Full Judgment Text
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PETITIONER:
IN RE THE KERALA EDUCATION BILL, 1957. REFERENCE UNDER
Vs.
RESPONDENT:
DATE OF JUDGMENT:
15/03/1958
BENCH:
ACT:
President’s Refercnce-Kerala Education Bill, 1957-Constitu-
tional validity-Advisoyy jurisdiction of the Supreme Court,
scope of-Cultural and educational rights of minorities-
Constitution of India, Arts. 143(1), 14, 29, 30 and 226.
HEADNOTE:
This was a reference under Art. 143(1) of the Constitution
made by the President of India for obtaining the opinion of
the
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Court upon certain questions relating to the constitutional
validity of some of the provisions of the Kerala Education
Bill, 1957, which had been passed by the Kerala Legislative
Assembly but was reserved by the Governor for the
consideration of the President. The Bill, as its title and
preamble indicated, had for its object the better
Organisation and development of the educational service
throughout the State, presumably, in implementation of the
provisions of Art. 45 of the Constitution and conferred wide
powers of control on the State Government in respect of both
aided and recognised institutions. Of the four questions
referred to this Court, the first and third impugned cl.
3(5) read with cl. 36 and cl. 15 of the Bill as being
discriminatory under Art. 14, the second impugned cls. 3(5),
8(3) and cls. 9 to 13 Of the Bill as being violative of
minority rights guaranteed by Art. 30(1) and the fourth, cl.
33 of the Bill, as offending Art. 226 of the Constitution.
Clause 3(5) of the Bill made the recognition of new schools
subject to the other provisions of the Bill and the rules
framed by the Government under cl. (36), Cl. (15) authorised
the Government to acquire any category of ’Schools, cl. 8(3)
made it obligatory on all aided schools to hand over the
fees to the Government, cls. 9 to 13 made provisions for the
regulation and management of the schools, payment of salary
to the teachers and the terms and conditions of their
appointment and cl. (33) forbade the granting of temporary
injunctions and interim orders in restraint of proceedings
under the Act. This Court took the view that since cl. 3(5)
attracted the other provisions of the Bill, in case anyone
of them was found to be unconstitutional, cl. 3(5) itself
could not escape censure.
Held (per Das C. J., Bhagwati, B. P. Sinha, Jafer Imam, S.
K. Das and J. L. Kapur JJ.), that although Art. 143(1) Of
the Constitution, which virtually reproduced the provisions
of s. 213(1) of the Government of India Act, 1935, gave this
Court the discretion, where it thought fit, to decline to
express any opinion on the questions referred to it, the
objection that such questions related, not to a statute
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brought into force but, to the validity of a Bill that was
yet to be enacted, could be no ground for declining to
entertain the reference.
Article 143(1) of the Constitution had for its object the
removal of the doubts at the President and was in no way
concerned with any doubts that a party might entertain and
no reference could be incomplete or incompetent on the
ground that it did not include other questions that could
have been included in it and it was not for this Court to go
beyond the reference and discuss them.
The Advisory jurisdiction conferred by Art. 143(1) was
different from that conferred by Art. 143(2) of the
Constitution in that the latter made it obligatory on this
Court to answer the reference.
In re Levy of Estate Duty, [1944] F.C.R. 3.17, relied on.
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Attorney-General for Ontario v. Hamilton Street Railway,
[1903] A.C. 524, Attorney-General for British Columbia v.
Attorney-General for Canada, [1914] A. C. 153, ln re The
Regulation and Control of Aeronautics In Canada, [1932] A.
C. 54, In re Allocation of Lands and Buildings, [1943] F. C.
R. 20 and In Ye Delhi Laws Act, 1912, [1951] S.C.R. 747,
considered.
A directive principle of State policy could not override a
fundamental right and must subserve it, but no Court should
in determining the ambit of a fundamental right, entirely
ignore a directive principle but should try to give as much
effect to both as possible by adopting the principle of
harmonious construction.
State of Madras v. Smt. Champakam Doraiyajan, [1951] S.C.R.
525 and Mohd. Hanif Quayeshi v. The State of Bihar, [1959]
S.C.R. 629, referred to.
In answering the questions under reference, the merits or
otherwise of the policy of the Government sponsoring the
Bill could be no concern of this Court and its sole duty was
to pronounce its opinion on the constitutional validity of
such provisions of the Bill as were covered by the
questions.
judged in the light of the principles laid down by a series
of decisions of this Court explaining Art. 14 Of the
Constitution, the clauses of the Bill that came within
questions 1 and 3 could not be said to be violative of that
Article.
The restriction imposed by cl. 3(5) read with cl. 26 of the
Bill, which made it obligatory on the guardians to send
their wards to a Government or a private school in an area
of compulsion and thus made it impossible for a new school
in such area, seeking neither aid nor recognition, to
function, could not be said to be discriminatory since the
State knew best the needs of its people, and such
discrimination was quite permissible, based, as it was, on
geographical classification.
Mohd. Hanif Ouareshi v. The State of Bihar, [1959] S. C. R.
629, Chiyanjit Lal Chowdhury v. The Union of India, [1950]
S.C.R. 1045, Ramkrishna Dalmia v. Sri justice S. R.
Tendolkar, [1959] S.C.R. 279, referred to.
No statute could be discriminatory unless its provisions
discriminated, and since the provisions of the Bill did not
do so, it could not be said to have violated equal
protection of law by its uniform application to all
educational institutions although not similarly situate.
Cumberland Coal Co. v. Board of Revision, (1931) 284 U. S.
23; 76 L. Ed. 146, held inapplicable.
The policy and purpose of a statute could be deduced from
its long title and the preamble. The impugned Bill laid
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down its policy in the long title and the preamble and
reinforced it by
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more definite statements in the different clauses and,
consequently, such discretion as it left to the Government
had to be exercised in implementing that policy. The use of
the word may in cl. 3(3) could make no difference, for once
the purpose was established and the conditions of the
exercise of the discretion were fulfilled, it was incumbent
on the Government to exercise it in furtherance of that
purpose. If it failed to do so, the failure, and not the
Bill, must be censured.
Biswambar Singh v. The State of Orissa, [1954] S.C.R. 842
and Julius v. Lord Bishop of Oxford, (1880) 5 App. CaS.
214, referred to.
Discretionary power was not necessarily discriminatory, and
abuse of power by the Government could not be lightly
assumed. Apart from laying down the policy, the State
Legislature provided for effective control by itself by cl.
37 and the proviso to cl. 15 of the Bill. It could not,
therefore, be said that the Bill conferred unguided or
uncontrolled powers on the Government.
Article 30(1) Of the Constitution, which was a necessary
concomitant to Art. 29(1) and gave the minorities the right
to establish and administer their institutions, did not
define the word ’minority’, nor was it defined anywhere else
by the Constitution, but it was absurd to suggest that a
minority or section envisaged by Art. 30(1) and Art. 29(1)
could mean only such persons as constituted a numerical
minority in the particular region where the educational
institution was situated or resided under a local authority.
Article 350-A of the Constitution, properly construed, could
lend no support to such a proposition. As the impugned Bill
extended to the entire State, minorities in the State must
be determined on the basis of its entire population, and
thus the Christians, the Muslims and the Anglo-Indians would
be its minority communities.
Article 30(1) of the Constitution made no distinction
between minority institutions existing from before the
Constitution or established thereafter and protected both.
It did not require that a minority institution should be
confined to the members of the community to which it
belonged and a minority institution could not cease to be so
by admitting a non-member to it.
Nor did Art. 30(1) in any way limit the subjects to be
taught in a minority institution, and its crucial words " of
their own choice ", clearly indicated that the ambit of the
rights it conferred was determinable by the nature of the
institutions that the minority communities chose to
establish and the three categories into which such
institutions could thus be classified were (1) those that
sought neither aid nor recognition from the State, (2) those
that sought aid, and (3) those that sought recognition but
not aid. The impugned Bill was concerned only with
institutions of the second and third categories.
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The word ’aid’ used by Arts. 29(2) and 30(2) included grant’
under Art. 337 of the Constitution and that word occurring
in the Bill must have the same meaning. Consequently, such
clauses of the Bill mentioned in question No. 2 as imposed
fresh and stringent conditions precedent to such grant over
and above those to which it was subject under Arts. 337 and
29(2), violated not only Art. 337 but also, in substance and
effect, Art. 30(1) of the Constitution and were to that
extent void.
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Rashid Ahmad v. Municipal Board, Kaiyana, [1950] S.C.R. 566,
Mohd. Yasin v. The Town Area Committee, jalalabad, [1952]
S.C.R. 572 and The State of Bombay v. Bombay Education
Society, [1955] 1 S.C.R. 568, referred to.
Although there was no constitutional right to the grant of
aid except for Anglo-Indian educational institutions under
Art. 337 Of the Constitution, State aid was indispensable to
educational institutions and Arts:, 28(2), 29(2) and 30(2)
clearly contemplated the grant of such aid and Arts. 41 and
46 charged the State with the duty of aiding educational
institutions and promoting such interests of the minorities.
But the right of the minorities to administer their educa-
tional institutions under Art. 30(1), was not inconsistent
with the right of the State to insist on proper safeguards
against maladministration by imposing reasonable regulations
as conditions precedent to the grant of aid. That did not,
however, mean that the State Legislature could, in the
exercise of its powers of legislation under Arts. 245 and
246 of the Constitution, override the fundamental rights by
employing indirect methods, for what it had no power to do
directly, it could not do indirectly.
So judged, cl. 3(5) of the Bill by bringing into operation
and imposing cls. 14 and 15 as conditions precedent to the
grant of aid, violated Art. 30(1) of the Constitution.
Similar considerations applied to the grant of State
recognition as well. No minority institution could fulfill
its real object or effectively exercise its rights under
Art. 30(1) without State recognition, as otherwise it would
not be open to its scholars under the Education Code to
avail of the opportunities for higher education in the
University or enter the public services. While it was
undoubtedly true that there could be no fundamental right to
State recognition, denial of recognition except on such
terms as virtually amounted to a surrender of the right to
administer the institution, must, in substance and effect
infringe Art. 30(1) of the Constitution.
Clause 3(5), read with Cl. 20 of the Bill, in forbidding the
charging of tuition fees in the primary classes, deprived
the minority institutions of a fruitful source of income
without compensation, as was provided by cl. (9) for aided
schools, and thus imposed a condition precedent to State
recognition which was in
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effect violative of Art. 30(1) and was, therefore, void to
that extent. No rules, when framed under the Act, could
cure such invalidity.
Article 45 of the Constitution did not require the State
Government to provide free and compulsory education to the
detriment of minority rights guaranteed by the
Constitution,if the Government so chose it could do so
through the Government and aided schools, and this Court was
in duty bound to uphold such fundamental rights as the
Constitution had thought fit to confer on the minority
communities.
The wide powers and jurisdiction conferred on the High
Courts by Art. 226 of the Constitution could not be affected
by a provision such as cl. (33) of the Bill, which forbade
Courts to issue temporary injunctions or interim orders in
restraint of any proceedings thereunder, and it must be read
as subject to the overriding provisions of Art. 226 of the
Constitution.
Venkatarama Aiyar J.-It was obvious that Art. 30(1) Of the
Constitution did not in terms confer a right on the minority
institutions to State recognition, nor, properly construed,
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could it do so by implication, for such an implication, if
raised, would be contrary to the express provisions of Art.
45 Of the Constitution. Article 30(1) was primarily
intended to protect such minority institutions as imparted
purely religious education and to hold that the State was
bound thereunder to recognise them would be not only to
render Art. 45 wholly infructuous but also to nullify the
basic concept of the Constitution itself, namely, its
secular character.
There was no conflict here between a fundamental right and a
directive principle of State policy that must yield, and the
principle of Art. 45 must have full play. Clause (20) of
the Bill was designed to enforce that principle and cl. 3(5)
Of the Bill in making it a condition precedent to State
recognition could not violate Art. 30(1) Of the
Constitution.
Nor could a consideration of the policy behind Art. 30(1)
lead to a different conclusion, assuming that the question
of policy could be gone into apart from the language, since
that policy was no other than that the majority community of
the State should not have the power to destroy or impair the
religious or linguistic rights of the minority communities.
The only two obligations, one a positive and the other a
negative, that Art. 30(1) read with Arts. 25, 26, 29 and
30(2) of the Constitution imposed on the State were (1) to
extend equal treatment as regards aid or recognition to all
educational institutions, including those of the minorities,
religious or linguistic, and (2) not to prohibit the
establishment of minority institutions or to interfere with
their administration.
To hold that the State Government was further bound under
Art. 30(1) to accord recognition to minority institutions
would be
1001
to put the minorities in a more favoured position than the
majority community, which the Constitution never
contemplated.
City Winnipeg v. Barrett : City of Winnipeg v. Logan,
[1892] A.C. 445, referred to.
JUDGMENT:
ADVISORY JURISDICTION: Special Reference No. 1 of 1958.
Reference by the President of India under Article 143(1) of
the Constitution of India on the Kerala Education Bill,
1957.
The circumstances which led to this Reference by the
President and the questions referred appear from the full
text of the Reference dated March 15, 1958, which is
reproduced below:-
WHEREAS the Legislative Assembly of the state of Kerala has
passed a Bill to provide for the better Organisation and
development of educational institutions in the State of
Kerala (hereinafter referred to as the Kerala Educational
Bill);
AND WHEREAS the said Bill, a copy whereof is annexed hereto,
has been reserved by the Governor of Kerala, under article
200 of the Constitution, for my consideration ;
AND WHEREAS sub-clause 3 of clause (3) of the said Bill
enables the Government of Kerala, inter alia, to recognise
any school established and maintained by any person or body
of persons for the purpose of providing the facilities set
out in sub-clause (2) of the said clause to wit, facilities
for general education, special education and for the
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training of teachers ;
AND WHEREAS sub-clause (5) of clause 3 of the said Bill
provides, inter alia, that any new school established or any
higher class opened in any private school, after the Bill
has become an Act and the Act has come into force, otherwise
than in accordance with the provisions of the Act and the
rules made under section 36 thereof, shall not be entitled
to be recognised by the Government of Kerala;
AND WHEREAS a doubt has arisen whether the provisions of the
said sub-clause (5) of clause 3 of the said Bill confer upon
the Government an unguided
1002
power in regard to the recognition of new schools and the
opening of higher classes in any private school which is
capable of being exercised in an arbitrary and
discriminatory manner;
AND WHEREAS a doubt has further arisen whether such power of
recognition of new schools and of higher classes in private
schools is not capable of being exercised in a manner
affecting the right of the minorities guaranteed by clause
(1) of article 30 of the Constitution to establish and
administer educational institutions of their choice;
AND WHEREAS sub-clause (3) of clause 8 of the said Bill
requires all fees and other dues, other than special fees,
collected from the students in an aided school to be made
over to the Government of Kerala in such manner as may be
prescribed, notwithstanding anything contained in any
agreement, scheme or arrangement ;
AND WHEREAS a doubt has arisen whether such requirement
would not affect the right of the minorities guaranteed by
clause (1) of article 30 of the Constitution to administer
educational institutions established by them;
AND WHEREAS clauses 9 to 13 confer upon the Government
certain powers in regard to the administration of aided
schools;,
AND WHEREAS a doubt has arisen whether the exercise of such
powers in regard to educational institutions established by
the minorities would not affect the right to administer them
guaranteed by clause (1) of article 30 of the Constitution;
AND WHEREAS clause 15 of the said Bill empowers the
Government of Kerala to take over, by notification in the
Gazette, any category of aided schools in any specified area
or areas, if they are satisfied that for standardising
general education in the State of Kerala or for improving
the level of literacy in any area or for more effectively
managing the aided educational institutions in an area or
for bringing education of any category under their direct
control it is necessary to do so in the public interest, on
1003
payment of compensation on the basis of market value of the
schools so taken over after deducting therefrom the amounts
of aids or grants given by that Government for requisition,
construction or improvement of the property of the schools;
AND WHEREAS a doubt has arisen whether such power is not
capable of being exercised in any arbitrary and
discriminatory manner;
AND WHEREAS clause 33 of the said Bill provides that,
notwithstanding anything contained in the Code of Civil
Procedure, 1908, or any other law for the time being in
force, no courts can grant any temporary injunction or make
any interim order restraining any proceedings which is being
or about to be taken under the Act;
AND WHEREAS a doubt has arisen whether the provisions of the
said clause 33, in so far as they relate to the jurisdiction
of the High Courts, would offend article 226 of the
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Constitution ;
AND WHEREAS there is likelihood of the constitutional
validity of the provisions of the Bill herein before
referred to being questioned in courts of law, involving
considerable litigation ;
AND WHEREAS, in view of what has been here in before stated,
it appears to me that the questions of law hereinafter set
out have arisen and are of such nature and of such
importance that it is expedient that the opinion of the
Supreme Court of India should be obtained thereon;
NOW, THEREFORE, in exercise of the powers conferred upon me
by clause (1) of article 143 of the Constitution, 1,
Rajendra Prasad, President of India, hereby refer the
following questions to the Supreme Court of India for
consideration and report thereon, namely :-
" (1) Does sub-clause (5) of clause 3 of the Kerala
Education Bill, read with clause 36 thereof, or any of the
provisions of the said sub-clause, offend article 14 of the
Constitution in any particulars or to any extent ?
(2) Do sub-clause (5) of clause 3, sub-clause (3) of
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clause 8 and clauses 9 to 13 of Kerala Education Bill or
any provisions thereof, offend clause (1) of article 30 of
the Constitution in any particulars or to any extent?
(3) Does clause 15 of the Kerala Education Bill, or any
provisions thereof, offend article 14 of the Constitution in
any particulars or to any extent ?
(4) Does clause 33 of the Kerala Education Bill, or any
provisions thereof, offend article 226 of the Constitution
in any particulars or to any extent ? "
1958. April 29, 30. May 1, 2, 5, 6, 7, 8, 9 and 12. M. 0.
Setalvad, Attorney-General for India, C. K. Daphtary,
Solicitor-General of India, H. N. Sanyal, Additional
Solicitor--General of India, G. N. Joshi and R. H. Dhebar,
for the President of India. The preamble to the
Constitution of India lays emphasis on liberty of thought,
expression, belief, faith and worship and assures the
dignity of the individual. To give effect to these ideals
the Constitution provides fundamental rights for the
individuals in Arts. 19, 25 and 28 and for groups in Arts.
26, 29 and 30. The fundamental rights in Arts. 29 and 30
are absolute and no restrictions can be placed on them,
though restrictions can be placed on other fundamental
rights. These rights may be compared with the rights under
Art. 44 (2) of the Irish Constitution and s. 93 of the
British North America Act. The freedoms conferred by Arts.
26, 29 and 30 were considered by this Court in The
Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mulutt, ( [1954]
S.C.R. 1005 at 1028-1029) and The State of Bombay v. Bombay
Education Society, ( [1955] 1 S.C.R. 568 at 578, 580, 586).
