The State of Bombay Vs. Bombay
Education Society & Ors [1954] INSC 76 (26 May 1954)
DAS, SUDHI RANJAN MAHAJAN, MEHAR CHAND (CJ)
HASAN, GHULAM BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
CITATION: 1954 AIR 561 1955 SCR 568
CITATOR INFO :
R 1958 SC 956 (26) R 1963 SC 996 (8) R 1970
SC2079 (10) F 1971 SC1731 (10) R 1974 SC1389 (244) R 1979 SC 83 (5) RF 1988 SC
305 (7)
ACT:
Constitution of India-Articles 29, 30(1),337
Second Proviso Government Circular-Prohibiting admission into Schools maintained
or aided by State on the ground of language of citizens--Such circular whether
ultra vires of Articles 29(2) and 337 Second Proviso--Article 29(1) and 30(1)
of the Constitution Word "Namely " -Meaning of.
HEADNOTE:
The Education Society of Bombay (respondent
No. 1) has been running a recognised Anglo-Indian School called Barnes High
School at Deolali which receives aid from the State of Bombay. J and G are its
Directors. English is used in the said school as the medium of instruction. The
mother tongue of the Anglo-Indians is English. The State of Bombay issued a
circular order on 6th January, 1954, headed " Admission to Schools
teaching through the medium of English." The operative portion of the
order enjoined that no primary or secondary school shall from the date of the
order admit to a class where English is used as the medium 569 of instruction
any pupil other than a pupil belonging to a section of citizens the language of
which is English namely, Anglo-Indians and citizens of non-Asiatic descent. One
P, a citizen of India and member of Indian Christian Community alleging English
to be the mother tongue of his daughter, and one M, a citizen of India and
member of Gujrati Hindu Community alleging Gujrati to be the mother tongue of
his son, were refused admission to the school for their respective wards on the
basis of the aforesaid order dated 6th January, 1964. The Society and its two
Directors presented an application under article 226 of the Constitution in the
High Court of Bombay praying for the issue of a Writ in the nature of Mandamus
restraining the State of Bombay and its officers from enforcing the said order
and to allow the petitioners to admit in the school any children of
non-Anglo-Indian citizens or citizens of the Asiatic descent and to educate
them through the medium of English. Similar applications were made by P and his
daughter and by M and his son. All these applications were consolidated, heard
together and accepted by the High Court which made an order as prayed. The
State of Bombay came in appeal before the Supreme Court. Held: (1) that the
impugned order denying the right of students who are not Anglo-Indians or are
of Asiatic descent to be admitted to a recognised Anglo-Indian School (in this
case the Barnes High School) which receives aid from the State and which
imparts education through the medium of English is void and unenforceable as it
offends against the fundamental right guaranteed to all citizens by article
29(2) of the Constitution, because (a)The language of article 29(2) of the
Constitution is wide and unqualified and covers all citizens whether they
belong to the majority or minority group.
(b)The protection given by the said article
extends against the State or anybody who denies the right conferred by it.
(a)The said article confers a special right
on citizens for admission into the educational institutions maintained or aided
by the State.
(d)The marginal note referring to minorities
does not control the plain meaning of the language in which article 29(2) has
been couched.
The word " namely " imports
enumeration of what is comprised in the preceding clause. In other words it
equates what follows with the clause described before.
(2)Barnes High School at Deolali and other
Anglo-Indian Schools have a right to admit non-Anglo-Indian students and
students of Asiatic descent inasmuch as article 337 proviso 2 imposes an
obligation on the Anglo-Indian Schools to make available at least 40 per cent.
of the annual admissions to non-Anglo-Indian students as a condition precedent
of their receiving grant from the Government and the impugned order is
unconstitutional as it 73 570 prevents the Anglo-Indian schools from performing
their constitutional obligation and exposes them to the risk of forfeiting their
constitutional right to the special grant.
In view of the fundamental right guaranteed
to a minority like the Anglo-Indian community under article 29(1) to conserve
its own language, script and culture and the right to establish and administer
educational institutions of its own choice under article 30(1) there is
implicit therein the right to impart instruction in its own institutions to the
children of its own community in its own language and the State by its police
power cannot determine the medium of instruction in opposition to such
fundamental right.
Bhola Prasad v. The King-Emperor ([1942]
F.C.R. 17, 25), The Queen v. Burah (L.R. 1878 3 App. Cas. 859), The State of
Madras v. Srimathi Champakam Dorairajan ( [1951] S.C.R. 525), Pierce v. Society
of Sisters of Holy Names (268 U.S. 508), Yusuf Abdul Aziz v. State (A.I.R. 1951
Bom. 470), Sm.
