Full Judgment Text
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PETITIONER:
D. A. V. COLLEGE ETC.
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT05/05/1971
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
SIKRI, S.M. (CJ)
MITTER, G.K.
HEGDE, K.S.
GROVER, A.N.
CITATION:
1971 AIR 1737 1971 SCR 688
ACT:
Constitution of India, Arts 29(1), 30(1), 19 and 14.-Guru
Nanak University (Amritsar) Act (21 of 1969)-Sections 4(2),
(3), 5, cls. 2(1) (a) 17 and 18 of Statutes-If violative of
the constitutional guarantees-Religious minority,
determination-Arya Samajis, if religious minority.
Constitution of India, Art. 32-Questions of legislative
competence, agitation of.
HEADNOTE:
The Arya Samaj is a reformist movement, believes in one God
and in the Vedas as. the books of true knowledge, It has a
distinct Organisation the membership of which is open to all
those who subscribe to its aims and objects. It admits to
membership only those Hindus who Subscribe to the decalogue
and its beliefs in the cannons of Vedic interpretation laid
down by its founder, but, all outsiders who are non-Hindus
must undergo a ceremony of purification or Shudhi, Under
bye-law 32 of the Constitution of the Arya Samaj the
proceedings of all meetings and sub-committees will have to
be written in Arya Bhasha-In Hindi language and Devnagari
character.
The Dayanand Anglo Vedic College Trust, formed to perpetuate
the memory of the founder of the Arya Samaj runs various
institutions in the Country. The petitioners-colleges
managed and administered by the Trust and the Managing
Society were, before the Punjab Reorganisation Act, affi-
liated to the Punjab University constituted under East
Punjab Act 7 of 1947. After the reorganisation of the State
of Punjab in 1969, the Punjab Legislature passed the Guru
Nanak University (Amritsar) Act (21 of 1969) establishing a
University. In exercise of the powers conferred by s. 5 the
first respondent specified the districts in the State of
Punjab over which the University was to exercise its power
and notified the date on which the colleges in the areas so
specified ceased to be affiliated to the Punjab University
and were to be associated with and admitted to the
privileges of the new university. Sub-section (2) of s. 4
of the Act enacted that the University "shall make provision
for study and research on the life and teachings of Guru
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Nanak and their cultural and religious impact in the context
of Indian and World Civilisation; and sub-s. (3) enjoined
the University "to promote studies to provide for research
in Punjabi language and literature and to undertake measures
for the development of Punjabi language, literature and
culture". By cl. 2(1) (a) of the Statutes in Ch. V, framed
under the Act, the colleges were required to have a
regularly constituted governing body consisting of not more
than 20 persons approved by the senate including, among
others, two representatives of the University and the
principal of the College, ex officio. Under Cl. (1) (3) if
these requirements were not complied with the affiliation
was liable to be withdrawn. By cl. 18 the staff initially
appointed were to be approved by the Vice Chancellor and
subsequent changes had to be reported to the University for
the Vice-Chancellor’s approval. And by cl. 18 non-
government colleges were to comply with the requirements
laid down in the ordinance governing service and conduct of
teachers.
689
In petitions filed under Art. 32 of the Constitution it was
contended that the main object of the Act was to propagate
Sikh religion and to promote Punjabi language in Gurumukhi
script and that since the petitioners institutions belonged
to a minority based on religion and language their
compulsory affiliation violated Arts. 29(1) and 30(1) of the
Constitution. In support of this it was submitted that s.
5(3) of the Act and also cls. 2(1)(a), 17 and 18 of the
statutes in Ch. V. interfered with the management of
minority institutions and therefore violated the guarantee
under Art. 30; that the statutory affiliation being
compulsory affected the petitioners freedom of association
guaranteed under Art. 19(1) (c); and that ss. 4(2) and 4(3)
contravened Arts. 29(1) & 30(1) and was discriminatory. The
petitioners further contended that in view of s. 72 of the
Reorganisation Act the State Legislature was not competent
to enact s. 5 which empowered the State Government by
notification to compulsorily disaffiliate from the Punjab
University all colleges including the colleges of minorities
and affiliate them to the new University. The respondents
contended inter alia, that education being a State subject,
the state legislature alone was competent to legislate in
respect of universities and that in any case in a petition
under Art. 32 this Court could not go into the question of
legislative competence if the law that was impugned did not
in any way affect the fundamental rights of the petitioners.
HELD:(1) Whether or not ultimately any fundamental
right in fact is threatened or violated so long as a prima
facie case of such a threat or violation is made out a
petition under Art. 32 must be entertained. So long as the
petitioner makes out a prima facie case that his fundamental
rights are affected or threatened he cannot be prevented
from challenging that the law complained of, which affects
or invades those rights, is invalid because of want of
legislative competence.. But the proposition that once the
petition is entertained, irrespective of whether it is found
ultimately that the law has infringed the fundamental rights
of the petitioners, the vires of the legislation or the
competence of the legislature to enact the impugned
legislation must be gone into and determined, is not valid.
If in fact, the law does not, even on the assumption that it
is valid, infringe any fundamental rights this Court will
not decide that question in a petition under Art. 32. The
reason is that no petition under Art. 32 will be entertained
if fundamental rights are not affected and if the impugned
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law does not affect the fundamental rights it would be
contrary to this principle to determine whether that law in
fact has legislative competence or not. In the present case
none of the provisions of the Act offend any of the
fundamental rights of the petitioners. Therefore, it is not
necessary to go into the question of legislative competence
or to decide upon the validity of s. 5. [713A-B ; 714H]
Mohammad Yasin v. The Town Area Committee, Jalatabad z Anr.
[1952] S.C.R. 572, Charanjitlal Chowdhury v. The Union of
India & Ors., [1970] S.C.R. 869, Kyerbari Tea Co. Ltd. &
Anr. v. State of Assam, [1964] 5 S.C.R. 975 and Saghir Ahmad
v. State of U.P., [1955] S.C.R. 707, referred to.
(2)A reading of Arts. 29(1) and 30(1)would lead to the
conclusion that a religious or linguistic minority has a
right to establish and administer educational institutions
of its choice for effectively conserving its distinctive
language script or culture subject to the regulatory power
of the State and cl. (2) of Art. 29. While this is so,
these two articles are not inter-linked nor does it permit
of their being always read together. [695F]
Rev. Father W. Proost & Ors. v. State of Bihar & Ors.,
[1969] 2 S.C.R. 73, referred to.
44-1 S.C. India/71
690
(3)Religious or linguistic minorities are to be determined
only in relation to the particular legislation which is
sought to be impugned; if it is State Legislature these
minorities have to be determined in relation to the
population of the State. A linguistic minority for the
purpose of Art 30(1) is one which must at least have a
separate spoken language; it is not necessary that the
language should also have distinct script. [697B]
Re: Kerala Education Bill, 1957, [1959] S.C.R. 995,
referred to.
(4)(a) The Arya Samaj, by "rejecting the manifold
absurdities found in Smriti and in tradition and in seeking
a basis in the early literature for a purer and more
rational faith" can be considered to be a religious mino-
rity, at any rate, as part of the Hindu religious minority
in the State of Punjab. [700D]
(b)The Arya Samajis have a distinct script of their own,
namely Devnagri. [701B]
(5)The Arya Samajis are entitled to invoke the right
guaranteed by Art. 29(1), because, they are a section of
citizens having a distinct script; they are entitled to
invoke Art. 30(1), because they are a religious minority.