Article 30 (1) gives absolute right to the minorities to
establish and administer educational institutions of their
choice. The Constitution having ensured religious freedom
under Art. 26 and cultural freedom in Art. 29, left the
means to promote and conserve these freedoms to the
minorities themselves to work out under Art. 30 (1).
Clause 3 (5) of the Kerala Education Bill which provides
that the establishment of new schools and opening of higher
classes shall be according to the Rules to
1005
be framed under cl. 36 to entitle them to be recognised by
the Government, confers upon the executive unguided and
uncontrolled powers and offends Art. 14. The’ legislature
does not lay down any policy, but leaves it to the executive
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tinder the rule-making powers. A. Thangal Kunju Musaliar v.
M. Venkitachalam Potti, ([1955] 2 S.C.R. 1196 at 1239,
1241); The State of West Bengal v. Anwar Ali Sarkar, ([1952]
S.C.R. 284 at 345, 346).
It is incorrect to say that Christians and Muslims are not
minorities in Kerala. When the Constitution speaks of
minorities it speaks on an all India basis. The fact that a
certain community formed a very high percentage of the
population in a particular State did not detract from its
status as a minority. The provisions of the Bill make
illusory the rights granted by Art. 30 (1) to minorities.
By using the instrument of Government aid the Bill seeks to
deprive the minorities of their right to administer their
own schools. Shirur Mutt Case, ( [1954] S.C.R. 1005 at 1028,
1029). The right of the minorities under Art. 30(1) to
establish and administer their institutions is an absolute
and unfettered right and is consistent with their getting
aid from the Government. Article 337 makes special pro-
vision for educational grants for the benefit of the Anglo-
Indian community. Article 30 (1) is infringed whether the
schools go in for aid or not. Clause 8 (3) of the Bill
under which in all aided schools all fees, etc., collected
from the students will have to be made over to the
Government deprives the management of the right of
administration. Pierce v. Society of Holy Sisters Names,
(69 L. Ed. 1070 at 1077); Maher v. Nebraska, (67 L. Ed. 1042
at 1044).
Clause 15 of the Bill empowers the Government to acquire any
category of aided schools in any specified area. This
clause is wholly subversive of Art. 30 (1). It also offends
Art. 14 as it empowers the Government to pick and choose any
schools, by suitably selecting the category and area, for
acquisition, no criteria having been laid down for making
the choice.
Clause 33 of the Bill prohibits all Courts from
1006
granting any temporary injunction or interim order regarding
any proceedings taken under the Act. To the extent that
this clause infringes Art. 226 or Art. 32, it is void.
Interim orders are also passed under Arts. 226 and 32 as
ancillary to the main relief. The State of Orissa v. Madan
Gopal Rungta, ( [1952] S.C.R. 28 at 34). Halsbury’s Laws
of England, 3rd Edn., Vol. 11, p. 110, para. 204.
Kaslival, Advocate-General of Rajasthan, R.H. Dhebar and T.
M. Sen, for the State of Rajasthan adopted the arguments of
the Attorney-General for India.
G. S. Pathak, with M. R. Krishna Pillai for the Kerala
Christian Education Action Committee, with J. B. Dadachanji
for the Kerala School Managers Association and with V. O.
Abraham and J. B. Dadachanji for the Aided School Managers’
Association in Badogara and Quilandy, Catholic Union of
India and Catholic Association of Bombay. The preamble to
the Constitution speaks of securing to the citizens of India
fraternity assuring the dignity of the individual and the
unity of the Nation. Articles 25 to 30 have been framed to
secure this unity. Art. 30 is in absolute terms and does
not permit regulation or restriction of the rights conferred
by it. " Their choice " in Art. 30 cannot be controlled by
the State. It has been the normal method of running the
minority institutions with aid and recognition. Implict in
Art. 30(1) is the right of a parent or guardian to impart
such education this children as he likes. Bombay Education
Society v. The State of Bombay, (56 Bom. L. R. 643 at 653).
It is the right of every person of the minority community to
educate his children in school administered by that
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community. The State of Bombay v. Bombay Education Society,
[1955] 1 S. C. R. 568 at 586). The word " administer should
be interpreted as in 69 L. Ed. 1070 at 1076, 67 L. Ed.
1042 at 1045 and 71 L. Ed. 646 at 647. The ordinary
dictionary meaning of administer is ’ to manage’ or ’carry
on’. The legislature cannot even indirectly infringe the
fundamental rights. Dwarkadas Shrinivas v. The Sholapur
Spinning and Weaving Co. Ltd., ( [1954] S.C.R. 674 at 683);
1007
Punjab Province v. Daulat Singh, ( 73 1. A. 59) ; The State
of Bombay v. Bombay Education Society, ( [1955] 1 S. C. R.
568 at 583). American Jurisprudence, Vol. 11, p. 724, See.
95. The whole scheme of the Bill is to secularise education
and, thus it infringes the fundamental rights guaranteed
under Art. 30. Clause 3 of the Bill which requires
permission to be obtained to establish a school, cl. 10
which empowers the Government to prescribe qualifications of
teachers in minority community schools and cl. 26 which
makes it obligatory on parents to send their children to
Government or aided schools where compulsory education is in
force, all offend Art. 30. Similarly cls. 6, 7, 8, 11, 12,
14, 15 and 28 are destructive of this fundamental right.
Frank Anthony and P. C. Aggarwala, for the All India Anglo-
Indian Association and for the Apostolic Carmel Education
Society and Roman Catholic Diocese. Under Art. 143 this
Court has the discretion to refuse to answer the reference.
In Re Allocation of Lands and Buildings, ( [1943] F. C. R.
20 at 22). The present reference is most incomplete and
wholly unsatisfactory and the Court should, following
Zafrullah Khan J. in In re Levy of Estate Duty, ( [1944]
F.C.R. 317 at 334, 335), decline to answer it. The
reference is incomplete as this Court has been asked to
examine whether certain provisions of the Bill offend
certain specified fundamental rights though actually those
provisions offend other fundamental rights also. There are
several important provisions in the Bill, which have not
specifically been referred, which also offend fundamental
rights. Such a reference is unfair to the Court and deadly
to my clients. If this Court is in favour of giving its
opinion on the reference, the scope thereof should be
extended to include all objections to the validity of the
provisions of the Bill, and this Court has inherent
jurisdiction to do so.
Anglo-Indian schools occupy a special position. Article
30(1) gives to the Anglo-Indian community the fundamental
right to establish educational institutions of their choice.
These fundamental rights were not subject to any social
control. The object of the
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Kerala Education Bill was to strike at the Christian Church,
especially the Catholics, to eliminate their religion, to
take away their property, to eliminate all education
agencies other than those of the State so that the State may
regiment education and indoctrinate children.
The Bill which sought to implement directive principles of
State policy in Art. 45 by providing for free and compulsory
education infringed Art. 30(1). Directive principles must
yield to fundamental rights. The State of Madras v. Sm.
Champakam Dorairajan, ([1951] S. C. R. 521 at 531). The
State cannot compel minority educational institutions not to
charge fees for primary classes. This compulsion coupled
with the embargo imposed by the Bill on children going to
schools not recognised by the Government would extinguish
the choice of the minorities guaranteed by Art. 30.
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Recognition was part of the right of the minorities under
Art. 30. Article 337 provides for special grants or aids to
educational institutions run by Anglo-Indians and the State
cannot take that away or place conditions or restrictions on
it.
Clause 3(5) of the Bill infringes both Art. 30(1) and Art.
14. It discriminates between existing schools which could
continue to charge fees and primary classes and new schools
which cannot charge such fees if they want to be recognised.
The conditions imposed on the opening of new schools by the
minorities are such that they deprive them of the right
under Art. 30(1).
Nur-ud-Din Ahmed, S. S. Shukla and P. C. Aggarwala, for the
All -India Jamiat-ul-ulema-e-Hind. The Bill seeks to
achieve nationalisation of educational institutions and thus
to deprive the minorities of their right to establish and
administer schools of their own choice under Art. 30. This
right includes the right of the minorities to receive aid
and also get Government recognition of their schools without
any restrictions. The provisions of the Bill gives powers
to the State without laying down the basis and standards for
the exercise of that power.
1009
G. C. Mathur and C. P. Lal for the state of U. P. adopted
the arguments of the Attorney-General for India.
B. K. B. Naidu, for the Kerala State Muslim League adopted
the arguments of G. S. Pathak and Frank Anthony.
D.N. Pritt, Sardar Bahadur and C. M. Kuruvilla, for the
State of Kerala. The questions referred to the Court by the
President arose out of certain doubts entertained by the
President in respect of certain provisions of the Bill. If
the President did not entertain certain other doubts, the
parties cannot insist that the President must have had those
other doubts also. The Court has no power to go beyond
those questions which are raised in the reference. The
State of Kerala wants the Court to reply to all the four
questions referred and it would abide by the view which the
Court will express on these questions.
The Kerala Education Bill is a progressive piece of
legislation which seeks to provide a better organisation and
development of educational institutions in the State, and a
varied and comprehensive educational service throughout the
State. It seeks to provide employment to about 70,000
teachers and to give security to the teachers. The Bill
also seeks to implement the directive principles of State
policy in Art. 45 by providing for free and compulsory
primary education for all.
The Bill lays down a clear principle and policy, as stated
in its objects, to provide for the better organisation and
development of education. This is further made clear by the
preamble which seeks to provide for a varied and
comprehensive educational service throughout the State.
Nationalisation which could have been easily and lawfully
achieved was not the policy adopted by the State. Its
policy was to maintain the three different categories of
schools, the Government run schools, the private aided
schools and the private schools recognised by the Govern-
ment. The Court could not get a complete picture until the
rules were framed. The framing of the
1010
rules had necessarily to be left to the Government. ’a Such
I delegated legislation’ is an integral and inevitable part
of a modern State power. Clause 3(5) of the Bill read with
cl. 36 does not violate Art. 14. Jadunandan Yadav v. R. P.
Singh (A. I. R. 1958 Pat. 43 at 47); Biswambhar Singh v.
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The State of Orissa ([1954] S. C. R. 842); Pannalal Binjraj
v. Union of India, ( [1957] S. C. R. 233 at 248, 256, 262);
Sardar Inder Singh v. The State of Rajasthan ( [1957] S. C.
R. 605). The rules to be framed by the Government would go
for scrutiny before the same legislature which passed the
Bill and when passed by the legislature the rules will
become part of the Act. This was not really delegated
legislation but legislation in two stages.
In order to protect certain privileges of minorities the
State cannot discard the glorious principles of free and
compulsory education. The rights of minorities cannot
destroy the rights of citizens to universal free education.
If the minorities want Government aid and recognition for
their schools, they could be granted on the general terms
and conditions applicable to others. The words I of their
choice’ cannot be interpreted to mean the establishment of
schools with the aid of the tax payer’s money and also with
the assurance of enough pupils to attend those schools.
Christians and Muslims are not minorities in Kerala.
Christians, forming the second largest community,
constituted one fourth of the population, while Muslims,
forming the third largest community, constituted one seventh
of the total population. Minorities in the context of the
educational rights guaranteed under the Constitution mean
only those sections of the population in particular areas of
a State who are in a minority, and not those who can be
regarded as minorities in the country as a whole. The only
minority community in Kerala which can claim the benefit of
Art. 30(1) are the Jews, who do not choose to have their own
educational institutions.
Schools run by minorities in Kerala were not strictly
minority schools as envisaged by Art. 30(1) as they were not
run mainly for the children of the
1011
minority community. In most of these schools at least 75
per cent. of the students were from non-minorities. Article
30(1) contemplates schools for the education of members of
the minority communities only. Right of the minority
communities to establish and administer institutions of
their choice does not include the right to receive aid and
recognition on their own terms. Article 30(2) only
prohibited the State from discriminating against any
educational institution on the ground of religion or
language.
In order to attract the operation of Art. 30(1) it should be
established that there is a minority community, that it has
established an educational institution and that the
educational institution is run for the education of the
members of that community. Ramani Kanta Bose v. The Gauhati
University (I. L. R. [1951] Ass. 348 at 352). Not one of
these conditions is fulfilled in any of the educational
institutions in the State. The choice in Art. 30(1) lies in
the establishment of a school and not in its management.
The provisions of the Bill relating to the establishment and
recognition of schools, restrictions on alienation of school
property, appointment of managers, selection of teachers by
the State Public Service Commission and the taking over the
management of the schools in public interest are all
reasonable conditions imposed to ensure better Organisation
of education and security of service conditions to the
teachers.
The category of schools in respect of which the power of
acquisition can be exercised under cl. 15 of the Bill comes
under a classification which differentiates it from those
other categories which are excluded from classification
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being such as is calculated to further the purposes and the
policy underlying the legislation. Clause 15 does not
infringe Art. 14 at all.
In enacting cl. 33 of the Bill the State Legislature did not
intend, and must be presumed not to have intended, to affect
the operation of Art. 226 in any way.
S. Easwara Iyer and K. R. Chaudhury, for the Kerala
Private Secondary School Office Staff
1012
Association and Kerala Private Teachers’ Federation, adopted
the arguments of D. N. Pritt.
Cur. adv. vult.
1958. May 22. The opinion of Das C. J., Bhagwati, B. P.
Sinha, Jafer Imam, S. K. Das and J. L. Kapur, JJ. was
delivered by Das C. J. Venkatarama Aiyar
J. delivered a separate opinion.
DAS C. J.-This reference has been made by the President
under Art. 143 (1) of the Constitution of India for the
opinion of this Court on certain questions of law of
considerable public importance that have arisen out of or
touching certain provisions of the Kerala Education Bill,
1957, hereinafter referred to as "the said Bill", which was
passed by the Legislative Assembly of the State of Kerala on
September 2, 1957, and was, under Art. 200, reserved by the
Governor of Kerala for the consideration of the President.
After reciting the fact of the passing of the said Bill by
the Legislative Assembly of Kerala and of the reservation
thereof by its Governor for the consideration of the
President and after setting out some of the clauses of the
said Bill and specifying the doubts that may be said to have
arisen out of or touching the said clauses, the President
has referred to this Court certain questions hereinafter
mentioned for consideration and report. It is to be noted
that the said Bill not having yet received the assent of the
President the doubts, leading up to this reference, cannot
obviously be said to have arisen out of the actual
application of any specified section of an Act on the facts
of any particular case and accordingly the questions that
have been referred to this Court for its consideration are
necessarily of an abstract or hypothetical nature and are
not like specific issues raised in a particular case brought
before a court by a party aggrieved by the operation of a
particular law which he impugns. Further, this reference
has been characterised as incomplete and unsatisfactory in
that, according to learned counsel appearing for some of the
institutions it does not clearly bring out all the
constitutional
1013
defects attaching to the provisions of the Bill and serious
apprehension has been expressed by learned counsel before us
that our opinion on these isolated’ abstract or hypothetical
questions may very positively prejudice the interests, if
not completely destroy the very existence, of the
institutions they represent and, in the circumstances, we
have been asked not to entertain this reference or give any
advisory opinion on the questions put to us.
It may be of advantage to advert, at the outset, to the
ambit and, scope of the jurisdiction to be exercised by this
Court under Art. 143 of the Constitution. There is no
provision similar to this in the Constitution of the United
States of America or in the Commonwealth of Australia
Constitution Act, 1900 (63 and 64 Vic. Ch. 12) and, accord-
ingly, the American Supreme Court as well as the High Court
of Australia, holding that the jurisdiction and powers of
the court extend only to the decision of concrete cases
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coming before it, have declined to give advisory opinions to
the executive or legislative branches of the State. Under
s. 60 of the Canadian Supreme Court Act, 1906, the Governor-
General-in-Council may refer important questions of law
concerning certain matters to the Supreme Court and the
Supreme Court appears to have been held bound to entertain
the reference and answer the questions put to it.
Nevertheless, the Privy Council has pointed out the dangers
of such advisory opinion and has, upon general principles
deprecated such references. Said the Earl of Halsbury L. C.
in Attorney General for Ontario v. Hamilton Street Railway
(1):-
" They would be worthless as being speculative opinions on
hypothetical questions. It would be contrary to principle,
inconvenient, and inexpedient that opinions should be given
up on such questions at all. When they arise, they must
arise in concrete cases, involving private rights; and it
would be extremely unwise for any judicial Tribunal to
attempt beforehand to exhaust all possible cases and facts
(1) [1903] A. C. 524, 529.
1014
which might occur to qualify, cut down, and override the
operation of the particular words when the concrete case is
not before it."
To the like effect are the observations of Lord Haldane in
Attorney General for British Columbia v. Attorney General
for Canada (1) :-
"........Under this procedure questions may be put of a kind
which it is impossible to answer satisfactorily. Not only
may the question of future litigants be prejudiced by the
court laying down principles in an abstract form without any
reference or relation to actual facts, but it may turn out
to be practically impossible to define a principle
adequately and safely without previous ascertainment of the
exact facts to which it is to be applied."
Reference may, with advantage, be also made to the following
observations of Lord Sankey I,. C. in In Re The Regulation
and Control of Aeronautics In Canada (2) :-
"...... It is undesirable that the Court should be called
upon to express opinions which may affect the rights of
persons not represented before it or touching matters of
such a nature that its answers must be wholly ineffectual
with regard to parties who are not and who cannot be brought
before it-for example, foreign Government."
Section 4 of the Judicial Committee Act, 1833 (3 and 4
William IV, Ch. 41) provides that " It shall be lawful for
His Majesty to refer to the said Judicial Committee for
hearing and consideration any such other matters whatsoever
as His Majesty shall think fit and such Committee shall
thereupon hear and consider the same and shall advise His
Majesty thereon in manner aforesaid." It is to be noted that
it is made obligatory for the Judicial Committee to hear and
consider the matter and advise His Majesty thereon. The
Government of India Act, 1935, by s. 213(1), authorised the
Governor-General to consult the Federal Court, if at any
time it appeared to the Governor-General that there had
arisen or was likely to arise a question of
(1) [1914] A. C. 153, 162.
(2) [1932] A. C. 54, 66.
1015
law which was of such a nature and of such public importance
that it was expedient to obtain the opinion of the Federal
Court upon it and empowered that court, after such hearing
as they thought fit, to report to the Governor-General
thereon. This provision has since been reproduced word for
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word, except as to the name of the court, in cl. (1) of Art
143 of our Constitution. That Article has a new clause,
being cl. (2) which empowers the President, notwithstanding
anything in the proviso to Art. 131, to refer a dispute of
the kind mentioned in the said clause to the Supreme Court
for opinion and the Supreme Court shall, after such hearing
as it thinks fit, report to the President its opinion
thereon. It is worthy of note that, while under cl. (2) it
is obligatory on this Court to entertain a reference and to
report to the President its opinion thereon, this Court has,
under cl. (1), a discretion in the matter and may in a
proper case and for good reasons decline to express any
opinion on the questions submitted to it. In view of the
language used in s. 213(1), on which Art. 143(1) of our
Constitution is based, and having regard to the difference
in the language employed in cls. (1) and (2) of our Art. 143
just alluded to, the scope of a reference made under Art.
