RE: The Kerala Education Bill, 1957
[1958] INSC 20 (15 March 1958)
ACT:
President's Reference-Kerala Education Bill,
1957-Constitutional validity-Advisory jurisdiction of the Supreme Court, scope
of-Cultural and educational rights of minorities Constitution of India, Arts.
143(1), 14, 29, 30 and 226.
HEADNOTE:
This was a reference under Art. 143(1) of the
Constitution made by the President of India for obtaining the opinion of the
996 Court upon certain questions relating to the constitutional validity of
some of the provisions of the Kerala Education Bill, 1957, which had been
passed by the Kerala Legislative Assembly but was reserved by the Governor for
the consideration of the President. The Bill, as its title and preamble
indicated, had for its object the better Organisation and development of the
educational service throughout the State, presumably, in implementation of the
provisions of Art. 45 of the Constitution and conferred wide powers of control
on the State Government in respect of both aided and recognised institutions.
Of the four questions referred to this Court, the first and third impugned cl.
3(5) read with cl. 36 and cl. 15 of the Bill
as being discriminatory under Art. 14, the second impugned cls. 3(5), 8(3) and
cls. 9 to 13 Of the Bill as being violative of minority rights guaranteed by
Art. 30(1) and the fourth, cl.
33 of the Bill, as offending Art. 226 of the
Constitution.
Clause 3(5) of the Bill made the recognition
of new schools subject to the other provisions of the Bill and the rules framed
by the Government under cl. (36), Cl. (15) authorised the Government to acquire
any category of 'Schools, cl. 8(3) made it obligatory on all aided schools to
hand over the fees to the Government, cls. 9 to 13 made provisions for the
regulation and management of the schools, payment of salary to the teachers and
the terms and conditions of their appointment and cl. (33) forbade the granting
of temporary injunctions and interim orders in restraint of proceedings under
the Act. This Court took the view that since cl. 3(5) attracted the other
provisions of the Bill, in case anyone of them was found to be
unconstitutional, cl. 3(5) itself could not escape censure.
Held (per Das C. J., Bhagwati, B. P. Sinha,
Jafer Imam, S. K. Das and J. L. Kapur JJ.), that although Art. 143(1) Of the
Constitution, which virtually reproduced the provisions of s. 213(1) of the
Government of India Act, 1935, gave this Court the discretion, where it thought
fit, to decline to express any opinion on the questions referred to it, the
objection that such questions related, not to a statute brought into force but,
to the validity of a Bill that was yet to be enacted, could be no ground for
declining to entertain the reference.
Article 143(1) of the Constitution had for
its object the removal of the doubts at the President and was in no way
concerned with any doubts that a party might entertain and no reference could
be incomplete or incompetent on the ground that it did not include other
questions that could have been included in it and it was not for this Court to
go beyond the reference and discuss them.
The Advisory jurisdiction conferred by Art.
143(1) was different from that conferred by Art. 143(2) of the Constitution in
that the latter made it obligatory on this Court to answer the reference.
In re Levy of Estate Duty, [1944] F.C.R.
3.17, relied on.
997 Attorney-General for Ontario v. Hamilton Street Railway, [1903] A.C. 524, Attorney-General for British Columbia v. Attorney-General
for Canada, [1914] A. C. 153, ln re The Regulation and Control of Aeronautics
In Canada, [1932] A. C. 54, In re Allocation of Lands and Buildings, [1943] F.
C. R. 20 and In Ye Delhi Laws Act, 1912, [1951] S.C.R. 747, considered.
A directive principle of State policy could
not override a fundamental right and must subserve it, but no Court should in
determining the ambit of a fundamental right, entirely ignore a directive
principle but should try to give as much effect to both as possible by adopting
the principle of harmonious construction.
State of Madras v. Smt. Champakam Doraiyajan,
[1951] S.C.R.
525 and Mohd. Hanif Quayeshi v. The State of Bihar, [1959] S.C.R. 629, referred to.
In answering the questions under reference,
the merits or otherwise of the policy of the Government sponsoring the Bill
could be no concern of this Court and its sole duty was to pronounce its
opinion on the constitutional validity of such provisions of the Bill as were covered
by the questions.
judged in the light of the principles laid
down by a series of decisions of this Court explaining Art. 14 Of the
Constitution, the clauses of the Bill that came within questions 1 and 3 could
not be said to be violative of that Article.
The restriction imposed by cl. 3(5) read with
cl. 26 of the Bill, which made it obligatory on the guardians to send their
wards to a Government or a private school in an area of compulsion and thus
made it impossible for a new school in such area, seeking neither aid nor
recognition, to function, could not be said to be discriminatory since the
State knew best the needs of its people, and such discrimination was quite
permissible, based, as it was, on geographical classification.
Mohd. Hanif Ouareshi v. The State of Bihar,
[1959] S. C. R. 629, Chiyanjit Lal Chowdhury v. The Union of India, [1950]
S.C.R. 1045, Ramkrishna Dalmia v. Sri justice S. R. Tendolkar, [1959] S.C.R.
279, referred to.
No statute could be discriminatory unless its
provisions discriminated, and since the provisions of the Bill did not do so,
it could not be said to have violated equal protection of law by its uniform
application to all educational institutions although not similarly situate.
Cumberland Coal Co. v. Board of Revision,
(1931) 284 U. S. 23; 76 L. Ed. 146, held inapplicable.
The policy and purpose of a statute could be
deduced from its long title and the preamble. The impugned Bill laid down its
policy in the long title and the preamble and reinforced it by 998 more
definite statements in the different clauses and, consequently, such discretion
as it left to the Government had to be exercised in implementing that policy.
The use of the word may in cl. 3(3) could make no difference, for once the
purpose was established and the conditions of the exercise of the discretion
were fulfilled, it was incumbent on the Government to exercise it in
furtherance of that purpose. If it failed to do so, the failure, and not the
Bill, must be censured.
Biswambar Singh v. The State of Orissa,
[1954] S.C.R. 842 and Julius v. Lord Bishop of Oxford, (1880) 5 App. CaS. 214,
referred to.
Discretionary power was not necessarily
discriminatory, and abuse of power by the Government could not be lightly
assumed. Apart from laying down the policy, the State Legislature provided for
effective control by itself by cl. 37 and the proviso to cl. 15 of the Bill. It
could not, therefore, be said that the Bill conferred unguided or uncontrolled
powers on the Government.
Article 30(1) Of the Constitution, which was
a necessary concomitant to Art. 29(1) and gave the minorities the right to
establish and administer their institutions, did not define the word
'minority', nor was it defined anywhere else by the Constitution, but it was
absurd to suggest that a minority or section envisaged by Art. 30(1) and Art.
29(1) could mean only such persons as constituted a numerical minority in the
particular region where the educational institution was situated or resided
under a local authority.
Article 350-A of the Constitution, properly
construed, could lend no support to such a proposition. As the impugned Bill
extended to the entire State, minorities in the State must be determined on the
basis of its entire population, and thus the Christians, the Muslims and the
Anglo-Indians would be its minority communities.
Article 30(1) of the Constitution made no
distinction between minority institutions existing from before the Constitution
or established thereafter and protected both.
It did not require that a minority
institution should be confined to the members of the community to which it
belonged and a minority institution could not cease to be so by admitting a
non-member to it.
Nor did Art. 30(1) in any way limit the
subjects to be taught in a minority institution, and its crucial words "
of their own choice ", clearly indicated that the ambit of the rights it
conferred was determinable by the nature of the institutions that the minority
communities chose to establish and the three categories into which such institutions
could thus be classified were (1) those that sought neither aid nor recognition
from the State, (2) those that sought aid, and (3) those that sought
recognition but not aid. The impugned Bill was concerned only with institutions
of the second and third categories.
999 The word 'aid' used by Arts. 29(2) and
30(2) included grant' under Art. 337 of the Constitution and that word
occurring in the Bill must have the same meaning. Consequently, such clauses of
the Bill mentioned in question No. 2 as imposed fresh and stringent conditions
precedent to such grant over and above those to which it was subject under
Arts. 337 and 29(2), violated not only Art. 337 but also, in substance and
effect, Art. 30(1) of the Constitution and were to that extent void.
Rashid Ahmad v. Municipal Board, Kaiyana,
[1950] S.C.R. 566, Mohd. Yasin v. The Town Area Committee, jalalabad, [1952]
S.C.R. 572 and The State of Bombay v. Bombay Education Society, [1955] 1 S.C.R.
568, referred to.
Although there was no constitutional right to
the grant of aid except for Anglo-Indian educational institutions under Art.
337 Of the Constitution, State aid was indispensable to educational
institutions and Arts:, 28(2), 29(2) and 30(2) clearly contemplated the grant
of such aid and Arts. 41 and 46 charged the State with the duty of aiding
educational institutions and promoting such interests of the minorities.
But the right of the minorities to administer
their educational institutions under Art. 30(1), was not inconsistent with the
right of the State to insist on proper safeguards against maladministration by
imposing reasonable regulations as conditions precedent to the grant of aid.
That did not, however, mean that the State Legislature could, in the exercise
of its powers of legislation under Arts. 245 and 246 of the Constitution,
override the fundamental rights by employing indirect methods, for what it had
no power to do directly, it could not do indirectly.
So judged, cl. 3(5) of the Bill by bringing
into operation and imposing cls. 14 and 15 as conditions precedent to the grant
of aid, violated Art. 30(1) of the Constitution.
Similar considerations applied to the grant
of State recognition as well. No minority institution could fulfill its real
object or effectively exercise its rights under Art. 30(1) without State
recognition, as otherwise it would not be open to its scholars under the
Education Code to avail of the opportunities for higher education in the
University or enter the public services. While it was undoubtedly true that
there could be no fundamental right to State recognition, denial of recognition
except on such terms as virtually amounted to a surrender of the right to
administer the institution, must, in substance and effect infringe Art. 30(1)
of the Constitution.
Clause 3(5), read with Cl. 20 of the Bill, in
forbidding the charging of tuition fees in the primary classes, deprived the
minority institutions of a fruitful source of income without compensation, as
was provided by cl. (9) for aided schools, and thus imposed a condition
precedent to State recognition which was in 127 1000 effect violative of Art.
30(1) and was, therefore, void to that extent. No rules, when framed under the
Act, could cure such invalidity.
Article 45 of the Constitution did not
require the State Government to provide free and compulsory education to the
detriment of minority rights guaranteed by the Constitution, if the Government
so chose it could do so through the Government and aided schools, and this
Court was in duty bound to uphold such fundamental rights as the Constitution
had thought fit to confer on the minority communities.
The wide powers and jurisdiction conferred on
the High Courts by Art. 226 of the Constitution could not be affected by a
provision such as cl. (33) of the Bill, which forbade Courts to issue temporary
injunctions or interim orders in restraint of any proceedings there under, and
it must be read as subject to the overriding provisions of Art. 226 of the
Constitution.
Venkatarama Aiyar J.-It was obvious that Art.
30(1) Of the Constitution did not in terms confer a right on the minority
institutions to State recognition, nor, properly construed, could it do so by
implication, for such an implication, if raised, would be contrary to the
express provisions of Art.
45 Of the Constitution. Article 30(1) was
primarily intended to protect such minority institutions as imparted purely
religious education and to hold that the State was bound there under to
recognise them would be not only to render Art. 45 wholly infructuous but also
to nullify the basic concept of the Constitution itself, namely, its secular
character.
There was no conflict here between a
fundamental right and a directive principle of State policy that must yield,
and the principle of Art. 45 must have full play. Clause (20) of the Bill was
designed to enforce that principle and cl. 3(5) Of the Bill in making it a
condition precedent to State recognition could not violate Art. 30(1) Of the
Constitution.
Nor could a consideration of the policy
behind Art. 30(1) lead to a different conclusion, assuming that the question of
policy could be gone into apart from the language, since that policy was no
other than that the majority community of the State should not have the power
to destroy or impair the religious or linguistic rights of the minority
communities.
The only two obligations, one a positive and
the other a negative, that Art. 30(1) read with Arts. 25, 26, 29 and 30(2) of
the Constitution imposed on the State were (1) to extend equal treatment as regards
aid or recognition to all educational institutions, including those of the
minorities, religious or linguistic, and (2) not to prohibit the establishment
of minority institutions or to interfere with their administration.
To hold that the State Government was further
bound under Art. 30(1) to accord recognition to minority institutions would be
1001 to put the minorities in a more favoured position than the majority
community, which the Constitution never contemplated.
City Winnipeg v. Barrett : City of Winnipeg
v. Logan, [1892] A.C. 445, referred to.
ADVISORY JURISDICTION: Special Reference No.
1 of 1958.
Reference by the President of India under
Article 143(1) of the Constitution of India on the Kerala Education Bill, 1957.