[701B]
[In view of the holding that Arya Samajis are a religious
minority the Court did not find it necessary to consider
whether they are a linguistic minority or whether they are a
religious denomination.] [698G]
(6)Clauses 2(1) (a) and 17 of Ch. V of the Statutes
interfere with the right of the religious minority to
administer their educational institutions. These provisions
cannot be made as conditions of affiliation non compliance
with which would involve disaffiliation; consequently, they
have to be struck down as offending Art. 30(1). [709B]
Kerala Education Bill, 1957, [1959] S.C.R. 995, and Rev.
Sidhajbhai Sabhai v. State of Bombay, [1963] 3 S.C.R. 837
referred to.
Rev. Father W. Proost v. State of Bihar, [1969] 2 S.C.R.
73, held inapplicable.
Clause 18 does not suffer from the same vice as cl. 17,
because, that provision empowers the University to make
ordinances prescribing regulations governing the conditions
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of service and conduct of teachers and these are enacted in
the larger interest of the institution to ensure their
efficiency and excellence. While the power to make
ordinances in respect of the matters referred to is
unexceptional the nature of the infringement of the right,
if any, under Art. 30(1) will depend on the actual purpose
and import of the ordinance when made, and the manner in
which it is likely to affect the administration of the
educational institution. [709C]
(7)Assuming that the Punjab Legislature has the competence
to enact the Act, sub-ss. (2) and (3) of s. 4 do not offend,
by themselves, any of the rights under Arts. 29(1) & 30(1).
[702A]
(a)Sub-section (2) merely indicates that the University
can institute courses of study or provide research
facilities for any student of the University whether he
belongs to the majority or the minority community to engage
himself in such study or research; but, this study and
research on the life and teachings of Guru Nanak must be a
study in relation to their culture and religious impact in
the context of Indian and World civilizations. To provide
for academic study of life and teaching or the
691
philosophy or culture of any great saint of India in
relation to or the impact on the Indian and World
civilizations cannot be considered as making provision for
religious instructions. [703G]
(b)While the State or the University has every right to
provide for the education of the, majority in the regional
medium, it is subject to the restrictions contained in Arts.
25 to 30. Neither the University nor the State can provide
for imparting education in a medium of instruction in a
language and script which stifles the language and script of
any section ,of the citizens. But sub-s. (3) does not lend
itself to the interpretation ,that the medium of instruction
of all affiliated colleges has to be Punjabi. The provision
is for the promotion of Punjabi language, literature and
culture. Therefore, sub-section (3) does not transgress the
guarantee under Art. 29(1). [704A-D]
(c)The facts of the case do not attract Art. 14. The
State of Punjab is created as a unilingual state with
Punjabi as its language and if provision is made for study
of punjabi language that does not furnish a ground .for
discrimination nor can the provision for the study of the
life and teaching of Guru Nanak afford any cause for
complaint, since, in neither case there is any compulsion on
any person to undertake such studies; nor is .any of the
communities prohibited from pursuing studies in respect of
either Hindi or the life and teachings of any Hindu saint.
[704F]
(8)The notification under s. 5(3) compulsorily affiliating
the colleges to the University does not contravene the right
of freedom of Association ,guaranteed under Art. 19(1) (c).
Section 5 does not interfere with the D.A.V. College Trust
and Management Society by any attempt to form an Association
with the University. [706B]
All India Bank Employees Association v. National Industrial
Tribunal, [1962] 2 S.C.R. 269 and Raghubar Dayal Jai
Prakash, v. Union of India, [1963] 2 S.C.R. 547, referred
to.
Smt. Damayanti Narang v. Union of India, *.P. No. 91 of
1964, dated 23-2-1971, distinguished.
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JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 256 to 268 and
271 of 1970.
Petition under Article 32 of the Constitution of India for
the enforcement of fundamental rights,
A.K. Sen, B. Datta, S. Swarup, J. B. Dadachanji, O. C.
Mathur and Ravinder Narain, for the petitioner (in W. P. No.
256 ,of 1970).
Frank Anthony, B. Datta, S. Swarup, J. B. Dadachanji, O. C.
Mathur and Ravinder Narain, for the petitioner in (W. P.
No. 257 of 1970).
B.Datta, S. Swarup, J. B. Dadachanji, O. C. Mathur and
Ravinder Narain, for petitioners (in W. P. Nos. 258 to 265,
267 and 268 of 1970)
692
Naunit Lal, B. Datta, J. B. Dadachanji, O. C. Mathur and
Ravinder Narain, for the petitioners (in W. P. Nos. 266 and
271 of 1970).
M.C. Chagla, R. N. Sachthey and Harbans Singh, for
respondent No. 1 (in W. P. No. 256 of 1970).
H.L. Sibbal, Advocate-General, Punjab, R. N. Sachthey and
Harbans Singh, for respondent No. 1 (in W. P. No. 257 of
1970).
R.N. Sachthey and Harbans Singh, respondent No. 1 (in W.
P. No. 258to 268 and 271 of 1970).
M.C. Setalvad, Hardev Singh and Hira Lal Kapur, for
respondent No. 2 (in W. P. No. 256 of 1970).
Hardev Singh and Hiralal Kapur, for respondent No. 2 (in W. P.
Nos. 257 to 268 and 271 of 1970).
M.N. Goswami and S. N. Mukherjee, for respondent No. 3
(in W. P. No. 256 of 1970).
The Judgment of the Court was delivered by
P.Jaganmohan Reddy, J.-These are fourteen Writ Petitions
by various Colleges managed and administered by Dayanand
Anglo Vedic College (D. A. V. College) Trust and the
Managing Society, against the Respondents challenging the
Constitutional validity of certain provisions of Guru Nanak
University, Amritsar, Act 21 of 1969 (hereinafter called the
’University’ or the ’Act’, as the context may permit) and in
particular Sections 4, 4(2), 4(3) and 5 of the Act as being
violative of Articles 14, 19 (1) (c) and (f), 26, 29 (1) and
30(1) of the Constitution of India. There was also a prayer
for quashing the Notification No. 2201-4-RDI-70/7147 dated
16th March 1970 issued under sub-section (1) of Section 5,
by the first Respondent, the State of Punjab as being
illegal, unconstitutional and void. As all these petitions
raised a common question as to, the validity of the
provisions of the Act the Notification issued by the
Government pursuant to that Act and certain provisions of
the statutes made thereunder it would be sufficient if facts
in Writ Petition No. 256 are set out.
The Managing Committee of the D. A. V. College is composed
of 24 members and manages a score of other D. A. V. Insti-
tutions established in the Country. The D. A. V. College
Trust and the Managing Society was formed to perpetuate the
memory of Swami Dayanand Saraswati who was the founder of an
organisation known as Arya Samaj, which Organisation it is
claimed has a fixed religious programme and its constitution
is designed,
693
to perpetuate the religious teaching and philosophy of its
founder. The Arya Samaj it is stated has its own philosophy
conception of God worship, religious tenets, rituals, social
work, educational work etc., as would appear from the
Constitution of the Arya Samaj. It is therefore claimed
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that it being a religious sect and denomination, is a
minority within the meaning of Article 30(1) of the
Constitution. These Schools and Colleges were established ’
on the lines teachings and principles of Arya Samaj’ in
which ’the imparting of the vedic culture and religious
instructions and worship based on the concept of Vedas, was
and has its essential ingredient’.
The Institutions which have filed the Writ Petitions were
before the Punjab Reorganisation Act (hereinafter called the
’Reorganisation Act’) affiliated to the Punjab University
constituted under the East Punjab Act 7 of 1947 (hereinafter
called the ’Punjab University’ or the ’Punjab University
Act’ as the context admits). Before the partition of India
some of these Institutions were affiliated to the Punjab
University, Lahore. After the partition other Universities
were set up in Punjab State like the Punjabi University, the
Kurukshetra University, the Agricultural University etc.,
each of which had its own territorial jurisdiction.