143(1) is obviously different from that of a reference under
s. 4 of the Judicial Committee Act, 1833 and s. 60 of the
Canadian Supreme Court Act, 1906, and this Court, under Art.
143(1), has a discretion in the matter and consequently the
observations of their Lordships of the Privy Council quoted
above are quite apposite and have to be borne in mind.
There have been all told four references by the Governor-
General under s. 213(1) of the Government of India Act,
1935, and in two of them some of the Judges of the Federal
Court have made observations on the ambit and scope of such
a reference. Thus in In re Allocation of Lands and
Buildings (1), Gwyer C. J. said :-
" On considering the papers submitted with the case we felt
some doubt whether any useful purpose
(I) [1943] F. C. R. 20, 22,
129
1016
would be served by the giving of an opinion under s. 213 of
the Act. The terms of that section do not ’impose an
obligation on the Court, though we should always be
unwilling to decline to accept a Reference, except for good
reason; and two difficulties presented themselves. First,
it seemed that questions of title might sooner or later be
involved, if the Government whose contentions found favour
with the Court desired, as the papers show might be the
case, to dispose of some of the lands in question to private
individuals, and plainly no advisory Opinion under s. 213
would furnish a good root of title such as might spring from
a declaration of this Court in proceedings taken under s.
204(1) of the Act by one Government against the other."
In In re Levy of Estate Duty (1) Spens C. J. said at p.320
of the authorised report :-
" It may be stated at the outset that when Parliament has
thought fit to enact s. 213 of the Constitution Act it is
not in our judgment for the Court to insist on the
inexpediency (according to a certain school of thought) of
the advisory jurisdiction. Nor does it assist to say that
the opinions expressed by the Court on the questions
referred " will have no more effect than the opinions of the
law officers ": Attorney-General for Ontario v. Attorney-
General for Canada (2). That is the necessary result of the
jurisdiction being advisory."
Referring to the objection that the questions related to
contemplated legislation and not to the validity or
operation of a measure already passed, the learned Chief
Justice observed at p. 321 :-
" The fact that the questions referred relate to future
legislation cannot by itself be regarded as a valid
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objection. Section 213 empowers the Governor-General to
make a reference when questions of law are " likely to
arise................................................... In
this class of cases, the reference should, in the very
nature of things, be made before the legislation has been
(1) [1944] F. C. R. 3I7, 320, 321, 350).
(2) [1912] A. C. 57I, 589.
1017
introduced and the objection based upon the hypothetical
character of the questions can have no force. We. may,
however, add that instances were brought to our’ notice in
which references had been made under the corresponding
provision in the Canadian Supreme Court Act when the matter
was at the stage of a Bill."
Zafrulla Khan J. declined to entertain the reference and to
answer the questions on high authority quoted and discussed
elaborately in his separate opinion. The learned Judge,
after pointing out in the earlier part of his opinion that
it was " a jurisdiction the exercise of which on all
occasions must be a matter of delicacy and caution ",
concluded his opinion with the following observations at
page 350:-
" In the state of the material made available to us I do not
think any useful purpose would be served by my attempting to
frame answers to the questions referred. Indeed, I
apprehend, that any such attempt might result in the opinion
delivered being made the foundation of endless litigation
hereafter, apart altogether from any question relating to
the vires of the proposed law, and operating to the serious
prejudice of persons whom it might be attempted to bring
within the mischief of that law. It is bound to raise
ghosts far more troublesome than any that it might serve to
lay. For these reasons I am compelled respectfully to
decline to express any opinion on the questions referred."
The present reference is the second of its kind under Art.
143(1) of the Constitution, the first one being concerned
with the In Re Delhi Laws Act, 1912 (1). The nature and
scope of the reference under Art. 143(1) was not discussed
in the In Re Delhi Laws Act case (1), but, we conceive, that
the principles laid down by the Judicial Committee and the
Federal Court quoted above will serve as a valuable guide
indicating the line of approach to be adopted by this Court
in dealing with and disposing of the reference now before
us. The principles established by judicial
(1) [1951] S.C.R. 747.
1018
decisions clearly indicate that the complaint that the
questions referred to us relate to the validity, not of a
statute brought into force but, of a Bill which has yet to
be passed into law by being accorded the assent of the
President is not a good ground for not entertaining the
reference for, as said by Spens C. J. Art. 143(1) does
contemplate the reference of a question of law that is "
likely to arise ". It is contended that several other
constitutional objections also arise out of some of the
provisions of the Bill considered in the light of other
provisions of the Constitution, e.g., Art. 19(1)(g) and Art.
337 and that as those objections have not been included in
the reference this Court should not entertain an incomplete
reference, for answers given to the questions put may be
misleading in the absence of answers to other questions that
arise. In the first place it is for the President to
determine what questions should be referred and if he does
not entertain any serious doubt on the other provisions it
is not for any party to say that doubts arise also out of
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them and we cannot go beyond the reference and discuss those
problems. The circumstance that the President has not
thought fit to refer other questions as to the
constitutional validity of some of the clauses of the said
Bill on the ground that they infringe other provisions of
the Constitution cannot be a good or cogent reason for
declining to entertain this reference and answer the
questions touching matters over or in respect of which the
President does entertain some doubt.
In order to appreciate the true meaning, import and
implications of the provisions of the Bill which are said to
have given rise to doubts, it will be necessary to refer
first to certain provisions of the Constitution which may
have a bearing upon the questions under consideration and
then to the actual provisions of the Bill. The inspiring
and nobly expressed preamble to our Constitution records the
solemn resolve of the people of India to constitute India
into a SOVEREIGN DEMOCRATIC REPUBLIC and, amongst other
things, to secure to all its citizens JUSTICE, LIBERTY, and
EQUALITY and to promote among
1019
them all FRATERNIT Y assuring the dignity of the individual
and the unity of the Nation. One of the most cherished
objects of our Constitution is, thus, to’ secure to all its
citizens the liberty of thought, expression, belief, faith
and worship. Nothing provokes and stimulates thought and
expression in people more than education. It is education
that clarifies our belief and faith and helps to strengthen
our spirit of worship. To implement and fortify these
supreme purposes set forth in the preamble, Part III of our
Constitution has provided for us certain fundamental rights.
Article 14, which is one of the articles referred to in two
of the questions, guarantees to every person, citizen or
otherwise, equal protection of the laws within the territory
of India. Article 16 ensures equality of opportunity for
all citizens in matters relating to employment or
appointment to any office under the State. In order to
avail themselves of the benefit of this Article all citizens
will presumably have to have equal opportunity for acquiring
the qualifications, educational or otherwise, necessary for
such employment or appointment. Article 19(1) guarantees to
citizens the right, amongst others, to freedom of speech and
expression (sub-cl. (a)) and to practise any profession, or
to carry on any occupation, trade or business (sub-cl. (g)).
These rights are, however, subject to social control
permitted by cls. (2) and (6) of Art. 19. Under Art. 25 all
persons are equally entitled, subject to public order,
morality and health and to the other provisions of Part III,
to freedom of conscience and the right freely to profess,
practise and propagate religion. Article 26 confers the
fundamental right to every religious denomination or any
section thereof, subject to public order, morality and
health, to establish and maintain institutions for religious
and charitable purposes, to manage its own affairs in
matters of religion, to acquire property and to administer
such property in accordance with law. The ideal being to
constitute India, into a secular State, no religious
instruction is, under Art. 28(1), to be provided in any
educational institution wholly maintained out of State funds
and under cl. (3) of the
1020
same Article no person attending any educational institution
recognised by the State or receiving aid out of State funds
is to be required to take part in any religious instruction
that may be imparted in such institution or to attend any
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religious worship that may be conducted in such institution
or in any premises attached thereto unless such person or,
if such person is a minor, his guardian has given his
consent thereto. Article 29(1) confers on any section of
the citizens having a distinct language, script or culture
of its own to have the right of conserving the same. Clause
(2) of that Article provides 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. Article 30,
cl. (1) of which is the subject-matter of question 2 of this
reference, runs as follows:-
" 30(1) All minorities, whether based on religion or
language, shall have the right to establish and administer
educational institutions of their choice.
(2) 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. "
While our fundamental rights are guaranteed by Part III of
the Constitution, Part IV of it, on the other hand, lays
down certain directive principles of State policy. The
provisions contained in that Part are not enforceable by any
court, but the principles therein laid down are,
nevertheless, fundamental in the governance of the country
and it shall be the duty of the State to apply these
principles in making laws. Article 39 enjoins the State to
direct its policy towards securing, amongst other things,
that the citizens, men and women, equally, have the right to
an adequate means of livelihood. Article 41 requires the
State, within the limits of its economic capacity and deve-
lopment, to make effective provision for securing the right,
inter alia, to education. Under Art. 45 the State
1021
must endeavour to provide, within a period of ten years from
the commencement of the Constitution, for free and
compulsory education for all children until they complete
the age of fourteen years. Article 46 requires the State to
promote with special care the education and economic
interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled
Tribes, and to protect them from social injustice and all
forms of exploitation.
Part XVI of our Constitution also makes certain special
provisions relating to certain classes. Thus Art. 330
provides for the reservation of seats for Scheduled Castes
and Scheduled Tribes in the House of the People. Article
331 provides for the representation of the Anglo-Indian
community in the House of the People. Reservations are
made, by Arts. 332 and 333, for the representation for the
Scheduled Castes and Scheduled Tribes and the Anglo-Indians
in the Legislative Assembly of every State for ten years
after which, according to Art. 334, these special provisions
are to cease. Special provision is also made by Art. 336
for the Anglo-Indian community in the matter of appointment
to certain services. Article 337 has an important bearing
on the question before us. It provides that during the
first three financial years after the commencement of this
Constitution, the same grants, if any, shall be made by the
Union and by each State for the benefit of the Anglo-Indian
community in respect of education as were made in the,
financial year ending on the thirty first day of March, 1948
and that during every succeeding period of three years this
grant may be less by ten per cent. than those for the
immediately preceding period of three years, provided that
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at the end of ten years from the commencement of the
Constitution such grants, to the extent to which they are a
special concessions shall cease. The second proviso to that
Article, however, provides that no educational institution
shall be entitled to receive any grant under this Article
unless at least forty per cent. of the annual admissions
therein are made available to members of communities other
than the Anglo-Indian community. This is
1022
clearly a condition imposed by the Constitution itself on
the right of the Anglo-Indian community to receive the grant
provided under this Article. Article 366(2) defines an "
Anglo-Indian ".
Presumably to implement the directive principles alluded to
above the Kerala Legislative Assembly has passed the said
Bill in exercise of the legislative power conferred upon it
by Arts. 245 and 246 of the Constitution read with entry II
of List 11 in the Seventh Schedule to the Constitution.
This legislative power is, however, to be exercised under
Art. 245 " subject to the provisons of this Constitution
". Therefore, although this legislation may have been
undertaken by the State of Kerala in discharge of the
obligation imposed on it by the directive principles
enshrined in Part IV of the Constitution, it must,
nevertheless, subserve and not over-ride the fundamental
rights conferred by the provisions of the Articles contained
in Part III of the Constitution and referred to above. As
explained by this Court in the State of Madras v. Smt.
Champakam Dorairajan (1) and reiterated recently in Mohd.
Hanif Quareshi v. The State of Bihar (2) " The directive
principles of State policy have to conform to and run as
subsidiary to the Chapter on Fundamental Rights ". Neverthe-
less, in determining the scope and ambit of the fundamental
rights relied on by or on behalf of any person or body the
court may not entirely ignore these directive principles of
State policy laid down in Part IV of the Constitution but
should adopt the principle of harmonious construction and
should attempt to give effect to both as much as possible.
Keeping in view the principles of construction above
referred to we now proceed to examine the provisions of the
said Bill in order to get a clear conspectus of it.
The long title of the said Bill describes it as " A Bill to
provide for the better Organisation and ’development of
educational institutions in the State." Its preamble recites
thus: " Whereas it is deemed necessary to pro-
(1) [1951] S.C.R. 525, 53I.
(2) [1959] S.C.R. 629.
1023
vide for the better Organisation and development of
educational institutions in the State providing a varied and
comprehensive educational service throughout the State." We
must, therefore, approach the substantive provisions of the
said Bill in the light of the policy and purpose deducible
from the terms of the aforesaid long title and the preamble
and so construe the clauses of the said Bill as will
subserve the said policy and purpose. Sub-clause (3) of cl.
I provides that the Bill shall come into force on such date
as the Government may, by notification in the Gazette,
appoint and different dates may be appointed for different
provisions of this Bill-a fact which is said to indicate
that Government will study the situation and bring into
force such of the provisions of the said Bill which will
best subserve the real needs of its people. Clause 2
contains definitions of certain terms used in the said Bill
of which the following sub-clauses may be noted:-
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" (1) " aided school " means a private school which is
recognised by and is receiving aid from the Government;
(3) " existing school " means any aided, recognised or
Government school established before the commencement of
this Act and continuing as such at such commencement;
(6) " private school " means an aided or recognised school;
(7) " recognised " means a private school recognised by the
Government under this Act
Clause 3 deals with " Establishment and recognition of
schools. " Sub-clause (1) empowers the Government to "
regulate the primary and other stages of education and
courses of instructions in Government and private schools.
" Sub-clause (2) requires the Government to " take, from
time to time, such steps as they may consider necessary or
expedient, for the purpose of providing facilities for
general education, special education
130
1024
and for the training of teachers." Sub-clause (3) provides
that "the Government may, for the purpose of providing such
facilities:-(a) establish and maintain schools; or (b)
permit any person or body of persons to establish and
maintain aided schools; or (c) to recognise any school
established and maintained by any person or body of
persons." All existing schools, which by the definition mean
any aided, recognised or Government schools established
before and continuing at the commencement of the Bill are,
by sub-cl. (4) to be deemed to have been established in
accordance with this Bill. The proviso to sub-clause (4)
gives an option to the educational agency of an aided school
existing at the commencement of that clause, at any time
within one month of such commencement after giving notice to
the Government of its intention so to do, to opt to run the
school as a recognised school subject to certain conditions
therein mentioned. Sub-clause (5) of cl. 3, which forms, in
part, the subject matter of two of the questions referred to
runs as follows:-
" 3 (5) After the commencement of this Act, the
establishment of a new school or the opening of a higher
class in any private school shall be subject to the
provisions of this Act and the rules made thereunder and any
school or higher class established or opened otherwise than
in accordance with such provisions shall not be entitled to
be recognised by the Government."
Clause 4 of the Bill provides for the constitution of a
State Education Advisory Board consisting of officials and
non-officials as therein mentioned, their term of office and
their duties. The purpose of the setting up of such a Board
is that it should advise the Government on matters
pertaining to educational policy and administration of the
Department of Education. Clause 5 requires the manager of
every aided school on the first day of April of each year to
furnish to the authorised officer of the Government a list
of properties, moveable and immoveable, of the school. A
default in furnishing such list entails, under sub-cl. (2)
of that clause, the withholding of the maintenance grant.
Clause 6 imposes restrictions on the alienation of any
1025
property of an aided school, except with the previous
permission ill writing of the authorised officer of the
Government. An appeal is provided against the order of the
authorised officer refusing or granting such permission
under sub-cl. (1). Sub-clause (3) renders any transaction
in contravention of sub-cl. (1) or sub-el. (2) null and void
and on such contravention the Government, under sub-cl. (4),
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is authorised to withhold any grant to the school. Clause 7
deals with managers of aided schools. Sub-clause (1)
authorises any Education agency to appoint any person to be
a manager of an aided school, subject to the approval of the
authorised officer, all the existing managers of aided
schools being deemed to have been appointed under the said
Bill. The manager is made responsible for the conduct of
the school in accordance with the provisions of this Bill
and the rules thereunder. Subclause (4) makes it the duty
of the manager to maintain such record and accounts of the
school and in such manner as may be prescribed by the rules.
The manager is, by sub-cl. (5), required to afford all
necessary and reasonable assistance and facilities for the
inspection of the school and its records and accounts by the
authorised officer. Sub-clause (6) forbids the manager to
close down any school without giving to the authorised
officer one year’s notice expiring with the 31st May of any
year of his intention so to do. Sub-clause (7) provides
that, in the event of the school being closed or
discontinued or its recognition being withdrawn, the manager
shall make over to the authorised officer all the records
and accounts of the school. Sub-clause (8) provides for
penalty for the contravention of the provisions of sub-cls.
(6) and (7). Clause 8 provides for the recovery of amounts
due from the manager of an aided school as an arrear of land
revenue. Sub-clause (3) of cl. 8, which is also referred to
in one of the questions, runs as follows:-
" 8 (3) All fees and other dues, other than special fees,
collected from the students in an aided school after the
commencement of this section shall, notwithstanding anything
contained in any agreement, scheme
1026
or arrangement, be made over to the Government in such
manner as may be prescribed."
Clause 9 makes it obligatory on the Government to pay the
salary of all teachers in aided schools direct or through
the headmaster of the school and also to pay the salary of
the non-teaching staff of the aided schools. It gives power
to the Government to prescribe the number of persons to be
appointed in the non-teaching establishment of aided
schools, their salaries, qualifications and other conditions
of service. The Government is authorised, under sub-cl.
(3), to pay to the manager a maintenance grant at such rates
as may be prescribed and under sub-cl. (4) to make grants
in-aid for the purchase, improvement and repairs of any
land, building or equipment of an aided school. Clause 10
requires Government to prescribe the qualifications to be
possessed by persons for appointment as teachers in
Government schools and in private schools which, by the
definition, means aided or recognised schools. The State
Public Service Commission is empowered to select candidates
for appointment as teachers in Government and aided schools
according to the procedure laid- down in cl. 11. Shortly
put, the procedure is that before the 31st May of each year
the Public Service Commission shall select for each district
separately candidates with due regard to the probable number
of vacancies of teachers that may arise in the course of the
year, that the list of candidates so selected shall be
published in the Gazette and that the manager shall appoint
teachers of aided schools only from the candidates so
,selected for the district in which the school is located
subject to the proviso that the manager may, for sufficient
reason, with the permission of the Commission, appoint
teachers selected for any other district. Appointment of
teachers in Government schools are also to be made from the
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list of candidates so published. In selecting candidates
the Commission is to have regard to the provisions made by
the Government under cl. (4) of Art. 16 of the Constitution,
that is to say, give representation in the educational
service to persons belonging to the Scheduled Castes or
Tribes
1027
-a provision which has been severely criticised by learned
counsel appearing for the Anglo-Indian and Muslim
communities. Clause 12 prescribes the conditions of service
of the teachers of aided schools obviously intended to
afford some security of tenure to the teachers of aided
schools. It provides that the scales of pay applicable to
the teachers of Government schools shall apply to all the
teachers of aided schools whether appointed before or after
the commencement of this clause. Rules applicable to the
teachers of the Government schools are also to apply to
certain teachers of aided schools as mentioned in sub-cl.
(2). Sub-clause (4) provides that no teacher of ail aided
school shall be dismissed, removed, reduced in rank or
suspended by the manager without the previous sanction of
the authorised officer. Other conditions of service of the
teacher of aided schools are to be as prescribed by rules.