The circumstances which led to this Reference
by the President and the questions referred appear from the full text of the
Reference dated March 15, 1958, which is reproduced below: WHEREAS the
Legislative Assembly of the state of Kerala has passed a Bill to provide for
the better Organisation and development of educational institutions in the
State of Kerala (hereinafter referred to as the Kerala Educational Bill);
AND WHEREAS the said Bill, a copy whereof is
annexed hereto, has been reserved by the Governor of Kerala, under article 200
of the Constitution, for my consideration ;
AND WHEREAS sub-clause 3 of clause (3) of the
said Bill enables the Government of Kerala, inter alia, to recognise any school
established and maintained by any person or body of persons for the purpose of
providing the facilities set out in sub-clause (2) of the said clause to wit,
facilities for general education, special education and for the training of
teachers ;
AND WHEREAS sub-clause (5) of clause 3 of the
said Bill provides, inter alia, that any new school established or any higher
class opened in any private school, after the Bill has become an Act and the
Act has come into force, otherwise than in accordance with the provisions of
the Act and the rules made under section 36 thereof, shall not be entitled to
be recognised by the Government of Kerala;
AND WHEREAS a doubt has arisen whether the
provisions of the said sub-clause (5) of clause 3 of the said Bill confer upon
the Government an unguided 1002 power in regard to the recognition of new schools
and the opening of higher classes in any private school which is capable of
being exercised in an arbitrary and discriminatory manner;
AND WHEREAS a doubt has further arisen
whether such power of recognition of new schools and of higher classes in
private schools is not capable of being exercised in a manner affecting the
right of the minorities guaranteed by clause (1) of article 30 of the
Constitution to establish and administer educational institutions of their
choice;
AND WHEREAS sub-clause (3) of clause 8 of the
said Bill requires all fees and other dues, other than special fees, collected
from the students in an aided school to be made over to the Government of
Kerala in such manner as may be prescribed, notwithstanding anything contained
in any agreement, scheme or arrangement ;
AND WHEREAS a doubt has arisen whether such
requirement would not affect the right of the minorities guaranteed by clause
(1) of article 30 of the Constitution to administer educational institutions
established by them;
AND WHEREAS clauses 9 to 13 confer upon the
Government certain powers in regard to the administration of aided schools;,
AND WHEREAS a doubt has arisen whether the exercise of such powers in regard to
educational institutions established by the minorities would not affect the
right to administer them guaranteed by clause (1) of article 30 of the
Constitution;
AND WHEREAS clause 15 of the said Bill
empowers the Government of Kerala to take over, by notification in the Gazette,
any category of aided schools in any specified area or areas, if they are
satisfied that for standardising general education in the State of Kerala or
for improving the level of literacy in any area or for more effectively
managing the aided educational institutions in an area or for bringing
education of any category under their direct control it is necessary to do so
in the public interest, on 1003 payment of compensation on the basis of market
value of the schools so taken over after deducting there from the amounts of
aids or grants given by that Government for requisition, construction or
improvement of the property of the schools;
AND WHEREAS a doubt has arisen whether such
power is not capable of being exercised in any arbitrary and discriminatory
manner;
AND WHEREAS clause 33 of the said Bill
provides that, notwithstanding anything contained in the Code of Civil
Procedure, 1908, or any other law for the time being in force, no courts can
grant any temporary injunction or make any interim order restraining any
proceedings which is being or about to be taken under the Act;
AND WHEREAS a doubt has arisen whether the
provisions of the said clause 33, in so far as they relate to the jurisdiction
of the High Courts, would offend article 226 of the Constitution ;
AND WHEREAS there is likelihood of the
constitutional validity of the provisions of the Bill herein before referred to
being questioned in courts of law, involving considerable litigation ;
AND WHEREAS, in view of what has been here in
before stated, it appears to me that the questions of law hereinafter set out
have arisen and are of such nature and of such importance that it is expedient
that the opinion of the Supreme Court of India should be obtained thereon;
NOW, THEREFORE, in exercise of the powers
conferred upon me by clause (1) of article 143 of the Constitution, 1, Rajendra
Prasad, President of India, hereby refer the following questions to the Supreme
Court of India for consideration and report thereon, namely :" (1) Does
sub-clause (5) of clause 3 of the Kerala Education Bill, read with clause 36
thereof, or any of the provisions of the said sub-clause, offend article 14 of
the Constitution in any particulars or to any extent ? (2) Do sub-clause (5) of
clause 3, sub-clause (3) of 1004 clause 8 and clauses 9 to 13 of Kerala
Education Bill or any provisions thereof, offend clause (1) of article 30 of
the Constitution in any particulars or to any extent? (3) Does clause 15 of the
Kerala Education Bill, or any provisions thereof, offend article 14 of the
Constitution in any particulars or to any extent ? (4) Does clause 33 of the
Kerala Education Bill, or any provisions thereof, offend article 226 of the
Constitution in any particulars or to any extent ? " 1958. April 29, 30.
May 1, 2, 5, 6, 7, 8, 9 and 12. M. 0. Setalvad, Attorney-General for India, C.
K. Daphtary, Solicitor-General of India, H. N. Sanyal, Additional
Solicitor--General of India, G. N. Joshi and R. H. Dhebar, for the President of
India. The preamble to the Constitution of India lays emphasis on liberty of
thought, expression, belief, faith and worship and assures the dignity of the
individual. To give effect to these ideals the Constitution provides
fundamental rights for the individuals in Arts. 19, 25 and 28 and for groups in
Arts.
26, 29 and 30. The fundamental rights in
Arts. 29 and 30 are absolute and no restrictions can be placed on them, though
restrictions can be placed on other fundamental rights. These rights may be
compared with the rights under Art. 44 (2) of the Irish Constitution and s. 93
of the British North America Act. The freedoms conferred by Arts.
26, 29 and 30 were considered by this Court
in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mulutt, ( [1954] S.C.R. 1005 at 1028-1029) and
The State of Bombay v. Bombay Education Society, ( [1955] 1 S.C.R. 568 at 578,
580, 586).
Article 30 (1) gives absolute right to the
minorities to establish and administer educational institutions of their
choice. The Constitution having ensured religious freedom under Art. 26 and
cultural freedom in Art. 29, left the means to promote and conserve these
freedoms to the minorities themselves to work out under Art. 30 (1).
Clause 3 (5) of the Kerala Education Bill
which provides that the establishment of new schools and opening of higher
classes shall be according to the Rules to 1005 be framed under cl. 36 to
entitle them to be recognised by the Government, confers upon the executive
unguided and uncontrolled powers and offends Art. 14. The' legislature does not
lay down any policy, but leaves it to the executive tinder the rule-making
powers. A. Thangal Kunju Musaliar v. M. Venkitachalam Potti, ([1955] 2 S.C.R.
1196 at 1239, 1241); The State of West Bengal v. Anwar Ali Sarkar, ([1952]
S.C.R. 284 at 345, 346).
It is incorrect to say that Christians and
Muslims are not minorities in Kerala. When the Constitution speaks of
minorities it speaks on an all India basis. The fact that a certain community
formed a very high percentage of the population in a particular State did not
detract from its status as a minority. The provisions of the Bill make illusory
the rights granted by Art. 30 (1) to minorities.
By using the instrument of Government aid the
Bill seeks to deprive the minorities of their right to administer their own
schools. Shirur Mutt Case, ( [1954] S.C.R. 1005 at 1028, 1029). The right of
the minorities under Art. 30(1) to establish and administer their institutions
is an absolute and unfettered right and is consistent with their getting aid
from the Government. Article 337 makes special provision for educational grants
for the benefit of the AngloIndian community. Article 30 (1) is infringed
whether the schools go in for aid or not. Clause 8 (3) of the Bill under which
in all aided schools all fees, etc., collected from the students will have to
be made over to the Government deprives the management of the right of
administration. Pierce v. Society of Holy Sisters Names, (69 L. Ed. 1070 at
1077); Maher v. Nebraska, (67 L. Ed. 1042 at 1044).
Clause 15 of the Bill empowers the Government
to acquire any category of aided schools in any specified area. This clause is
wholly subversive of Art. 30 (1). It also offends Art. 14 as it empowers the
Government to pick and choose any schools, by suitably selecting the category
and area, for acquisition, no criteria having been laid down for making the
choice.
Clause 33 of the Bill prohibits all Courts
from 1006 granting any temporary injunction or interim order regarding any
proceedings taken under the Act. To the extent that this clause infringes Art.
226 or Art. 32, it is void.
Interim orders are also passed under Arts.
226 and 32 as ancillary to the main relief. The State of Orissa v. Madan Gopal
Rungta, ( [1952] S.C.R. 28 at 34). Halsbury's Laws of England, 3rd Edn., Vol.
11, p. 110, para. 204.
Kaslival, Advocate-General of Rajasthan, R.H.
Dhebar and T. M. Sen, for the State of Rajasthan adopted the arguments of the
Attorney-General for India.
G. S. Pathak, with M. R. Krishna Pillai for
the Kerala Christian Education Action Committee, with J. B. Dadachanji for the
Kerala School Managers Association and with V. O. Abraham and J. B. Dadachanji
for the Aided School Managers' Association in Badogara and Quilandy, Catholic
Union of India and Catholic Association of Bombay. The preamble to the
Constitution speaks of securing to the citizens of India fraternity assuring
the dignity of the individual and the unity of the Nation. Articles 25 to 30
have been framed to secure this unity. Art. 30 is in absolute terms and does
not permit regulation or restriction of the rights conferred by it. "
Their choice " in Art. 30 cannot be controlled by the State. It has been
the normal method of running the minority institutions with aid and
recognition. Implict in Art. 30(1) is the right of a parent or guardian to
impart such education this children as he likes. Bombay Education Society v.
The State of Bombay, (56 Bom. L. R. 643 at 653).
It is the right of every person of the
minority community to educate his children in school administered by that
community. The State of Bombay v. Bombay Education Society, [1955] 1 S. C. R.
568 at 586). The word " administer should be interpreted as in 69 L. Ed.
1070 at 1076, 67 L. Ed.
1042 at 1045 and 71 L. Ed. 646 at 647. The
ordinary dictionary meaning of administer is ' to manage' or 'carry on'. The
legislature cannot even indirectly infringe the fundamental rights. Dwarkadas
Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd., ( [1954] S.C.R. 674 at
683);
1007 Punjab Province v. Daulat Singh, ( 73 1.
A. 59) ; The State of Bombay v. Bombay Education Society, ( [1955] 1 S. C. R.
568 at 583). American Jurisprudence, Vol. 11,
p. 724, See.
95. The whole scheme of the Bill is to
secularise education and, thus it infringes the fundamental rights guaranteed
under Art. 30. Clause 3 of the Bill which requires permission to be obtained to
establish a school, cl. 10 which empowers the Government to prescribe
qualifications of teachers in minority community schools and cl. 26 which makes
it obligatory on parents to send their children to Government or aided schools
where compulsory education is in force, all offend Art. 30. Similarly cls. 6,
7, 8, 11, 12, 14, 15 and 28 are destructive of this fundamental right.
Frank Anthony and P. C. Aggarwala, for the
All India AngloIndian Association and for the Apostolic Carmel Education
Society and Roman Catholic Diocese. Under Art. 143 this Court has the
discretion to refuse to answer the reference.
In Re Allocation of Lands and Buildings, ( [1943]
F. C. R. 20 at 22). The present reference is most incomplete and wholly
unsatisfactory and the Court should, following Zafrullah Khan J. in re Levy of
Estate Duty, ( [1944] F.C.R. 317 at 334, 335), decline to answer it. The
reference is incomplete as this Court has been asked to examine whether certain
provisions of the Bill offend certain specified fundamental rights though
actually those provisions offend other fundamental rights also. There are
several important provisions in the Bill, which have not specifically been
referred, which also offend fundamental rights. Such a reference is unfair to
the Court and deadly to my clients. If this Court is in favour of giving its
opinion on the reference, the scope thereof should be extended to include all
objections to the validity of the provisions of the Bill, and this Court has
inherent jurisdiction to do so.
Anglo-Indian schools occupy a special
position. Article 30(1) gives to the Anglo-Indian community the fundamental
right to establish educational institutions of their choice.
These fundamental rights were not subject to
any social control. The object of the 128 1008 Kerala Education Bill was to
strike at the Christian Church, especially the Catholics, to eliminate their
religion, to take away their property, to eliminate all education agencies
other than those of the State so that the State may regiment education and
indoctrinate children.
The Bill which sought to implement directive
principles of State policy in Art. 45 by providing for free and compulsory
education infringed Art. 30(1). Directive principles must yield to fundamental
rights. The State of Madras v. Sm.
Champakam Dorairajan, ([1951] S. C. R. 521 at
531). The State cannot compel minority educational institutions not to charge
fees for primary classes. This compulsion coupled with the embargo imposed by
the Bill on children going to schools not recognised by the Government would
extinguish the choice of the minorities guaranteed by Art. 30.
Recognition was part of the right of the minorities
under Art. 30. Article 337 provides for special grants or aids to educational
institutions run by Anglo-Indians and the State cannot take that away or place
conditions or restrictions on it.
Clause 3(5) of the Bill infringes both Art.
30(1) and Art.
14. It discriminates between existing schools
which could continue to charge fees and primary classes and new schools which
cannot charge such fees if they want to be recognised.
The conditions imposed on the opening of new
schools by the minorities are such that they deprive them of the right under
Art. 30(1).
Nur-ud-Din Ahmed, S. S. Shukla and P. C.
Aggarwala, for the All -India Jamiat-ul-ulema-e-Hind. The Bill seeks to achieve
nationalisation of educational institutions and thus to deprive the minorities
of their right to establish and administer schools of their own choice under
Art. 30. This right includes the right of the minorities to receive aid and
also get Government recognition of their schools without any restrictions. The
provisions of the Bill gives powers to the State without laying down the basis
and standards for the exercise of that power.
1009 G. C. Mathur and C. P. Lal for the state
of U. P. adopted the arguments of the Attorney-General for India.
B. K. B. Naidu, for the Kerala State Muslim
League adopted the arguments of G. S. Pathak and Frank Anthony.
D.N. Pritt, Sardar Bahadur and C. M.
Kuruvilla, for the State of Kerala. The questions referred to the Court by the
President arose out of certain doubts entertained by the President in respect
of certain provisions of the Bill. If the President did not entertain certain
other doubts, the parties cannot insist that the President must have had those
other doubts also. The Court has no power to go beyond those questions which
are raised in the reference. The State of Kerala wants the Court to reply to
all the four questions referred and it would abide by the view which the Court
will express on these questions.
The Kerala Education Bill is a progressive
piece of legislation which seeks to provide a better organisation and
development of educational institutions in the State, and a varied and
comprehensive educational service throughout the State. It seeks to provide
employment to about 70,000 teachers and to give security to the teachers. The
Bill also seeks to implement the directive principles of State policy in Art.
45 by providing for free and compulsory primary education for all.
The Bill lays down a clear principle and
policy, as stated in its objects, to provide for the better organisation and
development of education. This is further made clear by the preamble which
seeks to provide for a varied and comprehensive educational service throughout
the State.
Nationalisation which could have been easily
and lawfully achieved was not the policy adopted by the State. Its policy was
to maintain the three different categories of schools, the Government run
schools, the private aided schools and the private schools recognised by the
Government. The Court could not get a complete picture until the rules were
framed. The framing of the 1010 rules had necessarily to be left to the
Government. 'a Such I delegated legislation' is an integral and inevitable part
of a modern State power. Clause 3(5) of the Bill read with cl. 36 does not
violate Art. 14. Jadunandan Yadav v. R. P. Singh (A. I. R. 1958 Pat. 43 at 47);
Biswambhar Singh v. The State of Orissa ([1954] S. C. R. 842); Pannalal Binjraj
v. Union of India, ( [1957] S. C. R. 233 at 248, 256, 262);
Sardar Inder Singh v. The State of Rajasthan
( [1957] S. C. R. 605). The rules to be framed by the Government would go for
scrutiny before the same legislature which passed the Bill and when passed by
the legislature the rules will become part of the Act. This was not really
delegated legislation but legislation in two stages.
In order to protect certain privileges of
minorities the State cannot discard the glorious principles of free and
compulsory education. The rights of minorities cannot destroy the rights of
citizens to universal free education.
If the minorities want Government aid and
recognition for their schools, they could be granted on the general terms and
conditions applicable to others. The words I of their choice' cannot be
interpreted to mean the establishment of schools with the aid of the tax
payer's money and also with the assurance of enough pupils to attend those
schools.
Christians and Muslims are not minorities in
Kerala.