There being a strong movement in the State of Punjab by the
Sikhs to have a State of their own and others who did not
want it, the Government of India being faced with this
problem ultimately decided to reorganise the State of Punjab
on linguistic basis. A Boundary Commission was appointed
under the Chairmanship of Shah, J., as he then was, and on
the basis of that report Parliament ultimately passed the
Reorganisation Act by and under which the State of Punjab
and the State of Haryana were formed and certain ,other
territories were added to Himachal Pradesh. Chandigarh, the
erstwhile Capital was to be a Union territory and was to
serve as Capital of both these States. A provision was made
in this Act for the continuance of certain Corporations and
Institutions which had served the needs of the people of
both areas to continue as heretofore subject to the special
provisions enacted in the Act. Three of such institutions
were the Punjab University, the Punjab Agricultural
University and the Board constituted under the provisions of
Part III of Sikh Gurdwaras Act 1925. The continuance of the
aforementioned two Universities was dealt along with other
statutory Corporations under the general provisions
contained in Section 72 of the Reorganisation Act. As
already pointed out at the time of the reorganisation of the
State other Universities other than the University of Punjab
were in existence namely the Punjabi University in Punjab,
and Kurukshetra University in Haryana. After the
reorganisation the various Colleges which were in the
(1) [1969] 2 S. C. R. 73.
694
State of Punjab other than those over which the Punjabi
University had jurisdiction were continued to be affiliated
to the Punjab University. While this was the position till
1969 the Punjab Legislature in order to mark the 500th Birth
anniversary of Shri, Guru Nanak Devji established a
University to perpetuate his name. The Act received the
assent of the Governor on 28th November 1969,. On the 16th
March 1970 the first Respondent in exercise of the powers
conferred on it by sub-section (1) of Section 5 of the Act
specified the Districts of Amritsar, Gurdaspur, Jullundur
and Kapurthala in the State of Punjab as the area in which
the University shall exercise its power and perform its
duties. It further notified on 16th March 1970 in exercise
of the powers under subsection (3) of Section 5, 30th June
1970 as the date for the purpose of the said sub-section in
respect of the educational institutions situated within the
limits of the aforesaid area, which meant that as and from
that date the Colleges in the areas specified above which
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were affiliated to the Punjab University ceased to be
affiliated to that University and were deemed to be
associated with and admitted to the privileges of the
University.
The contentions urged before us are that the main purpose
and object of the University as constituted by the
University Act is to propagate Sikh religion and promote
Punjabi language in Gurmukhi script, that since the
Petitioners institutions belong to a minority based on
religion and language, in that they being adherents of Arya
Samaj Sect and denomination their compulsory affiliation to
the University violates Article 29(1) and 30(1) of the
Constitution of India. In support of this main contention
it is submitted that Section 5(3) of the Act and also
clauses 2(1) (a), 17 and 18 of the statutes in Chapter V
which inter-alia interfere with the management of the
minority institutions are ultra-vires being violative of the
guarantee under Article 30(t). It is also contended that
the minority educational institutions have the freedom to
choose to which University they will be affiliated and that
the legislature cannot compel affiliation to any particular
University. In any case in view of Section 72 of the
Reorganisation Act it is the Central Government which must
determine whether Colleges affiliated to the Punjab
University can be disaffiliated before any Notification
under the Act can be issued specifying the areas in which
educational institutions are to be affiliated and admitted
to the privileges of the University as from the date
notified. On this view it is submitted that the
notification of the 16th March ’70 is bad and must be struck
down. It is also submitted that this statutory affiliation
being compulsory affects the Petitioners right of As-
sociation guaranteed under Art. 19(1) (c) and that Article
14 is contravened because section 4(2) and 4(3) discriminate
against the Hindus, for while providing for the study of the
teachings of Guru
695
Nanak and the encouragement of the Punjabi language no
provision is made for the study of the religion or teachings
of the Hindus or of their language-the Hindi.
Now the question is, have the Petitioners been established
and administered by a religious or linguistic minority,
having a distinct script or culture of its own within the
meaning of Articles 29(1) and 30(1) of the Constitution and
do the provisions of the Act or any statute or ordinance or
Notification made thereunder offend any of the rights
guaranteed to them. This in turn leads to an enquiry
whether the Arya Samaj Sect is a religious or linguistic
minority. Article 29(1) and 30(1) are as follows :-
29(1)-Any Section of the citizens residing in
the territory of India or any part thereof
having a distinct language, script or culture
of its own shall have the right to conserve
the same.
30(1)-All minorities, whether based on
religion or language, shall have the right to
establish and administer educational
institutions of their choice.
It will be observed that Article 29(1) is wider than Article
30(1), in that. while any Section of the citizens including
the minorities, can invoke the rights guaranteed under
Article 29(1), the rights guaranteed under Article 30(1) are
only available to the minorities based on religion or
language. It is not necessary for Article 30(1) that the
minority should be both a religious minority as well as a
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linguistic minority. It is sufficient if it is one or the
other or both. A reading of these two Articles together
would lead us to conclude that a religious or linguistic
minority has a right to establish and administer educational
institutions of its choice for effectively conserving its
distinctive language, script or culture, which right however
is subject to the regulatory power of the State for
maintaining and facilitating the excellence of its
standards. This right is further subject to clause (2) of
Article 29 which provides that no citizen shall be denied
admission into any educational institution which is
maintained by the State or receives aid out of State funds,
on grounds only of religion, race, caste, language or any of
them. While this is so these two articles are not inter-
linked nor does it permit of their being always read
together.
In Rev. Father W. Proost & Ors. v. State of Bihar & Ors.
where while conceding that the Jesuits of Ranchi who were a
religious minority established the petitioner Institution
the St. Xaviers College which was admitting students of
other communities also, the Attorney General had contended
that as the protection to
696
minorities in Article 29(1) is only a right to conserve a
distinct language, script or culture of its own the College
did not qualify for the protection of Article 30(1) because
(i) it was not founded to conserve them, and (ii) it was
open to all sections of people. An attempt was made to read
into the protection granted by Article 30(1) a corollary
taken from Article 29(1). While conceding that the Jesuit
community is a minority community based on religion and
therefore it has a right to establish and administer
educational institutions of its choice, it was contended
that as the protection to minorities in Article 29(1) is
only a right to conserve the distinct language, script or
culture of its own, the College does not qualify for the
protection of Article 30(1) because it is not founded to
conserve them. Hidayatullah, C. J., rejected the
interpretation sought to be placed on Article 29(1) and
30(1) as if they have to be read together. At page 80 he
said :
"In our opinion, the width of Article 30(1)
cannot be cut down by introducing in it
considerations on which Art. 29(1) is based.
The latter article is a general protection
which is given to minorities to conserve their
language, script or culture. The former is a
special right to minorities to establish
educational institutions of their choice.
This choice is not limited to institution,
seeking to conserve language, script or
culture and the choice is not taken away if
the minority community having established an
educational institution of its choice also
admits members of other communities. That is
a circumstance irrelevant for the application
of Article 30(1) since no such limitation is
expressed and none can be implied. The two
articles create two separate rights, although
it is possible that they may meet in a given
case."
The next question is what constitutes a religious or
linguistic minority and how is it to be determined ? It was
submitted that in Re. Kerala Education Bill 1957 (1) this
Court did not in fact lay down any test for ascertaining
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what is meant by minority community or how it is to be
ascertained because in that case it had assumed that
question (2) itself proceeded on the footing that there were
minorities in Kerala who are entitled to the rights con-
ferred under Article 30(1). No doubt to some extent this is
true. Das, C. J., had observed at page 1050 that "strictly
speaking for answering question (2) we need not enquire as
to what a minority community means or how is it to be
ascertained". Nonetheless earlier he did consider these
matters (vide pages 1047-1050) and laid down the principles
which govern it, including an examination of the figures
relating to the total population of the Kerala
(1) [1959] S. C. R. 995.