Clause 14 is of considerable importance in that it provides,
by sub-clause (1), that the Government, whenever it appears
to it that the manager of any aided school has neglected to
perform any of the duties imposed by or under the Bill or
the rules made thereunder, and that in the public interest
it is necessary so to do, may, after giving a reasonable
opportunity to the manager of the Educational agency for
showing cause against the proposed action, take over the
management for a period not exceeding five years. In cases
of emergency the Government may, under sub-el. (2), take
over the management after the publication of notification to
that effect in the Gazette without giving any notice to the
Educational agency or the manager. Where any school is thus
taken over without any notice the Educational agency or the
manager may, within three months of the publication of the
notification, apply to the Government for the restoration of
the school showing the cause therefor. The Government is
authorised to make orders which may be necessary or
expedient in connection with the taking over of the
management of an aided school. Under sub-el. (5) the
Government is to pay such rent as maybe fixed by the
Collector in respect of the properties taken possession of,
On taking over any
1028
school the Government is authorised to run it affording any
special educational facilities which the school was doing
immediately before such taking over. Right of appeal to the
District Court is provided against the order of the
Collector fixing the rent. Sub-cl. (8) makes it lawful for
the Government to acquire the school taken over under this
clause if the Government is satisfied that it is necessary
so to do in the public interest, in which case compensation
shall be payable in accordance with the principles laid down
in cl. 15 for payment of compensation. Clause 15 gives
power to the Government to acquire any category of schools.
This power can be exercised only if the Government is
satisfied that 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 and if in the public
interest it is necessary so to do. No notification for
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taking over any school is to be issued unless the proposal
for the taking over is supported by a resolution of the
Legislative Assembly. Provision is made for the assessment
and apportionment of compensation and an appeal is provided
to the District Court from the order passed by the Collector
determining the amount of compensation and its apportionment
amongst the persons entitled thereto. Thus the Bill
contemplates and provides for two methods of acquisition of
aided schools, namely, under sub-cl. (8) of el. 14 the
Government may acquire a school after having taken
possession of it under the preceding sub-clauses or the
Government may, under el. 15, acquire any category of aided
schools in any specified area for any of the several
specific purposes mentioned in that clause. Clause 16 gives
power to the Government to exempt immoveable properties from
being taken over or acquired. Clause 17 provides for the
establishment of Local Education Authorities, their
constitution and term of office and clause 18 specifies the
functions of the Local Education Authorities. Clauses 19
and 20 are important and read as follows:-
1029
" 19. Recognised schools:-The provisions of subsections
(2), (4), (5), (6), (7), (8) and (9) of section 7 shall
apply to recognised schools to the same extent’ and in the
same manner as they apply to aided schools."
" 20. No fee to be charged from pupils of primary classes:-
No fee shall be payable by any pupil for any tuition in the
primary classes in any Government or private school."
Part II of the Bill deals with the topic of compulsory
education. That part applies to the areas specified in el.
21. Clause 23 provides for free and compulsory education of
children throughout the State within a period of ten years
and is intended obviously to discharge the obligation laid
on the State by Art. 45 of the directive principles of State
policy. Clauses 24 and 25 deal with the constitution of
Local Education Committees and the functions thereof Clause
26, which has figured largely in the discussion before us
runs as follows :
" 26. Obligation on guardian to send children to school:-In
any area of compulsion, the guardian of every child shall,
if such guardian ordinarily resides in such area, cause such
child to attend a Government, or private school and once a
child has been so caused to attend school under this Act the
child shall be compelled to complete the full course of
primary education or the child shall be compelled to attend
school till it reaches the age of fourteen."
We may skip over a few clauses, not material for our
purpose, until we come to el. 33 which is referred to in one
of the questions we have to consider. That clause
provides--
" 33. Courts not to grant injunction-Notwithstanding
anything contained in the Code of Civil Procedure, 1908, or
in any other law for the time being in force, no court shall
grant any temporary injunction or make any interim order
restraining any proceedings which is being or about to be
taken under this Act."
Clause 36 confers power on the Government to make
1030
rules for the purpose of carrying into effect the provisions
of the Bill and in particular for the purpose of the
establishment and maintenance of schools, the giving of
grants and aid to private schools, the grant of recognition
to private schools, the levy and collection of fees in aided
schools, regulating the rates of fees in recognised schools,
the manner in which the accounts, registers and records
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shall be maintained, submission of returns, reports and
accounts by managers, the standards of education and course
of study and other matters specified in sub-cl. (2) of that
clause. Clause 37 is as follows:-
" 37. Rules to be laid before the Legislative Assembly:-All
rules made under this Act shall be laid for not less than
fourteen days before the Legislative Assembly as soon as
possible after they are made and shall be subject to such
modifications as the Legislative Assembly may make during
the session in which they are so laid."
Under cl. 38 none of the provisions of the Bill applies to a
school which is not a Government or a private school, i. e.,
aided or recognized school.
The above summary will, it is hoped, clearly bring out the
purpose and scope of the provisions of the said Bill. It is
intended to serve as showing that the said Bill contains
many provisions imposing considerable State control over the
management of the educational institutions in the State,
aided or recognised. The provisions, in so far as they
affect the aided institutions, are much more stringent than
those which apply only to recognised institutions. The
width of the power of control thus sought to be assumed by
the State evidently appeared to the President to be
calculated to raise doubts as to the constitutional validity
of some of the clauses of the said Bill on the ground of
apprehended infringement of some of the fundamental rights
guaranteed to the minority communities by the Constitution,
and accordingly in exercise of the powers vested in him by
Art. 143(1) the President has referred to this Court, for
consideration and report the following questions:
1031
" (1) Does sub-clause (5) of clause 3 of the Kerala
Education Bill, read with clause 36 thereof or any of the
provisions of the said sub-clause, offend article 14 of the
Constitution in any particulars or to any extent?
(2) Do sub-clause (5) of clause 3, sub-clause (3) of clause
8 and clauses 9 to 13 of the Kerala Education Bill, or any
provisions thereof, offend clause (1) of article 30 of the
Constitution in any particulars or to any extent ?
(3) Does clause 15 of the Kerala Education Bill, or any
provisions thereof, offend article 14 of the Constitution in
any particulars or to any extent ?
(4) Does clause 33 of the Kerala Education Bill, or any
provisions thereof, offend article 226 of the Constitution
in any particulars or to any extent ?"
On receipt of the reference this Court issued notices to
persons and institutions who appeared to it to be interested
in the matter calling upon them to file their respective
statements of case concerning the above mentioned questions.
Three more institutions were subsequently, on their own
applications, granted leave to appear at the hearing. The
Union of India, the State of Kerala and all the said persons
and institutions have filed their respective statements of
case and have appeared before us by counsel and taken part
in the debate. A body called the Crusaders’ League his by
post sent its views but has not appeared at the hearing. We
have had the advantage of hearing very full arguments on the
points arising out of the questions and we are deeply
indebted to learned counsel appearing for the parties for
the very great assistance they have rendered to us.
It will be necessary, at this stage, to clear the ground by
disposing of a point as to the scope and ambit of questions
I and 2. It will be noticed that both these questions
challenge the constitutional validity, inter alia, of clause
3 (5) of the said Bill which has already been quoted in
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extensor The argument advanced by the learned Attorney
General and other learned counsel appearing for bodies or
institutions challeng-
131
1032
ing the validity of the said Bill is that the provision of
cl. 3(5), namely, that the establishment of a new school
"shall be subject to the provisions of this Act and the
rules made thereunder " attracts all other clauses of the
said Bill as if they are set out seriatim in sub-el. (5)
itself. Therefore, when questions I and 2 challenge the
constitutional validity of el. 3(5) they, in effect, call in
question the validity of all other clauses of the said Bill.
Learned counsel appearing for the State of Kerala, however,
opposes this line of argument on several grounds. In’ the
first place, he contends that cl. 3(5) attracts only those
provisions of this Bill which relate Lo the establishment of
a new school. When asked to specify what provisions of the
said Bill relate to I he establishment of a new school
which, according to him, are attracted by cl. 3(5), the only
provision that he refers to is sub-cl. (3) of cl. 3. Learned
counsel for the State of Kerala maintains that el. 3(5)
attracts only el. 3(3) and the rules that may be made under
el. 36(2)(a) and no other clause of the said Bill and,
therefore, no other clause is included within the scope of
the questions unless, of course, they are specifically
mentioned in the questions, as some of the clauses are, in
fact, specifically mentioned in question 2. If the mention
of cl. 3(5) in those questions, ipso facto, attracted all
other clauses of the said Bill, why, asks learned counsel,
were other clauses specifically mentioned in, say, question
2 ? Learned counsel also contends that after a school is
established the other clauses will proprio vigore apply to
that school and there was no necessity for an express
provision that a newly established school would be subject
to the other provisions of the Bill. As the other clauses
of the Bill will apply to all schools established after the
Bill becomes an Act without the aid of cl. 3(5), a reference
to that clause in the questions cannot bring within their
ambit any clause of the Bill which is not separately and
specifically mentioned in the questions. Finally learned
counsel contends that -even if cl. 3(5) attracts the other
provisions of the Bill, it does not necessarily follow that
the other provisions also form the subject matter of the
questions. In our judgement,
1033
neither of the two extreme, positions can be seriously
maintained.
The contentions advanced by learned counsel for the State of
Kerala appear to us to be open to several criticisms. If
the intention of sub-cl. (5) of cl. 3 was to attract only
those provisions of the Bill which related only to the
establishment of a new school and if sub-cl. (3) of cl. 3
was the only provision in that be-half, apart from the rules
to be framed under el. 36(2)(a), then as a matter of
intelligible drafting it would have been more appropriate to
say, in siib-cl. (3) of el. 3, that the establishment of new
schools ",,;hall be subject to the provisions of this clause
and the rules to be made under el. 36(2)(a) ". Clause 3(5)
is quite clearly concerned with the establishment of new
schools Government, aided or recognised schools, and says
that after the Bill becomes law all new schools will be
subject to the other provisions of the Bill. So far as new
Government schools are concerned, el. 3(5) certainly
attracts el. 3(3)(a), for that provision authorises the
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Government to establish new schools; but to say that el.
3(5) only attracts el. 3(3) appears to be untenable, for
that sub-clause does not in terms provide for the
establishment of new aided or recognised schools. As
already observed, el. 3(3)(a) specifically provides for the
establishment and maintenance of new schools by the
Government only. Clause 3(3)(b) provides only for the
giving of permission by the Government to a person or body
of persons to establish and maintain aided schools.
Likewise el. 3(3)(c) authorises the Government only to
recognise any school established, and maintained by any
person or body of persons. Clause 3(4) introduces a fiction
whereby all existing schools, which mean all existing
Government, aided or recognised schools, shall be deemed to
have been established in accordance with this Bill. Then
comes cl. 3(5) which is couched in very wide terms. It
says, inter alia, that after the commencement of the
operation of the said Bill the establishment of new schools
should be subject to the other provisions of the Bill and
the rules made thereunder. The rules to be framed under cl.
36(2)(a), (b) &
1034
(c) appear to be respectively correlated to cl. 3(3)(a),
(b) & (c). Bearing in mind the provisions of cl. 38 which
places all schools other than Government and private, i. e.,
aided or recognised schools, outside the purview of the
Bill, the establishment of what sort of new schools, we ask,
does sub-cl. (5) contemplate and authorise ? Obviously
aided or recognised schools established after the Bill
becomes law. Clause 3(5), like cl. 3(3), has apparently
been very inartistically drawn, but reading the clause as a
whole and particularly the concluding part of it, namely,
that any school ’established otherwise than in accordance
with such provisions shall not be entitled to be recognised
by the Government, there can be no doubt that cl. 3(5)
itself contemplates and authorises the establishment of new
schools as aided or recognised schools. The opening of new
schools and the securing of aid or recognition from the
Government constitute the establishment of new schools
contemplated by el. 3(5) read with cl. 3(3). Reading el.
3(5) in the context of its setting, we have no doubt that
its purpose is not merely to authorise the establishment of
new schools but to subject the new schools to all the
provisions of the said Bill and the rules made thereunder.
To accept the restrictive argument that el. 3(5) attracts
only el. 3(3) will be putting a too narrow construction on
sub-cl. (5) not warranted by the wide language thereof or by
the language of cl. 3(3). We do not think that there is
much force in the argument that it was not necessary to
expressly provide for the application of the other
provisions to new schools to be established after the Bill
became law and that the other clauses of the said Bill would
by their own force and without the aid of sub-cl. (5) apply
to such newly established schools, for having, in terms,
expressly made the new schools subject to the other
provisions it is not open to the State of Kerala now to say
that sub-el. (5) need not have made the other provisions of
the said Bill applicable to new schools established after
the said Bill comes into operation or that it does not
attract the other. clauses although it expressly purports to
do or that it is not open to those who oppose the Bill to
refer
1035
to any other clause in support of their case. If el. 3(5)
did not expressly attract the other provisions, the
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President would perhaps have framed the questions
differently.
If, therefore, it be held, as we are inclined to do, that
cl. 3(5) makes the new schools subject to the other
provisions of the said Bill, what will be the position ? If,
as submitted by the learned AttorneyGeneral and other
counsel supporting him, some of the clauses of the said Bill
impinge upon the fundamental rights of the members of the
minority community or educational institutions established
or to be established by them and if el. 3(5) makes those
clauses applicable to the new schools they may establish
after the Bill becomes law, then not only do those other
clauses violate their rights but el. 3(5) which openly and
expressly makes those other clauses apply to such new
schools must also encounter the challenge of
unconstitutionality. In other words, the vice of
unconstitutionality, if any, of those other clauses must
attach to cl. 3(5) because it is the latter which in terms
makes the new schools subject to those objectionable
clauses. Therefore, in a discussion on the validity of el.
3(5) it becomes germane to discuss the validity of the other
clauses. In short, though the validity of the other clauses
is not by itself and independently, the subject-matter of
either of those questions, yet their validity or otherwise
has to be taken into consideration in determining the
constitutional validity of el. 3(5) which makes those
clauses applicable to the newly established schools. It is
in this sense that, we think, a discussion of the validity
of the other clauses comes within the purview of questions I
and 2. We do not, in the circumstances, consider it right,
in view of the language employed in this el. 3(5), to
exclude the consideration of the constitutional validity of
the other clauses of the Bill from the discussion on
questions I and 2 which challenge the constitutional
validity of el. 3(5) of the said Bill. Indeed, in the
argument before us frequent references have been made to the
other clauses of the said Bill in discussing questions I and
2 and we have heard the respective contentions of learned
1036
counsel on the validity or otherwise of those clauses in so
far as they have a bearing on the questions put co us which
we now proceed to consider and answer.
Re. Questions 1 and 3. Question I challenges the
constitutional validity of sub-cl. (5) of el. 3 of the -said
Bill read with el. 36 thereof on the ground that, the same
violates the equal protection of the laws guaranted to all
persons by Art. 14 of the Constitution. Question 3 attacks
el. 15 of the said Bill on the same ground, namely, that it
is violative of Art. 14 of the Constitution. As the ground
of attack tinder both the questions is the same, it will be
convenient to deal with them together.
The true meaning, scope and effect of Art. 14 of our
Constitution have been the subject-matter of discussion and
decision by this Court in a number of cases beginning with
the case of Chiranjit Lal Chowdhuri v. The Union of India
and others (1). In Budhan Choudhry v. The State of Bihar
(2) a Constitution Bench of seven Judges of this Court
explained the true meaning and scope of that Article.
Recently in the case of Ram Krishna Dalmia and others Sri
Justice S. R. Tendolkar (3), the position was at length by
this Court, by its judgment on March 28, 1958, and the
several principles firmly established by the decisions of
this Court were set out seriatim in that judgment. The
position -",as again summarised in the still more recent
case of land. Hanif Quaeshi v. The State of Bihar (1) in the
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following words:-
" The meaning, scope and effect of Art. 14, which is the
equal protection clause in our Constitution, has been
explained by this Court in a series of decisions in cases
begining with Chiranjit Lal Chowdhury v. The Union Of India
(1) and ending with the recent case of Ram Krishna Dalmia v.
Sri Justice S. R. Tendolkar (1). It is now well-established
that while Art. 14 forbids class legislation it does not
forbid reasonable classification for the purposes of
legislation
(1) [1950] S. C. E. 869.
(2) [1955] 1 S. C. R. I045.
(3) [1959] S.C.R. 279.
(4) [1959] S.C.R. 6,g.
1037
and that in order to pass the test of permissible classi-
fication two conditions must be fulfilled, namely, (i) the
classification must be founded on an intelligible
differentia which distinguishes persons or things that, are
grouped together from others left out of the group and (ii)
such differentia must have a rational relation to the object
sought to be achieved by the statute in question. The
classification, it has been held, may be founded on
different bases, namely, geographical or according to
objects or the occupations or the like and what is necessary
is that there must be a nexus between the basis of
classification and the object of the Act tinder
consideration . The pronouncements of this Court further
establish, amongst other things, that there is always a
presumption in favour of the constitutionality of an
enactment and that the burden is upon him, who attacks it,
to show that, there has been a clear violation of the
constitutional principles. The courts, it is accepted, must
presume that, the legislature understands and correctly the
needs of its own people, that its laws are directed to
problems made manifest by experience and that its
discriminations are based on adequate grounds. It must be
borne in mind that the legislature is free to recognise
degrees of harm and may confine its restrictions to those
cases where the need is deemed to be the clearest and
finally that in order to sustain the presumption of
constitutionality the Court may take into consideration
matters of common knowledge, matters of common report, the
history of the times and may assume every state of facts
which can be conceived existing at the time of legislation."
In the judgment of this Court in Ram Krishna Dalmia’s case
(1) the statutes that came up for consideration before this
Court were classified into five several categories as
enumerated therein. No useful purpose will be served by re-
opening the discussion and, indeed, no attempt has been made
in, that behalf by learned counsel. We, therefore, proceed
to examine the impugned provisions in the light of the
aforesaid principles enunciated by this Court.
Coming now to the main argument founded on
(1) [1959] S.C.R. 279.
1038
Art. 14, the Bill, it is said, represents a deliberate
attempt on the part of the party now in power in Kerala to
strike at the Christian Church and especially that of the
Catholic persuasion, to eliminate religion, to expropriate
the minority communities of the properties of their schools
established for the purpose of conserving their distinct
language, script and culture, and in short, to eliminate all
educational agencies other than the State so as to bring
about a regimentation of education and by and through the
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educational institutions to propagate the tenets of their
political philosophy and indoctrinate the impressionable
minds of the rising generation. It is unfortunate that a
certain amount of heat and passion was introduced in the
discussion of what should be viewed as a purely legal and
constitutional problem raised by the questions ; but perhaps
it is understandable in the context of the bitter agitation
and excitement provoked by the said Bill in the minds of
certain sections of the people of the State. We desire,
however, to emphasise that this Court is not concerned with
the merit or otherwise of the policy of the Government which
has sponsored this measure and that all that we are called
upon to do is to examine the constitutional questions
referred to us and to pronounce our opinion on the validity
or otherwise of those provisions of the Bill which may
properly come within the purview of those questions.