Anjali Boy v. State of West Bengal (A.I.R.
1952 Cal. 825), The State of Bombay v. Narasu Appal Mali (A.I.R. 1952) Bom.
84), Srinivasa Aiyar v. Saraswathi Ammal
(A.I.R. 1952 Vad. 193), Dattatraya Motiram More v. State of Bombay (A.I.R. 1953
Bom. 311), Punjab Province v. Daulat Singh (1946 L.R. 73 I.A. 59), Robert V.
Meyer v. State of Nebraska (262 U.S. 390), August Bartels v. State of Iowa (262
U.S. 404) and Ottawa Separate Schools Trustees v. Mackell (L.R. 1917 A.C. 62)
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 64 to 66 of 1954.
Appeals under article 132(1) of the
Constitution of India from the Judgment and Order dated the 13th February,
1954, of the High Court of Judicature at Bombay in Special Applications Nos.
259, 288 and 289 of 1954 respectively.
M. C. Setalvad, Attorney-General for India,
and C. K. Daphtary, Solicitor-General for India (G. N. Joshi, M. M. Desai,
Porus A. Mehta and P. G. Gokhale, with them) for the appellant in all the
appeals.
N. A. Palkhivala, J. B. Dadachanji, J. K.
Munshi and Rajinder Narain for respondents Nos. 1 and 2 in C. A. No. 64.
Frank Anthony, J. B. Dadachanji, J. K. Munshi
and Rajinder Narain for respondent No. 3.
N. A. Palkhivala, J. B. Dadachanji, J. K.
Munshi and Rajinder Narain for the respondent No. I in C. A, No. 65.
571 Frank Anthony and Rajinder Narain for
respondent No. 2.
N. A. Palkhivala, Frank Anthony, J. B.
DadachanjiJ. K.' Munshi and Rajinder Narain for respondent No. I in C. A. No.
66.
Frank Anthony, J. B. Dadachanji, J. K. Munshi
and Rajinder Narain for respondent No. 2.
1954. May 26. The Judgment of the Court was
delivered by DAS J.-These three appeals, filed by the State of Bombay, with a
certificate granted by the Bombay High Court, are directed against the Judgment
and Order pronounced by that High Court on the 15th February, 1954, on three
Civil Applications under article 226. By that Judgment and Order the High Court
held that the circular order No. SSN 2054(a) issued by the State of Bombay,
Education Department, on the 6th January, 1954, was bad in that it contravened
the provisions of article 29(2) and article 337 and directed the issue of a
writ prohibiting the State from enforcing the order against the authorities of
Barnes High School established and run by the Education Society of Bombay
(hereinafter referred as the Society).
The Society, which is the first respondent in
Appeal No. 64 of 1954, is a Joint Stock Company incorporated under the Indian
Companies Act, 1913. The other two respondents in that appeal Venble Archdeacon
A. S. H. Johnson and Mrs.
Glynne Howell are members and Directors of
the Society. The Ven'ble Archdeacon A. S. H. Johnson is also the Secretary of
the Society. Both of them are citizens of India and are members of the
Anglo-Indian Community. The mother tongue of these respondents as of other
members of the Anglo-Indian Community is English.
In the State of Bombay there are in all 1403
Secondary Schools. 1285 of these Schools import education through the medium of
some language other than English. The remaining 118 Schools have adopted
English as the medium of instruction. Thirty out of these 118 Schools are AngloIndian
Schools. In these thirty Schools there are three thousand Anglo-Indian 572
students forming 37 per cent. of the total number of students receiving
instruction in those Anglo-Indian Schools. The rest 63 per cent. consist of
non-Anglo-Indian students.
In furtherance of its object the Society in
1925 established and since then has been conducting and running a School known
as Barnes High School at Deolali in Nasik District in the State of Bombay. The
School is a recognized AngloIndian School having Primary, Secondary and High
School classes. The School receives considerable aid from the State. The total
number of students in the School in December, 1953, was 415, out of which 212
were Anglo-Indians and the remaining 203 belonged to other Indian Communities.
In all the classes in the said School English
is used as the medium of instruction and has been so used since the inception
of the School. The entire staff of the School consist of 17 teachers who, with
the exception of one, are trained and qualified to teach only in English, the
exception being the teacher who teaches Hindi which is, the second language
taught in that School.