697
State and the population of the minorities, the Christians,
the Muslim and the Anglo Indians.
Though there was a faint attempt to canvas the position that
religious or linguistic minorities should be minorities in
relation to the entire population of the country, in our
view they are to be determined only in relation to the
particular legislation which is sought to be impugned,
namely that if it is the State legislature these minorities
have to be determined in relation to the population of the
State. On this aspect Das, C. J., in Kerala Education Bill
case speaking for the majority thought that there was a
fallacy in the suggestion that a minority or Section
envisaged Article 30(1) and Article 29(1) could mean only
such persons as constitute numerically, minority in the
particular region where the educational institution was
situated or resided under local authority. He however,
thought, it was not necessary to express a final opinion as
to whether education being the subject matter of item 11 of
the State list, subject only to the provisions of entry 62,
63, 64 and 66 of List I and 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 said 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 a population of a locality when the law under that Act
applies only to that locality, because in that case the Bill
before the Court extended to the whole of the State of
Kerala and consequently the minority must be determined by
reference to the entire population of that State.
It is undisputed, and it was also conceded by the State of
Punjab, that the Hindus of Punjab are a religious minority
in the State though they may not be so in relation to the
entire country. The claim of Arya Samaj to be a linguistic
minority was however contested. A linguistic minority for
the purpose of Article 30(1) is one which must at least have
a separate spoken language. It is not necessary that that
language should also have a distinct script for those who
speak it to be a linguistic minority. There are in this
country some languages which have no script of their own,
but nonetheless those sections of the people who speak that
language will be a linguistic minority entitled to the
protection of Article 30(1).
The Punjab Boundry Commission Report under the Chairmanship
of Shah, J. as he then was dealt not only with the several
scripts in use but also the language of the dominant
sections residing in Punjab. Earlier the States
Reorganisation Report also went into the question and noted
the controversies between Akali Dal sponsoring Punjabi with
Gurmukhi script and Hindus who while
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698
at home they speak Punjabi asserted that in their religious
ceremonies and festivals, in their Schools and Colleges they
use Hindi. in any case they never accepted Gurmukhi script.
At page 143, it was observed "The problem of language in the
Punjab is therefore primarily one of scripts ; and in this
battle of scripts; sentiment is arrayed against sentiment".
This matter was dealt with in somewhat great detail in
Shah’s report at page 2 and 3 :
"History of the language controversy in the
Punjab is over fifty years old. In the Punjab
of pre-British days, the Court language was
Persian, and Punjabi was almost invariably
written in the Persian script. Under the
British rule, Urdu was the language of the
Courts and of district administration in
addition to English. During the last decades
of the 19th Century two important social
reform movements gained strong foothold in the
Punjab. The Arya Samaj movement took hold
among the urban Hindu population and use of
Hindi in the Devnagri script was propagated.
After Swami Dayanand, founder of the Arya
Samaj movement, published his ’Satyarath
Prakash’ in the eyes of a section of the
Hindus the Hindi language and the Devnagri
script acquired religious, significance. Dur-
ing the same period, the cause of Punjabi was
espoused by the Chief Khalsa Dewan. They
published a large, number of books and
pamphlets dealing with the lives of Gurus and
diverse facets of the Sikh religion. These
books were written in Punjabi and in Gurmukhi
script which had been given its present form
by the second Guru of the Sikhs, and in which
the holy Granth is written. The language
issue in course of time got linked up with the
politics of the province. Demands for giving
better status in the administrative scheme to
Punjabi in Gurmukhi script and Hindi in
Devnagri script gained strength, and the
Government of the day agreed to accede to
those demands and recognised the status of
both Punjabi and Hindi in the educational
curricula".
In our view it is unnecessary to consider whether Arya
Samajis are a linguistic minority, because if they can be
considered to be a religious minority they will be entitled
to invoke the protection under Article 30(1).
For the purposes of Article 29(1) even though it may not be
necessary to enquire whether all the Hindus of Punjab as
also the Arya Samajis speak Hindi as a spoken language,
nonetheless, there can be no doubt that the script of the
Arya Samajis is distinct from that of the Sikhs who form the
majority. It is claimed that while the Sikhs have Gurmukhi
as their script the Arya Samajis. have their own script
which is the Devnagri script. Their claim
699
to be written in Arya Bhasha- in Hindi languages and
Devnagri character. All Aryas and Arya Sabhasads should
know Arya Bhasha, Hindi or Sanskrit. The belief is that the
name of the script Devnagri is derived from Deva and
therefore has divine origin. From what has been stated it
is clear that the Arya Samajis have a distinct script of
their own, namely Devnagri. They are therefore entitled to
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invoke the right guaranteed under Article 29 (1) because
they are a section of citizens having a distinct script and
under Article 30 (1) because of their being a religious
minority.
It is now to be ascertained whether any of the provisions of
the Act, statutes or Ordinances offend the guaranteed rights
of the petitioners. The petitioners contend that sub-
sections (2) and (3) of Section 4 directly infringe the
fundamental rights guaranteed under Article 29 (1) and 30
(1) of the Constitution. Under these provisions the Arya
Samaj through its educational institutions have the right to
conserve its script, culture and its language.
Sub-section (2) of the Act, it is submitted enacts a
provision for making it imperative to study and conduct
research on the life and teachings of Guru Nanak and their
cultural and religious impact on Indian and World
civilizations while sub-section (3) contemplates the
adopting of measures for the study of Punjabi language
literature and culture which provisions according to the
petitioners directly aim at strangulating the growth of
Hindi while encouraging the growth of Punjabi. Their
apprehension is that Punjabi with Gurmukhi script will be
made the sole medium of instruction in the University and
that all Colleges affiliated to this University may be
forced to impart education through that medium.
The State of Punjab in its counter denied that the
provisions of sub-sections (2) and (3) of Section 4 seek to
strangulate the development and growth of Hindi language.
It is stated that there is nothing in these provisions which
offends the religious susceptibilities of the Petitioners
nor can the provision for the promotion of and research in
Punjabi language, literature and culture in the State of
Punjab, which has as its declared policy the adoption of
Punjabi as the sole language of the Punjabi speaking area,
be construed as offending the rights of the minorities.
The second Respondent the University traversed the Petitio-
ners allegations on grounds similar to those taken by the
State of Punjab except that it was further stated that
Respondent 3 the University of Punjab has also set up a Guru
Nanak Chair and that the Punjab Government has offered to
set up Guru Nanak Chairs in the Universities of Calcutta,
Dharwar, Madras, Kurushetra, Bombay as also in the Khalsa
College, Amritsar.
700
the Vedas................. but be it noted to
the Vedas as interpreted, not by the
traditional scholarship of Indian orthodoxy or
by the critical scholarship of the West, but
by the scholarship of the Arya Samaj
alone............ The scripture basis of the
Arya Samaj then, while formally the Vedas, is
in reality a certain interpretation of the
Vedas, which is not recognized as legitimate
by a single Sanskrit scholar, either Indian or
European, outside of the Arya Samaj
Shri Motilal Setalvad learned advocate for the respondents
contends that there is nothing to indicate that the Arya
Samajis should be Hindus. This argument however overlooks
the basic tenets of the Sect in that it admits to membership
only those Hindus who subscribe to the decalogue and its
beliefs in the cannons of vedic interpretation laid down by
Swami Dayanand but all outsiders who are non-Hindus such as
Muslim and Christians must undergo a ceremony of
purification or Shudhi.
The passages read above show beyond doubt that the Arya
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Samaj by "rejecting the manifold absurdities found in Smrti
and in tradition and in seeking a basis in the early
literature for a purer and more rational faith" can be
considered to be a religious minority, at any rate as part
of the Hindu religious minority in the State of Punjab.