Christians, forming the second largest
community, constituted one fourth of the population, while Muslims, forming the
third largest community, constituted one seventh of the total population.
Minorities in the context of the educational rights guaranteed under the
Constitution mean only those sections of the population in particular areas of
a State who are in a minority, and not those who can be regarded as minorities
in the country as a whole. The only minority community in Kerala which can
claim the benefit of Art. 30(1) are the Jews, who do not choose to have their
own educational institutions.
Schools run by minorities in Kerala were not
strictly minority schools as envisaged by Art. 30(1) as they were not run
mainly for the children of the 1011 minority community. In most of these
schools at least 75 per cent. of the students were from non-minorities. Article
30(1) contemplates schools for the education of members of the minority
communities only. Right of the minority communities to establish and administer
institutions of their choice does not include the right to receive aid and
recognition on their own terms. Article 30(2) only prohibited the State from
discriminating against any educational institution on the ground of religion or
language.
In order to attract the operation of Art.
30(1) it should be established that there is a minority community, that it has
established an educational institution and that the educational institution is
run for the education of the members of that community. Ramani Kanta Bose v.
The Gauhati University (I. L. R. [1951] Ass. 348 at 352). Not one of these
conditions is fulfilled in any of the educational institutions in the State.
The choice in Art. 30(1) lies in the establishment of a school and not in its
management.
The provisions of the Bill relating to the
establishment and recognition of schools, restrictions on alienation of school
property, appointment of managers, selection of teachers by the State Public
Service Commission and the taking over the management of the schools in public
interest are all reasonable conditions imposed to ensure better Organisation of
education and security of service conditions to the teachers.
The category of schools in respect of which
the power of acquisition can be exercised under cl. 15 of the Bill comes under
a classification which differentiates it from those other categories which are
excluded from classification being such as is calculated to further the
purposes and the policy underlying the legislation. Clause 15 does not infringe
Art. 14 at all.
In enacting cl. 33 of the Bill the State
Legislature did not intend, and must be presumed not to have intended, to
affect the operation of Art. 226 in any way.
S. Easwara Iyer and K. R. Chaudhury, for the
Kerala Private Secondary School Office Staff 1012 Association and Kerala
Private Teachers' Federation, adopted the arguments of D. N. Pritt. Cur. adv.
vult.
1958. May 22. The opinion of Das C. J.,
Bhagwati, B. P. Sinha, Jafer Imam, S. K. Das and J. L. Kapur, JJ. was delivered
by Das C. J. Venkatarama Aiyar J. delivered a separate opinion.
DAS C. J.-This reference has been made by the
President under Art. 143 (1) of the Constitution of India for the opinion of
this Court on certain questions of law of considerable public importance that
have arisen out of or touching certain provisions of the Kerala Education Bill,
1957, hereinafter referred to as "the said Bill", which was passed by
the Legislative Assembly of the State of Kerala on September 2, 1957, and was,
under Art. 200, reserved by the Governor of Kerala for the consideration of the
President.
After reciting the fact of the passing of the
said Bill by the Legislative Assembly of Kerala and of the reservation thereof
by its Governor for the consideration of the President and after setting out
some of the clauses of the said Bill and specifying the doubts that may be said
to have arisen out of or touching the said clauses, the President has referred
to this Court certain questions hereinafter mentioned for consideration and
report. It is to be noted that the said Bill not having yet received the assent
of the President the doubts, leading up to this reference, cannot obviously be
said to have arisen out of the actual application of any specified section of
an Act on the facts of any particular case and accordingly the questions that
have been referred to this Court for its consideration are necessarily of an
abstract or hypothetical nature and are not like specific issues raised in a
particular case brought before a court by a party aggrieved by the operation of
a particular law which he impugns. Further, this reference has been
characterised as incomplete and unsatisfactory in that, according to learned
counsel appearing for some of the institutions it does not clearly bring out
all the constitutional 1013 defects attaching to the provisions of the Bill and
serious apprehension has been expressed by learned counsel before us that our
opinion on these isolated' abstract or hypothetical questions may very
positively prejudice the interests, if not completely destroy the very
existence, of the institutions they represent and, in the circumstances, we
have been asked not to entertain this reference or give any advisory opinion on
the questions put to us.
It may be of advantage to advert, at the
outset, to the ambit and, scope of the jurisdiction to be exercised by this
Court under Art. 143 of the Constitution. There is no provision similar to this
in the Constitution of the United States of America or in the Commonwealth of
Australia Constitution Act, 1900 (63 and 64 Vic. Ch. 12) and, accordingly, the
American Supreme Court as well as the High Court of Australia, holding that the
jurisdiction and powers of the court extend only to the decision of concrete
cases coming before it, have declined to give advisory opinions to the
executive or legislative branches of the State. Under s. 60 of the Canadian
Supreme Court Act, 1906, the Governor General-in-Council may refer important
questions of law concerning certain matters to the Supreme Court and the
Supreme Court appears to have been held bound to entertain the reference and
answer the questions put to it.
Nevertheless, the Privy Council has pointed
out the dangers of such advisory opinion and has, upon general principles
deprecated such references. Said the Earl of Halsbury L. C. in Attorney General
for Ontario v. Hamilton Street Railway (1):" They would be worthless as
being speculative opinions on hypothetical questions. It would be contrary to
principle, inconvenient, and inexpedient that opinions should be given up on
such questions at all. When they arise, they must arise in concrete cases,
involving private rights; and it would be extremely unwise for any judicial
Tribunal to attempt beforehand to exhaust all possible cases and facts (1)
[1903] A. C. 524, 529.
1014 which might occur to qualify, cut down,
and override the operation of the particular words when the concrete case is
not before it." To the like effect are the observations of Lord Haldane in
Attorney General for British Columbia v. Attorney General for Canada (1) :"........Under
this procedure questions may be put of a kind which it is impossible to answer
satisfactorily. Not only may the question of future litigants be prejudiced by
the court laying down principles in an abstract form without any reference or
relation to actual facts, but it may turn out to be practically impossible to
define a principle adequately and safely without previous ascertainment of the
exact facts to which it is to be applied." Reference may, with advantage,
be also made to the following observations of Lord Sankey I,. C. in Re The
Regulation and Control of Aeronautics In Canada (2) :"...... It is
undesirable that the Court should be called upon to express opinions which may
affect the rights of persons not represented before it or touching matters of
such a nature that its answers must be wholly ineffectual with regard to
parties who are not and who cannot be brought before it-for example, foreign
Government." Section 4 of the Judicial Committee Act, 1833 (3 and 4
William IV, Ch. 41) provides that " It shall be lawful for His Majesty to
refer to the said Judicial Committee for hearing and consideration any such
other matters whatsoever as His Majesty shall think fit and such Committee
shall thereupon hear and consider the same and shall advise His Majesty thereon
in manner aforesaid." It is to be noted that it is made obligatory for the
Judicial Committee to hear and consider the matter and advise His Majesty
thereon. The Government of India Act, 1935, by s. 213(1), authorised the
Governor-General to consult the Federal Court, if at any time it appeared to
the Governor-General that there had arisen or was likely to arise a question of
(1) [1914] A. C. 153, 162.
(2) [1932] A. C. 54, 66.
1015 law which was of such a nature and of
such public importance that it was expedient to obtain the opinion of the
Federal Court upon it and empowered that court, after such hearing as they
thought fit, to report to the Governor-General thereon. This provision has
since been reproduced word for word, except as to the name of the court, in cl.
(1) of Art 143 of our Constitution. That Article has a new clause, being cl.
(2) which empowers the President, notwithstanding anything in the proviso to
Art. 131, to refer a dispute of the kind mentioned in the said clause to the
Supreme Court for opinion and the Supreme Court shall, after such hearing as it
thinks fit, report to the President its opinion thereon. It is worthy of note
that, while under cl. (2) it is obligatory on this Court to entertain a
reference and to report to the President its opinion thereon, this Court has,
under cl. (1), a discretion in the matter and may in a proper case and for good
reasons decline to express any opinion on the questions submitted to it. In
view of the language used in s. 213(1), on which Art. 143(1) of our Constitution
is based, and having regard to the difference in the language employed in cls.
(1) and (2) of our Art. 143 just alluded to, the scope of a reference made
under Art.
143(1) is obviously different from that of a
reference under s. 4 of the Judicial Committee Act, 1833 and s. 60 of the
Canadian Supreme Court Act, 1906, and this Court, under Art.
143(1), has a discretion in the matter and
consequently the observations of their Lordships of the Privy Council quoted
above are quite apposite and have to be borne in mind.
There have been all told four references by
the Governor-general under s. 213(1) of the Government of India Act, 1935, and
in two of them some of the Judges of the Federal Court have made observations
on the ambit and scope of such a reference. Thus in re Allocation of Lands and
Buildings (1), Gwyer C. J. said :" On considering the papers submitted
with the case we felt some doubt whether any useful purpose (I) [1943] F. C. R.
20, 22, 129 1016 would be served by the giving of an opinion under s. 213 of
the Act. The terms of that section do not 'impose an obligation on the Court,
though we should always be unwilling to decline to accept a Reference, except
for good reason; and two difficulties presented themselves. First, it seemed
that questions of title might sooner or later be involved, if the Government
whose contentions found favour with the Court desired, as the papers show might
be the case, to dispose of some of the lands in question to private
individuals, and plainly no advisory Opinion under s. 213 would furnish a good
root of title such as might spring from a declaration of this Court in
proceedings taken under s.
204(1) of the Act by one Government against
the other." In In re Levy of Estate Duty (1) Spens C. J. said at p.320 of
the authorised report :" It may be stated at the outset that when
Parliament has thought fit to enact s. 213 of the Constitution Act it is not in
our judgment for the Court to insist on the inexpediency (according to a
certain school of thought) of the advisory jurisdiction. Nor does it assist to
say that the opinions expressed by the Court on the questions referred "
will have no more effect than the opinions of the law officers ":
Attorney-General for Ontario v. Attorney General for Canada (2). That is the
necessary result of the jurisdiction being advisory." Referring to the
objection that the questions related to contemplated legislation and not to the
validity or operation of a measure already passed, the learned Chief Justice
observed at p. 321 :" The fact that the questions referred relate to
future legislation cannot by itself be regarded as a valid objection. Section
213 empowers the Governor-General to make a reference when questions of law are
" likely to arise................................................... In
this class of cases, the reference should, in the very nature of things, be
made before the legislation has been (1) [1944] F. C. R. 3I7, 320, 321, 350).
(2) [1912] A. C. 57I, 589.
1017 introduced and the objection based upon
the hypothetical character of the questions can have no force. We. may,
however, add that instances were brought to our' notice in which references had
been made under the corresponding provision in the Canadian Supreme Court Act
when the matter was at the stage of a Bill." Zafrulla Khan J. declined to
entertain the reference and to answer the questions on high authority quoted
and discussed elaborately in his separate opinion. The learned Judge, after
pointing out in the earlier part of his opinion that it was " a
jurisdiction the exercise of which on all occasions must be a matter of
delicacy and caution ", concluded his opinion with the following
observations at page 350:" In the state of the material made available to
us I do not think any useful purpose would be served by my attempting to frame
answers to the questions referred. Indeed, I apprehend, that any such attempt
might result in the opinion delivered being made the foundation of endless
litigation hereafter, apart altogether from any question relating to the vires
of the proposed law, and operating to the serious prejudice of persons whom it
might be attempted to bring within the mischief of that law. It is bound to
raise ghosts far more troublesome than any that it might serve to lay. For
these reasons I am compelled respectfully to decline to express any opinion on
the questions referred." The present reference is the second of its kind
under Art.
143(1) of the Constitution, the first one
being concerned with the In Re Delhi Laws Act, 1912 (1). The nature and scope
of the reference under Art. 143(1) was not discussed in the In Re Delhi Laws
Act case (1), but, we conceive, that the principles laid down by the Judicial
Committee and the Federal Court quoted above will serve as a valuable guide
indicating the line of approach to be adopted by this Court in dealing with and
disposing of the reference now before us. The principles established by
judicial (1) [1951] S.C.R. 747.
1018 decisions clearly indicate that the
complaint that the questions referred to us relate to the validity, not of a
statute brought into force but, of a Bill which has yet to be passed into law
by being accorded the assent of the President is not a good ground for not
entertaining the reference for, as said by Spens C. J. Art. 143(1) does
contemplate the reference of a question of law that is " likely to arise
". It is contended that several other constitutional objections also arise
out of some of the provisions of the Bill considered in the light of other
provisions of the Constitution, e.g., Art. 19(1)(g) and Art.
337 and that as those objections have not
been included in the reference this Court should not entertain an incomplete
reference, for answers given to the questions put may be misleading in the
absence of answers to other questions that arise. In the first place it is for
the President to determine what questions should be referred and if he does not
entertain any serious doubt on the other provisions it is not for any party to
say that doubts arise also out of them and we cannot go beyond the reference
and discuss those problems. The circumstance that the President has not thought
fit to refer other questions as to the constitutional validity of some of the
clauses of the said Bill on the ground that they infringe other provisions of
the Constitution cannot be a good or cogent reason for declining to entertain
this reference and answer the questions touching matters over or in respect of
which the President does entertain some doubt.
In order to appreciate the true meaning,
import and implications of the provisions of the Bill which are said to have
given rise to doubts, it will be necessary to refer first to certain provisions
of the Constitution which may have a bearing upon the questions under
consideration and then to the actual provisions of the Bill. The inspiring and
nobly expressed preamble to our Constitution records the solemn resolve of the
people of India to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and,
amongst other things, to secure to all its citizens JUSTICE, LIBERTY, and
EQUALITY and to promote among 1019 them all FRATERNIT Y assuring the dignity of
the individual and the unity of the Nation. One of the most cherished objects
of our Constitution is, thus, to' secure to all its citizens the liberty of
thought, expression, belief, faith and worship. Nothing provokes and stimulates
thought and expression in people more than education. It is education that
clarifies our belief and faith and helps to strengthen our spirit of worship.
To implement and fortify these supreme purposes set forth in the preamble, Part
III of our Constitution has provided for us certain fundamental rights.
Article 14, which is one of the articles
referred to in two of the questions, guarantees to every person, citizen or
otherwise, equal protection of the laws within the territory of India. Article
16 ensures equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State. In order to avail
themselves of the benefit of this Article all citizens will presumably have to
have equal opportunity for acquiring the qualifications, educational or
otherwise, necessary for such employment or appointment. Article 19(1)
guarantees to citizens the right, amongst others, to freedom of speech and
expression (sub-cl. (a)) and to practise any profession, or to carry on any
occupation, trade or business (sub-cl. (g)).