On the 16th December, 1953, the Inspector of
Anglo-Indian Schools, Bombay State, and Educational Inspector, Greater Bombay,
sent a circular letter to the Headmaster of Barnes High School intimating that
the Government had under consideration the issue of orders regulating
admissions to Schools in which the medium of instruction was English. The
orders under consideration were stated to be on the following lines, namely,
(1) that from the next School year admissions to English medium School should
only be confined to children belonging to the Anglo-Indian and European
Communities, and (2) that those pupils who, 'prior to the issue of the orders,
were studying in recognized Primary or Secondary English medium Schools, could
continue to do so.
The letter in conclusion advised the
Headmaster not to make any admission for the academic year beginning from
January, 1954, of pupils other than Anglo-Indians or Europeans pending further
orders which, it was said, would issue shortly.
The contemplated order came on the 6th
January, 1954, in the shape of circular No. SSN 2054(a) headed 573
"Admissions to Schools teaching through the medium of English". In
paragraphs 1, 2 and 3 of this circular reference was made to the development of
the policy of the Government regarding the medium of instruction at the Primary
and Secondary stages of education. It was pointed out that since 1926-27 the
University of Bombay permitted pupils to answer questions in modern Indian
languages at the Matriculation examination in all subjects except English and
other foreign languages and that this had resulted in 1285 out of 1403 schools
in the State ceasing to use English as the medium of instruction. It was then
stated that in 1948 instructions were issued to all English teaching schools
that admissions to such Schools should ordinarily be restricted to pupils who
did not speak any of the regional languages of the State or whose mother tongue
was English.
It was said that in 1951, after a review of
the -position, a general policy had been laid down to the effect that admission
to such schools should be restricted only to four categories of children
therein mentioned. Reference was then made to the recommendations of the
Secondary Education Commission that the mother tongue or the regional language
should generally be the medium of instruction throughout the Secondary school
stage, subject to the. provision for special facilities for linguistic
minorities. In paragraph 4 of the Circular order it was stated that the
Government felt that the stage had then been reached for the discontinuance of
English as a medium of instruction and that the Government had decided that
subject to the facilities to be given to linguistic minorities all special and
interim concessions in respect of admission to Schools (including Anglo-Indian
Schools) using English as the medium of instruction, should thereafter be
withdrawn. Then came the operative part of the order, the relevant portion of
which is set out below:
"5. Government has accordingly decided
as follows :
Subject to the exceptions hereinafter
provided, no primary or secondary school shall from the date of these orders
admit to a class where English is used as 574 a medium of instruction any pupil
other than a pupil belonging to a section of citizens the language of which is
English namely, Anglo-Indians and citizens of non Asiatic descent." There
were three exceptions made to this general order in favour of three categories
of students who, prior to the date of the order, were studying through the
medium of English. Provision was made for admission of foreign pupils, other
than those of Asiatic descent, belonging to foreign possessions in India, to
Schools using English as a medium of instruction or to any other School of
their choice. The concluding paragraph of the Order was in the following terms
:"7. All Schools (including Anglo-Indian Schools) using English as a
medium of instruction should regulate admissions according to this circular.
With a view to facilitating the admission of pupils who under these orders are
not intended to be educated through the medium of English, these schools are
advised to open progressively divisions of Standards using Hindi or an Indian
language as the medium of instruction, starting from Standard I in 1954.
Government will be prepared to consider the
payment of additional grant on merits for this purpose." The above order
was followed by another Circular No. SSN 2054 (b) issued on the same date
drawing the attention of the heads of all Anglo-Indian Schools to the Circular
No.
SSN 2054(a) of the same date, and requesting
them to regulate thereafter admissions to their Schools in accordance with that
circular. It was stated that the orders in that circular were not intended to
affect the total grant available for distribution to Anglo-Indian Schools under
the Constitution but that the Government would be prepared to consider, in
consultation with the State Board of Anglo-Indian Education, whether in
consequence of this order, any change was necessary in the existing procedure
for the equitable distribution of the total grant among individual Anglo-Indian
Schools. In conclusion the attention of the Headmasters was particularly
invited to the concluding sentence of paragraph 7 of that circular order, and
it was pointed out that 575 the grants contemplated therein were intended to be
in addition to, the grants available under article 337.
Major Pinto, who is a citizen of India,
belongs to the Indian Christian Community. He claims that his mother tongue, as
that of a section of the Indian Christian Community, is English and that his
entire family speak and use English at home. Two of his sons were then studying
in the Barnes High School and were being educated through the medium of
English. On 2nd February, 1954, Major Pinto accompanied by his daughter Brenda
approached the Headmaster of Barnes High School seeking admission for her to
the said School. He was informed by the Headmaster about the order issued by
the State of Bombay on the 6th January, 1954, and was told that, in view of the
said order, the Headmaster was compelled to refuse admission to her since she
did not belong to the Anglo-Indian Community nor was she of non Asiatic
descent, although she had all the necessary qualifications for admission to the
said School.