It was also sought to be contended by the petitioners advo-
cate that they are a religious denomination for the purposes
of protection under Article 26 (a). It is true that
Mukherjea, J., as he then was in, The Commissioner of Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Shirur Mutt (1) after referring to the Oxford
Dictionary for the meaning of religious denomination as "a
collection of individuals classed together under the same
name : a religious sect or body having a common faith and
Organisation and designated by a distinctive name" held that
different sects or sub-castes can certainly be called a
religious denomination as it is designated by a distinctive
name-has a common faith and common spiritual organization.
This may be so but in the view we have taken that the Arya
Samaj is a religious minority, we find it unnecessary to
determine whether it is also a religious denomination, as it
does not arise for consideration under Article 30 (1).
Now coming to the question whether the Arya Samajis have a
distinct script of their own bye-law 32 of their
Constitution shows that the proceedings of all meetings and
sub-committees will have
(1) [1954] S.C.R.1005.
701
to be a religious minority with distinct script of their own
seems to us to be justified as would appear from the
following :
The Arya Samaj is a reformist movement, believes in one God
and in the Vedas as the books of true knowledge. It holds
that it is the duty of every Arya Samaj to read the Vedas
and have them read, to teach or preach them to others. It
has a distinct Organisation, the membership of which is open
to all those who subscribe to its aims and objects. The
Arya Samajis worship before the vedic fire and it begins
with the burning of incence (the homa ’sacrifice’)
accompanied by the chanting of the Vedic verses.
Encyclopaedia Britannica-(Vol. II-1968) has this to say
about Arya Samaj at page 558 :
"Arya Samaji, a vigorously reforming Sect of
modern Hinduism, founded in 1875 by Swami
Dayanand Saraswati (1824-83) at Bombay The
Vedas as interpreted by the method laid down
by Dayanand may be said to be the theology of
the Arya Samaj and are held to contain all
truth and all knowledge, including the basis
for modern science. The Arya Samaj is
completely opposed to idolatry, is sternly
monothistic and denies the efficacy of
priestly intervention. Its organization and
services are strongly reminiscant of
ProtestantismThe Arya Samaj opposes the
caste system based upon birth,as un-vedic and
insists that caste should reflect meritThe
Arya Samaj has sought to revitalize Hindu
life and to instill self-confidence and
national pride amongHindus. It has
established a network of excellent Schools and
Colleges, including the Dayanand Anglo-Vedic
College in Lahore, which teach rigorously in
the Vedas and in modern sciences
To show the affinity between Arya Samaj and
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Protestantism a comparison is made in the
Encyclopaedia of Religion and Ethics between
Dayanand Saraswati and Martin Luther. In
Volume 2 at page 58-59, it is said :
"As Luther the German monk was a child of the
European Renaissance, so Dayanand the Gujrati
monk was a child of the Indian Renaissance.
Luther attacked indulgences, while Dayanand
attacked idolatry. Luther appealed from the
Roman church and the authority of tradition to
the scriptures of the Old and New Testaments.
Swami Dayanand appealed from the Brahmanical
Church and the authority of Smrti to the
earliest and most sacred of Indian Scriptures.
The watchword of Luther was ’Back to the
Bible’; the watchword of Dayanand was ’back to
702
Assuming for the moment that the Punjab Legislature had the
competence to enact the Act, about which considerable
argument was addressed before us particularly in respect of
the scope and ambit of Section 72 of the Reorganisation Act-
sub-section (2) and (3) of Section 4 do not in our view
offend by themselves any of the rights of the petitioners
either under Art. 29 (1) or Art. 30 (1) of the Constitution.
Sub-section (2) & (3) of Section 4 are as follows :
Section 4.-The University shall exercise the following
powers and perform the following duties:
(1)...............................
(2)To make provision for study and research
on the life and teachings of Guru Nanak and
their cultural and religious impact in the
context of Indian and World civilizations ;
(3)To promote studies to provide for
research in Punjabi language and literature
and to undertake measures for the development
of Punjabi language, literature and culture.
It will be seen from the language of sub-section (2) that
nowhere is there a mandate for compelling Colleges
affiliated to it either to study the religious teachings of
Guru Nanak or to adopt in any way the culture of the Sikhs.
Guru Nanak is the founder of the Sikh religion. His teach-
ings were inspired by a need to synthesis the essentials of
the Hindu and Mohamadan faith which were always
irreconcilable, by preaching that in no essentials of faith
did they differ. His was intensly a montheistic philosophy
of the unit of God largely directed against idolatory
hypocracy distinction of castes, creeds and the pretentions
of priest craft. He was an inspired soul from his very
childhood, travelled widely and his pilgrimages extended to
Mecca and Madina. If the University makes provision for an
academic study and research of the life and teachings of any
saint it cannot on any reasonable view be considered to
require Colleges affiliated to the University to
compulsorily study his life and teachings or to do research
in them. The impugned provision would merely indicate that
the University can institute courses of study or provide
research facilities for any student of the University
whether he belongs to the majority or the minority community
to engage himself in such study or research but be it
remembered that this study and research on the life and
teachings of the Guru Nanak must be a study in relation to
their culture and religious impact
703
in the contact of Indian and world civilizations which is
mostly an academic and philosophical study.
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it is however contended that as the Guru Nanak University is wholl
y, maintained out of the State funds the provision
under 4(2) .,offends Article 28(1) which is not saved by
clause 2 thereof. The ,petitioners pointed out that Section
23(1) of the Act enjoins on the State Government to provide
from time to time ’such amounts by way of grants for meeting
the capital, recurring or other expenditure of the
University as it may deem fit’ and at any rate require it to
provide a minimum annual grant of Rs. 50 lakhs to the
University for meeting its recurring expenditure provided
that if during any financial year the entire amount of the
aforesaid grant is not utilized for meeting the recurring
expenditure the unutilized balance may with the previous
consent of the State Government be utilised for meeting
capital expenditure of the University. Neither the State
Government nor the University in their counter denied this
allegation and even in the counter filed during the course
of the hearing by the State of Punjab nothing was stated to
controvert the assertion that the University is wholly
maintained out of State funds. During the course of the
arguments however learned Advocate appearing on behalf of
the State and the University suggested that this was not so
because the University gets income from affiliation fees and
examination fees as such it cannot be said that the
University is wholly maintained out of State funds. We can
only say that this was not a serious attempt to deny the
averment. The income from affiliation fees and the
examination fees as the term ’fee’ itself indicates is
something that is charged for rendering the service in
respect of those two items which is a sort of quid-pro ,quo
and could hardly be said to be an income for the purposes of
running the University.
Even so the Petitioners have still to make out that Section
4(2) implies that religious instruction will be given. We
think that such a contention is too remote and divorced from
the object of the provision. Religious instruction is that
which is imparted for inculcating the tenets, the rituals,
the observances, ceremonies and modes of worship of a
particular Sect or denomination. To provide for academic
study of life and teaching or the philosophy and culture of
any great saint of India in relation to or the impact on the
Indian and world civilizations cannot be considered as
making provision for religious instructions.
Sub-Section (3) of Section 4 also does not in our view
transgress the guarantee under Article 29(1). Whether one
may like it or not, linguistic States in this country have
come to stay. The purpose and object of these linguistic
states is to provide with
704
greater facility the development of the people of that area
educationally, socially and culturally, in the language of
that region but while the State or the University has every
right to provide for the education of the majority in the
regional medium, it is subject to the restrictions contained
in Article 25 to 30. Neither the University nor the State
can provide for imparting education in a medium of
instruction in a language and script which stifles the
language and script of any Section of the citizens. Such a
course will trespass on the rights of those Sections of the
citizens which have a distinct language or script and which
they have a right to conserve through educational
institutions of their own. In our view Section 4(3) does
not lend itself to the interpretation that the medium of
instruction of all affiliated Colleges has to be Punjabi.