These rights are, however, subject to social
control permitted by cls. (2) and (6) of Art. 19. Under Art. 25 all persons are
equally entitled, subject to public order, morality and health and to the other
provisions of Part III, to freedom of conscience and the right freely to
profess, practise and propagate religion. Article 26 confers the fundamental
right to every religious denomination or any section thereof, subject to public
order, morality and health, to establish and maintain institutions for
religious and charitable purposes, to manage its own affairs in matters of
religion, to acquire property and to administer such property in accordance
with law. The ideal being to constitute India, into a secular State, no
religious instruction is, under Art. 28(1), to be provided in any educational
institution wholly maintained out of State funds and under cl. (3) of the 1020
same Article no person attending any educational institution recognised by the
State or receiving aid out of State funds is to be required to take part in any
religious instruction that may be imparted in such institution or to attend any
religious worship that may be conducted in such institution or in any premises
attached thereto unless such person or, if such person is a minor, his guardian
has given his consent thereto. Article 29(1) confers on any section of the
citizens having a distinct language, script or culture of its own to have the
right of conserving the same. Clause (2) of that Article provides that no
citizen shall be denied admission into any educational institution maintained
by the State or receiving aid out of State funds on grounds only of religion,
race, caste, language or any of them. Article 30, cl. (1) of which is the
subject-matter of question 2 of this reference, runs as follows:" 30(1)
All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
(2) The State shall not, in granting aid to
educational institutions, discriminate against any educational institution on
the ground that it is under the management of a minority, whether based on
religion or language. " While our fundamental rights are guaranteed by
Part III of the Constitution, Part IV of it, on the other hand, lays down
certain directive principles of State policy. The provisions contained in that
Part are not enforceable by any court, but the principles therein laid down
are, nevertheless, fundamental in the governance of the country and it shall be
the duty of the State to apply these principles in making laws. Article 39
enjoins the State to direct its policy towards securing, amongst other things,
that the citizens, men and women, equally, have the right to an adequate means
of livelihood. Article 41 requires the State, within the limits of its economic
capacity and development, to make effective provision for securing the right,
inter alia, to education. Under Art. 45 the State 1021 must endeavour to
provide, within a period of ten years from the commencement of the
Constitution, for free and compulsory education for all children until they
complete the age of fourteen years. Article 46 requires the State to promote
with special care the education and economic interests of the weaker sections
of the people, and, in particular, of the Scheduled Castes and the Scheduled
Tribes, and to protect them from social injustice and all forms of
exploitation.
Part XVI of our Constitution also makes
certain special provisions relating to certain classes. Thus Art. 330 provides
for the reservation of seats for Scheduled Castes and Scheduled Tribes in the
House of the People. Article 331 provides for the representation of the
Anglo-Indian community in the House of the People. Reservations are made, by
Arts. 332 and 333, for the representation for the Scheduled Castes and
Scheduled Tribes and the Anglo-Indians in the Legislative Assembly of every
State for ten years after which, according to Art. 334, these special
provisions are to cease. Special provision is also made by Art. 336 for the
Anglo-Indian community in the matter of appointment to certain services.
Article 337 has an important bearing on the question before us. It provides
that during the first three financial years after the commencement of this
Constitution, the same grants, if any, shall be made by the Union and by each
State for the benefit of the Anglo-Indian community in respect of education as
were made in the, financial year ending on the thirty first day of March, 1948
and that during every succeeding period of three years this grant may be less
by ten per cent. than those for the immediately preceding period of three
years, provided that at the end of ten years from the commencement of the
Constitution such grants, to the extent to which they are a special concessions
shall cease. The second proviso to that Article, however, provides that no
educational institution shall be entitled to receive any grant under this
Article unless at least forty per cent. of the annual admissions therein are
made available to members of communities other than the Anglo-Indian community.
This is 1022 clearly a condition imposed by the Constitution itself on the
right of the Anglo-Indian community to receive the grant provided under this
Article. Article 366(2) defines an " Anglo-Indian ".
Presumably to implement the directive
principles alluded to above the Kerala Legislative Assembly has passed the said
Bill in exercise of the legislative power conferred upon it by Arts. 245 and
246 of the Constitution read with entry II of List 11 in the Seventh Schedule
to the Constitution.
This legislative power is, however, to be
exercised under Art. 245 " subject to the provisons of this Constitution
". Therefore, although this legislation may have been undertaken by the
State of Kerala in discharge of the obligation imposed on it by the directive
principles enshrined in Part IV of the Constitution, it must, nevertheless,
subserve and not over-ride the fundamental rights conferred by the provisions
of the Articles contained in Part III of the Constitution and referred to
above. As explained by this Court in the State of Madras v. Smt. Champakam
Dorairajan (1) and reiterated recently in Mohd. Hanif Quareshi v. The State of
Bihar (2) " The directive principles of State policy have to conform to
and run as subsidiary to the Chapter on Fundamental Rights ". Nevertheless,
in determining the scope and ambit of the fundamental rights relied on by or on
behalf of any person or body the court may not entirely ignore these directive
principles of State policy laid down in Part IV of the Constitution but should
adopt the principle of harmonious construction and should attempt to give
effect to both as much as possible.
Keeping in view the principles of
construction above referred to we now proceed to examine the provisions of the
said Bill in order to get a clear conspectus of it.
The long title of the said Bill describes it
as " A Bill to provide for the better Organisation and 'development of
educational institutions in the State." Its preamble recites thus: "
Whereas it is deemed necessary to pro(1) [1951] S.C.R. 525, 53I.
(2) [1959] S.C.R. 629.
1023 vide for the better Organisation and
development of educational institutions in the State providing a varied and
comprehensive educational service throughout the State." We must,
therefore, approach the substantive provisions of the said Bill in the light of
the policy and purpose deducible from the terms of the aforesaid long title and
the preamble and so construe the clauses of the said Bill as will subserve the
said policy and purpose. Sub-clause (3) of cl.
I provides that the Bill shall come into
force on such date as the Government may, by notification in the Gazette,
appoint and different dates may be appointed for different provisions of this
Bill-a fact which is said to indicate that Government will study the situation
and bring into force such of the provisions of the said Bill which will best
subserve the real needs of its people. Clause 2 contains definitions of certain
terms used in the said Bill of which the following sub-clauses may be noted:"
(1) " aided school " means a private school which is recognised by
and is receiving aid from the Government;
(3) " existing school " means any
aided, recognised or Government school established before the commencement of
this Act and continuing as such at such commencement;
(6) " private school " means an
aided or recognised school;
(7) " recognised " means a private
school recognised by the Government under this Act Clause 3 deals with "
Establishment and recognition of schools. " Sub-clause (1) empowers the
Government to " regulate the primary and other stages of education and
courses of instructions in Government and private schools.
" Sub-clause (2) requires the Government
to " take, from time to time, such steps as they may consider necessary or
expedient, for the purpose of providing facilities for general education,
special education 130 1024 and for the training of teachers." Sub-clause
(3) provides that "the Government may, for the purpose of providing such
facilities:-(a) establish and maintain schools; or (b) permit any person or
body of persons to establish and maintain aided schools; or (c) to recognise
any school established and maintained by any person or body of persons."
All existing schools, which by the definition mean any aided, recognised or
Government schools established before and continuing at the commencement of the
Bill are, by sub-cl. (4) to be deemed to have been established in accordance
with this Bill. The proviso to sub-clause (4) gives an option to the
educational agency of an aided school existing at the commencement of that
clause, at any time within one month of such commencement after giving notice
to the Government of its intention so to do, to opt to run the school as a
recognised school subject to certain conditions therein mentioned. Sub-clause
(5) of cl. 3, which forms, in part, the subject matter of two of the questions
referred to runs as follows:" 3 (5) After the commencement of this Act,
the establishment of a new school or the opening of a higher class in any
private school shall be subject to the provisions of this Act and the rules
made there under and any school or higher class established or opened otherwise
than in accordance with such provisions shall not be entitled to be recognised
by the Government." Clause 4 of the Bill provides for the constitution of
a State Education Advisory Board consisting of officials and non-officials as
therein mentioned, their term of office and their duties. The purpose of the
setting up of such a Board is that it should advise the Government on matters
pertaining to educational policy and administration of the Department of
Education. Clause 5 requires the manager of every aided school on the first day
of April of each year to furnish to the authorised officer of the Government a
list of properties, moveable and immoveable, of the school. A default in
furnishing such list entails, under sub-cl. (2) of that clause, the withholding
of the maintenance grant.
Clause 6 imposes restrictions on the
alienation of any 1025 property of an aided school, except with the previous
permission ill writing of the authorised officer of the Government. An appeal
is provided against the order of the authorised officer refusing or granting
such permission under sub-cl. (1). Sub-clause (3) renders any transaction in
contravention of sub-cl. (1) or sub-el. (2) null and void and on such
contravention the Government, under sub-cl. (4), is authorised to withhold any
grant to the school. Clause 7 deals with managers of aided schools. Sub-clause
(1) authorises any Education agency to appoint any person to be a manager of an
aided school, subject to the approval of the authorised officer, all the
existing managers of aided schools being deemed to have been appointed under
the said Bill. The manager is made responsible for the conduct of the school in
accordance with the provisions of this Bill and the rules there under.
Subclause (4) makes it the duty of the manager to maintain such record and
accounts of the school and in such manner as may be prescribed by the rules.
The manager is, by sub-cl. (5), required to
afford all necessary and reasonable assistance and facilities for the
inspection of the school and its records and accounts by the authorised
officer. Sub-clause (6) forbids the manager to close down any school without
giving to the authorised officer one year's notice expiring with the 31st May
of any year of his intention so to do. Sub-clause (7) provides that, in the
event of the school being closed or discontinued or its recognition being
withdrawn, the manager shall make over to the authorised officer all the
records and accounts of the school. Sub-clause (8) provides for penalty for the
contravention of the provisions of sub-cls. (6) and (7). Clause 8 provides for
the recovery of amounts due from the manager of an aided school as an arrear of
land revenue. Sub-clause (3) of cl. 8, which is also referred to in one of the
questions, runs as follows:" 8 (3) All fees and other dues, other than
special fees, collected from the students in an aided school after the
commencement of this section shall, notwithstanding anything contained in any
agreement, scheme 1026 or arrangement, be made over to the Government in such
manner as may be prescribed." Clause 9 makes it obligatory on the
Government to pay the salary of all teachers in aided schools direct or through
the headmaster of the school and also to pay the salary of the non-teaching
staff of the aided schools. It gives power to the Government to prescribe the
number of persons to be appointed in the non-teaching establishment of aided
schools, their salaries, qualifications and other conditions of service. The
Government is authorised, under sub-cl. (3), to pay to the manager a
maintenance grant at such rates as may be prescribed and under sub-cl. (4) to
make grants in-aid for the purchase, improvement and repairs of any land,
building or equipment of an aided school. Clause 10 requires Government to
prescribe the qualifications to be possessed by persons for appointment as
teachers in Government schools and in private schools which, by the definition,
means aided or recognised schools. The State Public Service Commission is
empowered to select candidates for appointment as teachers in Government and
aided schools according to the procedure laid down in cl. 11. Shortly put, the
procedure is that before the 31st May of each year the Public Service
Commission shall select for each district separately candidates with due regard
to the probable number of vacancies of teachers that may arise in the course of
the year, that the list of candidates so selected shall be published in the
Gazette and that the manager shall appoint teachers of aided schools only from
the candidates so ,selected for the district in which the school is located
subject to the proviso that the manager may, for sufficient reason, with the
permission of the Commission, appoint teachers selected for any other district.
Appointment of teachers in Government schools are also to be made from the list
of candidates so published. In selecting candidates the Commission is to have
regard to the provisions made by the Government under cl. (4) of Art. 16 of the
Constitution, that is to say, give representation in the educational service to
persons belonging to the Scheduled Castes or Tribes 1027 -a provision which has
been severely criticised by learned counsel appearing for the Anglo-Indian and
Muslim communities. Clause 12 prescribes the conditions of service of the
teachers of aided schools obviously intended to afford some security of tenure
to the teachers of aided schools. It provides that the scales of pay applicable
to the teachers of Government schools shall apply to all the teachers of aided
schools whether appointed before or after the commencement of this clause.
Rules applicable to the teachers of the Government schools are also to apply to
certain teachers of aided schools as mentioned in sub-cl.
(2). Sub-clause (4) provides that no teacher
of ail aided school shall be dismissed, removed, reduced in rank or suspended
by the manager without the previous sanction of the authorised officer. Other
conditions of service of the teacher of aided schools are to be as prescribed
by rules.
Clause 14 is of considerable importance in
that it provides, by sub-clause (1), that the Government, whenever it appears
to it that the manager of any aided school has neglected to perform any of the
duties imposed by or under the Bill or the rules made there under, and that in
the public interest it is necessary so to do, may, after giving a reasonable
opportunity to the manager of the Educational agency for showing cause against
the proposed action, take over the management for a period not exceeding five
years. In cases of emergency the Government may, under sub-el. (2), take over
the management after the publication of notification to that effect in the
Gazette without giving any notice to the Educational agency or the manager.
Where any school is thus taken over without any notice the Educational agency
or the manager may, within three months of the publication of the notification,
apply to the Government for the restoration of the school showing the cause there
for. The Government is authorised to make orders which may be necessary or
expedient in connection with the taking over of the management of an aided school.
Under sub-el. (5) the Government is to pay such rent as maybe fixed by the
Collector in respect of the properties taken possession of, On taking over any
1028 school the Government is authorised to run it affording any special
educational facilities which the school was doing immediately before such
taking over. Right of appeal to the District Court is provided against the
order of the Collector fixing the rent. Sub-cl. (8) makes it lawful for the
Government to acquire the school taken over under this clause if the Government
is satisfied that it is necessary so to do in the public interest, in which
case compensation shall be payable in accordance with the principles laid down
in cl. 15 for payment of compensation. Clause 15 gives power to the Government
to acquire any category of schools.
