 30(1) have referred to excerpts from the speeches
made by members of Constituent Assembly which have been
quoted in support of their view. Apart from the doubtfulness as to
the admissibility of the speeches, in my opinion, there is
nothing in the speeches which shows an intention on the part of
the Constituent Assembly to abridge in any way the special
protection afforded to minorities under Article 30(1). The
intention indicated in the speeches relating to the framing of
Article 29(2) appears to be an extension of the right of non-
discrimination to members of the non-minority in respect of State
aided or State maintained educational institutions. It is difficult to
find in the speeches any unambiguous statement which points to
a determination on the part of the Constituent Assembly to curtail
the special rights of the minorities under Article 30(1). Indeed if
one scrutinises the broad historical context and the sequence of
events preceding the drafting of the Constitution it is clear that
one of the primary objectives of the Constitution was to preserve,
protect and guarantee the rights of the minorities unchanged by
any rule or regulation that may be enacted by Parliament or any
State legislature.
The history which preluded the independence of this country
and the framing of the Constitution highlights the political context
in which the Constitution was framed and the political content of
the "special" rights given to minorities. I do not intend to burden
this judgment with a detailed reference to the historical run-up to
the Constitution as ultimately adopted by the Constituent
Assembly vis--vis the rights of the minorities and the importance
that was placed on enacting effective and adequate constitutional
provisions to safeguard their interests. This has been adequately
done by Sikri, C.J. in Keshavanand Bharati V. State of Kerala
on the basis of which the learned Judge came to the conclusion
that the rights of the minorities under the Constitution formed part
of the basic structure of the Constitution and were un-amendable
and inalienable.
I need only add that the rights of linguistic minorities
assumed special significance and support when, much after
independence, the imposition of a ’unifying language’ led not to
unity but to an assertion of differences. States were formed on
linguistic bases showing the apparent paradox that allowing for
and protecting differences leads to unity and integrity and
enforced assimilation may lead to disaffection and unrest. The
recognition of the principle of "unity in diversity" has continued to
be the hall mark of the Constitution a concept which has been
further strengthened by affording further support to the protection
of minorities on linguistic bases in 1956 by way of Articles 350-A
and 350-B and in 1978 by introducing clause (1-A) in Article 30
requiring "the State, that is to say, Parliament in the case of a
Central legislation or a State legislature in the case of State
legislation, in making a specific law to provide for the compulsory
acquisition of the property of minority educational institutions, to
ensure that the amount payable to the educational institution for
the acquisition of its property will not be such as will in any manner
impair the functioning of the educational institution". Any judicial
interpretation of the provisions of the Constitution whereby this
constitutional diversity is diminished would be contrary to this
avowed intent and the political considerations which underlie this
intention.
The earlier decisions of this Court show that the issue
of admission to a minority educational institution almost invariably
arose in the context of the State claiming that a minority
institution had to be ’purely’ one which was
established and administered by members of the minority
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community concerned, strictly for the members of the minority
community, with the object only of preserving of the minority
religion, language, script or culture. The contention on the part of
the executive then was that a minority institution could not avail of
the protection of Article 30(1) if there was any non-minority
element either in the establishment, administration, admission or
subjects taught. It was in that context that the Court in Kerala
Education Bill held that a ’sprinkling of outsiders’ being admitted
into a minority institution did not result in the minority institution
shedding its character and ceasing to be a minority institution.
It was also in that context that the Court in St. Xaviers College
(supra) came to the conclusion that a minority institution based on
religion and language had the right to establish and administer
educational institution for imparting general secular education and
still not lose its minority character. While the effort of the
Executive was to retain the ’purity’ of a minority institution and
thereby to limit it,"the principle which can be discerned in the
various decisions of this Court is that the catholic approach which
led to the drafting of the provisions relating to
minority rights should not be set at naught by narrow judicial
interpretation".
The ’liberal, generous and sympathetic approach’ of this
Court towards the rights of the minorities has been somewhat
reversed in the St. Stephens case. Of course, this was the first
decision of this Court which squarely dealt with the inter-
relationship of Article 29(2) and Article 30(1). None of the earlier
cited decisions did.
The decision of this Court in Champakam Dorairajan V.
State of Madras cannot be construed as an authority for the
proposition that Article 29(2) overrides the constitutional right
guaranteed to the minorities under Article 30(1), as Article 30(1)
was not at all mentioned in the entire course of the judgment.
Similarly, the Court in State of Bombay v. Bombay Education
Society was not called upon to consider a situation of conflict
between Article 30(1) and 29(2). The Bombay Education
Society, was in fact directly concerned with Article 337 and an
Anglo-Indian educational institution. In that background, when it
was suggested that Article 29(2) was intended to benefit
minorities only, the Court negatived the submission as it would
amount to a ’double protection’, "double" because an Anglo-Indian
citizen would then have not only the protection of Article 337 by
way of a 60% reservation but also the benefit of Article 29(2). It
was not held by the Court that Article 29(2) would override Article
337.
There is thus no question of striking a balance between
Article 29(2) and 30(1) as if they were two competing rights.
Where once the Court has held:
"Equality of opportunity for unequals can
only mean aggravation of inequality.
Equality of opportunity admits
discrimination with reason and prohibits
discrimination without reason.