The provision, as we construe it, is for the promotion of
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Punjabi studies and research in and the development of the
Punjabi language, literature and culture which is far from
saying that the University can under that provision compel
the affiliated Colleges particularly those of the minority
to give instruction in the Punjabi language or in any way
impede the right to conserve their language script and
culture.
It is again contended that while provision is made in Sec-
tions 4(2) and 4(3) for the study and research of the life
and teachings of Guru Nanak and for the study of Punjabi
language, script and literature no similar provision is made
for the study, of religious Heads of Hindus or for the study
of Hindi and Devnagri script though Hindus form a
substantial portion of the population of the State. These
provisions therefore are discriminatory and violative of
Article 14 of the Constitution. This argument in our view
is devoid of merit. The State of Punjab is created as a
unilingual State with Punjabi as its language and if
provision is made for study of Punjabi language that does
not furnish a ground for discrimination nor can the
provision for study of the life and teachings of Guru Nanak
afford any cause for complaint as in neither case as we have
noticed, is there any compulsion on any person to undertake
such studies nor is any of the communities prohibited from
pursuing studies in respect of either Hindi or of the life
and teachings of any Hindu Saint. The facts of the case in
our view do not attract Article 14.
It is contended that the compulsory affiliation of the
Petitioners to the University affects their fundamental
right of freedom of Association as guaranteed under Article
19(1) (e), therefore the notification under Section 5(3)
affiliating them to the University is bad. It is also urged
that since the words "associated with and admitted to any
privileges" or used in Section 5 of the Act, it would mean
that Petitioners are compulsorily formed into an Association
with the University. This contention however is countered
by the Respondents who point out that the freedom of
Association under
705
Article 19(1) (c) implies Association between citizens while
in the case of the Petitioners what is sought to be affected
is an affiliation with the University which is a corporate
body.
The right to form an association implies that several
individuals get together and form voluntarily an association
with a common aim legitimate purpose and having a community
of interests. It was sought to be suggested that the
compulsory affiliation with the University affects the aims
and objects of the Association, as such its freedom is
infringed. There is in our view a fallacy in this argument
which on earlier occasions had also been repelled. In the
All India Bank Employees Association v. National Industrial
Tribunal & Ors. (1), it was observed that the right
guaranteed under Article 19(1) (c) does not carry with it a
concomitant right that the Associations shall achieve their
object such that any interference in such achievement by any
law would be unconstitutional unless it could be justified
under Art. 19(4) as being in the interests of public order
or morality. The right under Article 19(1) (c) extends
inter alia to the formation of an Association or Union.
In Raghubar Dayal Jai Prakash v. Union of India & Ors. (2)
it was held that if the statute imposes conditions subject
to which alone recognition could be accorded or continued,
"it is a little difficult to see how the freedom to form the
Association is effected unless, of course, that freedom
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implies or involves a guaranteed right to recognition also
which it did not".
A reference has been made to a recent case of Smt. Dama-
yanti Narang v. Union of India & Ors. (3), that a compulsory
affiliation by statute would interfere with the right of
Association. This argument in our view is untenable because
in that case Parliament passed a law under entry 63 of List
II of Schedule VII to the Constitution under which a Hindi
Sammelan was to be constituted which was to consist of the
first members of the Hindi Sammelan registered under the
Societies Registration Act and all persons who become
members thereof in accordance with the rules in that behalf.
This statutory Sammelan was constituted as a body corporate
the first members of which were to consist of persons who
immediately before the appointed day were life members of
the Society had been President’s of the Society or were
awarded the Mangla Prasad Paritoshik by the Society. There
were also other provisions by which the Hindi Sammelan
Society, its constitution as well as its property was
affected. In those circumstances it
(1) [1962] 2 S.C.R. 269. (2) [1963] 2 S.C.R,547.
(3) Writ Petition No. 91 of 1964, decided on 23-2-71.
45-1 S. C. India/71
706
was held that the Act in so far as it interferes with the
composition of the Society in constituting the Sammelan
violated the rights of the original members of the Society
to form an Association guaranteed under Art. 19(1) (c). No
such thing was intended or effected by Section 5 of the Act.
At any rate the D. A. V. College Trust and Management
Society is not being interfered with, by any attempt to form
an Association with the University. We can see no
infringement of Article 19(1) (c).
The next ground of attack is in respect of the statutes made
in exercise of the powers conferred under sub-section (1) of
Section 19 of the University Act which according to the
petitioners interferes with the management of their
institutions as such violates Article 30(1) of the
Constitution. The relevant impugned statutes are contained
in Chapter V relating to admission to Colleges. These are
2(1) (a) 17, and 18 read with clause 1(2) and (3) which are
as follows
1(1)
1(2) Colleges shall be of two types namely
University Colleges and affiliated Colleges.
1(3) The educational institutions and Colleges
situated in the Districts of Amritsar,
Jullundur, Gurdaspur and Kapurthalla are
deemed to be associated with and admitted to
the privileges of the University with effect
from 30th day of June 1970. These
institutions shall observe the conditions for
admission to the privileges of the University
failing which the rights conferred may be
withdrawn.
2(1)(a) A College applying for admission to
the privileges of the University shall send a
letter of application to the Registrar and
shall satisfy the Senate
(a)that the College shall have a regularly
constituted governing body consisting of not
more than 20 persons approved by the Senate
and including, among others, 2 representatives
of the University and the Principal of the
College Ex-officio.
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Provided that the said condition shall not
apply in the case of Colleges maintained by
Government which shall however have an
advisory Committee consisting of among others
the principal of the College (Ex-officio) and
two representatives of the University.
17.The staff initially appointed shall be
approved by the Vice Chancellor. All
subsequent changes shall be reported to the
University for Vice Chancellor’s approval.
707
In the case of trading institutions the
teach&, pupil ratio shall not be less than
112. Non-Government Colleges shall comply
with the requirements laid down in the ordi-
nance governing service and conduct of
teachers in non-Government Colleges as may be
framed by the University.
18.Non-Government Colleges shall comply
with the requirements laid down in the
ordinances governing service and conduct of
teachers in non-Government Colleges as may be
framed by the University.
It is contended that these provisions interfere with the
Petitioners in the management of their institutions, in that
the Colleges are required to constitute a regular governing
body for each of them, of not more than 20 persons to be
approved by the University Senate. Of these, two
representatives of the University and the Principal of the
College are to be ex-officio members. According to the
Petitioners the Managing Committee of their institution is
composed of 24 members under the D. A. V. College Trust and
Management Society registered under the Societies
Registration Act (Act 21 of 1960). It will be observed that
under clause 1(3) if the petitioners do not comply with the
requirements under l(a) their affiliation is liable to be
withdrawn. Similarly it is stated that clause 17 also
interferes with the petitioners right to administer their
College as the appointment of all the staff has to be
approved by the Vice-Chancellor and that subsequent changes
will also have to be reported to the University for Vice
Chancellor’s approval. We have already held that the
Petitioners institutions .are established by a religious
minority and therefore under Article .30 this minority has
the right to administer their educational institutions
according to their choice. Clauses 2(1) (a) and 17 of
,Chapter V in our view certainly interferes with that right.
In the case of Kerala Education Bill (1) dealing with
Article 30(1) this Court observed at page 1053 :
"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 Article 30(1) has
therefore to be determined on a consideration
of the matter from the points of view of the
educational institutions themselves".
While so stating it was nonetheless observed
"that the constitutional right to administer
an educational institution of their choice
does not necessarily
(1) [1959] S.C.R. 995.