Dr. Mahadeo Eknath Gujar is also a citizen of
India and is a member of the Guzrati Hindu Community. His mother tongue is
Guzrati. I-le desires that his son Gopal Mahadeo Gujar should become a medical
practitioner and go abroad for higher medical studies and qualifications and
thought that his son should be educated through the medium of English.
He found the Barnes High School, which
teaches through the medium of English, as suitable for the needs of his son.
Accordingly on the 1st February, 1954, Dr.
Gujar accompanied by his son approached the Headmaster of Barnes High School
seeking admission for his son to the said School but the Headmaster, in view of
the Government Circular Order, felt bound to turn down such request as the boy
did not belong to the AngloIndian Community and was not of non-Asiatic descent,
although he had all the necessary qualifications for admission to the school.
There have been similar other applications for admission which have had to be
rejected on similar grounds, 576 Thereupon the Society and Ven'ble Archdeacon
A.S.H. Johnson and Mrs. Glynne Howell in February, 1954, presented before the
High Court of Bombay the Special Civil Application No' 259 of 1954 under
article 226 of the Constitution prayingfor the issue of a writ in the nature of
mandamus restraining the State of Bombay, its Officers, servants and agents
from enforcing the said order and from taking any steps or proceedings in
'enforcement of the same and compelling the respondent to withdraw or cancel
the said purported order and to allow the petitioner to admit to any standard
in the said school any children of non Anglo-Indian citizens or citizens of
Asiatic descent and to educate them through the medium of English language.
Likewise Major Pinto and his daughter Brenda and Dr. Gujar and his son Gopal
made similar applications, being Nos. 288 and 289 of 1954 respectively, praying
for similar reliefs. The three applications were consolidated on llth February,
1954, and were heard together and were disposed of by the same Judgment and
Order pronounced on the 15th February, 1954. The High Court accepted the
petitions and made an order as prayed. The State of Bombay has now come up in
appeal against the said Orders.
On the facts of these cases two questions
arise namely (1) as to the right of students who are not Anglo-Indians or who
are of Asiatic descent to be admitted to Barnes High School which is a
recognized Anglo-Indian School which imparts education through the medium of
English, and (2) as to the right of the said Barnes High School to admit
non-Anglo-Indian students and students of Asiatic descent. The questions, thus
confined to the particular facts of these cases, appear to us to admit of a
very simple solution, as will be presently explained.
Re (1) : As already indicated Barnes High
School is a recognized Anglo-Indian School which has all along been imparting
education through the medium of English. It receives aid out of State funds.
The daughter of Major Pinto and the son of Dr. Gujar are citizens of India and
they claim admission to Barnes High School in exercise of the fundamental right
said 577 to have been guaranteed to them by article 29(2) of the Constitution.
The School has declined to admit either of them in view of the circular order
of the State of Bombay.
The provisions of the circular order, issued
by the State of Bombay oh the 6th January, 1954, have already been summarised
above. The operative portion of the order, set forth in clause 5 thereof,
clearly forbids all Primary or Secondary Schools, where English is used as a
medium of instruction, to admit to any class any pupil other than a pupil
belonging to a section of citizens, the language of which is English namely
Anglo-Indians and citizens of non-Asiatic descent. The learned Attorney-General
contends that this clause does not limit admission only, to Anglo-Indians and
citizens of non-Asiatic descent, but permits admission of pupils belonging to
any other section of citizens the language of which is English. He points out
that, one of the meanings of the word II namely " as given in Oxford
English Dictionary, Volume VII, p. 16 is " that id to say " and he
then refers us to the decision of the Federal Court in Bhola Prasad v. The
King-Emperor (1), where it was stated that the words "that is to say
" were explanatory or illustrative words and not words either of
amplification or limitation. It should, however, be remembered that those
observations were made in connection with one of the -Legislative heads, namely
entry No. 31 of the Provincial Legislative List. The fundamental -proposition
enunciated in The Queen v. Burah (2) was that Indian Legislatures within their
own sphere had plenary powers of legislation as large and of the same nature as
those of Parliament itself.
In that view of the matter every entry in the
legislative list had to be given the widest connotation and it was in that
context that the words " that is to say," relied upon by the learned
Attorney-General, were interpreted in that way by the Federal Court. To do
otherwise would have been to cut down the generality of the legislative head
itself.
The same reason cannot apply to the construction
of the Government order in the present case for the considerations that applied
in the case before the (1) [1942] F.C.R. 17 at p. 25.