This power can be exercised only if the
Government is satisfied that for standardising general education in the State
or for improving the level of literacy in any area or for more effectively
managing the aided educational institutions in any area or for bringing
education of any category under their direct control and if in the public
interest it is necessary so to do. No notification for taking over any school
is to be issued unless the proposal for the taking over is supported by a
resolution of the Legislative Assembly. Provision is made for the assessment
and apportionment of compensation and an appeal is provided to the District
Court from the order passed by the Collector determining the amount of
compensation and its apportionment amongst the persons entitled thereto. Thus
the Bill contemplates and provides for two methods of acquisition of aided
schools, namely, under sub-cl. (8) of el. 14 the Government may acquire a
school after having taken possession of it under the preceding sub-clauses or
the Government may, under el. 15, acquire any category of aided schools in any
specified area for any of the several specific purposes mentioned in that
clause. Clause 16 gives power to the Government to exempt immoveable properties
from being taken over or acquired. Clause 17 provides for the establishment of
Local Education Authorities, their constitution and term of office and clause
18 specifies the functions of the Local Education Authorities. Clauses 19 and
20 are important and read as follows:1029 " 19. Recognised schools:-The
provisions of subsections (2), (4), (5), (6), (7), (8) and (9) of section 7
shall apply to recognised schools to the same extent' and in the same manner as
they apply to aided schools." " 20. No fee to be charged from pupils
of primary classes: No fee shall be payable by any pupil for any tuition in the
primary classes in any Government or private school." Part II of the Bill
deals with the topic of compulsory education. That part applies to the areas
specified in el.
21. Clause 23 provides for free and
compulsory education of children throughout the State within a period of ten
years and is intended obviously to discharge the obligation laid on the State
by Art. 45 of the directive principles of State policy. Clauses 24 and 25 deal
with the constitution of Local Education Committees and the functions thereof
Clause 26, which has figured largely in the discussion before us runs as
follows :
" 26. Obligation on guardian to send
children to school:-In any area of compulsion, the guardian of every child
shall, if such guardian ordinarily resides in such area, cause such child to
attend a Government, or private school and once a child has been so caused to
attend school under this Act the child shall be compelled to complete the full
course of primary education or the child shall be compelled to attend school
till it reaches the age of fourteen." We may skip over a few clauses, not
material for our purpose, until we come to el. 33 which is referred to in one
of the questions we have to consider. That clause provides-" 33. Courts
not to grant injunction-Notwithstanding anything contained in the Code of Civil
Procedure, 1908, or in any other law for the time being in force, no court
shall grant any temporary injunction or make any interim order restraining any
proceedings which is being or about to be taken under this Act." Clause 36
confers power on the Government to make 1030 rules for the purpose of carrying
into effect the provisions of the Bill and in particular for the purpose of the
establishment and maintenance of schools, the giving of grants and aid to
private schools, the grant of recognition to private schools, the levy and
collection of fees in aided schools, regulating the rates of fees in recognised
schools, the manner in which the accounts, registers and records shall be
maintained, submission of returns, reports and accounts by managers, the
standards of education and course of study and other matters specified in
sub-cl. (2) of that clause. Clause 37 is as follows:" 37. Rules to be laid
before the Legislative Assembly:-All rules made under this Act shall be laid
for not less than fourteen days before the Legislative Assembly as soon as
possible after they are made and shall be subject to such modifications as the
Legislative Assembly may make during the session in which they are so
laid." Under cl. 38 none of the provisions of the Bill applies to a school
which is not a Government or a private school, i. e., aided or recognized school.
The above summary will, it is hoped, clearly
bring out the purpose and scope of the provisions of the said Bill. It is
intended to serve as showing that the said Bill contains many provisions
imposing considerable State control over the management of the educational
institutions in the State, aided or recognised. The provisions, in so far as
they affect the aided institutions, are much more stringent than those which
apply only to recognised institutions. The width of the power of control thus
sought to be assumed by the State evidently appeared to the President to be
calculated to raise doubts as to the constitutional validity of some of the
clauses of the said Bill on the ground of apprehended infringement of some of
the fundamental rights guaranteed to the minority communities by the
Constitution, and accordingly in exercise of the powers vested in him by Art.
143(1) the President has referred to this Court, for consideration and report
the following questions:
1031 " (1) Does sub-clause (5) of clause
3 of the Kerala Education Bill, read with clause 36 thereof or any of the
provisions of the said sub-clause, offend article 14 of the Constitution in any
particulars or to any extent? (2) Do sub-clause (5) of clause 3, sub-clause (3)
of clause 8 and clauses 9 to 13 of the Kerala Education Bill, or any provisions
thereof, offend clause (1) of article 30 of the Constitution in any particulars
or to any extent ? (3) Does clause 15 of the Kerala Education Bill, or any
provisions thereof, offend article 14 of the Constitution in any particulars or
to any extent ? (4) Does clause 33 of the Kerala Education Bill, or any
provisions thereof, offend article 226 of the Constitution in any particulars
or to any extent ?" On receipt of the reference this Court issued notices
to persons and institutions who appeared to it to be interested in the matter
calling upon them to file their respective statements of case concerning the
above mentioned questions.
Three more institutions were subsequently, on
their own applications, granted leave to appear at the hearing. The Union of
India, the State of Kerala and all the said persons and institutions have filed
their respective statements of case and have appeared before us by counsel and
taken part in the debate. A body called the Crusaders' League his by post sent
its views but has not appeared at the hearing. We have had the advantage of
hearing very full arguments on the points arising out of the questions and we
are deeply indebted to learned counsel appearing for the parties for the very
great assistance they have rendered to us.
It will be necessary, at this stage, to clear
the ground by disposing of a point as to the scope and ambit of questions I and
2. It will be noticed that both these questions challenge the constitutional
validity, inter alia, of clause 3 (5) of the said Bill which has already been
quoted in extensor The argument advanced by the learned Attorney General and
other learned counsel appearing for bodies or institutions challenging the
validity of the said Bill is that the provision of cl. 3(5), namely, that the
establishment of a new school "shall be subject to the provisions of this
Act and the rules made there under " attracts all other clauses of the
said Bill as if they are set out seriatim in sub-el. (5) itself. Therefore,
when questions I and 2 challenge the constitutional validity of el. 3(5) they,
in effect, call in question the validity of all other clauses of the said Bill.
Learned counsel appearing for the State of
Kerala, however, opposes this line of argument on several grounds. In' the
first place, he contends that cl. 3(5) attracts only those provisions of this
Bill which relate Lo the establishment of a new school. When asked to specify
what provisions of the said Bill relate to I he establishment of a new school
which, according to him, are attracted by cl. 3(5), the only provision that he
refers to is sub-cl. (3) of cl. 3. Learned counsel for the State of Kerala
maintains that el. 3(5) attracts only el. 3(3) and the rules that may be made
under el. 36(2)(a) and no other clause of the said Bill and, therefore, no
other clause is included within the scope of the questions unless, of course,
they are specifically mentioned in the questions, as some of the clauses are,
in fact, specifically mentioned in question 2. If the mention of cl. 3(5) in
those questions, ipso facto, attracted all other clauses of the said Bill, why,
asks learned counsel, were other clauses specifically mentioned in, say,
question 2 ? Learned counsel also contends that after a school is established
the other clauses will proprio vigore apply to that school and there was no
necessity for an express provision that a newly established school would be
subject to the other provisions of the Bill. As the other clauses of the Bill
will apply to all schools established after the Bill becomes an Act without the
aid of cl. 3(5), a reference to that clause in the questions cannot bring
within their ambit any clause of the Bill which is not separately and
specifically mentioned in the questions. Finally learned counsel contends that
-even if cl. 3(5) attracts the other provisions of the Bill, it does not
necessarily follow that the other provisions also form the subject matter of
the questions. In our judgment, 1033 neither of the two extreme, positions can
be seriously maintained.
The contentions advanced by learned counsel
for the State of Kerala appear to us to be open to several criticisms. If the
intention of sub-cl. (5) of cl. 3 was to attract only those provisions of the
Bill which related only to the establishment of a new school and if sub-cl. (3)
of cl. 3 was the only provision in that be-half, apart from the rules to be
framed under el. 36(2)(a), then as a matter of intelligible drafting it would
have been more appropriate to say, in siib-cl. (3) of el. 3, that the
establishment of new schools ",,;hall be subject to the provisions of this
clause and the rules to be made under el. 36(2)(a) ". Clause 3(5) is quite
clearly concerned with the establishment of new schools Government, aided or
recognised schools, and says that after the Bill becomes law all new schools
will be subject to the other provisions of the Bill. So far as new Government
schools are concerned, el. 3(5) certainly attracts el. 3(3)(a), for that provision
authorises the Government to establish new schools; but to say that el.
3(5) only attracts el. 3(3) appears to be
untenable, for that sub-clause does not in terms provide for the establishment
of new aided or recognised schools. As already observed, el. 3(3)(a)
specifically provides for the establishment and maintenance of new schools by
the Government only. Clause 3(3)(b) provides only for the giving of permission
by the Government to a person or body of persons to establish and maintain
aided schools.
Likewise el. 3(3)(c) authorises the
Government only to recognise any school established, and maintained by any
person or body of persons. Clause 3(4) introduces a fiction whereby all
existing schools, which mean all existing Government, aided or recognised
schools, shall be deemed to have been established in accordance with this Bill.
Then comes cl. 3(5) which is couched in very wide terms. It says, inter alia,
that after the commencement of the operation of the said Bill the establishment
of new schools should be subject to the other provisions of the Bill and the
rules made thereunder. The rules to be framed under cl.
36(2)(a), (b) & 1034 (c) appear to be
respectively correlated to cl. 3(3)(a), (b) & (c). Bearing in mind the
provisions of cl. 38 which places all schools other than Government and
private, i. e., aided or recognised schools, outside the purview of the Bill,
the establishment of what sort of new schools, we ask, does sub-cl. (5)
contemplate and authorise ? Obviously aided or recognised schools established
after the Bill becomes law. Clause 3(5), like cl. 3(3), has apparently been
very inartistically drawn, but reading the clause as a whole and particularly
the concluding part of it, namely, that any school 'established otherwise than
in accordance with such provisions shall not be entitled to be recognised by
the Government, there can be no doubt that cl. 3(5) itself contemplates and
authorises the establishment of new schools as aided or recognised schools. The
opening of new schools and the securing of aid or recognition from the
Government constitute the establishment of new schools contemplated by el. 3(5)
read with cl. 3(3). Reading el. 3(5) in the context of its setting, we have no
doubt that its purpose is not merely to authorise the establishment of new
schools but to subject the new schools to all the provisions of the said Bill
and the rules made thereunder.
To accept the restrictive argument that el.
3(5) attracts only el. 3(3) will be putting a too narrow construction on
sub-cl. (5) not warranted by the wide language thereof or by the language of
cl. 3(3). We do not think that there is much force in the argument that it was
not necessary to expressly provide for the application of the other provisions
to new schools to be established after the Bill became law and that the other
clauses of the said Bill would by their own force and without the aid of
sub-cl. (5) apply to such newly established schools, for having, in terms,
expressly made the new schools subject to the other provisions it is not open
to the State of Kerala now to say that sub-el. (5) need not have made the other
provisions of the said Bill applicable to new schools established after the
said Bill comes into operation or that it does not attract the other. clauses
although it expressly purports to do or that it is not open to those who oppose
the Bill to refer 1035 to any other clause in support of their case. If el.
3(5) did not expressly attract the other provisions, the President would
perhaps have framed the questions differently.
If, therefore, it be held, as we are inclined
to do, that cl. 3(5) makes the new schools subject to the other provisions of
the said Bill, what will be the position ? If, as submitted by the learned Attorney
General and other counsel supporting him, some of the clauses of the said Bill
impinge upon the fundamental rights of the members of the minority community or
educational institutions established or to be established by them and if el.
3(5) makes those clauses applicable to the new schools they may establish after
the Bill becomes law, then not only do those other clauses violate their rights
but el. 3(5) which openly and expressly makes those other clauses apply to such
new schools must also encounter the challenge of unconstitutionality. In other
words, the vice of unconstitutionality, if any, of those other clauses must
attach to cl. 3(5) because it is the latter which in terms makes the new
schools subject to those objectionable clauses. Therefore, in a discussion on
the validity of el. 3(5) it becomes germane to discuss the validity of the
other clauses. In short, though the validity of the other clauses is not by
itself and independently, the subject-matter of either of those questions, yet
their validity or otherwise has to be taken into consideration in determining
the constitutional validity of el. 3(5) which makes those clauses applicable to
the newly established schools. It is in this sense that, we think, a discussion
of the validity of the other clauses comes within the purview of questions I
and 2. We do not, in the circumstances, consider it right, in view of the
language employed in this el. 3(5), to exclude the consideration of the
constitutional validity of the other clauses of the Bill from the discussion on
questions I and 2 which challenge the constitutional validity of el. 3(5) of
the said Bill. Indeed, in the argument before us frequent references have been
made to the other clauses of the said Bill in discussing questions I and 2 and
we have heard the respective contentions of learned 1036 counsel on the
validity or otherwise of those clauses in so far as they have a bearing on the
questions put co us which we now proceed to consider and answer.
Re. Questions 1 and 3. Question I challenges
the constitutional validity of sub-cl. (5) of el. 3 of the -said Bill read with
el. 36 thereof on the ground that, the same violates the equal protection of
the laws guaranted to all persons by Art. 14 of the Constitution. Question 3
attacks el. 15 of the said Bill on the same ground, namely, that it is
violative of Art. 14 of the Constitution. As the ground of attack tinder both
the questions is the same, it will be convenient to deal with them together.
The true meaning, scope and effect of Art. 14
of our Constitution have been the subject-matter of discussion and decision by
this Court in a number of cases beginning with the case of Chiranjit Lal
Chowdhuri v. The Union of India and others (1). In Budhan Choudhry v. The State
of Bihar (2) a Constitution Bench of seven Judges of this Court explained the
true meaning and scope of that Article.
Recently in the case of Ram Krishna Dalmia
and others Sri Justice S. R. Tendolkar (3), the position was at length by this
Court, by its judgment on March 28, 1958, and the several principles firmly
established by the decisions of this Court were set out seriatim in that
judgment. The position -",as again summarised in the still more recent
case of land. Hanif Quaeshi v. The State of Bihar (1) in the following words:"
The meaning, scope and effect of Art. 14, which is the equal protection clause
in our Constitution, has been explained by this Court in a series of decisions
in cases beginning with Chiranjit Lal Chowdhury v. The Union Of India (1) and
ending with the recent case of Ram Krishna Dalmia v. Sri Justice S. R.
Tendolkar (1). It is now well-established that while Art. 14 forbids class
legislation it does not forbid reasonable classification for the purposes of
legislation (1) [1950] S. C. E. 869.
(2) [1955] 1 S. C. R. I045.
(3) [1959] S.C.R. 279.
(4) [1959] S.C.R. 6,g.