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708
militate against the claim of the State to
insist that in order to grant aid the State
may prescribe reasonable regulations to ensure
the excellence of the institution to be
aided".
Similarly in Rev. Sidhajbhai Sabhai & Ors. v. State Bombay
& Anr. (1) it was held that :
"Unlike Article 19 the fundamental freedom
under clause (1) of Article 30 is absolute in
terms ; it is not made subject to any
reasonable restrictions of the nature the
fundamental freedoms enunciated in Article 19
may be subjected to. AR minorities,
linguistic or religious have by Article 30 (1)
an absolute right to establish and administer
educational institutions of their choice; and
any law or executive direction which seeks to
infringe the substance of that right under
Article 30(1) would to that extent be void.
This, however, is not to say that it is not
open to the State to impose regulations upon
the exercise of this right......... Regulation
made in the true interests of efficiency of
instruction, discipline, health, sanitation,
morality, public order and the like may
undoubtedly be imposed. Such regulations are
not restrictions on the substance of the right
which is guaranteed ; they secure the proper
functioning of the institution, in matters
educational".
We have already seen that in Rev. Father W. Proost & Ors.
v. the State of Bihar & Ors. (2) the provisions of Section
48(A) which required to selection of the teachers of all
affiliated Colleges including the Colleges established by
the minorities, to be made by the University Service
Commission, was held to interfere with the rights of the
petitioners in that case. In that case, while the petition
was pending in the Court, Section 48(B) was added to the
Bihar State University Act whereby notwithstanding the
provisions of Section 48(A) exemption was given to the
minority institutions to make appointments with the approval
of the Commission and the Syndicate, the petitioners claimed
exemption under Section 48(B) and submitted that as an
affiliated College established by a minority based on
religion or language they are exempted from Section 48(A)
and that if this petition was accepted they will withdraw
the petition which had become superfluous. Even this prayer
was not acceded to by the State and consequently it was held
that they were entitled to the exemption claimed. This
decision is not therefore an authority for the proposition
that even the requirement that the staff of a minority
educational institution
(1) [1963] 3 S.C.R. 837. (2) [1969] 2 S.C.R. 73
709
be appointed, dismissed or removed only with the approval of
the University or the State does not infringe the fight to
administer the institution guaranteed under Article 30(1).
In our view there is no possible justification for the
provisions contained in clauses 2(1) (a) and 17 of Chapter V
of the statutes which decidedly interfere with the rights of
management of the Petitioners Colleges. These’ provisions
cannot therefore be made as conditions of affiliation, the
non-compliance of which would involve disaffiliation and
consequently they will have to be struck down as offending
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Article 30(1).
Clause 18 however in our view does not suffer from the same
vice as Clause 17 because that provision in so far as it is
applicable to the minority institutions empowers the
University to prescribe by regulations governing the service
and conduct of teachers which is enacted in the larger
interests of the Institutions to ensure their efficiency and
excellence. It may for instance issue an ordinance in
respect of age of superannuation or prescribe minimum
qualifications for teachers to be employed by such
Institutions either generally or in particular subjects.
Uniformity in the conditions of service and conduct of
teachers in all non-Government Colleges would make for
harmony and avoid frustration. Of course while the power to
make ordinances in respect of the matters referred to is
unexceptional the nature of the infringement of the right,
if any, under Article 30(1) will depend on the actual
purpose and import of the ordinance when made and the manner
in which it is likely to affect the administration of the
educational institution, about which it is not possible now
to predicate.
There is then the larger question which has been urged at
some length namely that having regard to Section 72 of the
Reorganisation Act the State legislature is not competent to
enact Section 5 of the Act which empowers the State
Government by Notification to compulsorily disaffiliate from
the Punjab University all Colleges including the Colleges of
the minorities situated in the areas which are now in Punjab
and affiliate them to the University. Section 72 of the
Reorganisation Act and Section 5 of the Act are as follows :
Section 72(1).-Save as otherwise expressly
provided by the foregoing provisions of this
part, where any body ,corporate constituted
under a Central Act, State Act or Provincial
Act for the existing State of Punjab or any
part thereof serves the needs of the successor
States or has, by virtue of the provisions of
Part 11, become an inter.State body corporate,
then the body corporate shall, on .and from
the appointed day, continue to function and
operate in those areas in respect of which it
was functioning
710
and operating immediately before that day,
subject to such directions as may from time to
time be issued by the Central Government until
other provision is made by law in respect of
the said body corporate.
(2)Any direction issued by the Central
Government under sub-section (1) in respect of
any such body corporate may include a
direction that any law by which the said body
corporate is governed shall, in its
application to that body corporate, have
effect, subject to such exceptions and
modifications as may be specified in the
direction.
(3)For the removal of doubt it is hereby
declared that the provisions of this Section
shall apply also to the Punjab University
constituted under the Punjab University Act,
1947, the Punjab Agricultural University
constituted under the Punjab Agricultural
University Act, 1961 and the Board constituted
under the provisions of Part III of the Sikh
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Gurdwaras Act, 1925.
(4)For the purpose of giving effect to the
provisions of this section in so far as it
relates to the Punjab University and the
Punjab Agricultural University referred to in
sub-section (3) the successor State shall make
such grants as the Central Government may,
from time to time, by order, determine.
Section 5(1)-The State Government may, by
Notification specify the limits of the area in
which the University shall exercise its powers
and perform its duties.
(2)Notwithstanding anything contained in
any other law for the time being in force, no
educational institution beyond the limits of
the area specified under subsection (1) shall
be associated with or admitted to any
privileges of the University.
(3)Notwithstanding anything contained in
any other law for the time being in force, any
educational institution situated within the
limits of the area specified under sub-section
(1) shall, with effect from such date as may
be notified in this behalf by the State
Government be deemed to be associated with and
admitted to the privileges of the University
and shall cease to be associated in any way
with, or be admitted to any privileges of the
Punjab University; and different dates may be
appointed for different institutions.
The provisions of sub-sections (1) and (2) of Section 72 of
the Reorganisation Act are similar to those contained in
Section 109
711
of the States Reorganisation Act 1956 except that for
removal of doubts sub-section (3) has specified the
institutions named therein as being governed by sub-sections
(1) and (2). Sub-section (4) is consequential on the two
Universities being made subject to the said provisions by
requiring the successor state to make such grants to them as
the Central Government may from time to time by order
determine.
The State Government had by Notification of the 16th March
under sub-section (1) of Section 5 of the Act specified the
districts as the areas in which the Universities shall
exercise its powers and perform its duties and under sub-
section (3) of the said Section, it further notified 30th
June 1970 as the date from which the educational
institutions situated within the limits of the areas so
specified in the notification shall be deemed to be
associated with and admitted to the privileges of the
Universities.
The contention of the Petitioners is that since under
Section 72 of the Reorganisation Act it is the Central
Government which is vested with the power to issue
directions in respect of the Punjab University or the Punjab
Agricultural University and/or to amend and alter the
provisions of the Punjab University Act or the Punjab
Agricultural University Act, the State Legislature is not
competent to legislate in respect of the said University or
Universities without the necessary directions of the Central
Government. This is sought to be justified on the ground
(a) that in respect of the Punjabi University the extension
of jurisdiction of the University by a notification under
the relevant provisions of the Punjabi University Act issued
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by the State Government, the Central Government had issued a
direction disaffiliating the Colleges situated in those
areas which were affiliated to the Punjab University, (b)
that as the Reorganisation of the State of Punjab itself
involved various matters upon which the successor States may
not be agreed Parliament by law had in exercise of the power
vested in it, enacted provisions empowering the Central
Government to give, directions in the interests of both the
States, which directions had the affect of making a change
in the then existing law governing the Corporate bodies till
such time as both the States agreed. Though it is submitted
that this power is transitory nonetheless it is effective
till such time as the Central Government in agreement with
the States concerned permits them to legislate in respect of
the body corporate by giving necessary directions in that
behalf.