(2) L.R. (1878) 3 App. Cas. 859.
74 578 Federal Court have no application
here. Ordinarily the word " namely " imports enumeration of what is
comprised in the preceding clause. In other words it ordinarily serves the
purpose of equating what follows with the clause described before. There is
good deal of force, therefore, in the araument that the order restricts
admission only to Anglo Indians and citizens of nonAsiatic descent whose
language is English. This inter. pretation finds support from the decision
mentioned in clause 4 to withdraw all special and interim concessions in
respect of admissioni to Schools referred to in clause 4. Facilities to linguistic
minorities provided for in the circular order, therefore, may be read as contem
plating facilities to be given only to the AngloIndians and citizens of
non-Asiatic descent.
Assuming, however, that under the impugned
order a section of citizens, other than Anglo-Indians and citizens of non
Asiatic descent, whose language is English, may also get admission, even then
citizens,, whose language is not English, are certainly debarred by the order
from admission to a School where English is used as 'a medium of instruction in
all the clases. Article 29(2) ex facie puts no limitation or qualification on
the expression " citizen." Therefore, the construction sought to be
put upon clause 5 does not apparently help the learned Attorney-General, for
even on that construction the order will contravene the provisions of article
29(2).
The learned Attorney-General then falls back
upon two contentions to avoid the applicability of article 29(2). In the first
place he contends that article 29(2) does not confer any fundamental right on
all citizens generally but guarantees the rights of citizens of minority groups
by providing that they must not be denied admission to educational institutions
maintained by the State or receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them and he refers us to the marginal
note to the article. This is certainly a new contention put forward before us
for the first time. It does not appear to have been specifically taken in the
affidavits in opposition filed in the High Court and there is no indication in
the 579 Judgment under appeal that it was advanced in this form before the High
Court. Nor was this point specifically made a ground of appeal in the petition
for leave to appeal to this Court. Apart from this, the contention appears to
us to be devoid of merit. Article 29(1) gives protection to any section of the
citizens having a distinct language, script or culture by guaranteeing their
right to conserve the same. Article 30(1) secures to all minorities, whether
based on religion or language, the right to establish and administer
educational institutions of their choice. Now suppose the State maintains an
educational institution to help conserving the distinct language, script or
culture of a section of the citizens or makes grants in aid of an educational
institution established by a minority community based on religion or language
to conserve their distinct language, script or culture, who can claim the
protection of article 29(2) in the matter of admission into any such
institution ? Surely the citizens of the very section whose language, script or
culture is sought to be conserved by the institution or the citizens who belong
to the very minority group which has established and is administering the
institution, do not need any protection against themselves and therefore
article 29(2) is not designed for the protection of this section or this
minority. Nor do we see any reason to limit article 29(2) to citizens belonging
to a minority group other than the section or the minorities referred to in
article 29(1) or article 30(1), for the citizens, who do not belong# to any
minority group, may quite conceivably need this protection just as much as the
citizens of such other minority groups. If it is urged that the citizens of the
majority group are amply protected by article 15 and do not require the
protection of article 29(2), then there are several obvious answers to that
argument. The language of article 29(2) is wide and unqualified and may well
cover all citizens whether they belong to the majority or minority group.
Article 15 protects all citizens against the State whereas the protection of
article 29(2) extends against the State or anybody who denies the right
conferred by it. Further article 15 protects all citizens against
discrimination generally but article 29(2) is a -protection against a
particular 580 species of wrong namely denial of admission into educational
institutions of the specified kind. In the next place article 15 is quite general
and wide in its terms and applies to all citizens, whether they belong to the
majority or minority groups, and gives protection to all the citizens against
discrimination by the State on certain specific grounds. Article 29(2) confers
a special right on citizens for admission into educational institutions
maintained or -aided by the State. To limit this right only to citizens
belonging to minority groups will be to provide a double protection for such
citizens and to hold that the citizens of the majority group have no special
educational rights in the nature of a right to be admitted into an educational
institution for the maintenance of which they make contributions by way of
taxes. We see no cogent reason for such discrimination. The heading under which
articles 29 and 30 are ground together-namely "'Cultural and Educational
Rights " is quite general and does not in terms contemplate such
differentiation. If the fact that the institution is maintained or aided out of
State funds is the basis of this guaranteed right then all citizens,
irrespective -of whether they belong to the majority or minority groups, are
alike entitled to the protection of this fundamental right. In view of all
these considerations the marginal note alone, on which the Attorney General
relies, cannot be read as controlling the plain meaning of the language in
which article 29(2) has been couched. Indeed in The State of Madras v. Srimathi
Champakam Dorairajan (1), this Court has already held as follows:
" It will be noticed that while clause
(1) protects the language, script or culture of a section of the citizens,
clause (2) guarantees the fundamental right of an individual citizen. The right
to. get admission into any educational institution of the kind mentioned in
clause (2) is a right which an individual citizen has as a citizen and not as a
member of any community or class of citizens." In our judgment this part
of the contention of the learned Attorney-General cannot be sustained.