1037 and that in order to pass the test of
permissible classification two conditions must be fulfilled, namely, (i) the
classification must be founded on an intelligible differentia which
distinguishes persons or things that, are grouped together from others left out
of the group and (ii) such differentia must have a rational relation to the
object sought to be achieved by the statute in question. The classification, it
has been held, may be founded on different bases, namely, geographical or
according to objects or the occupations or the like and what is necessary is
that there must be a nexus between the basis of classification and the object
of the Act tinder consideration . The pronouncements of this Court further establish,
amongst other things, that there is always a presumption in favour of the
constitutionality of an enactment and that the burden is upon him, who attacks
it, to show that, there has been a clear violation of the constitutional
principles. The courts, it is accepted, must presume that, the legislature
understands and correctly the needs of its own people, that its laws are
directed to problems made manifest by experience and that its discriminations
are based on adequate grounds. It must be borne in mind that the legislature is
free to recognise degrees of harm and may confine its restrictions to those
cases where the need is deemed to be the clearest and finally that in order to
sustain the presumption of constitutionality the Court may take into consideration
matters of common knowledge, matters of common report, the history of the times
and may assume every state of facts which can be conceived existing at the time
of legislation." In the judgment of this Court in Ram Krishna Dalmia's
case (1) the statutes that came up for consideration before this Court were
classified into five several categories as enumerated therein. No useful
purpose will be served by reopening the discussion and, indeed, no attempt has
been made in, that behalf by learned counsel. We, therefore, proceed to examine
the impugned provisions in the light of the aforesaid principles enunciated by
this Court.
Coming now to the main argument founded on
(1) [1959] S.C.R. 279.
1038 Art. 14, the Bill, it is said,
represents a deliberate attempt on the part of the party now in power in Kerala
to strike at the Christian Church and especially that of the Catholic
persuasion, to eliminate religion, to expropriate the minority communities of
the properties of their schools established for the purpose of conserving their
distinct language, script and culture, and in short, to eliminate all
educational agencies other than the State so as to bring about a regimentation
of education and by and through the educational institutions to propagate the tenets
of their political philosophy and indoctrinate the impressionable minds of the
rising generation. It is unfortunate that a certain amount of heat and passion
was introduced in the discussion of what should be viewed as a purely legal and
constitutional problem raised by the questions ; but perhaps it is
understandable in the context of the bitter agitation and excitement provoked
by the said Bill in the minds of certain sections of the people of the State.
We desire, however, to emphasise that this Court is not concerned with the
merit or otherwise of the policy of the Government which has sponsored this
measure and that all that we are called upon to do is to examine the
constitutional questions referred to us and to pronounce our opinion on the validity
or otherwise of those provisions of the Bill which may properly come within the
purview of those questions.
The doubts which led to the formulation of
question 1 are thus recited in the order of reference which had better be
stated in its own terms:" AND WHEREAS sub-clause (3) of clause 3 of the
said Bill enables the Government of Kerala, inter alia, to recognise any school
established and maintained by any person or body of persons for the purpose of
providing the facilities set out in subclause (2) of the said clause, to wit,
facilities for general education, special education and for the training of
teachers;
AND WHEREAS sub-clause (5) of clause 3 of the
said Bill provides, inter alia, that any new school established or any higher
class opened in any private 1039 school, after the Bill has become an Act and
the Act has come into force, otherwise than in accordance with the provisions
of the Act and the rules made under section 36 thereof, shall not be entitled
to be recognised by the Government of Kerala;
AND WHEREAS a doubt has arisen whether the
provisions of the said sub-clause (5) of clause 3 of the said Bill confer upon
the Government an unguided power in regard to the recognition of new schools
and the opening of higher classes in any private school which is capable of
being exercised in an arbitrary and discriminatory manner;
AND WHEREAS a doubt has further arisen
whether such power of recognition of new schools and of higher classes in
private schools is not capable of being exercised in a manner affecting the
right of the minorities guaranteed by clause (1) of article 30 of the
Constitution to establish and administer educational institutions of their
choice;
Likewise the doubts concerning cl. 15 are
formulated in the following recitals in the order of reference :" AND
WHEREAS clause 15 of the said Bill empowers the Government of Kerala to take
over, by notification in the Gazette, any category of aided schools in any
specified area or areas, if they are satisfied that for standardising general
education in the State of Kerala or for improving the level of literacy in any
area or for more effectively managing the aid-Id educational institutions in
any area or for bringing education of any category under their direct control
it is necessary to do so in the public interest, on payment of compensation on
the basis of market value of the schools so taken over after deducting there
from the amounts of aids or grants given by that Government for requisition,
construction or improvement of the property of the schools;
AND WHEREAS a doubt has arisen whether such
power is not capable of being exercised in an arbitrary and discriminatory
manner." 132 1040 The legal aspect of the matter arising out of the two
questions is further elaborated thus by learned counsel appearing for the
persons or institutions contesting the validity of the Bill: Clause 3 (5) makes
all the provisions of the Bill applicable to new schools that may be
established after the Bill becomes law. Clause 3 (5) gives the Government an
unguided, uncontrolled and uncanalised power which is capable of being
exercised "with an evil eye and an unequal hand" and the Government
may, at its whim or pleasure, single out any person or institution and subject
him or it to hostile and discriminatory treatment. The Bill does not lay down
any policy or principle for the guidance of the Government in the matter of the
exercise of the wide powers so conferred on it by the different clauses of the
Bill. It is pointed out that cl. 3 does not lay down any policy or principle
upon which the Government may or may not permit any person or body of persons
to establish and maintain an aided school or grant recognition to a school
established by any person. The Government may grant such permission or recognition
to persons who support its policy but not to others who oppose the same. Clause
6 does riot say in what circumstances the authorised officer of the Government
may or may not give permission to the alienation of the property of an aided
school. He may give permission in one case but arbitrarily withhold it in
another similar case. Likewise the authorised officer may not, under el. 7,
approve of the appointment of a particular person as manager of in aided school
for no better reason than the prejudice or dislike of his Government for that
particular person's political views or affiliations. The Government may, under
cl. 9, pay the maintenance grant to the manager of one aided school but not to
that of another. Particular schools or categories of schools in particular
areas may be singled out for discriminatory treatment under cls. 14 and 15 of
the Bill. It is next pointed out that if cl. 3 (5) is read with cls. 21, 26 and
28 of the Bill the result will be palpably discriminatory because in an area
which is not an area of compulsion a new school which may be established after
the Bill 1041 comes into operation and which may not seek recognition or aid
can charge fees and yet attract scholars but a new school similarly established
in an area of compulsion will be hit directly by cl. 26 and will have no
scholars, for no guardian will be able lawfully to send his ward to a school
which is neither a Government school nor a private school and such a new school
will not be able to function at all, for it will have no scholar and the
question of its charging fees in any class will not arise. There is no force in
this last mentioned point, for the Legislature, it must be remembered, knows
the needs of its people and is entitled to confine its restriction 'to those places
where the needs are deemed to be the clearest and, therefore, the restrictions
imposed in areas of compulsion are quite permissible on the ground of
classification on geographical basis. Whatever other provisions of the
Constitution, such restriction may or may not violate, which will be discussed
later, it certainly does not infringe Art. 14.
A further possibility of discrimination is
said to arise as a result of the application of the same provisions of the Bill
to all schools which are not similarly situate. The argument is thus developed:
The Constitution, it is pointed out, deals with the schools established by
minority communities in a way different from the way it deals with other
schools. Thus Anglo-Indian schools are given grants under Art. 337 of the
Constitution and educational institutions started by all minority communities
including the Anglo-Indians are protected by Arts. 29 and 30. The educational
institutions of the minorities are thus different from the educational
institutions established by the majority communities who require no special
privilege or protection and yet the Bill purports to put in the same class all
educational institutions although they have not the same characteristics and
place equal burdens on unequals. This indiscriminate application of the same
provisions to different institutions having different characteristics and being
unequal brings about a serious discrimination violative of the equal protection
clause of the Constitution. In 1042 support of this argument reliance is placed
on the decision of the American Supreme Court in Cumber'land Coal Co. v. Board
of Revision (1). That decision, in our judgment, has no application to the
facts of the case before us. There the taxing authorities assessed the owners
of coal lands in the city of Cumberland by applying a flat rate of 50 per cent.
not on the actual value of the properties but on an artificial valuation of $
260 per acre arbitrarily assigned to all coal lands in the city irrespective of
their location. It was not disputed that the value of properties which were
near the river-banks or close to the railways was very much more than that of
properties situate far away from the river-banks or the railways. The
artificial valuation of $ 260 per acre was much below the actual value of the
properties which were near the river-banks or the railways, whereas the value
of the properties situate far away, from the riverbank or the railways was
about the same as tile assigned value. 'The result of applying the equal rate of
tax, namely, 50 per cent. on the assigned value was that the owners of more
valuable properties had to pay much less than what they would have been liable
to pay upon the real value of those properties. Therefore, the method of
assessment worked out clearly to the disadvantage of the owners of properties
situate in the remoter parts of the city and was obviously discriminatory.
There the discrimination was an integral part of that mode of taxing. That is
not the position here, for there is no discrimination in the provisions of the
said Bill and consequently the principle of that decision can have no
application to this case. This does not, however, conclude the matter and we
have yet to deal with the main argument that the Bill does not lay down any policy
or principle for the guidance of the Government in the exercise of the wide
powers vested in it by the Bill.
Reference has already been made to the long
title and the preamble of the Bill. That the policy and purpose of a given
measure may be deduced from the long title and the preamble thereof has been
recognised (1) (1931) 284 U. S. 23; 76 L. Ed. I46,150.
1043 in many decisions of this Court and as
and by way of' ready reference we may mention our decision in Biswambar Singh
v. The State of Orissa (1) as an instances in point. The general policy of the
Bill as laid down in its title and elaborated in the preamble is " to
provide for the better Organisation and development of educational institutions
providing a varied and comprehensive educational service throughout the
State." Each and every one of the clauses in the Bill has to be
interpreted and read in the light of this policy. When, therefore, any
particular clause leaves any discretion to the Government to take any action it
must be understood that such discretion is to be exercised for the purpose of
advancing and in aid of implementing and not impeding this policy. It is,
therefore, not correct to say that no policy or principle has at all been laid
down by the Bill to guide the exercise of the discretion left to the Government
by the clauses in this Bill. The matter does not, however, rest there. The
general policy deducible from the long title and preamble of the Bill is
further reinforced by more definite. statements of policy in different clauses
thereof. Thus the power vested in the Government under cl. 3(2) can be
exercised only " for the purpose of providing facilities for general
education, special education and for the training of teachers ". It is
" for the purpose of providing such facilities " that the three
several powers under heads (a), (b) and (c) of that sub-clause have been
conferred on the Government. The clear implication of these provisions read in
the light of the policy deducible from the long title and the preamble is that
in the matter of granting permission or recognition the Government must be
guided by the consideration whether the giving of such permission or
recognition will enure for the better Organisation and development of
educational institutions in the State, whether it will facilitate the imparting
of general or special education or the training of teachers and if it does then
permission or recognition must be granted but it must be refused if it impedes
that purpose. It is true that the (1) [1954] S. C. R. 842, 855.
1044 word " may " has been used in
sub-el. (3), but, according to the well known rule of construction of statutes,
'if the existence of the purpose is established and the conditions of the
exercise of the discretion are fulfilled, the Government will be under an
obligation to exercise its discretion in furtherance of such purpose and no
question of the arbitrary exercise of discretion can arise. [Compare Julius v.
Lord Bishop of Oxford (1) ]. If in actual fact any discrimination is made by
the Government then such discrimination will be in violation of the policy and
principle deducible from the said Bill itself and the court will then strike
down not the provisions of the Bill but the discriminatory act of the
Government. Passing on to cl. 14, we find that the power conferred thereby on
the Government is to be exercised only if it appears to the Government that the
manager of any aided school has neglected to perform the duties imposed on him
and that the exercise of the power is necessary in public interest. Here again
the principle is indicated and no arbitrary or unguided power has been
delegated to the Government. Likewise the power, under el..
15(1) can be exercised only if the Government
is satisfied that it is necessary to exercise it for " standardising
general education in the State or for improving the level of literacy in any
area or for more effectively managing the aided educational institutions in any
area or for bringing the education of any category under their direct control
" and above all the exercise of the power is necessary " in the
public interest ". Whether the purposes are good or bad is a question of
State policy with the merit of which we are not concerned in the present
discussion. All that we are now endeavouring to point out is that the clause
under consideration does lay down a policy for the guidance of the Government
in the matter of the exercise of the very wide power conferred on it by that
clause. The exercise of the power is also controlled by the proviso that no
notification under that sub-clause shall be issued unless the proposal for the
taking over is supported by a resolution of the Legislative Assembly-a proviso
(1) (1880) 5 App. Cas. 214. 1045 which clearly indicates that the power cannot
be exercised by the Government at its whim or pleasure. Skipping over a few
clauses, we come to cl. 36. The' power given to the Government by cl. 36 to
make rules is expressly stated to be exercised " for the purpose of
carrying into effect the provisions of this Act ". In other words, the
rules to be framed must implement the policy and purpose laid down in its long
title and the preamble and the provisions of the other clauses of the said
Bill. Further, under el. 37 the rules have to be laid for not less than 14 days
before the Legislative Assembly as soon as possible after they are made and are
to be subject to such modifications as the Legislative Assembly may make during
the session in which they are so laid. After the rules are laid before the
Legislative Assembly they may be altered or amended and it is then that the
rules, as amended become effective. If no amendments are made the rules come
into operation after the period of 14 days expires. Even in this latter event
the rules owe their efficacy to the tacit assent of the Legislative Assembly
itself. Learned counsel appearing for the State of Kerala submitted in
picturesque language that here was what could be properly said to be
legislation at two stages and the measure that will finally emerge consisting
of the Bill and the rules with or without amendment will represent the voice of
the Legislative Assembly itself and, therefore, it cannot be said that an
unguided and uncontrolled power of legislation has been improperly delegated to
the Government. Whether in approving the rules laid before it the Legislative
Assembly acts as the Legislature of Kerala or acts as the delegate of the
Legislature which consists of the Legislative Assembly and the Governor is, in
the absence of the standing orders and rules of business of the Kerala
Legislative Assembly, more than we can determine. But all that we need say is
that apart from laying down a policy for the guidance of the Government in the
matter of the exercise of powers conferred on it under the different provisions
of the Bill including cl. 36, the Kerala Legislature has, by cl. 15 and el. 37
provided further safeguards. In this 1046 connection we must bear in mind what
has been laid down by this Court in more decisions than one, namely, that
discretionary power is not necessarily a discriminatory power and the abuse of
power by the Government will not be lightly assumed. For reasons stated above
it appears to us that the charge of unconstitutionality of the several clauses
which come within the two questions now under consideration founded on Art. 14
cannot be sustained. The position is made even clearer whether we consider the
question of the validity of el. 15(1) for, apart from the policy and principle
deducible from the long title and the preamble of the Bill and from that sub-clause
itself, the proviso thereto clearly indicates that the Legislature has not
abdicated its function and that while it has conferred on the Government a very
wide power for the acquisition of categories of schools it has not only
provided that such power can only be exercised for the specific purposes
mentioned in the clause itself but has also kept a further and more effective
control over the exercise of the power, by requiring that it is to be exercised
only if a resolution is passed by the Legislative Assembly authorising the
Government to do so. The Bill, in our opinion, comes not within category (iii)
mentioned in Ram Krishna Dalmia's case (1) as contended by Shri G. S. Pathak
but within category (iv) and if the Government applies the provisions in
violation of the policy and principle laid down in the Bill the executive
action will come under category (v) but not the Bill and that action will have
to be struck down. The result, therefore, is that the charge of invalidity of
the several clauses of the Bill which fall within the ambit of questions I and
3 on the ground of the infraction of Art. 14 must stand repelled and our
answers to both the questions I and 3 must, therefore, be in the negative.