The doubts which led to the formulation of question 1 are
thus recited in the order of reference which had better be
stated in its own terms:-
" AND WHEREAS sub-clause (3) of clause 3 of the said Bill
enables the Government of Kerala, inter alia, to recognise
any school established and maintained by any person or body
of persons for the purpose of providing the facilities set
out in subclause (2) of the said clause, to wit, facilities
for general education, special education and for the train-
ing of teachers;
AND WHEREAS sub-clause (5) of clause 3 of the said Bill
provides, inter alia, that any new school established or any
higher class opened in any private
1039
school, after the Bill has become an Act and the Act has
come into force, otherwise than in accordance with the
provisions of the Act and the rules made under section 36
thereof, shall not be entitled to be recognised by the
Government of Kerala;
AND WHEREAS a doubt has arisen whether the provisions of the
said sub-clause (5) of clause 3 of the said Bill confer upon
the Government an unguided power in regard to the
recognition of new schools and the opening of higher classes
in any private school which is capable of being exercised in
an arbitrary and discriminatory manner;
AND WHEREAS a doubt has further arisen whether such power of
recognition of new schools and of higher classes in private
schools is not capable of being exercised in a manner
affecting the right of the minorities guaranteed by clause
(1) of article 30 of the Constitution to establish and
administer educational institutions of their choice;
Likewise the doubts concerning cl. 15 are formulated in the
following recitals in the order of reference :-
" AND WHEREAS clause 15 of the said Bill empowers the
Government of Kerala to take over, by notification in the
Gazette, any category of aided schools in any specified area
or areas, if they are satisfied that for standardising
general education in the State of Kerala or for improving
the level of literacy in any area or for more effectively
managing the aid-Id educational institutions in any area or
for bringing education of any category under their direct
control it is necessary to do so in the public interest, on
payment of compensation on the basis of market value of the
schools so taken over after deducting therefrom the amounts
of aids or grants given by that Government for requisition,
construction or improvement of the property of the schools;
AND WHEREAS a doubt has arisen whether such power is not
capable of being exercised in an arbitrary and
discriminatory manner."
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132
1040
The legal aspect of the matter arising out of the two
questions is further elaborated thus by learned counsel
appearing for the persons or institutions contesting the
validity of the Bill: Clause 3 (5) makes all the provisions
of the Bill applicable to new schools that may be
established after the Bill becomes law. Clause 3 (5) gives
the Government an unguided, uncontrolled and uncanalised
power which is capable of being exercised "with an evil eye
and an unequal hand" and the Government may, at its whim or
pleasure, single out any person or institution and subject
him or it to hostile and discriminatory treatment. The Bill
does not lay down any policy or principle for the guidance
of the Government in the matter of the exercise of the wide
powers so conferred on it by the different clauses of the
Bill. It is pointed out that cl. 3 does not lay down any
policy or principle upon which the Government may or may not
permit any person or body of persons to establish and
maintain an aided school or grant recognition to a school
established by any person. The Government may grant such
permission or recognition to persons who support its policy
but not to others who oppose the same. Clause 6 does riot
say in what circumstances the authorised officer of the
Government may or may not give permission to the alienation
of the property of an aided school. He may give permission
in one case but arbitrarily withhold it in another similar
case. Likewise the authorised officer may not, under el. 7,
approve of the appointment of a particular person as manager
of in aided school for no better reason than the prejudice
or dislike of his Government for that particular person’s
political views or affiliations. The Government may, under
cl. 9, pay the maintenance grant to the manager of one aided
school but not to that of another. Particular schools or
categories of schools in particular areas may be singled out
for discriminatory treatment under cls. 14 and 15 of the
Bill. It is next pointed out that if cl. 3 (5) is read with
cls. 21, 26 and 28 of the Bill the result will be palpably
discriminatory because in an area which is not an area of
compulsion a new school which may be established after the
Bill
1041
comes into operation and which may not seek recognition or
aid can charge fees and yet attract scholars but a new
school similarly established in an area of compulsion will
be hit directly by cl. 26 and will have no scholars, for no
guardian will be able lawfully to send his ward to a school
which is neither a Government school nor a private school
and such a new school will not be able to function at all,
for it will have no scholar and the question of its charging
fees in any class will not arise. There is no force in this
last mentioned point, for the Legislature, it must be re-
membered, knows the needs of its people and is entitled to
confine its restriction ’to those places where the needs are
deemed to be the clearest and, therefore, the restrictions
imposed in areas of compulsion are quite permissible on the
ground of classification on geographical basis. Whatever
other provisions of the Constitution, such restriction may
or may not violate, which will be discussed later, it
certainly does not infringe Art. 14.
A further possibility of discrimination is said to arise as
a result of the application of the same provisions of the
Bill to all schools which are not similarly situate. The
argument is thus developed: The Constitution, it is pointed
out, deals with the schools established by minority
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communities in a way different from the way it deals with
other schools. Thus Anglo-Indian schools are given grants
under Art. 337 of the Constitution and educational institu-
tions started by all minority communities including the
Anglo-Indians are protected by Arts. 29 and 30. The
educational institutions of the minorities are thus
different from the educational institutions established by
the majority communities who require no special privilege or
protection and yet the Bill purports to put in the same
class all educational institutions although they have not
the same characteristics and place equal burdens on
unequals. This indiscriminate application of the same
provisions to different institutions having different
characteristics and being unequal brings about a serious
discrimination violative of the equal protection clause of
the Constitution. In
1042
support of this argument reliance is placed on the decision
of the American Supreme Court in Cumber’land Coal Co. v.
Board of Revision (1). That decision, in our judgment, has
no application to the facts of the case before us. There
the taxing authorities assessed the owners of coal lands in
the city of Cumberland by applying a flat rate of 50 per
cent. not on the actual value of the properties but on an
artificial valuation of $ 260 per acre arbitrarily assigned
to all coal lands in the city irrespective of their
location. It was not disputed that the value of properties
which were near the river-banks or close to the railways was
very much more than that of properties situate far away from
the river-banks or the railways. The artificial valuation
of $ 260 per acre was much below the actual value of the
properties which were near the river-banks or the railways,
whereas the value of the properties situate far away, from
the riverbank or the railways was about the same as tile
assigned value. ’The result of applying the equal rate of
tax, namely, 50 per cent. on the assigned value was that the
owners of more valuable properties had to pay much less than
what they would have been liable to pay upon the real value
of those properties. Therefore, the method of assessment
worked out clearly to the disadvantage of the owners of
properties situate in the remoter parts of the city and was
obviously discriminatory. There the discrimination was an
integral part of that mode of taxing. That is not the
position here, for there is no discrimination in the
provisions of the said Bill and consequently the principle
of that decision can have no application to this case. This
does not, however, conclude the matter and we have yet to
deal with the main argument that the Bill does not lay down
any policy or principle for the guidance of the Government
in the exercise of the wide powers vested in it by the Bill.
Reference has already been made to the long title and the
preamble of the Bill. That the policy and purpose of a
given measure may be deduced from the long title and the
preamble thereof has been recognised
(1) (1931) 284 U. S. 23; 76 L. Ed. I46,150.
1043
in many decisions of this Court and as and by way of’ ready
reference we may mention our decision in Biswambar Singh v.
The State of Orissa (1) as an instances in point. The
general policy of the Bill as laid down in its title and
elaborated in the preamble is " to provide for the better
Organisation and development of educational institutions
providing a varied and comprehensive educational service
throughout the State." Each and every one of the clauses in
the Bill has to be interpreted and read in the light of this
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policy. When, therefore, any particular clause leaves any
discretion to the Government to take any action it must be
understood that such discretion is to be exercised for the
purpose of advancing and in aid of implementing and not
impeding this policy. It is, therefore, not correct to say
that no policy or principle has at all been laid down by the
Bill to guide the exercise of the discretion left to the
Government by the clauses in this Bill. The matter does
not, however, rest there. The general policy deducible from
the long title and preamble of the Bill is further
reinforced by more definite. statements of policy in
different clauses thereof. Thus the power vested in the
Government under cl. 3(2) can be exercised only " for the
purpose of providing facilities for general education,
special education and for the training of teachers ". It is
" for the purpose of providing such facilities " that the
three several powers under heads (a), (b) and (c) of that
sub-clause have been conferred on the Government. The clear
implication of these provisions read in the light of the
policy deducible from the long title and the preamble is
that in the matter of granting permission or recognition the
Government must be guided by the consideration whether the
giving of such permission or recognition will enure for the
better Organisation and development of educational
institutions in the State, whether it will facilitate the
imparting of general or special education or the training of
teachers and if it does then permission or recognition must
be granted but it must be refused if it impedes that
purpose. It is true that the
(1) [1954] S. C. R. 842, 855.
1044
word " may " has been used in sub-el. (3), but, according to
the well known rule of construction of statutes, ’if the
existence of the purpose is established and the conditions
of the exercise of the discretion are fulfilled, the
Government will be under an obligation to exercise its
discretion in furtherance of such purpose and no question of
the arbitrary exercise of discretion can arise. [Compare
Julius v. Lord Bishop of Oxford (1) ]. If in actual fact any
discrimination is made by the Government then such
discrimination will be in violation of the policy and
principle deducible from the said Bill itself and the court
will then strike down not the provisions of the Bill but the
discriminatory act of the Government. Passing on to cl. 14,
we find that the power conferred thereby on the Government
is to be exercised only if it appears to the Government that
the manager of any aided school has neglected to perform the
duties imposed on him and that the exercise of the power is
necessary in public interest. Here again the principle is
indicated and no arbitrary or unguided power has been
delegated to the Government. Likewise the power, under el..
15(1) can be exercised only if the Government is satisfied
that it is necessary to exercise it 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
the education of any category under their direct control "
and above all the exercise of the power is necessary " in
the public interest ". Whether the purposes are good or bad
is a question of State policy with the merit of which we are
not concerned in the present discussion. All that we are
now endeavouring to point out is that the clause under
consideration does lay down a policy for the guidance of the
Government in the matter of the exercise of the very wide
power conferred on it by that clause. The exercise of the
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power is also controlled by the proviso that no notification
under that sub-clause shall be issued unless the proposal
for the taking over is supported by a resolution of the
Legislative Assembly-a proviso
(1) (1880) 5 App. Cas. 214.
1045
which clearly indicates that the power cannot be exercised
by the Government at its whim or pleasure. Skipping over a
few clauses, we come to cl. 36. The’ power given to the
Government by cl. 36 to make rules is expressly stated to be
exercised " for the purpose of carrying into effect the
provisions of this Act ". In other words, the rules to be
framed must implement the policy and purpose laid down in
its long title and the preamble and the provisions of the
other clauses of the said Bill. Further, under el. 37 the
rules have to be laid for not less than 14 days before the
Legislative Assembly as soon as possible after they are made
and are to be subject to such modifications as the
Legislative Assembly may make during the session in which
they are so laid. After the rules are laid before the
Legislative Assembly they may be altered or amended and it
is then that the rules, as amended become effective. If no
amendments are made the rules come into operation after the
period of 14 days expires. Even in this latter event the
rules owe their efficacy to the tacit assent of the
Legislative Assembly itself. Learned counsel appearing for
the State of Kerala submitted in picturesque language that
here was what could be properly said to be legislation at
two stages and the measure that will finally emerge
consisting of the Bill and the rules with or without
amendment will represent the voice of the Legislative
Assembly itself and, therefore, it cannot be said that an
unguided and uncontrolled power of legislation has been
improperly delegated to the Government. Whether in
approving the rules laid before it the Legislative Assembly
acts as the Legislature of Kerala or acts as the delegatee
of the Legislature which consists of the Legislative
Assembly and the Governor is, in the absence of the standing
orders and rules of business of the Kerala Legislative
Assembly, more than we can determine. But all that we need
say is that apart from laying down a policy for the guidance
of the Government in the matter of the exercise of powers
conferred on it under the different provisions of the Bill
including cl. 36, the Kerala Legislature has, by cl. 15 and
el. 37 provided further safeguards. In this
1046
connection we must bear in mind what has been laid down by
this Court in more decisions than one, namely, that
discretionary power is not necessarily a discriminatory
power and the abuse of power by the Government will not be
lightly assumed. For reasons stated above it appears to us
that the charge of unconstitutionality of the several
clauses which come within the two questions now under
consideration founded on Art. 14 cannot be sustained. The
position is made even clearer whether we consider the
question of the validity of el. 15(1) for, apart from the
policy and principle deducible from the long title and the
preamble of the Bill and from that sub-clause itself, the
proviso thereto clearly indicates that the Legislature has
not abdicated its function and that while it has conferred
on the Government a very wide power for the acquisition of
categories of schools it has not only provided that such
power can only be exercised for the specific purposes
mentioned in the clause itself but has also kept a further
and more effective control over the exercise of the power,
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by requiring that it is to be exercised only if a resolution
is passed by the Legislative Assembly authorising the
Government to do so. The Bill, in our opinion, comes not
within category (iii) mentioned in Ram Krishna Dalmia’s case
(1) as contended by Shri G. S. Pathak but within category
(iv) and if the Government applies the provisions in
violation of the policy and principle laid down in the Bill
the executive action will come under category (v) but not
the Bill and that action will have to be struck down. The
result, therefore, is that the charge of invalidity of the
several clauses of the Bill which fall within the ambit of
questions I and 3 on the ground of the infraction of Art. 14
must stand repelled and our answers to both the questions I
and 3 must, therefore, be in the negative.
Re. Question 2 : Articles 29 and 30 are set out in Part III
of our Constitution which guarantees our fundamental rights.
They are grouped together under the sub-head " Cultural and
Educational Rights ". The text and the marginal notes of
both the Articles show that their purpose is to confer those
fundamental
(1) [1959] S.C.R. 279.
1047
rights on certain sections of the, community which
constitute minority communities. Under cl. (1) of Art. 29
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 has the right to conserve the same.
It is obvious that a minority community can effectively
conserve its language, script or culture by and through
educational institutions and, therefore, the right to
establish and maintain educational institutions of its
choice is a necessary concomitant to the right to conserve
its distinctive language, script or culture and that is what
is conferred on all minorities by Art. 30(1) which has here-
in before been quoted in full. This right, however, is
subject, to el. 2 of Art. 29 which provides 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.
As soon as we reach Art. 30 (1) learned counsel for the
State of Kerala at once poses the question: what is a
minority ? That is a term which is not defined in the
Constitution. It is easy to say that a minority community
means a community which is numerically less than 50 per
cent, but then the question is not fully answered, for part
of the question has yet to be answered, namely,50 per cent.
of what ? Is it 50 percent of the entire population of India
or 50 per cent. of the population of a State forming a part
of the Union ? The position taken up by the State of Kerala
in its statement of case filed herein is as follows:
"There is yet another aspect of the question that falls for
consideration, namely as to what is a minority under Art.
30(1) The state contends that Christians, a certain
section of whom is vociferous in its objection to the Bill
on the allegation that it offends Art. 30(1), are not in a
minority in the State. It is no doubt true that Christians
are not a mathematical majority in the whole State. They
constitute about one-fourth of the population; but it does
not follow therefrom that they form a minority within the
meaning of Art. 30 (1).
133
1048
The argument that they do, if pushed to its logical
conclusion, would mean that any section of the people
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forming under fifty per cent. of the population should be
classified as a minority and be dealt with as such.
Christians form the second largest community in Kerala
State; they form, however, a majority community in certain
area of the State. Muslims form the third largest community
in the State, about one-seventh of the total population.
They also, however, form the majority community in certain
other areas of the State. (In (1951) 3 Assam 384, it was
held that persons who are alleged to be a minority must be a
minority in the particular region in which the institution
involved is situated)."
The State of Kerala, therefore, contends that in order to
constitute a minority which may claim the fundamental rights
guaranteed to minorities by Art. 29 (1) and 30 (1) persons
must numerically be a minority in the particular region in
which the educational institution in question is or is
intended to be situate. A little reflection will at once
show that this is not a satisfactory test. Where is the
line to be drawn and which is the unit which will have to be
taken ? Are we to take as our unit a district, or a sub-
division or a taluk or a town or its suburbs or a
municipality or its wards ? It is well known that in many
towns persons belonging to a particular community flock
together in a suburb of the town or a ward of the
municipality. Thus Anglo-Indians or Christians or Muslims
may congregate in one particular suburb of a town or one
particular ward of a municipality and they may be in a
majority there. According to the argument of learned
counsel for the State of Kerala the Anglo-Indians or
Christians or Muslims of that locality, taken as a unit,
will not be a " minority " within the meaning of the
Articles under consideration and will not, therefore, be
entitled to establish and maintain educational institutions
of their choice in that locality, but if some of the members
belonging to the Anglo-Indian or Christian community happen
to reside in another suburb of the same town or another ward
of the same municipality
1049
and their number be less than that of the members of other
communities residing there, then those members of the Anglo-
Indian or Christian community will be a minority within the
meaning of Arts. 29 and 30 and will be entitled to establish
and maintain educational institutions of their choice in
that locality. Likewise the Tamilians residing in
Karolbagh, if they happen to be larger in number than the
members of other communities residing in Karolbagh, will not
be entitled to establish and maintain a Tamilian school in
Karolbagh, whereas the Tamilians residing in, say, Daryaganj
where they may be le-,is numerous than the members of other
communities residing in Daryaganj will be a minority or
section within the meaning of Arts. 29 and 30. Again Bihari
labourers residing in the industrial areas in or near
Calcutta where they may be the majority in that locality
will not be entitled to have the minority rights and those
Biharis will have no educational institution of their choice
imparting education in Hindi, although they are numerically
a minority if we take the entire city of Calcutta or the
State of West Bengal as a unit. Likewise Bengolis residing
in a particular ward in a town in Bihar where they may form
the majority will not be entitled to conserve their
language, script or culture by imparting education in
Bengali. These are, no doubt, extreme illustrations, but
they serve to bring out the fallacy inherent in the argument
on this part of the case advanced by learned counsel for the
State of Kerala. Reference has been made to Art. 350-A in
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support of the argument that a local authority may be taken
as a unit. The illustrations given above will apply to that
case also. Further such a construction will necessitate the
addition of the words " within their jurisdiction " after
the words " minority groups ". The last sentence, of that
Article also appears to run counter to such argument. We
need not, however, on this occasion go further into the
matter and enter upon a discussion and express a final
opinion as to whether education being a State subject being
item 11 of List 11 of the Seventh Schedule to the
Constitution subject only to the provisions of entries 62,
63, 64 and 66 of List I and
1050
entry 25 of List III, the existence of a minority community
should in all circumstances and for purposes of all laws 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, for the -Bill before us extends to the whole of
the State of Kerala and consequently the minority must be
determined by reference to the entire population of that
State. By this test Christians, Muslims and Anglo-Indians
will certainly be minorities in the State of Kerala. It is
admitted that out of the total population of 1,42,00,000 in
Kerala there are only 34,00,000 Christians and 25,00,000
Muslims. The Anglo-Indians in the State of Travancore-
Cochin before the re Organisation of the States numbered
only 11,990 according to the 1951 Census. We may also
emphasise that question 2 itself proceeds on the footing
that there are minorities in Kerala who are entitled to the
rights conferred by Art. 30 (1) and, strictly speaking, for
answering question 2 we need not enquire as to what a
minority community means or how it is to be ascertained.