Discrimination with reasons means rational
classification for differential treatment
having nexus to the constitutional
permissible objects."
and where Article 29(2) is nothing more than a principle of
equality, and when "the whole object of conferring the right on
minorities under Article 30 is to ensure that there will be equality
between the majority and the minority, if the minorities do not have
such special protection they will be denied equality" ,it must follow
that Article 29(2) is subject to the constitutional classification of
minorities under Article 30(1).
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Finally, there appears be an inherent contradiction in the
statement of the Court in St. Stephens that:
"the minority aided educational institutions
are entitled to prefer their community
candidates to maintain the minority
character of the institutions subject of
course to conformity with the University
standard. The State may regulate the
intake in this category with due regard to
the need of the community in the area
which the institution is intended to serve.
But in no case such intake shall exceed 50
per cent of the annual admission. The
minority institutions shall make available at
least 50 per cent of the annual admission
to members of communities other than the
minority community. The admission of
other community candidates shall be done
purely on the basis of merit." (p.614)
I agree with the view as expressed by the Learned Chief
Justice that there is no question of fixing a percentage when the
need may be variable. I would only add that in fixing a
percentage, the Court in St. Stephens in fact "reserved" 50% of
available seats in a minority institution for the general category
ostensibly under Article 29(2). Article 29(2) pertains to the right of
an individual and is not a class right. It would therefore apply
when an individual is denied admission into any educational
institution maintained by the State or receiving aid from the State
funds, solely on the basis of the ground of religion, race, caste,
language or any of them. It does not operate to create a class
interest or right in the sense that any educational institution has to
set apart for non-minorities as a class and without reference to any
individual applicant, a fixed percentage of available seats. Unless
Article 30(1) and 29 (2) are allowed to operate in their separate
fields then what started with the voluntary ’sprinkling’ of outsiders,
would become a major inundation and a large chunk of the right of
an aided minority institution to operate for the benefit of the
community it was set up to serve, would be washed away.
Apart from this difference with the views expressed by the
majority view on the interpretation of Article 29(2) and Article
30(1), I am also unable to concur in the mode of determining
the need of a minority community for admission to an
educational institution set up by such community. Whether there
has been a violation of Article 29(2) in refusing admission to a
non minority student in a particular case must be resolved as it
has been in the past by recourse to the Courts. It must be
emphasised that the right under Article 29(2) is an individual
one. If the non-minority student is otherwise eligible for
admission, the decision on the issue of refusal would depend on
whether the minority institution is able to establish that the refusal
was only because it was satisfying the requirements of its own
community under Article 30(1). I cannot therefore subscribe to
the view expressed by the majority that the requirement of the
minority community for admission to a minority educational
institution should be left to the State or any other Governmental
authority to determine. If the Executive is given the power to
determine the requirements of the minority community in the
matter of admission to its educational institutions, we would be
subjecting the minority educational institution in question to an
"intolerable encroachment" on the right under Article 30 (1) and
let in by the back door as it were, what should be denied entry
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altogether.
1971 SCR(Supp) 688,697
1971 SCR (Supp) 677.
1992 (1) SCC 558
Sri Venkataramana Devaru & Ors. v. The State of Mysore & Ors. 1958SCR 895, 918; Pandit M.S
.M. Sharma
v. Shri Sri Krishna Sinha; 1959 Suppl. 1 SCR 806;
Keshvananda Bharati V State of Kerala AIR 1973 SC 1461, para.292,559,682 and 1164.
1992 (1) SCC 558, 607 (para 81)
Kidangazhi Manakkal Narayanan Nambudiripad v. State of Madras AIR 1954 Madras 385 (Vol.41
)
Ramanuja V. State of Tamil Nadu AIR 1972 SC 1586; Quareshi V. State of Bihar 1959 SCR 629
See also in Re. Kerala Education Bill, 1957: 1959 SCR 995, 1037
See Keshavananda Bharati V. State of Kerala: AIR 1973 1461
In re: Kerala Education Bill, 1957 1959 SCR 995,1070
Rev. Sidhajbhai Sabhai V. State of Bombay 1963 (3) SCR 837
Rev. Father W. Proost and Ors. V. State of Bihar 1969 (2) SCR 173,192
State of Kerala V. Very Rev. Mother Pronvincial 1971 (1) SCR 734, 740
St. Xaviers College V. Gujarat 1975 (1) SCR 173, 192
ibid 223
ibid 224
Lily Kurian V. Lewina 1979(2) SCC 124,137
1955 (1) SCR 568
Concise Oxford Dictionary (10th Edition) 864
supra
D.N. Chanchala V. State of Mysore: 1971 SCR (Supp.) 608
Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha; 1959 Suppl. 1 SCR 806;860, 1939 FCR 18
Bhinka V. Charan Singh AIR 1959 SC 960, 966
St. Xaviers College, 1975 (1) SCR 173, paras 7 to 12
Sri Venkataramana Dev Aru V. State of Mysore 1958 SCR 895, 918
Cardozo: Nature of Judicial Process, p.17
K.P.Verghese V.Income Tax Officer 1982 (1) SCR 629, 645; Sanjeev Coke V.Bharat Coking Coal
Ltd. 1983
(1) SCR 1000, 1029 and PV Narasimha Rao AIR 1998 SC 2120, 2158= 1998 (4) SCC 626
1973 (4) SCC 225, para 168, 178
Society of St. Joseph’s College V. Union of India 2002 (1) SCC 273,278
p.1052
1975 (1) SCR 173, 234
1951 SCR 525
1955 SCR 568
Ahmedabad St. Xaviers College