Re. Question 2 : Articles 29 and 30 are set
out in Part III of our Constitution which guarantees our fundamental rights.
They are grouped together under the sub-head
" Cultural and Educational Rights ". The text and the marginal notes
of both the Articles show that their purpose is to confer those fundamental (1)
[1959] S.C.R. 279.
1047 rights on certain sections of the,
community which constitute minority communities. Under cl. (1) of Art. 29 any
section of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own has the right to
conserve the same.
It is obvious that a minority community can
effectively conserve its language, script or culture by and through educational
institutions and, therefore, the right to establish and maintain educational
institutions of its choice is a necessary concomitant to the right to conserve
its distinctive language, script or culture and that is what is conferred on
all minorities by Art. 30(1) which has herein before been quoted in full. This
right, however, is subject, to el. 2 of Art. 29 which provides that no citizen
shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race,
caste, language or any of them.
As soon as we reach Art. 30 (1) learned
counsel for the State of Kerala at once poses the question: what is a minority
? That is a term which is not defined in the Constitution. It is easy to say
that a minority community means a community which is numerically less than 50
per cent, but then the question is not fully answered, for part of the question
has yet to be answered, namely,50 per cent. of what ? Is it 50 percent of the
entire population of India or 50 per cent. of the population of a State forming
a part of the Union ? The position taken up by the State of Kerala in its
statement of case filed herein is as follows:
"There is yet another aspect of the
question that falls for consideration, namely as to what is a minority under
Art.
30(1) The state contends that Christians, a
certain section of whom is vociferous in its objection to the Bill on the
allegation that it offends Art. 30(1), are not in a minority in the State. It
is no doubt true that Christians are not a mathematical majority in the whole
State. They constitute about one-fourth of the population; but it does not
follow there from that they form a minority within the meaning of Art. 30 (1).
133 1048 The argument that they do, if pushed
to its logical conclusion, would mean that any section of the people forming
under fifty per cent. of the population should be classified as a minority and
be dealt with as such.
Christians form the second largest community
in Kerala State; they form, however, a majority community in certain area of
the State. Muslims form the third largest community in the State, about
one-seventh of the total population.
They also, however, form the majority
community in certain other areas of the State. (In (1951) 3 Assam 384, it was
held that persons who are alleged to be a minority must be a minority in the
particular region in which the institution involved is situated)." The
State of Kerala, therefore, contends that in order to constitute a minority
which may claim the fundamental rights guaranteed to minorities by Art. 29 (1)
and 30 (1) persons must numerically be a minority in the particular region in
which the educational institution in question is or is intended to be situate.
A little reflection will at once show that this is not a satisfactory test.
Where is the line to be drawn and which is the unit which will have to be taken
? Are we to take as our unit a district, or a subdivision or a taluk or a town
or its suburbs or a municipality or its wards ? It is well known that in many
towns persons belonging to a particular community flock together in a suburb of
the town or a ward of the municipality. Thus Anglo-Indians or Christians or
Muslims may congregate in one particular suburb of a town or one particular
ward of a municipality and they may be in a majority there. According to the
argument of learned counsel for the State of Kerala the Anglo-Indians or
Christians or Muslims of that locality, taken as a unit, will not be a "
minority " within the meaning of the Articles under consideration and will
not, therefore, be entitled to establish and maintain educational institutions
of their choice in that locality, but if some of the members belonging to the
Anglo-Indian or Christian community happen to reside in another suburb of the
same town or another ward of the same municipality 1049 and their number be
less than that of the members of other communities residing there, then those
members of the Anglo-Indian or Christian community will be a minority within
the meaning of Arts. 29 and 30 and will be entitled to establish and maintain
educational institutions of their choice in that locality. Likewise the
Tamilians residing in Karolbagh, if they happen to be larger in number than the
members of other communities residing in Karolbagh, will not be entitled to
establish and maintain a Tamilian school in Karolbagh, whereas the Tamilians
residing in, say, Daryaganj where they may be le-,is numerous than the members
of other communities residing in Daryaganj will be a minority or section within
the meaning of Arts. 29 and 30. Again Bihari labourers residing in the
industrial areas in or near Calcutta where they may be the majority in that
locality will not be entitled to have the minority rights and those Biharis
will have no educational institution of their choice imparting education in
Hindi, although they are numerically a minority if we take the entire city of
Calcutta or the State of West Bengal as a unit. Likewise Bengolis residing in a
particular ward in a town in Bihar where they may form the majority will not be
entitled to conserve their language, script or culture by imparting education
in Bengali. These are, no doubt, extreme illustrations, but they serve to bring
out the fallacy inherent in the argument on this part of the case advanced by
learned counsel for the State of Kerala. Reference has been made to Art. 350-A
in support of the argument that a local authority may be taken as a unit. The
illustrations given above will apply to that case also. Further such a
construction will necessitate the addition of the words " within their
jurisdiction " after the words " minority groups ". The last
sentence, of that Article also appears to run counter to such argument. We need
not, however, on this occasion go further into the matter and enter upon a
discussion and express a final opinion as to whether education being a State
subject being item 11 of List 11 of the Seventh Schedule to the Constitution
subject only to the provisions of entries 62, 63, 64 and 66 of List I and 1050
entry 25 of List III, the existence of a minority community should in all
circumstances and for purposes of all laws of that State be determined on the
basis of the population of the whole State or whether it should be determined
on the State basis only when the validity of a law extending to the whole State
is in question or whether it should be determined on the basis of the
population of a particular locality when the law under attack applies only to
that locality, for the -Bill before us extends to the whole of the State of
Kerala and consequently the minority must be determined by reference to the
entire population of that State. By this test Christians, Muslims and
Anglo-Indians will certainly be minorities in the State of Kerala. It is
admitted that out of the total population of 1,42,00,000 in Kerala there are
only 34,00,000 Christians and 25,00,000 Muslims. The Anglo-Indians in the State
of Travancore Cochin before the re Organisation of the States numbered only
11,990 according to the 1951 Census. We may also emphasise that question 2 itself
proceeds on the footing that there are minorities in Kerala who are entitled to
the rights conferred by Art. 30 (1) and, strictly speaking, for answering
question 2 we need not enquire as to what a minority community means or how it
is to be ascertained.
We now pass on to the main point canvassed
before us, namely, what are the scope and ambit of the right conferred by Art.
30 (1). Before coming to grips with the main argument on this part of the case,
we may (teal with a minor point raised by learned counsel for the State of
Kerala. He contends that there are three conditions which must be fulfilled
before the protection and privileges of Art. 30 (1) may be claimed, namely, (1)
there must be a minority community, (2) one or more of the members of that community
should, after the commencement of the Constitution, seek to exercise the right
to establish an educational institution of -his or their choice, and (3) the
educational institution must be established for the members of his or their own
community. We have already determined, according to the test referred to above,
that the Anglo-Indians, Christians and Muslims are minority communities in the
1051 State of Kerala. We do not think that the protection and privilege of Art.
30 (1) extend only to the educational institutions established after the date
our Constitution came into operation or which may hereafter be established.
On this hypothesis the educational
institutions established by one or I more members of any of these communities
prior to the commencement of the Constitution would not be entitled to the
benefits of Art. 30 (1). The fallacy of this argument becomes discernible as
soon as we direct our attention to Art. 19(1)(g) which, clearly enough, applies
alike to a business, occupation or profession already started and carried on as
to those that may be started and carried on after the commencement of the
Constitution.
There is no reason why the benefit of Art.
30(1) should be limited only to educational institutions established after the
commencement of the Constitution. The language employed in Art. 30(1) is wide
enough to cover both pre-Constitution and post-Constitution institutions. It
must not be overlooked that Art. 30(1) gives the minorities two rights, namely,
(a) to establish, and (b) to administer, educational institutions of their
choice. The second right clearly covers pre-Constitution schools just as Art.
26 covers the right to maintain pre-Constitution religious institutions.
As to the third condition mentioned above,
the argument carried to its logical conclusion comes to this that if a single
member of any other community is admitted into a school established for the
members of a particular minority community, then the educational institution
ceases to be an educational institution established by the particular minority
community. The argument is sought to be reinforced by a reference to Art.
29(2). It is said that an educational institution established by a minority
community which does not seek any aid from the funds of the State need not
admit a single scholar belonging to a community other than that for whose
benefit it was established but that as soon as such an educational institution
seeks and gets aid from the State coffers Art. 29(2) will preclude it from
denying admission to members of the other communities on grounds only of
religion, race, caste, 1052 language or any of them and consequently it will
cease to be an educational institution of the choice of the minority community
which established it. This argument does not appear to us to be warranted by
the language of the Article itself. There is no such limitation in Art. 30(1)
and to accept this limitation will necessarily involve the addition of the
words " for their own community " in the Article which is ordinarily not
permissible according to well established rules of interpretation. Nor is it
reasonable to assume that the purpose of Art. 29(2) was to deprive minority
educational institutions of the aid they receive from the State. To say that an
institution which receives aid on account of its being a minority educational
institution must not refuse to admit any member of any other community only on
the grounds therein mentioned and then to say that as soon as such institution
admits such an outsider it will cease to be a minority institution is
tantamount to saying that minority institutions will not, as minority
institutions, be entitled to any aid. The real import Of Art. 29(2) and Art.
30(1) seen-is to us to be that they clearly contemplate a, minority institution
with a sprinkling of outsiders admitted into it. admitting a nonmember into it
the minority institution does not shed its character and cease to be a minority
institution. Indeed the object of conservation of' the distinct language,
script and Culture of a minority may be better served by propagating the same
amongst non-members of the particular minority community. In our opinion, it is
not possible to read this condition into Art' 30(1) of the Constitution.
Having disposed of the minor point, referred
to above, we now take up the main argument advanced before us as to the content
of Art. 30(1). The first point to note is that the Article gives certain rights
not only to religious minorities but also to linguistic minorities. In the next
place, the right conferred on such minorities is to establish educational
institutions of their choice. It does not say that, minorities based on
religion should establish educational institutions for teaching religion only,
or that linguistie minorities 1053 should have the right to establish
educational institutions for teaching their language only. What the article
says and means is that the religious and the linguistic minorities should have
the right to establish educational institutions of their choice. There is no
limitation placed on the subjects to be taught in such educational
institutions. As such minorities will ordinarily desire that their children
should be brought up properly and efficiently and be eligible for higher
university education and go out in the world fully equipped with such
intellectual attainments as will make them fit for entering the public
services, educational institutions of their choice will necessarily include
institutions imparting general secular education also. In other words, the Article
leaves it to their choice to establish such educational institutions as will
serve both purposes, namely, the purpose of conserving their religion, language
or culture, and also the purpose of giving a thorough, good general education
to their children. The next thing to note is that the Article, in terms, gives
all minorities, whether based on religion or language, two rights, namely, the
right to establish and the right to ad -minister educational institutions of
their The key to the understanding of the true meaning and implication of the
Article under consideration are the words " of their own choice ". It
is said that the dominant word is " choice " and the content of that
Article is as wide as the choice of the particular minority community may make
it. The ambit of the rights conferred by Art:30(1) has, therefore, to be
determined on a consideration of the matter from the points of view of the
educational institutions themselves. The educational institutions established
or administered by the minorities or to be so established or administered by
them in exercise of the rights conferred by that, Article, may be classified
into three categories, namely, (1) those which do not seek either aid or
recognition from the State, (2) those which want aid, and (3) those which want
only recognition but not aid.
As regards the institutions which come within
the first category, they are, by cl. 38 of the Bill, outside 1054 the purview
of the Bill and, according to learned counsel for the State of Kerala, nothing
can be done for or against them under the Bill. They have their right under
Art. 30(1) and they can, says learned counsel, exercise that right to their
heart's content unhampered by the Bill. Learned counsel appearing for the
institutions challenging the validity of the Bill, on the other hand, point to
cl. 26 of the Bill to which reference has already been made. They say that if
the educational institutions, present or future, which come within the first
category happen to be located within an area of compulsion they will have to
close down for want of scholars, for all guardians residing within such area
are, by cl. 26, enjoined, on pain of penalty provided by el. 28, to-send their
wards only to Government schools or private schools which, according to the
definition, means aided or recognised schools. Clause 26, it is urged, abridges
and indeed takes away the fundamental right conferred on the minorities by Art.
30(1) and is, therefore, unconstitutional. The educational institutions coming
within the first category, not being aided or recognised are, by el. 38, prima
facie outside the purview of the Bill.
None of the provisions of the Bill including
those mentioned in the Question apply to them and accordingly the point sought
to be raised by them, namely, the infraction of their right under Art. 30(1) by
el. 26 of the Bill does not come within the scope of question 2 and we cannot,
on the present reference, express any opinion on that point.
As regards the second category, we shall have
to sub-divide it into two classes, namely, (a) those which are by the
Constitutional itself expressly made eligible for receiving grants, and (b)
those which are not entitled to any grant by virtue of any express provision of
the Constitution but, nevertheless, seek to get aid.
Anglo-Indian educational institutions come
within subcategory (a). An Anglo-Indian is defined in Art. 366(2).
The Anglo-Indian community is a well-known
minority community in India based on religion as well as language and has been
recognised 1055 as such by this Court in The State of Bombay v. Bombay
Education Society (1). According to the figures set out in the statement of
case filed by the" two Anglo-Indian institutions represented before us by
Shri Frank Anthony, about which figures there is no dispute, there are 268
recognised Anglo-Indian schools in India out of which ten are in the State of
Kerala. Anglo-Indian educational institutions established prior to 1948 used to
receive grants from the Government of those days. Article 337, presumably in
view of the special circumstances concerning the Anglo-Indian community and to
allay their natural fears for their future well being, preserved this bounty
for a period of ten years. According to that Article all AngloIndian
educational institutions which were, receiving grants up to the financial year
ending on March 31, 1948, will continue to receive the same grant subject to
triennial diminution of ten per cent. until the expiry of ten years when the
grant, to the extent it is a special concession to the Anglo-Indian community,
should cease. The second proviso imposes the condition that at least 40 per
cent. of the annual admissions must be made available to the members of communities
other than the Anglo-Indian community.