(1) [1951] S.C.R. 525 at P. 530.
581 The second part of the arguments of the
learned Attorney General hinges upon the word "I only " to be found
in article 29(2). His contention is that the impugned order does not deny
admission to any citizen on the ground only of religion, race, caste, language
or any of them. He maintains with considerable emphasis. that it is incumbent
on the State to secure the advancement of Hindi which is ultimately to be our
National language and he stresses the desirability of or even the necessity,
generally acknowledged by educationists, for imparting education through the
medium of the pupil's mother tongue. We have had equally emphatic rejoinder
from learned counsel appearing for the different respondents. Characterising
the impugned circular as an unwarranted and wanton encroachment on the liberty
of the parents and guardians to direct the education and upbringing of their
children and wards reliance has been placed on the following observations of
McReynolds J. in Pierce v. Society of Sisters of Holy Names(1) :" The
fundamental theory of liberty upon which all Governments in this Union repose
excludes any general power of the state to standardize its children by forcing
them to accept instruction from public teachers only. The child is not the mere
creature of the state; those who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and prepare him for additional
obligations." It is also urged that the main, if not the sole, object of
the impugned order is to discriminate against, and if possible to stifle the
language of the Anglo-Indian Community in utter disregard of the constitutional
inhibition. It is pointed out that to compel the AngloIndian Schools to open
parallel classes in any Indian language will not necessarily facilitate the
advancement of the Hindi language for the language adopted for such parallel
classes may not be Hindi. Further the opening of parallel classes in the same
School with an Indian language as the medium of instruction while the pupils in
the other classes are taught in English will certainly not be conducive to or
promote the conservation of the distinct language, script or culture which (1)
268 U.S. 508; 69 L. Ed. 1070 at p. 1078.
582 is guaranteed by article 29(1) to the
Anglo-Indian Community as a section of the citizens. It is equally difficult,
it is said, to appreciate why the statutory principle of imparting education
through the medium of the pupil's mother tongue should require that a pupil
whose mother tongue is not English but is, say, Guzrati, should be debarred
from getting admission only into an Anglo-Indian School where the medium of
instruction is English but not from being admitted into a School where the
medium of instruction is a regional language, say Konkani, which is not the mother
tongue of the pupil. The rival arguments thus formulated on both sides involve
questions of State policy on education with which the Court has no concern. The
American decisions founded on the 14th amendment which refers to due process of
law may not be quite helpful in interpretation of our article 29.
We must, therefore, evaluate the argument of
the learned Attorney -General on purely legal considerations bearing. on the
question of construction of article 29(2).
The learned Attorney-General submits that the
impugned order does not deny to pupils who are not Anglo-Indians or citizens of
non-Asiatic descent, admission into an Anglo-Indian School only on the ground
of religion, race, caste, language or any of them but on the ground that such
denial will promote the advancement of the national language and facilitate the
imparting of education through the medium of the pupil's mother tongue. He
relies on a number of decisions of the High Courts, e.g., Yusuf Abdul Aziz v.
State (1), Sm. Anjali Roy v. State of West
Bengal (), The State of Bombay v. Narasu Appa Mali (3), Srinivasa Ayyar
v.Saraswathi Ammaland Dattatraraya Motiram More v. State of BombayThese
decisions, it should, be noted, were concerned with discrimination prohibited
by article 15 which deals with discrimination generally and not with denial of
admission into educational institutions of certain kinds prohibited by article
29(2). It may also be mentioned that this (1) A.I.R 1951 Bom, 470.
(2) A.I.R 1952 Cal. 825.
(3) A.I.R. 1952 Bom. 84.
(4) A.I.R. 1952 Mad. 193.
(5) A.I.R. 1953 Bom. 311.