We now pass on to the main point canvassed before us,
namely, what are the scope and ambit of the right conferred
by Art. 30 (1). Before coming to grips with the main
argument on this part of the case, we may (teal with a minor
point raised by learned counsel for the State of Kerala. He
contends that there are three conditions which must be
fulfilled before the protection and privileges of Art. 30
(1) may be claimed, namely, (1) there must be a minority
community, (2) one or more of the members of that community
should, after the commencement of the Constitution, seek to
exercise the right to establish an educational institution
of -his or their choice, and (3) the educational institution
must be established for the members of his or their own
community. We have already determined, according to the
test referred to above, that the Anglo-Indians, Christians
and Muslims are minority communities in the
1051
State of Kerala. We do not think that the protection and
privilege of Art. 30 (1) extend only to the educational
institutions established after the date our Constitution
came into operation or which may hereafter be established.
On this hypothesis the educational institutions established
by one or I more members of any of these communities prior
to the commencement of the Constitution would not be
entitled to the benefits of Art. 30 (1). The fallacy of
this argument becomes discernible as soon as we direct our
attention to Art. 19(1)(g) which, clearly enough, applies
alike to a business, occupation or profession already
started and carried on as to those that may be started and
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carried on after the commencement of the Constitution.
There is no reason why the benefit of Art. 30(1) should be
limited only to educational institutions established after
the commencement of the Constitution. The language employed
in Art. 30(1) is wide enough to cover both pre-Constitution
and post-Constitution institutions. It must not be
overlooked that Art. 30(1) gives the minorities two rights,
namely, (a) to establish, and (b) to administer, educational
institutions of their choice. The second right clearly
covers pre-Constitution schools just as Art. 26 covers the
right to maintain pre-Constitution religious institutions.
As to the third condition mentioned above, the argument
carried to its logical conclusion comes to this that if a
single member of any other community is admitted into a
school established for the members of a particular minority
community, then the educational institution ceases to be an
educational institution established by the particular
minority community. The argument is sought to be reinforced
by a reference to Art. 29(2). It is said that an
educational institution established by a minority community
which does not seek any aid from the funds of the State need
not admit a single scholar belonging to a community other
than that for whose benefit it was established but that as
soon as such an educational institution seeks and gets aid
from the State coffers Art. 29(2) will preclude it from
denying admission to members of the other communities on
grounds only of religion, race, caste,
1052
language or any of them and consequently it will cease to be
an educational institution of the choice of the minority
community which established it. This argument does not
appear to us to be warranted by the language of the Article
itself. There is no such limitation in Art. 30(1) and to
accept this limitation will necessarily involve the addition
of the words " for their own community " in the Article
which is ordinarily not permissible according to well
established rules of interpretation. Nor is it reasonable
to assume that the purpose of Art. 29(2) was to deprive
minority educational institutions of the aid they receive
from the State. To say that an institution which receives
aid on account of its being a minority educational
institution must not refuse to admit any member of any
other community only on the grounds therein mentioned and
then to say that as soon as such institution admits such an
outsider it will cease to be a minority institution is
tantamount to saying that minority institutions will not, as
minority institutions, be entitled to any aid. The real
import Of Art. 29(2) and Art. 30(1) seen-is to us to be that
they clearly contemplate a, minority institution with a
sprinkling of outsiders admitted into it. admitting a non-
member into it the minority institution does not shed its
character and cease to be a minority institution. Indeed
the object of conservation of’ the distinct language, script
and Culture of a minority may be better served by
propagating the same amongst non-members of the particular
minority community. In our opinion, it is not possible to
read this condition into Art’ 30(1) of the Constitution.
Having disposed of the minor point, referred to above, we
now take up the main argument advanced before us as to the
content of Art. 30(1). The first point to note is that the
Article gives certain rights not only to religious
minorities but also to linguistic minorities. In the next
place, the right conferred on such minorities is to
establish educational institutions of their choice. It does
not say that, minorities based on religion should establish
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educational institutions for teaching religion only, or that
linguistie minorities
1053
should have the right to establish educational institutions
for teaching their language only. What the article says and
means is that the religious and the linguistic minorities
should have the right to establish educational institutions
of their choice. There is no limitation placed on the
subjects to be taught in such educational institutions. As
such minorities will ordinarily desire that their children
should be brought up properly and efficiently and be
eligible for higher university education and go out in the
world fully equipped with such intellectual attainments as
will make them fit for entering the public services, educa-
tional institutions of their choice will necessarily include
institutions imparting general secular education also. In
other words, the Article leaves it to their choice to
establish such educational institutions as will serve both
purposes, namely, the purpose of conserving their religion,
language or culture, and also the purpose of giving a
thorough, good general education to their children. The
next thing to note is that the Article, in terms, gives all
minorities, whether based on religion or language, two
rights, namely, the right to establish and the right to ad
-minister educational institutions of their The key to the
understanding of the true meaning and implication of the
Article under consideration are the words " of their own
choice ". It is said that the dominant word is " choice "
and the content of that Article is as wide as the choice of
the particular minority community may make it. The ambit of
the rights conferred by Art:30(1) has, therefore, to be
determined on a consideration of the matter from the points
of view of the educational institutions themselves. The
educational institutions established or administered by the
minorities or to be so established or administered by them
in exercise of the rights conferred by that, Article, may be
classified into three categories, namely, (1) those which do
not seek either aid or recognition from the State, (2) those
which want aid, and (3) those which want only recognition
but not aid.
As regards the institutions which come within the first
category, they are, by cl. 38 of the Bill, outside
1054
the purview of the Bill and, according to learned counsel
for the State of Kerala, nothing can be done for or against
them under the Bill. They have their right under Art. 30(1)
and they can, says learned counsel, exercise that right to
their heart’s content unhampered by the Bill. Learned
counsel appearing for the institutions challenging the
validity of the Bill, on the other hand, point to cl. 26 of
the Bill to which reference has already been made. They say
that if the educational institutions, present or future,
which come within the first category happen to be located
within an area of compulsion they will have to close down
for want of scholars, for all guardians residing within such
area are, by cl. 26, enjoined, on pain of penalty provided
by el. 28, to-send their wards only to Government schools or
private schools which, according to the definition, means
aided or recognised schools. Clause 26, it is urged,
abridges and indeed takes away the fundamental right
conferred on the minorities by Art. 30(1) and is, therefore,
unconstitutional. The educational institutions coming
within the first category, not being aided or recognised
are, by el. 38, prima facie outside the purview of the Bill.
None of the provisions of the Bill including those mentioned
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in the Question apply to them and accordingly the point
sought to be raised by them, namely, the infraction of their
right under Art. 30(1) by el. 26 of the Bill does not come
within the scope of question 2 and we cannot, on the present
reference, express any opinion on that point.
As regards the second category, we shall have to sub-divide
it into two classes, namely, (a) those which are by the
Constitutional itself expressly made eligible for receiving
grants, and (b) those which are not entitled to any grant by
virtue of any express provision of the Constitution but,
nevertheless, seek to get aid.
Anglo-Indian educational institutions come within sub-
category (a). An Anglo-Indian is defined in Art. 366(2).
The Anglo-Indian community is a wellknown minority community
in India based on religion as well as language and has been
recognised
1055
as such by this Court in The State of Bombay v. Bombay
Education Society (1). According to the figures set out in
the statement of case filed by the" two Anglo-Indian
institutions represented before us by Shri Frank Anthony,
about which figures there is no dispute, there are 268
recognised Anglo-Indian schools in India out of which ten
are in the State of Kerala. Anglo-Indian educational
institutions established prior to 1948 used to receive
grants from the Government of those days. Article 337,
presumably in view of the special circumstances concerning
the Anglo-Indian community and to allay their natural fears
for their future well being, preserved this bounty for a
period of ten years. According to that Article all Anglo-
Indian educational institutions which were, receiving grants
up to the financial year ending on March 31, 1948, will
continue to receive the same grant subject to triennial
diminution of ten per cent. until the expiry of ten years
when the grant, to the extent it is a special concession to
the Anglo-Indian community, should cease. The second
proviso imposes the condition that at least 40 per cent. of
the annual admissions must be made available to the members
of comnunities other than the Anglo-Indian community.
Likewise Art. 29 (2) provides, inter alia, that no citizen
shall be denied admission into any educational institution
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them. These are
the only constitutional limitations to the right of the
Anglo-Indian educational institutions to receive aid.
Learned counsel appearing for two Anglo-Indian schools
contends that the State of Kerala is bound to implement the
provisions of Art. 337. lndeed it is stated in the statement
of case filed by the State of Kerala that all Christian
schools are aided by that State and, therefore, the Anglo-
Indian schools, being also Christian schools, have been so
far getting from the State of Kerala the grant that they are
entitled to under Art,. 337. Their grievance is that by
introducing
(1) [1955] 1 S.C.R. 568, 583.
134
1056
this Bill the State of Kerala is now seeking to impose,
besides the constitutional limitations mentioned in the
second proviso to Art. 337 and Art. 29 (2), further and more
onerous conditions on this grant to the Anglo Indian
educational institutions although their constitutional right
to such grant still subsists. The State of Cls. 8(3),and 9
to13 besides other clauses attracted by cl. 3(5) of the
Bill curtailing and, according to them completly
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takeing away, their constitutional right to manageown
affairs as a price for the grant to which under Art. 337,
they are entitled unconditionally except to the extent
mentioned in the second proviso to that article and in Art.
29 (2). Learned counsel for the State of Kerala does not
seriously dispute, as indeed he cannot fairly do, that so
far as the grant under Art. 337 is concerned the Anglo-
Indian educational institutions are entitled to receive the
same without any fresh strings being attached to such grant,
although he faintly suggests that the grant received by the
Anglo-Indian educational institutions under Art. 337 is not
strictly speaking " aid " within the meaning of that word as
used in the Bill. We are unable to accept I that part of
his argument as sound. The word " aid" has not been defined
in the Bill. Accordingly we must give this simple English
word its ordinary and natural meaning. It may, in passing,
be noted that although the word " grant " is used in Art.
337 the word " aid " is used in Art. 29 (2) and Art. 30 (2),
but there can be no question that the word " aid " in these
two Articles will cover the " grant " under Art. 337.
Before the passing of the said Bill the Anglo-Indian
educational institutions were receiving the bounty formerly
from the State of Madras or Travancore-Cochin and after its
formation from the present new State of Kerala. In the
circumstances, the amount received by the AngloIndian
institutions as grant under Art. 337 must be construed as "
aid " within the meaning of the said Bill and these Anglo-
Indian educational institutions in receipt of this grant
payable under Art. 337 must accordingly be regarded as aided
schools " within
1057
the meaning of the definitions in cl. 2, sub-cls. (1) and
(6). The imposition of stringent terms as fresh or
additional conditions precedent to this grant to the Anglo-
Indian educational institutions will, therefore, infringe
their rights not only under Art. 337 but also under Art. 30
(1). If the Anglo-Indian educational institutions cannot
get the grant to which they are entitled except upon terms
laid down by the provisions of the Bill then, if they insist
on the right of administration guaranteed to them by Art. 30
(1) they will have to exercise their option tinder the
proviso to el. 3 (4) and remain content with mere
recognisation, subject to certain terms therein mentioned
which may also be an irksome and intolerable encroachment on
their right of administration. But the real point is that
no educational institution can in modern times, afford to
subsist and efficiently function without some State aid and,
therefore, to continue their institutions they will have to
seek aid and will virtually have to surrender their
constitutional right of administering educational
institutions of their choice. the premises, they may, in
our opinion, legitimately complain that so far as the grants
under Art. 337 are concerned, the provisions of the clauses
of the I-’)ill mentioned in question 2 do in substance and
effect infringe their fundamental rights under Art. 30 (1)
and are to that extent void. It is urged by learned counsel
for the State of Kerala that this Court should decline to
answer this question until rules are framed but if the
provisions of the Bill are obnoxious on the face of them, no
rule can cure that defect. No or do we think that there is
any substance in the argument advanced by learned counsel
for Kerala that this Bill has ]lot introduced anything now
and the Anglo-Indian schools are not being subjected to
anything beyond what they have been submitting to under the
Education Acts and Codes of Travancore or Cochin or Madras.
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In 1945 or 1947 when those Acts and codes came into
operation there were no fundamental rights and there can be
no loss of fundamental right merely on the ground of non-
exercise of it. There is no case of estoppel here, assuming
that there can be an estoppel against the
1058
Constitution. There can be no question, therefore, that
the Anglo-Indian educational institutions which are entitled
to their (,rants under Art. 337 are being subjected to
onerous conditions and the provisions of the said Bill which
legitimately come within question 2 as construed by us
infringe their rights not only under Art. 337 but also
violate their rights under Art. 30 (1) in that they are
prevented from effectively exercising those rights. it
should be borne in mind that in determining the
constitutional validity of a measure or a provision therein
regard must be had to the real effect and impact thereof on
the fundamental right. See the decisions of this Court in
Rashid Ahmad v. Muunicipal Board Kairana’s case (1), Mohd.
Yasin v. The Town Area Committee, Jalalabad’s case (2) and
The State of Bombay v. Bombay Education Society’s case (3).
Learned counsel for the State of Kerala next urges that each
and every one of the Anglo-Indian educational institutions
are getting much more than what they are entitled to under
Art. 337 and that consequently, in so far as-, these Anglo-
Indian educational institutions are getting more than what
is due to them under Art. 337, they are, as regards the
excess, in the same position as other Anglo-Indian
educational institutions started after 1948 and the
educational institutions established by other minorities who
have no right to aid under any express provision of the
Constitution but are in receipt of aid or seek to get it.
This takes us to the consideration of the cases of the
educational institutions which fall within sub-category (b)
mentioned above, namely, the institutions which are not
entitled to any grant of aid by virtue of any express
provision of the Constitution but, nevertheless, seek to get
aid from the State.
We have already seen that Art. 337 of the Constitution makes
special provision for granting aid to Anglo-Indian
educational institutions established prior to 1948. There
is no constitutional provision for such grant of aid to
educational institutions established by
(1) [1950] S.C.R. 566, 571. (2) [1952] S.C.R. 572, 577.
(3) [1955] 1 S.C.R. 568, 583.
1059
the Anglo-Indian community after 1948 or to those
established by other minority communities at any time. The
other minority communities or even the Anglo-Indian
community in respect of post-1948 educational institutions
have no constitutional right, fundamental or otherwise, to
receive any grant from the State. It is, however, well-
known that in modern times the demands and necessities of
modern educational institutions to be properly and
efficiently run require considerable expense which cannot be
met fully by fees collected from the scholars and private
endowments which are not adequate and, therefore, no
educational institution can be maintained in a state of
efficiency and usefulness without substantial aid from the
State. Articles 28(3), 29(2) and 30(2) postulate
educational institutions receiving aid out of State funds.
By the bill now under consideration the State of Kerala also
contemplates the granting of aid to educational
institutions. The said Pill, however, imposes stringent
terms as conditions precedent to the grant of aid to
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educational institutions. The provisions of the Bill have
already been summarised in detail in an earlier part of this
opinion and need not be recapitulated. Suffice it to say
that if the said Bill becomes law then, in order to obtain
aid from State funds, an educational institution will have
to submit to the conditions laid down in cls. 3. 5, 6, 7, 8,
9, 10, 11, 12, 14, 15 and 20. Clause 36 empowers the
Government to make rules providing for the giving of aids to
private schools. Learned counsel appearing for the
educational institutions opposing the Bill complain that
those clauses virtually deprive their clients of their
rights under Art. 30(1).
Their grievances are thus stated: The gist of the right of
administration of a school is the power of appointment,
control and dismissal of teachers and other staff. But
under the said Bill such power of management is practically
taken away. Thus the manager must submit annual statements
(el. 5). The fixed assets of the aided schools are frozen
and cannot be dealt with except with the permission of the
authorised officer (cl. 6). No educational agency of an
aided
1060
school can appoint a manager of its choice and the manager
is completely under the control of the authorised officer,
for he must keep accounts in the manner he is told to do and
to give periodical inspection of them, and on the closure of
the school the accounts must be made over to the authorised
officer (el. 7). All fees etc. collected will have to be
made over to the Government (el. 8 (3)). Government will
take up the task of paying the teachers and the non-teaching
staff (cl. 9). Government will prescribe the qualification
of teachers (cl. 10). The school authorities cannot appoint
a single teacher of their choice, but must appoint persons
out of the panel settled by the Public Service Commission
(cl. 11). The school authorities must provide amenities to
teachers and cannot dismiss, remove, reduce or even suspend
a teacher without the previous sanction of the authorised
officer (cl. 12). Government may take over the management
on being satisfied as to certain matters and can then
acquire it outright (el. 14) and it can also acquire the
aided school, against on its satisfaction is to certain
matters on which it is easily possible to entertain
different views (cl. 15). Clause 20 peremptorily prevents a
private school, which means an aided or recognised school,
from charging any fees for tuition in the primary classes
where the number of scholars are the highest, Accordingly
they contend that those provisions do offend the fundamental
rights conferred on them by Art. 30(1).
Learned counsel appearing for the State of Kerala advances
the extreme contention that Art. 30 (1) Confers on the
minorities the fundamental right to establish and administer
educational institutions of their choice and nothing more.
They are free to exercise such rights as much as they like
and as long as they care to do so on their own resources.
But this fundamental right goes no further and cannot
possibly extend to their getting financial assistance from
the coffers of the State. If they desire or seek to obtain
aid from the State they must submit to the terms on which
the State offers aid to all other educational institutions
established by other people just as a person
1061
will have to pay 15 naye paise if he wants to buy a stamp
for an inland letter. Learned counsel appearing for the two
Anglo-Indian schools as well. as learned counsel appearing
for the Jamait-ul-ulemia-iHind, on the other hand, insist in
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their turn, on an equally extreme proposition, namely, that
their clients’ fundamental rights under Art. 30 (1) are, in
terms, absolute and not only can it not be taken away but
cannot even be abridged to any extent. They draw our
attention first to Art. 19 (1) (g) which confers on the
citizens the fundamental right to carry on any business and
then to cl. 6 of that article which permits reasonable
restrictions being imposed on that fundamental right and
they contend that, as there is no such provision in Art. 30
(1) conferring on the State any police power authorising the
imposition of social control, the fundamental rights tinder
Art. 30 (1) must be held to be absolute and cannot be
subjected to any restriction whatever. They reinforce their
arguments by relying on Arts. 28 (3), 29 (2) and 30 (2)
which, they rightly submit, do contemplate the grant of aid
to educational institutions established by minority com-
munities. Learned counsel also strongly rely on Arts. 41
and 46 of the Constitution which, as directive principles of
State policy, make it the duty of the State to aid
educational institutions and to promote the educational
interests of the minorities and the weaker sections of the
people. Granting of aid to educational institutions is,
according to learned counsel, the normal function of the
Government. The Constitution contemplates institutions
wholly maintained by the State, as also institutions
receiving aid from the State. If, therefore, the granting
of aid is a governmental function, it must, they say, be
discharged in a reasonable way and without infringing the
fundamental rights of the minorities. There may be no
fundamental right given to any person or body administering
an educational institution to get aid from the State and
indeed if the State has not sufficient funds it cannot
distribute any. Nevertheless if the State does distribute
aid it cannot, they contend, attach such conditions to it as
will deprive the
1062
minorities of their fundamental rights under Art. 30(1).