On the other hand it is contended by the Respondents inter-
alia (1) that under item 11 of List II of the Seventh
Schedule to the Constitution education being a State subject
the State Legislature alone and not Parliament, is competent
to legislate in respect of Universities, support being
gathered for this submission from
712
the provisions of Sections 88 and 89 of the Reorganisation
Act under Which the law in force immediately before the
appointed day could be otherwise provided for, or altered,
repealed or amended only "by a competent legislature" which
in the context is that legislature which is competent to
legislate under any of the entries in List I, II or under
the concurrent List III of the Seventh Schedule; (2) that
the law referred to in subsection (1) of Section 72 of the
States Reorganisation Act which could take away the power of
the Central Government to give directions from time to time
as may be necessary in respect of the ’functioning and
operating’ of corporations including those in respect of the
two Universities referred to in sub-section (3) is the State
law, as it could not have been the intention of Parliament
to deprive the States of their legislative powers by means
of a law made under Article 4 to give effect to the
Reorganisation of the States by having recourse to the power
to make supplemental, incidental and consequential pro-
visions ; (3) that Parliament itself understood that it has
no power to legislate in respect of one of the two
Universities namely the Punjab Agricultural University when
it enacted the Haryana and Punjab Agricultural University
Act 16 of 1970, pursuant to the resolution of the
legislature of the State of Punjab and Haryana under clause
(1) of Article 252 of the Constitution in which it was
categorically stated, as is apparent from the resolution of
the legislature of Haryana produced before us, that as
legislation had to be undertaken under entries 11 and 32 of
list 11 in the Seventh Schedule and as "Parliament has no
power to make a law for the State except as provided under
Article 249 and 250 thereof" it "shall by law make provision
for the dissolution of the aforesaid Punjab Agricultural
University.... for setting up a separate Agricultural
University............ for vesting the rights and
liabilities of the University so dissolved in the University
to be so set up and for all matters connected therewith or
incidental thereto", and (4) that in any case in a petition
under Article 32 this Court cannot go into the question of
legislative competence if the law that is impugned does not
in any way affect the fundamental rights of the petitioners.
We have already found that none of the provisions of the Act
offend any fundamental rights of the Petitioners. But it is
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contended on behalf of the Petitioners that in a petition
under Article 32 once it is alleged and a prima facie case
is made out that the fundamental rights of a citizen are
threatened or violated this Court is not only bound to
entertain it for determining to what extent the allegation
is valid but is also bound to go into the question, if
raised, that the law under which it is alleged that his
fundamental right is infringed is invalid on the ground of
want of legislative competence. There are two facets to
this submission.
713
Firstly whether ultimately any fundamental right in fact is
threatened or violated, so long as a prima facie case of
such a threat or violation is made out a petition under
Article 32 must be entertained. Secondly once it is
entertained irrespective of whether it is found ultimately
that in fact no fundamental rights of the petitioners are
invaded the vires of the legislation or the competence of
the legislature to enact the impugned legislation must be
gone into and determined. While the first proposition is
valid, the second is not.
Shri Tarkunde the learned Advocate for the Respondents in
Writ Petitions Nos. 353 and 354 of 1970 which were heard
immediately after these petitions has raised a contention
similar to that raised in the second submission in support
of which he referred to the case of Mohammad Yasin v. The
Town Area Committee, Jalalabad & Anr., (1). We do not think
that this decision supports .his contention because in that
case it was held that in the absence of an valid law
authorising the Town Committee to levy any fees otherwise
than for the use of any immovable property vested in or
entrusted to the Management of the Town Committee such
illegal imposition must undoubtedly operate as an illegal
restraint ,and must infringe the unfettered right of the
wholesale dealer to carry on his occupation, trade or
business which is guaranteed to him by Article 19(1) (g) of
the Constitution. In that case the levy on the petitioner
as a wholesale dealer was held to be obviously ultra vires
the powers of the Committee and therefore the bye-law under
which such a fee was levied could not be said to constitute
a valid law which alone may under Article 19(6) of the
Constitution impose a restriction on the right conferred by
Article 19(1) (g). It is, therefore, clear that as long as
the petitioner makes out a prima facie case that his
fundamental rights are affected or threatened he cannot be
prevented from challenging that the law complained of which
affects or invades these rights is invalid because of want
of legislative competence. In Chiranjilal Chowdhuri v. The
Union of India & Ors. (2), Mukherjea, J., as he then was
gave expression to a similar view as to the maintainability
of a petition under ,Article 32. At page 899 he said :
"To make out a case under this Article, it is
incumbent upon the petitioner to establish not
merely that the law complained of is beyond
the competence of the particular legislature
as not being covered by any of the items in
the legislative lists, but that it affects or
invades his fundamental rights guaranteed by
the Constitution, of which he could seek
enforcement by an appropriate writ or
order".
(1) [1952] S.C.R. 572.
(2) [1950] S.C.R. 869.
714
It is apparent therefore that the validity or the invalidity
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of the impugned law. on the ground of legislative competence
should purport to infringe the fundamental rights of the
petitioner as a necessary condition of its being
adjudicated. But if in fact the law does not, even on the
assumption that it is valid, infringe any fundamental
rights, this Court will not decide that question in a
petition under Article 32. The reason for it is obvious,
namely that no petition under Article 32 will be entertained
if fundamental rights are not affected and if the impugned
law does not affect the fundamental rights it would be
contrary to this principle to determine whether that law in
fact has legislative competence or not.
Gajendragadkar J., as he then was in Khyarbari Tea Co. Ltd.,
& Anr. v. State of Assam (1), while dealing with a challenge
to, the validity of Section 24 of the Assam Taxation on
Goods Act 1961 said at page 1009 :
"There may be some force in this contention,
but we do not see how the petitioners can be
permitted to challenge the validity of Section
24 when it is not alleged by them that any
action is proposed to be taken against them
under the said Section. In dealing with the
petition under Article 32 this Court would
naturally confine the petitioners to the
provisions of the impugned Act by which their
fundamental rights are either affected or
threatened. That is why we are not satisfied
that it is necessary to. decide the question
about the validity of Section 24 in the
present proceedings".
In Saghir Ahmad v. State of U. P. (2) it was held that when
the enactment on the face of it is found to violate the
fundamental rights guaranteed under Article 19(1) (g) of the
Constitution it must be held to be invalid unless those who
support the legislation can bring it within the purview of
the exception laid down in clause 6 of the Article but if
the Respondents did not place any materials before the Court
to establish that the legislation comes within the
permissible limits of clause 6, it is surely not for the
Appellants to prove negatively that the legislation was not
reasonable and was not conducive to the welfare of the
community. There are other such instances where this Court
has drawn an initial presumption of constitutionality when a
statute was impugned as being unconstitutional.
This being the legal position in our view when once an im-
punged law does not affect the fundamental rights of the
petitioners
(1) [1964] 5 S.C.R. 975.
(2) [1955] S.C.R. 707 & 726.
715
as in this case we have founded it to be so, it is not
necessary to go into the question of legislative competence
or to decide on the validity of Section 5.
We have therefore no hesitation in holding that the
notification under which the Colleges have been affiliated
to the Universities is legally valid and from the date
specified therein Petitioners Colleges cease to be
affiliated to the Punjab University. In the result these
petitions are allowed to the extent that clause 2(1) (a) and
Clause 17 of Chapter V of the statutes are struck down as
affecting the fundamental rights of the petitioners, but in
the circumstances without costs.
K. B. N. Petition partly allowed.
716
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