583 Court upheld the actual decision in the
first mentioned Bombay case not on clause (1) but on clause(3) of article
15. These cases, therefore, have no direct
bearing on article 29(2). The arguments advanced by the learned
Attorney-General overlook the distinction between the object or motive
underlying the impugned -order and the mode and manner adopted therein for
achieving that object. The object or motive attributed by the learned
Attorney-General to the impugned order is. undoubtedly a laudable one but its
validity has to be judged by the method of Its operation and its effect on the
fundamental right guaranteed by article 29(2). A similar question of
construction arose in the case of Punjab Province v. Daulat Singh (1). One of
the questions in that case was whether the provision of the new section 13-A of
the Punjab Alienation of Land Act was ultra vires the Provincial Legislature as
contravening sub-section (1) of section 298 of the Government of India Act,
1935, in that in some cases that section would operate as a prohibition on the
ground of descent alone. Beaumont J. in his dissenting judgment took the view
that it was necessary for the Court to consider the scope and object of the Act
which was impugned so as to determine the ground on which such Act was based,
and that if the only basis for the Act was discrimination on one or more of the
grounds specified in section 298 sub-section (1) then the Act was bad but that
if the true basis of the Act was something different the Act was not
invalidated because one of its effects might be to invoke such discrimination
In delivering the Judgment of the Board Lord Thankerton at page 74 rejected
this view in the words following:
" Their Lordships are unable to accept
this as the correct test. In their view, it is not a question of whether the
impugned Act is based only on one or more of the grounds specified in section
298 sub-section (1), ,but whether its operation may result in a prohibition
only on these grounds.
The proper test as to whether there is a
contravention of the sub-section is to ascertain the reaction of the impugned
Act on the personal right conferred by the subsection, and, while the scope (1)
(1916) L.R. 73 I.A. 59, 584 and object of the Act may be of assistance in
deter. mining the effect of the operation of the Act on a proper construction
of its provisions, if the effect of the Act so determined involves an
infringement of such personal right, the object of the Act, however laudable,
will not obviate the prohibition of sub-section (1)." Granting that the
object of the impugned order before us was what is claimed for it by the
learned Attorney-General, the question still remains as to how that object has
been sought to be achieved. Obviously that is sought to be done by denying to
all pupils, whose mother tongue is not English, admission into any School were
the medium of instruction is English. Whatever the object, the immediate ground
and direct cause for the denial is that the. mother tongue of the pupil is not
English. Adapting the language of Lord Thankerton, it may be said that the
laudable object of the impugned order does not obviate the prohibition of
article 29(2) because the effect of the order involves an infringement of this
fundamental right, and that effect is brought about by denying admission only
on the ground of language. The same principle is implicit in the decision of
this Court in The State, of Madras v. Srimathi Champakam Dorairajan (1). There
also the object of the impugned communal G.O. was to advance the interest of
educationally backward classes of citizens but, that object notwithstanding,
this Court struck down the order as unconstitutional because the modus operandi
to achieve that object was directly based only on one of the forbidden grounds
specified in the article. In our opinion the impugned order offends against the
fundamental right guaranteed to all citizens by article 29(2).
Re. 2:-Coming to the second question as to
whether the impugned order infringes any constitutional right of Barnes High
School, the learned Attorney General contends that although any section of the
citizens having distinct language, script or culture of its own has under
article 29(1) the right to conserve the same and although all minorities,
whether based on religion or language, have, under article 30(1), the right (1)
[1951] S.C.R. 525 at p. 530.
585 to establish and administer educational
institutions of their choice, nevertheless such sections. or minorities cannot
question the power of the State to make reasonable regulations for all Schools
including a requirement that they should give instruction in a particular
language which is regarded as the national language or to prescribe a
curriculum for institutions which it supports. Undoubtedly the powers of the
State in this behalf cannot be lightly questioned and certainly not in so far
as their exercise is not inconsistent with or contrary to the fundamental
rights guaranteed to the citizens. Indeed in the cases of Robert T. Meyer v.
State of Nebraska (1) and August Bartels V. State of Iowa (2) the Supreme Court
of the United States definitely held that the State's police power in regard to
education could not be permitted to override the liberty protected by the 14th
amendment to the Federal Constitution.
That is how those cases have been understood
by writers on American Constitutional Law. [See Cooley's Constitutional
Limitations, Volume 11, page 1345, and Willis, page 64.] The statutes impugned
in these cases provided:
(1)That no person -should teach any subject
to any person in any language other than the English language, and (2)That
languages other than English may be taught only after the pupil had passed the
8th grade.
A contravention of those two sections was made
punishable.
In the first mentioned case only the first
part of the prohibition was challenged and struck down and in the second case
both the provisions were declared invalid. The learned Attorney-General
informed us that in 29 States in U.S.A. legislation had made compulsory
provision for English as the medium of instruction. Those statutes do not
appear to have been tested in Court and the Attorney-General cannot, therefore,
derive much comfort from the fact that 29 States have by legislation adopted English
as the medium of instruction. The learned Attorney-General (1) 262 U.S. 390; 67
Law. Ed. 1042.