Attaching stringent conditions, such as those provided by
the said Bill and summarised above, is violative of the
rights guaranteed to the minorities by Art. 30(1).
Surrender of fundamental rights cannot, they conclude, be
exacted as the price of aid doled out by the State.
We are thus faced will a problem of considerable complexity
apparently difficult of solution. There is, on the one hand
the minority rights under Art. 30(1) to establish and
administer educational institutions of their choice and the
duty of the Government to promote education, there is, on
the other side the obligation of the State under Art. 45 to
endeavour to introduce free and compulsory education. We
have to reconcile between these two conflicting interests
arid to give effect to both if that is possible and bring
about a synthesis between the two. The directive principles
cannot ignore or override the fundamental rights but must,
as we have said, subserve the fundamental rights. We have
already observed that Art. 30(1) gives two rights to the
minorities, (1) to establish and (2) to administer,
educational institutions of their choice. The right to
administer cannot obviously include the right to
maladminister. The minority cannot surely 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 does
not maintain even a fair standard of teaching or which
teaches matters subversive of the welfare of the scholars.
It stands to reason, then, that the constitutional right to
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administer an educational institution of their choice does
not necessarily militate against the claim of the State to
insist that in order to In grant aid the State may prescribe
reasonable regulations to ensure the excellence of the
institutions to be aided. Learned Attorney -General
concedes that reasonable regulations may certainly be
imposed by the state as a condition for aid or even for
recognition. There is no right in any minority, other than
Anglo-Indians, to get aid, but, he contends, that if the
State chooses to
1063
grant aid then it must not say-" I have money and I shall
distribute aid but I shall not give you any aid unless you
surrender to me your right of administra . tion." The State
must not grant aid in such manner as will take away the
fundamental right of the minority community under Art.
30(1). Shri (’X. S. Pathak appearing for some of the
institutions opposing the Bill agrees that it is open to the
State to lay down conditions for recognition, namely, that
an institution must have a particular amount of funds or
properties or number of students or standard of education
and so forth and it is open to the State to make a law
prescribing conditions for such recognition or aid provided,
however, that such law is constitutional and does not
infringe any fundamental right of the minorities.
Recognition and grant of aid, says Shri G. S. Pathak, is the
governmental function and, therefore, the State cannot
impose terms as condition precedent to the grant of
recognition or aid which will be violative of Art. 30(1).
According to the statement of case filed by the State of
Kerala, every Christian school in the State is aided by the
State. Therefore, the conditions imposed by the said Bill
on aided institutions established and administered by
minority communities, like the Christians, including the
Anglo-Indian community, will lead to the closing down of all
these aided schools unless they are agreeable to surrender
their fundamental right of management. No educational
institutions can in actual practice be carried on without
aid from the State and if they will not get it unless they
surrender their rights they will, by compulsion of financial
necessities, be compelled to give up their rights under Art.
30(1). The legislative powers conferred on the legislatures
of the States by Arts. 245 and 246 are subject to the other
provisions of the Constitution and certainly to the
provisions of Part III which confers fundamental rights
which are, therefore, binding on the State legislatures.
The State legislatures cannot, it is clear, disregard or
override those provisions merely by employing indirect
methods of achieving exactly the
135
1064
same result. Even the legislature cannot do indirectly what
it certainly cannot do directly. Yet that will be the
effect of the application of these provisions of the Bill
and according to the decisions of this Court already
referred to it is the real effect to which regard is to be
had in determining the constitutional validity of any
measure. Clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20 relate
to the management of aided schools. Some of these
provisions, e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may
easily be regarded as reasonable regulations or conditions
for the grant of aid. Clauses 9, 11(2) and 12(4) are,
however, objected to as going much beyond the permissible
limit. It is said that by taking over the collections of
fees, etc., and by undertaking to pay the salaries of the
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teachers and other staff the Government is in reality
confiscating the school fund and taking away the prestige of
the school, for none will care for the school authority.
Likewise cl. II takes away an obvious item of management,
for the manager cannot appoint any teacher at all except out
of the panel to be prepared by the Public Service
Commission, which, apart from the question of its power of
taking up such duties, may not be qualified at all to select
teachers who will be acceptable to religious denominations
and in particular sub-el. (2) of that clause is
objectionable for it thrusts upon educational institutions
of religious minorities teachers of Scheduled Castes who may
have no knowledge of the tenets of their religion and may be
otherwise weak educationally. Power of dismissal, removal,
reduction in rank or suspension is an index of the right of
management and that is taken away by cl. 12(4). These are,
no doubt, serious inroads on the right of administration and
appear perilously near violating that right. But
considering that those provisions are applicable to all
educational institutions and that the impugned parts of cls.
9, 11 and 12 are designed to give protection and security to
the ill paid teachers who are engaged in rendering service
to the nation and protect the backward classes, we are pre-
pared, as at present advised, to treat these clauses 9,
11(2) and 12(4) as permissible regulations which the
1065
State may impose on the minorities as a condition for
granting aid to their educational institutions. We,,
however, find it impossible to support cls. 14 and 15 of the
said Bill as mere regulations. The provisions of those
clauses may be totally destructive of the rights under Art.
30(1). It is true that the right to aid is not implicit in
Art. 30(1) but the provisions of those clauses, if submitted
to on account of their factual compulsion as condition of
aid, may easily be violative of Art. 30(1) of the
Constitution. Learned counsel for the State of Kerala
recognises that cls. 14 and 15 of the Bill may annihilate
the minority communities’ right to manage educational
institutions of their choice but submits that the validity
of those clauses is not the subject matter of question 2.
But, as already explained, all newly established schools
seeking aid or recognition are, by el. 3(5), made subject to
all the provisions of the Act. Therefore, in a discussion
as to the constitutional validity of cl. 3(5) a discussion
of the validity of the other clauses of the Bill becomes
relevant, not as and by way of a separate item but in
determining the validity of the provisions of el. 3(5). In
our opinion, sub-el. 3 of el. 8 and cls. 9, 10, 11, 12 and
13 being merely regulatory do not offend. Art. 30(1), but
the provisions of sub-cl. (5) of cl. 3 by making the aided
educational institutions subject to cls. 14 and 15 as
conditions for the. grant of aid do offend against Art.
30(1) of the Constitution.
We now come to the, last category of educational
institutions established and administered by minority
communities which seek only recognition but not aid from the
State. The extreme arguments advanced with regard to
recognition by learned counsel for the State of Kerala and
learned counsel for the two Anglo-Indian schools and learned
counsel for the Muslim institutions proceed on the same
lines as those advanced respectivly by them on the question
as to granting of aid, namely, that the State of Kerala
maintains that the minority communities may exercise their
fundamental right under Art. 30(1) by establishing
educational institutions of their choice wherever they like
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and administer the same in their own way
1066
and need not seek recognition from the Government, but that
if the minority communities desire to have ’State
recognition hey must submit to the terms imposed, as
conditions precedent to recognition, on every educational
institution. The claim of the educational institutions of
the minority communities, on the other hand, is that their
fundamental right under Art. 30(1) is absolute and cannot be
subjected to any restriction whatever. Learned counsel for
the two Anglo-Indian schools appearing on this reference,
relying on some decisions of the American Supreme Court,
maintains that a child is not the creature of the State and
the parents have the right to get their child educated in
educational institutions of their choice. Those American
decisions proceed on the language of the due process clauses
of the Fifth and the Fourteenth Amendments and have no
application to a situation arising under our Constitution
-and we need not, therefore, discuss them in detail here.
Adverting to the two conflicting views propounded before -us
we repeat that neither of the two extreme propositions can
be sustained and we have to reconcile the two, if possible.
Article 26 gives freedom to religious denominations or any
section thereof, subject to public order, morality and
health, to establish and maintain institutions for religious
and charitable purposes. Article 29(1) gives protection to
any section of -citizens residing in the territory of India
having a distinct language, script or culture of its own the
right to conserve the same. As we have already stated, the
distinct language, script or culture of a minority community
can best be conserved by and through educational institu-
tions, for it is by education that their culture can be
inculcated into the impressionable minds of the children of
their community. It is through educational institutions
that the language and script of the minority community can
be preserved, improved and strengthened. It is, therefore,
that Art. 3O(1) confers on all minorities, whether based on
religion- or language, the right to establish and administer
educational institutions of their choice. The minorities,
quite understandably, regard it as essential that the
education
1067
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. But the
conservation of the distinct language, script or culture is
not the only object of choice of the minority communities.
They also desire that scholars of their educational
institutions should go out in the world well and
sufficiently equipped with the qualifications necessary for
a useful career in life. But according to the Education
Code now in operation to which it is permissible to refer
for ascertaining the effect of the impunged provision on
existing state of affairs, the scholars of unrecognised
schools are not permitted to avail themselves of the
opportunities for higher education in the University and are
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not eligible for entering the public services. Without
recognition, therefore, the educational institutions
established or to be established by the minority communities
cannot fulfil the real objects of their choice and the
rights under Art. 30(1) cannot be effectively exercised.
The right to establish educational institutions of their
choice must, therefore, mean the right to establish real
institutions which will effectively serve the needs of their
community and the scholars who resort to their educational
institutions. There is, no doubt, no such thing as
fundamental right to recognition by the State but to deny
recognition to the educational institutions except upon
terms tantamount to the surrender of their constitutional
right of administration of the educational institutions of
their choice is in truth and in effect to deprive them of
their rights under Art. 30(1). We repeat that the
legislative power is subject to the
1068
fundamental rights and the legislature cannot indirectly
take away or abridge the fundamental rights which it could
not do directly and yet that will be the result if the said
Bill containing any offending clause becomes law. According
to the decisions of this Court referred to above, in judging
the validity of any law regard must be had to its real
intendment and effect on the rights of the aggrieved
parties, rather than to its form. According to the
Education Codes certain conditions are prescribed-whether as
legislative or as executive measures we do not stop to
enquire-as conditions for the grant of recognition and it is
said, as it was said during the discussion on the question
of aid, that the said Bill imposes no more burden than what
these minority educational institutions along with those of
other communities are already subjected to. As we have
observed there can be no question of the loss of a
fundamental right merely by the non-exercise of it. There
is no case here of any estoppel, assuming that there can be
any estoppel against the Constitution. Therefore, the
impugned provisions of the said Bill must be considered on
its merits.
By cl. 19 the following clauses, namely, 7 (except sub-cls.
I and 3 which apply only to aided schools), 10 and 20 were
made applicable to recognised schools. We are prepared to
accept the provisions of sub-cls. 2, 4 to 9 of cl. 7 and the
provisions of cl. 10 as permissible regulations but it is
difficult to treat el. 20 as merely regulatory. That clause
peremptorily requires that no fees should be charged for
tuition in the primary classes. There is no dispute that
the number of pupils in the primary classes is more than
that in the other classes. The 1955-1956 figures of school-
going children, as to which there is no dispute, show that
of the age group) of 6 to II cent per cent. of boys attend
classes, while 91 per cent. of girls of that age group do
the same. There is a drop in attendance when we come to age
group 11 to 14. In that age group 36.2 per cent. of boys
and 29 per cent. of girls go to school. It is clear,
therefore, that although the rate of fees charged in primary
classes is lower than those charged in higher classes, the
total amount collected from scholars
1069
attending primary classes is quite considerable and forms an
appreciable part of the total income of the school. If this
Bill becomes law, all these schools will have to forego this
fruitful source of income. There is, however, no provision
for counterbalancing the loss of fees which will be brought
about by el. 20 when it comes into force. There is no
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provision, such as there is in el. 9 which applies to aided
schools only, that the State should make good that loss.
Therefore, the ,imposition of such restriction against the
collection of fees from any pupil in the primary classes as
a condition for recognition will in effect make it impos-
sible for an educational institution established by a
minority community being carried on. It is true that el.
36(2)(c) empowers the Government to make rules providing for
the grant of recognition to private schools and we are asked
to suspend our opinion until the said Bill comes into force
and rules are actually made. But no rule to be framed under
el. 36(2)(c) can nullify the constitutional infirmity of cl.
3(5) read with cl. 20 which is calculated to infringe the
fundamental rights of minority communities in respect of
recognised schools to be established after the commencement
of the said Bill.
Learned counsel for the State of Kerala referred us to the
directive principles contained in Art. 45 which requires the
State to endeavour to provide, within a period of ten years
from the commencement of the Constitution, for free and
compulsory education for all children until they complete
the age of fourteen years and with considerable warmth of
feeling and indignation maintained that no minorities should
be permitted to stand in the way of the implementation of
the sacred duty cast-upon the State of giving free and
compulsory primary education to the children of the country
so as to bring them up properly and to make them fit for
discharging the duties and responsibilities of good
citizens. To pamper to the selfish claims of these
minorities is, according to ].earned counsel, to set back
the hands of the clock of progress. Should these
minorities, asks learned counsel, be permitted to perpetuate
the sectarian fragmentation of the people
1070
and to keep them perpetually segregated in separate and
isolated cultural enclaves and thereby retard the unity of
the nation ? Learned counsel for the minority institutions
were equally cloquent as to the sacred. obligation of the
State towards the minority communities. It is not for this
Court to question the wisdom of the supreme, law of the
land. We the people of India have given unto ourselves the
Constitution which is not for any particular community or
section but for all. Its provisions are intended to protect
all, minority as well as the majority communities. There
can be no manner of doubt that our Constitution has
guaranteed certain cherished rights of the minorities
concerning their language, culture and religion. These
concessions must have been made to them for good and valid
reasons. Article 45, no doubt, requires the State to
provide for free and compulsory education for all children,
but there is nothing to prevent the State from discharging
that solemn obligation through Government and aided schools
and Art. 45 does not require that obligation to be
discharged at the expense of the minority communities. So
long as the Constitution stands as it is and is not altered,
it is, we conceive, the duty of this Court to uphold the
fundamental rights and thereby honour our sacred obligation
to the minority communities who are of our own. Throughout
the ages endless inundations of men of diverse creeds,
cultures and races-Aryans and non-Aryans, Dravidians and
Chinese, Scythians, Huns, Pathans and Mughalshave come to
this ancient land from distant regions and climes. India
has welcomed them all. They have met and gathered. given
and taken and got mingled, merged and lost in one body
India’s tradition has thus been epitomised in the following
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noble lines:
" None shall be turned away
From the shore of this vast sea of humanity
That is India ".
Indeed India has sent out to the world her message of
goodwill enshrined and proclaimed in our National Anthem:
Poems by Rabindranath Tagore.
1071
Day and night ,the voice goes out from
land to land,
calling Hindus, Buddhists, Sikhs and Jains
round thy throne
and Parsees, Mussalmans and Christians.
Offerings are brought to thy shrine by
the East and the West
to be woven in a garland of love.
Thou bringest the hearts of all peoples
into the harmony of one life,
Thou Dispenser of India’s destiny,
Victory, Victory, Victory to thee."*
It is thus that the genius of India has been able to find
unity in diversity by assimilating the best of all creeds
and cultures. Our Constitution accordingly recognises our
sacred obligations to the minorities. Looking at the rights
guaranteed to the minorities by our Constitution from the
angle of vision indicated above, we are of opinion that el.
7 (except sub-cls. I and 3 which apply only to aided
schools) and cl. 10 may well be regarded as permissible
regulation which the State is entitled to impose as a
condition for according its recognition to any educational
institution but that el. 20 which has been extended by el. 3
(5) to newly established recognised schools, in so far as it
affects -educational institutions established and
administered by minority communities, is violative of Art.
30 (1).
Re. Question 4 : This question raises the constitutional
validity of cl. 33 of the said Bill. That clause, which has
hereinbefore been set out in full, provides that
notwithstanding anything contained in the Code of Civil
Procedure, 1908, or any other law for the time being in
force no Court shall grant any temporary injunction or make
any interim order restraining any proceeding which is being
or about to be taken under the provisions of the Bill when
it becomes an Act. Article 226 of the Constitution confers
extensive jurisdiction and power on the High Courts in the
States. This jurisdiction and power extend throughout the
territories in relation to which the High Court exercises
*Rabindranath Tagore.
136
1072
jurisdiction. It can issue to any person or authority,
including in appropriate cases any Government, within those
territories, directions, orders or writs of the nature
mentioned therein for the enforcement of the fundamental
rights or for any other purpose. No enactment of a State
Legislature can, as long as that Article stands, take away
or abridge the jurisdiction and power conferred on the High
Court by that Article. The question is whether cl. 33 does
so. The doubts which have arisen with regard to cl. 33 are
thus formulated in the order of reference :-
" AND WHEREAS clause 33 of the said Bill provides that,
notwithstanding anything contained in the Code of Civil
Procedure, 1908, or any other law for the time being in
force, no courts can grant any temporary injunction or make
any interim order restraining any proceedings which is being
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or about to be taken under the Act;
AND WHEREAS a doubt has arisen whether the provisions of the
said clause 33, in so far as they relate to the jurisdiction
of the High Courts, would offend Article 226 of the
Constitution,
The State of Kerala in their statement of case disowns in
the following words all intentions in that behalf :
" 52. Kerala State asks this Honourable Court to answer the
fourth question in the negative, on the ground that the
power given to High Courts by Art. 226remains unaffected
by the said cl. 33.
53. Kerala State contends that the argument that cl.33
affects Art. 226 is without foundation.
54. The Constitution is the paramount law of the land, and
nothing short of a constitutional amendment as provided for
under the Constitution can affect any of the provisions of
the Constitution, including Art. 226. The power conferred
upon High Courts under Art. 226 of the Constitution is an
Over-riding power entitling them, under certain conditions
and circumstances, to issue writs, orders and directions to
subordinate courts, tribunals and authorities
notwithstanding any rule or law to the contrary
Learned counsel for the State of Kerala submits that el. 33
must be read subject to Arts. 226 and 32 of the
1073
Constitution. He relies on the well known principle of
construction that if a provision in a statute is capable of
two interpretations then that interpretation should be
adopted which will make the provision valid rather than the
one which will make it invalid. He relies on the words "
other law for the time being in force " as positively
indicating that the clause has not the constitution in
contemplation, for it will be inapt to speak of the
Constitution as a " law for the time being in force ". He
relies on the meaning of the word "Law " appearing in Arts.
2, 4, 32 (3) and 367(1) of the Constitution where it must
mean law enacted by a legislature. He also relies on the
definition of " Indian Law " in s. 3(29) of the General
Clauses Act and submits that the word " Law " in cl. 33 must
mean a law of the same kind as the Civil Procedure Code of
1908, that is to say, a law made by an appropriate
Legislature in exercise of its legislative function and
cannot refer to the Constitution. We find ourselves in
agreement with this contention of learned counsel for the
State of Kerala. We are not aware of any difficulty-and
none has been shown to us in construing cl. 33 as a
provision subject to the overriding provisions of Art. 226
of the Constitution and our answer to question No. 4 must be
in the negative.
In accordance with the foregoing opinion we report on the
questions as follows:-
Question No. 1 : No.
QuestionNo. 2: (i) Yes, so far as Anglo-Indian educational
institutions entitled to grant under Art. 337 are concerned.
(ii) As regards other minorities not entitled to grant as of
right under any express provision of the Constitution, but
are in receipt of aid or desire such aid and also as regards
AngloIndian educational institutions in so far as they are
receiving aid in excess of what are due to them under Art.
337, clauses 8(3), and 9 to 13 do not offend Art. 30(1) but
clause 3(5) in so far as it makes such educational
institutions subject to clauses 14 and 15 do offend Art.
30(1). (iii) Clause 7 (except sub-cls. (1) and (3) which
applies only to aided schools), cl. 10 in
1074
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so far as they apply to recognised schools to be established
after the said Bill comes into force do not offend Art.
30(1) but cl. 3(5) in so far as it makes the new schools
established after the commencement of the Bill subject to
el. 20 does offend Art. 30(1).
Question No. 3: No.
Question No. 4: No ; clause 33 is subject to Art. 226 of the
Constitution.
VENKATARAMA AIYAR J.-I agree that the answer to Questions
Nos 1, 3 and 4 should be as stated in the judgment of My
Lord, the Chief Justice. But as regards Question No. 2, 1
am unable to concur in the view expressed therein that Cl.
(20) of the Bill is, in its application to educational
institutions of minorities, religious or linguistic,
repugnant to Art. 30(1) of the Constitution , and is, in
consequence, to that extent void.
Clause (20) provides that:
" No fee shall be payable by any pupil for any tuition in
the primary classes in any Government or private school."
Now, the question is whether this Clause is violative of the
right which Art. 30(1) confers on all minorities based on
religion or language, to establish and administer
educational institutions of their choice. Ex facie, Cl.
(20) does not prohibit the establishment or administration
of such institutions by the minorities; it only provides
that in private schools no fee shall be payable by students
in the primary classes. On the terms of this Clause,
therefore, it is difficult to see how it offends Art. 30(1).
But it is contended by learned counsel who appeared for the
minorities that in practice no school could be run unless
fees are collected from the students, that therefore Cl.
(20) must, if operative, result in the extinction of the
educational institutions of minorities, and that was a
direct invasion of their right to establish and maintain
those institutions. It is no doubt the law that in deciding
on the constitutionality of an enactment, regard must be had
not merely to its language but also to its effect on the
rights of the parties, not merely to what it says but to
what it does. Even so, it is difficult to see how
1075
Cl. (20) can be said to infringe Art. 30(1). It applies
only to Government and private schools, and a private school
is defined in Cl. 2(6) as " meaning an aided or recognised
school ". Clause (38) provides that :
" Nothing in this Act shall apply to any school which is not
a Government or a private school."
The result is that there is no prohibition against
minorities, religious or linguistic, establishing their own
educational institutions and charging fees, so long as they
do not seek aid or recognition from the State. It is only
when they make a demand on the State for aid or recognition
that the provisions of the Bill will become applicable to
them.
But it is argued that the right of the minorities to
establish their own educational institutions will be
Tendered illusory, if the students who pass out of them
cannot sit for public examinations held by the State or be
eligible for recruitment to State services, and that, it is
said, is the effect of the non-recognition of the
institutions. It is accordingly contended that for the
effective exercise of the rights under Art. 30(1), it is
necessary to imply therein a right in the minorities to have
those institutions recognised by the State. That is the
crucial question that has to be determined. If there is no
right in the minorities to have their institutions
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recognised by the State, then the question whether Cl. (20)
is ail invasion of that right would not arise for decision.
It is only if we hold that such right is to be implied in
Art. 30(1) that the further question will have to be
considered whether Cl. (20) infringes that right. Now,
whether minorities, religious or linguistic, have a right to
get recognition for their institutions under Art. 30(1) must
depend on the interpretation to be put on that Article.
There is nothing in it about recognition by the State of’
educational institutions established by minorities, and if
we are to accept the contention of learned counsel appearing
for them, we must read into the statute words such as " and
it shall be the duty of the State to recognise such
institutions." It is a rule of construction well established
that words are not to be
1076
added to a statute unless they are required to give effect
to its intention otherwise manifest therein, and that rule
must apply with all the greater force here, seeing that what
we are interpreting is a Constitution. Now, a reference to
the relevant provisions of the Constitution shows that such
a right is not implicit in Art. 30(1). Article 28(1)
provides that no religious instruction shall be provided in
any educational institution maintained wholly out of State
funds. Article 28(3) enacts that no person attending any
educational institution recognised by the State or receiving
aid out of State funds shall be required to take part in
religious instruction. Under Art. 29(2), no person is to 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. In
Art. 30(2), there is express provision that in granting aid
no discrimination should be made against any educational
institution on the ground that it is under the management of
a minority based on religion or language. It is clear from
the above catena of provisions that the Constitution makes a
clear distinction between State-maintained, State-aided and
State-recognised educational institutions, and provides for
different rights and obligations in relation to them. If it
intended that the minorities mentioned in Art. 30(1) should
have a fundamental right in the matter of the recognition of
their educational institutions by the State, nothing would
have been easier than to have said so. On the other hand,
there is good reason to infer that it has deliberately
abstained from imposing on the State such an obligation.
The educational institutions protected by Art. 30(1) might
impart purely religious instruction. Indeed, it seems
likely that it is such institutions that are primarily
intended to be protected by Art. 30(1). Now, to compel the
State to recognise those institutions would conflict with
the fundamental concept on which the Constitution is framed
that the State should be secular in character. If
institutions which give only religious education can have no
right to compel recognition by the State
1077
under Art. 30(1), how could educational institutions
established by minorities and imparting secular education be
held to possess that right? The contents of Art. 30(1) must
be the same as regards all institutions falling within its
ambit. Construing, therefore, Art.30(1) on its language, it
is difficult to support the conclusion that it implies any
right in the minorities to have their educational
institutions recognised by the State.
The matter does not rest there. There is in the
Constitution a provision which seems clearly to negative the
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right, which is claimed on behalf of the minorities.
Article 45 provides that:
" The State shall endeavour to provide, within. a period of
ten years from the commencement of this Constitution, for
free and compulsory education for all children until they
complete the age of fourteen years."
It is precisely this obligation laid on the State by the
Constitution that is sought to be carried out in cl. (20) of
the Bill. Now, it should be clear that if the right of the
minorities to establish and maintain educational
institutions under Art. 30(1) carries with it an implied
right to be recognised by the State, then no law of the
State can compel them to admit students free and therefore
Art. 45 can never become operative, since what it provides
is free education for all children and not merely for
children other than those who attend institutions falling
within Art. 30(1). It is contended that the directive
principles laid down in Part IV cannot override the
fundamental rights guaranteed by the Constitution, and that
Art. 45 cannot be applied so as to defeat the rights
conferred on minorities under Art. 30(1). This is quite
correct. But the question here is, not whether a directive
principle can prevail over a fundamental right, but whether
there is a fundamental right in the minorities to have their
educational institutions recognised by the State, and when
there is nothing express about it in Art. 30(1) and it is
only by implication that such a right is sought to be
raised, it is pertinent to ask, can we by implication infer
a right which is inconsistent
1078
with the express provisions of the Constitution?
Considering the question, therefore, both on the language of
Art. 30(1) and on the principle laid down in Art. 45, 1 find
myself unable to accept the contention that the right of the
minorities is not merely to establish educational
institutions of their choice but to have them recognised by
the State. That must be sufficient to conclude this
question.
But then it was argued that the policy behind Art. 30(1)
was to enable minorities to establish and maintain their own
institutions, and that that policy would be defeated if the
State is not laid under an obligation to accord recognition
to them. Let us assume that the question of policy can be
gone into, apart from the language of the enactment. But
what is the policy behind Art. 30(1) ? As I conceive it, it
is that it should not be in the power of the majority in a
State to destroy or to impair the rights of the minorities,
religious or linguistic. That is a policy which permeates
all modern Constitutions, and its purpose is to encourage
individuals to preserve and develop their own distinct
culture. It is well-known that during the Middle Ages the
accepted notion was that Sovereigns were entitled to impose
their own religion on their subjects, and those who did not
conform to it could be dealt with as traitors. It was this
notion that was responsible during the 16th and 17th
Centuries for numerous wars between nations and for civil
wars in the Continent of Europe, and it was only latterly
that it came to be recognised that freedom of religion is
not incompatible with good citizenship and loyalty to the
State, and that all progressive societies must respect the
religious beliefs of their minorities. It is this concept
that is embodied in Arts. 25, 26, 29 and 30. Article 25
guarantees to persons the right to freely profess, practice
and propagate religion. Article 26 recognises the right of
religious denominations to establish and maintain religious
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and charitable institutions. Article 29(1) protects the
rights of sections of citizens to have their own distinct
language, script or culture. Article 30(1) belongs to the
same category as Arts. 25, 26 and 29,
1079
and confers on minorities, religious or linguistic, the
right to establish and maintain their own educational
institutions without any interference or hindrance from the
State. In other words, the minorities should have the right
to live, and should be allowed by the State to live, their
own cultural life as regards religion or language. That is
the true scope of the right conferred under Art. 30(1), and
the obligation of the State in relation thereto is purely
negative. It cannot prohibit the establishment of such
institutions, and it should not interfere with the
administration of such institutions by the minorities. That
right is not, as I have already pointed out, infringed by
Cl. (20). The right which the minorities now claim is
something more. They want not merely freedom to manage
their own affairs, but they demand that the State should
actively intervene and give to their educational
institutions the imprimatur of State recognition. That, in
my opinion, is not within Art. 30(1). The true intention of
that Article is to equip minorities with a shield whereby
they could defend themselves against attacks by majorities,
religious or linguistic, and not to arm them with a sword
whereby they could compel the majorities to grant
concessions. It should be noted in this connection that the
Constitution has laid on the State various obligations in
relation to the minorities apart from what is involved in
Art. 30(1). Thus, Art. 30(2) provides that a State shall
not, when it chooses to grant aid to educational
institutions, discriminate against institutions of
minorities based on language or religion. Likewise, if the
State frames regulations for recognition of educational
institutions, it has to treat all of them alike, without
discriminating against any institution on the ground of
language or religion. The result of the constitutional
provisions bearing on the question may thus be summed up:
(1)The State is under a positive obligation to give equal
treatment in the matter of aid or recognition to all
educational institutions, including those of the minorities,
religious or linguistic.
137
1080
(2)The State is under a negative obligation as regards
those institutions, not to prohibit their establishment or
to interfere with their administration.
Clause 20 of the Bill violates neither of these two
obligations. On the other hand, it is the contention of the
minorities that must, if accepted, result in discrimination
by the State. While recognised institutions of the majority
communities will be subject to el. (20), similar
institutions of minority communities falling within Art.
30(1) will not be subject to it. The form cannot collect
fees, while the latter can. This surely is discrimination.
It may be stated that learned counsel for the minorities,
when pressed with the question that on their contention Art.
45 must become a dead letter, answered that the situation
could be met by the State paying compensation to the
minority institutions to make up for the loss of fees. That
serves clearly to reveal that what the minorities fight for
is what has not been granted to them under Art. 30(2) of the
Constitution, viz., aid to them on the ground of religion or
language. In my opinion, there is no justification for
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putting on Art. 30(1) a construction which would put the
minorities in a more favoured position than the majority
communities.
I have so far discussed the scope of Art. 30(1) on its
language and on the principle underlying it. Coming next to
the authorities, cited before us, the observations in City
of Winnipeg v. Barrett: City of Winnipeg v. Logan (1) would
appear to support the contention of the State of Kerala that
Cl. (20) does not offend Art. 30(1). That was a decision on
s. 22 of the Manitoba Act, 1870, which is as follows:
" In and for the province, the said legislature may
exclusively make laws in relation to education, subject and
according to the following provisions:
(1)Nothing in any such law shall prejudicially affect any
right or privilege with respect to denominational schools
which any class of persons have by law or practice in the
province at the Union."
Now, the facts are that there were in Manitoba deno-
minational schools run by Roman Catholics which
(1) [1892] A.C. 445. 457
1081
were maintained with fees paid by students and donation,,;
from the Church. In 1890, the Provincial Legislature passed
the Public Schools Act, and it enacted that all Protestant
and Roman Catholic school districts should be subject to the
provisions of this Act, and that all public schools should
be free schools. A portion of the legislative grant for
education was to be allotted to public schools, and it was
provided that any school not conducted according to all the
provisions of the Act or the regulations of the Department
of Education should not be deemed to be a public school
within the meaning of the Act and was not to be entitled to
participate in the grant. The validity of these provisions
was challenged by the Roman Catholic institutions on the
ground that they contravened s. 22 of the Manitoba Act, and
infringed the rights and privileges guaranteed therein. The
Supreme Court of Canada upheld this contention; but this
judgment was reversed by the Privy Council, and it was held
that the provisions of the Act did not offend s. 22 of the
Manitoba Act. Lord Macnagliten delivering the judgment of
the Board observed:
" Notwithstanding the Public Schools Act, 1890, Roman
Catholics and members of every other religious body in
Manitoba are free to establish schools throughout the
province ; they are free to maintain their schools by school
fees or voluntary subscriptions; they are free to conduct
their schools according to their own religious tenets
without molestation or interference ".
In the result, it was held that the Act did not infringe the
rights of the denominational institutions under s. 22. These
observations appear to be very apposite to the present
contention. The position occupied by the minority
institutions under Art. 30(1) is not dissimilar to that of
the Roman Catholic schools of Manitoba under s. 22 of the
Act of 1870, and the position created by Cl. (20) is
precisely that which the 1890 Act created in that Province.
It remains to notice the contention advanced by Mr. Pritt
that the basis on which the arguments of the counsel for the
minorities proceeded that students
1082
who pass out of unrecognised institutions were at a
,disadvantage in the matter of eligibility to sit at public
examinations or to be admitted in the services to the State,
was itself without foundation, and that even if there was
any substantial discrimination in treatment between students
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who pass out of unrecognised schools and those who pass out
of Government or recognised schools, that was the result of
provisions of the Education Codes in force in the State,
that it might be that those provisions are -bad as
infringing Art. 30(1) of the Constitution, but that did not
affect the validity of cl. (20) as that was inapplicable to
unrecognised institutions by virtue of cl. (38), and that,
in consequence, there was nothing in the Bill which could be
said to offend Art. 30(1). The rules of the Education Code
are not really before us, and they are not the subject-
matter of the present reference. In my view, there is much
to be said in favour of the contention that if Art. 30(1) is
at all infringed, it is by the rules of the Education Code
and not by el. (20). But it is unnecessary to pursue this
aspect further, as I consider that even otherwise, the vires
of Cl. (20) is not open to question. In my view, that
Clause does not offend Art. 30(1) and is intra vires.
I agree that Cls. (14) and (15) must be held to be bad, and
the ground of my decision is this: It may be taken-and
indeed it is not disputed-that if the State grants aid to an
educational institution, it must have the power to see that
the institution is properly and efficiently run, that the
education imparted therein is of the right standard, that
the teachers possess the requisite qualifications, that the
funds are duly applied for the purpose of the institution
and the like. In other words, the State must have large
powers of regulation and of control over State-aided
educational institutions. These powers must be liberally
construed, and the decision of the Legislature as to what
they should be is not to be lightly interfered with, as it
is presumed to know best the needs of the State, the nature
and extent of the evils rampant therein and the steps that
should be taken to remedy them. But the power to regulate
does not, in general, comprehend
1083
the power to prohibit, and the right to control the affairs
of an institution cannot be exercised so as to extinguish
it. Now, Cls. (14) and (15) operate to put an end to the
right of private agencies to establish and maintain
educational institutions and cannot be upheld as within the
power of the State to regulate or control. The State is
undoubtedly free to stop aid or recognition to a school if
it is mismanaged. It can, even as an interim measure,
arrange in the interests of the students to run that school,
pending its making other arrangements to provide other
educational facilities. It can also resume properties which
had been acquired by the institutions with the aid. of State
grant. But it cannot itself compulsorily take over the
school and run it as its own, either on the terms set out in
Cl. (14) or Cl. (15). That is not a power which springs
directly from the grant of aid. To aid is not to destroy.
Those clauses would, in my opinion, infringe the right to
establish and maintain institutions, whether such right is
to be founded on Art. 19(1)(g) or Art. 30(1).
I should add that in Question No. 2, the question of the
validity of Cl. (20) or Cls. (14) and (15) is not expressly
referred for our opinion. But it is said that the reference
to Cl. 3(5) attracts all the provisions of the Bill, because
the establishment of new institutions or schools is under
that Clause subject to the provisions of the Bill and the
rules made thereunder. I have grave doubts whether on the
terms of the reference, we are called upon to express our
opinion on the validity of all the provisions of the Bill.
The reference is not generally on the vires of the
provisions of the Bill. It is limited to the validity of
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specified provisions, Cls. 3(5), 8(3) and 9 to 13. There
has been no satisfactory answer to the question as to why if
it was intended that we should pronounce on the validity of
all the provisions of the Bill, Cls. 8(3) and (9) to (13)
should have been specifically mentioned. Moreover, the
reference is preceded by detailed recitals as to the doubts
which had been raised in the mind of the President as to the
validity of certain provisions, and there is no hint
therein that there was any doubt
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concerning the vires of provisions other than those
expressly mentioned. If the maxim "Expressum facit cessare
tacitum " can properly be invoked in the construction of
instruments, it must a fortiori be so, in interpreting a
document drawn up by the Union Government with great care
and deliberation. And having regard to the nature of the
advisory jurisdiction under Art. 143, the reference should
be construed narrowly rather than broadly. But this
discussion is academic, as there have been full arguments on
the validity of all the provisions, and we are expressing
our opinion thereon.
In the result, my answer to Question No. 2 is that,
excepting Cls. (14) and (15), the other provisions of the
Bill do not offend Art. 30(1) of the Constitution.
As regards schools of the Anglo-Indian Communities, Art. 337
provides for aid being given to them on the conditions and
to the extent specified therein. That is outside Art. 30(1)
and independent of it, and I agree with My Lord, the Chief
Justice, that the provisions of the Bill are, to the extent
they affect or interfere with the rights conferred by that
Article, bad.
Reference answered accordingly.
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