(2) 262 U.S. 404; 67 Law. Ed. 1047, 75 586
also relies on the case of Ottawa Separate Schools Trustees v. Mackell(1). That
case does not help him either, because in that case the schools were classified
as denominational purely on the ground of religion. They were not classified
according to race or language. It was contended that the kind of school that
the trustees were authorised to provide was the school where education was to
be given in such language as the trustees thought fit. Their Lordships of the
Judicial Committee rejected this contention with the following observations:"
Their Lordships are unable to agree with this view. The 'kind' of school
referred to in sub-s. 8 of s. 79 is, in their opinion, the grade or character
of school, for example, 'a girls' School,' 'a boys' school,' or 'an infants'
school,' and a I kind' of school, within the meaning of that sub-section, is
not a school where any special language is in common use." Where, however,
a minority like the Anglo-Indian Community, which is based, inter alia, on
religion and language, has the fundamental right to conserve its language,
script and culture under article 29(1) and has the right to establish and
administer educational institutions of their choice under article 30(1), surely
then there must be implicit in such fundamental right the right to impart
instruction in their own institutions to the children of their own Community in
their own language. To hold otherwise will be to deprive article 29(1) and
article 30(1) of the greater part of their contents. Such being the fundamental
right, the police power of the State to determine the medium of instruction
must yield to this fundamental right to the extent it is necessary to give
effect to it and cannot be permitted to run counter to it.
We now pass on to article 337 which is in
Part XVI under the heading " Special Provisions relating to certain
classes." Article 337 secures to the Anglo-Indian Community certain
special grants made by the Union and by each State in respect of education. The
second paragraph of that article provides for progressive diminution of such
grant until such special grant (1) L.R. [1917] A.C. 62, 587 ceases at the end
of ten years from the commencement of the Constitution as mentioned in the
first proviso to that article. The second proviso runs as follows:"
Provided further 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." It is clear, therefore, that the Constitution has
imposed upon the educational institution run by the Anglo-Indian Community, as
a condition of such special grant, the duty that at least 40 per cent. of the
annual admissions therein must be made available to members of communities
other than the Anglo-Indian Community. This is undoubtedly a constitutional
obligation. In so far as clause 5 of the impugned order enjoins that no Primary
or Secondary school shall from the date of this order admit to a class where
English is used as the medium of instruction any pupil other than the children
of Anglo-Indians or of citizens of non -Asiatic descent, it quite clearly
prevents the Anglo-Indian Schools including Barnes High School from performing
their constitutional obligations and exposes them to the risk of losing the
special grant. The learned Attorney-General refers to clause 7 of the impugned
order and suggests that the authorities of Anglo-Indian Schools may still
discharge their constitutional obligations by following the advice given to
them in that concluding clause. The proviso to article 337 does not impose any
obligation on the AngloIndian Community as a condition for receipt of the
special grant other than that at least 40 per cent. of the annual admissions
should be made available to non-Anglo-Indian pupils. The advice, tendered by
the State to the AngloIndian Schools by clause 7 of the impugned order, will,
if the same be followed, necessarily impose an additional burden on the,
Anglo-Indian Schools to which they are not subjected by the Constitution
itself. The covering circular No. SSN 2054(b), which was issued on the same
day, throws out the covert hint of the possibility, in consequence of the
impugned order, of some change becoming necessary in the existing procedure for
the 588 equitable distribution of the total grant among Anglo-Indian Schools,
although the impugned order was not intended to affect the total grant
available for distribution to Anglo-Indian Schools under the Constitution. If,
in the light of the covering circular, clause 7 is to ,be treated as operative,
in the sense that a noncompliance with it will entail loss of the whole or part
of this grant as a result of the change' in the existing procedure for the
equitable distribution, then it undoubtedly adds to article 337 of the
Constitution a further condition for the receipt by Anglo-Indian Schools, of
the special grant secured to them by that article. On the other hand if clause
7 is to be treated merely as advice, which may or may not be accepted or acted
upon then clause 5 will amount to An absolute prohibition against the admission
of pupils who are not Anglo-Indians or citizens of non-Asiatic descent into
Anglo-Indian Schools and will compel the authorities of such Schools to commit
a breach of their Constitutional obligation under article 337 and thereby
forfeit their constitutional right to the special grants. In either view of the
matter the impugned order cannot but be regarded as unconstitutional. In our
opinion the second question raised in these appeals must also, in view of
article 337, be answered against the State.
The result of the foregoing discussion is
that these appeals must be dismissed and we order accordingly. The State must
pay the costs of the respondents.
Appeals dismissed.
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