Likewise Art. 29 (2) provides, inter alia,
that no citizen shall be denied admission into any educational institution
receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them. These are the only constitutional limitations to the
right of the Anglo-Indian educational institutions to receive aid.
Learned counsel appearing for two
Anglo-Indian schools contends that the State of Kerala is bound to implement
the provisions of Art. 337. lndeed it is stated in the statement of case filed
by the State of Kerala that all Christian schools are aided by that State and,
therefore, the AngloIndian schools, being also Christian schools, have been so
far getting from the State of Kerala the grant that they are entitled to under
Art,. 337. Their grievance is that by introducing (1) [1955] 1 S.C.R. 568, 583.
134 1056 this Bill the State of Kerala is now
seeking to impose, besides the constitutional limitations mentioned in the
second proviso to Art. 337 and Art. 29 (2), further and more onerous conditions
on this grant to the Anglo Indian educational institutions although their
constitutional right to such grant still subsists. The State of Cls. 8(3),and 9
to13 besides other clauses attracted by cl. 3(5) of the Bill curtailing and,
according to them completly taking away, their constitutional right to
manageown affairs as a price for the grant to which under Art. 337, they are
entitled unconditionally except to the extent mentioned in the second proviso
to that article and in Art.
29 (2). Learned counsel for the State of
Kerala does not seriously dispute, as indeed he cannot fairly do, that so far
as the grant under Art. 337 is concerned the AngloIndian educational
institutions are entitled to receive the same without any fresh strings being
attached to such grant, although he faintly suggests that the grant received by
the Anglo-Indian educational institutions under Art. 337 is not strictly
speaking " aid " within the meaning of that word as used in the Bill.
We are unable to accept I that part of his argument as sound. The word "
aid" has not been defined in the Bill. Accordingly we must give this
simple English word its ordinary and natural meaning. It may, in passing, be
noted that although the word " grant " is used in Art.
337 the word " aid " is used in
Art. 29 (2) and Art. 30 (2), but there can be no question that the word "
aid " in these two Articles will cover the " grant " under Art.
337.
Before the passing of the said Bill the
Anglo-Indian educational institutions were receiving the bounty formerly from
the State of Madras or Travancore-Cochin and after its formation from the
present new State of Kerala. In the circumstances, the amount received by the
AngloIndian institutions as grant under Art. 337 must be construed as "
aid " within the meaning of the said Bill and these AngloIndian
educational institutions in receipt of this grant payable under Art. 337 must
accordingly be regarded as aided schools " within 1057 the meaning of the
definitions in cl. 2, sub-cls. (1) and (6). The imposition of stringent terms
as fresh or additional conditions precedent to this grant to the AngloIndian
educational institutions will, therefore, infringe their rights not only under
Art. 337 but also under Art. 30 (1). If the Anglo-Indian educational institutions
cannot get the grant to which they are entitled except upon terms laid down by
the provisions of the Bill then, if they insist on the right of administration
guaranteed to them by Art. 30 (1) they will have to exercise their option
tinder the proviso to el. 3 (4) and remain content with mere recognisation,
subject to certain terms therein mentioned which may also be an irksome and
intolerable encroachment on their right of administration. But the real point
is that no educational institution can in modern times, afford to subsist and
efficiently function without some State aid and, therefore, to continue their
institutions they will have to seek aid and will virtually have to surrender
their constitutional right of administering educational institutions of their
choice. the premises, they may, in our opinion, legitimately complain that so
far as the grants under Art. 337 are concerned, the provisions of the clauses
of the I-')ill mentioned in question 2 do in substance and effect infringe
their fundamental rights under Art. 30 (1) and are to that extent void. It is
urged by learned counsel for the State of Kerala that this Court should decline
to answer this question until rules are framed but if the provisions of the
Bill are obnoxious on the face of them, no rule can cure that defect. No or do
we think that there is any substance in the argument advanced by learned
counsel for Kerala that this Bill has ]lot introduced anything now and the
Anglo-Indian schools are not being subjected to anything beyond what they have
been submitting to under the Education Acts and Codes of Travancore or Cochin
or Madras.
In 1945 or 1947 when those Acts and codes
came into operation there were no fundamental rights and there can be no loss
of fundamental right merely on the ground of no exercise of it. There is no
case of estoppel here, assuming that there can be an estoppel against the 1058
Constitution. There can be no question, therefore, that the Anglo-Indian
educational institutions which are entitled to their (,rants under Art. 337 are
being subjected to onerous conditions and the provisions of the said Bill which
legitimately come within question 2 as construed by us infringe their rights
not only under Art. 337 but also violate their rights under Art. 30 (1) in that
they are prevented from effectively exercising those rights. it should be borne
in mind that in determining the constitutional validity of a measure or a
provision therein regard must be had to the real effect and impact thereof on
the fundamental right. See the decisions of this Court in Rashid Ahmad v.
Muunicipal Board Kairana's case (1), Mohd. Yasin v. The Town Area Committee,
Jalalabad's case (2) and The State of Bombay v. Bombay Education Society's case
(3).
Learned counsel for the State of Kerala next
urges that each and every one of the Anglo-Indian educational institutions are
getting much more than what they are entitled to under Art. 337 and that
consequently, in so far as-, these AngloIndian educational institutions are
getting more than what is due to them under Art. 337, they are, as regards the
excess, in the same position as other Anglo-Indian educational institutions
started after 1948 and the educational institutions established by other
minorities who have no right to aid under any express provision of the
Constitution but are in receipt of aid or seek to get it.
This takes us to the consideration of the
cases of the educational institutions which fall within sub-category (b)
mentioned above, namely, the institutions which are not entitled to any grant
of aid by virtue of any express provision of the Constitution but,
nevertheless, seek to get aid from the State.
We have already seen that Art. 337 of the
Constitution makes special provision for granting aid to Anglo-Indian
educational institutions established prior to 1948. There is no constitutional
provision for such grant of aid to educational institutions established by (1)
[1950] S.C.R. 566, 571. (2) [1952] S.C.R. 572, 577.
(3) [1955] 1 S.C.R. 568, 583.
1059 the Anglo-Indian community after 1948 or
to those established by other minority communities at any time. The other
minority communities or even the Anglo-Indian community in respect of post-1948
educational institutions have no constitutional right, fundamental or otherwise,
to receive any grant from the State. It is, however, well-known that in modern
times the demands and necessities of modern educational institutions to be
properly and efficiently run require considerable expense which cannot be met
fully by fees collected from the scholars and private endowments which are not
adequate and, therefore, no educational institution can be maintained in a
state of efficiency and usefulness without substantial aid from the State.
Articles 28(3), 29(2) and 30(2) postulate educational institutions receiving
aid out of State funds.
By the bill now under consideration the State
of Kerala also contemplates the granting of aid to educational institutions.
The said Pill, however, imposes stringent terms as conditions precedent to the
grant of aid to educational institutions. The provisions of the Bill have
already been summarised in detail in an earlier part of this opinion and need
not be recapitulated. Suffice it to say that if the said Bill becomes law then,
in order to obtain aid from State funds, an educational institution will have
to submit to the conditions laid down in cls. 3. 5, 6, 7, 8, 9, 10, 11, 12, 14,
15 and 20. Clause 36 empowers the Government to make rules providing for the
giving of aids to private schools. Learned counsel appearing for the
educational institutions opposing the Bill complain that those clauses
virtually deprive their clients of their rights under Art. 30(1).
Their grievances are thus stated: The gist of
the right of administration of a school is the power of appointment, control
and dismissal of teachers and other staff. But under the said Bill such power
of management is practically taken away. Thus the manager must submit annual
statements (el. 5). The fixed assets of the aided schools are frozen and cannot
be dealt with except with the permission of the authorised officer (cl. 6). No
educational agency of an aided 1060 school can appoint a manager of its choice
and the manager is completely under the control of the authorised officer, for
he must keep accounts in the manner he is told to do and to give periodical
inspection of them, and on the closure of the school the accounts must be made
over to the authorised officer (el. 7). All fees etc. collected will have to be
made over to the Government (el. 8 (3)). Government will take up the task of
paying the teachers and the non-teaching staff (cl. 9). Government will
prescribe the qualification of teachers (cl. 10). The school authorities cannot
appoint a single teacher of their choice, but must appoint persons out of the
panel settled by the Public Service Commission (cl. 11). The school authorities
must provide amenities to teachers and cannot dismiss, remove, reduce or even
suspend a teacher without the previous sanction of the authorised officer (cl. 12).
Government may take over the management on being satisfied as to certain
matters and can then acquire it outright (el. 14) and it can also acquire the
aided school, against on its satisfaction is to certain matters on which it is
easily possible to entertain different views (cl. 15). Clause 20 peremptorily
prevents a private school, which means an aided or recognised school, from
charging any fees for tuition in the primary classes where the number of
scholars are the highest, Accordingly they contend that those provisions do
offend the fundamental rights conferred on them by Art. 30(1).
Learned counsel appearing for the State of
Kerala advances the extreme contention that Art. 30 (1) Confers on the
minorities the fundamental right to establish and administer educational
institutions of their choice and nothing more.
They are free to exercise such rights as much
as they like and as long as they care to do so on their own resources.
But this fundamental right goes no further
and cannot possibly extend to their getting financial assistance from the
coffers of the State. If they desire or seek to obtain aid from the State they
must submit to the terms on which the State offers aid to all other educational
institutions established by other people just as a person 1061 will have to pay
15 naye paise if he wants to buy a stamp for an inland letter. Learned counsel
appearing for the two Anglo-Indian schools as well. as learned counsel
appearing for the Jamait-ul-ulemia-iHind, on the other hand, insist in their turn,
on an equally extreme proposition, namely, that their clients' fundamental
rights under Art. 30 (1) are, in terms, absolute and not only can it not be
taken away but cannot even be abridged to any extent. They draw our attention
first to Art. 19 (1) (g) which confers on the citizens the fundamental right to
carry on any business and then to cl. 6 of that article which permits
reasonable restrictions being imposed on that fundamental right and they
contend that, as there is no such provision in Art. 30 (1) conferring on the
State any police power authorising the imposition of social control, the
fundamental rights tinder Art. 30 (1) must be held to be absolute and cannot be
subjected to any restriction whatever. They reinforce their arguments by relying
on Arts. 28 (3), 29 (2) and 30 (2) which, they rightly submit, do contemplate
the grant of aid to educational institutions established by minority communities.
Learned counsel also strongly rely on Arts. 41 and 46 of the Constitution
which, as directive principles of State policy, make it the duty of the State
to aid educational institutions and to promote the educational interests of the
minorities and the weaker sections of the people. Granting of aid to
educational institutions is, according to learned counsel, the normal function
of the Government. The Constitution contemplates institutions wholly maintained
by the State, as also institutions receiving aid from the State. If, therefore,
the granting of aid is a governmental function, it must, they say, be
discharged in a reasonable way and without infringing the fundamental rights of
the minorities. There may be no fundamental right given to any person or body
administering an educational institution to get aid from the State and indeed
if the State has not sufficient funds it cannot distribute any. Nevertheless if
the State does distribute aid it cannot, they contend, attach such conditions
to it as will deprive the 1062 minorities of their fundamental rights under
Art. 30(1).
Attaching stringent conditions, such as those
provided by the said Bill and summarised above, is violative of the rights
guaranteed to the minorities by Art. 30(1).
Surrender of fundamental rights cannot, they
conclude, be exacted as the price of aid doled out by the State.
We are thus faced will a problem of
considerable complexity apparently difficult of solution. There is, on the one
hand the minority rights under Art. 30(1) to establish and administer
educational institutions of their choice and the duty of the Government to promote
education, there is, on the other side the obligation of the State under Art.
45 to endeavour to introduce free and compulsory education. We have to
reconcile between these two conflicting interests arid to give effect to both
if that is possible and bring about a synthesis between the two. The directive
principles cannot ignore or override the fundamental rights but must, as we
have said, sub serve the fundamental rights. We have already observed that Art.
30(1) gives two rights to the minorities, (1) to establish and (2) to
administer, educational institutions of their choice. The right to administer
cannot obviously include the right to mal administer. The minority cannot
surely ask for aid or recognition for an educational institution run by them in
unhealthy surroundings, without any competent teachers, possessing any
semblance of Qualification, and which does not maintain even a fair standard of
teaching or which teaches matters subversive of the welfare of the scholars.
It stands to reason, then, that the
constitutional right to administer an educational institution of their choice
does not necessarily militate against the claim of the State to insist that in
order to In grant aid the State may prescribe reasonable regulations to ensure
the excellence of the institutions to be aided. Learned Attorney -General
concedes that reasonable regulations may certainly be imposed by the state as a
condition for aid or even for recognition. There is no right in any minority,
other than Anglo-Indians, to get aid, but, he contends, that if the State
chooses to 1063 grant aid then it must not say-" I have money and I shall
distribute aid but I shall not give you any aid unless you surrender to me your
right of administration." The State must not grant aid in such manner as
will take away the fundamental right of the minority community under Art.
30(1). Shri ('X. S. Pathak appearing for some
of the institutions opposing the Bill agrees that it is open to the State to
lay down conditions for recognition, namely, that an institution must have a
particular amount of funds or properties or number of students or standard of
education and so forth and it is open to the State to make a law prescribing
conditions for such recognition or aid provided, however, that such law is
constitutional and does not infringe any fundamental right of the minorities.
Recognition and grant of aid, says Shri G. S.
Pathak, is the governmental function and, therefore, the State cannot impose
terms as condition precedent to the grant of recognition or aid which will be
violative of Art. 30(1).
According to the statement of case filed by
the State of Kerala, every Christian school in the State is aided by the State.
Therefore, the conditions imposed by the said Bill on aided institutions established
and administered by minority communities, like the Christians, including the
Anglo-Indian community, will lead to the closing down of all these aided
schools unless they are agreeable to surrender their fundamental right of
management. No educational institutions can in actual practice be carried on
without aid from the State and if they will not get it unless they surrender
their rights they will, by compulsion of financial necessities, be compelled to
give up their rights under Art.
30(1). The legislative powers conferred on
the legislatures of the States by Arts. 245 and 246 are subject to the other
provisions of the Constitution and certainly to the provisions of Part III
which confers fundamental rights which are, therefore, binding on the State
legislatures.
The State legislatures cannot, it is clear,
disregard or override those provisions merely by employing indirect methods of
achieving exactly the 135 1064 same result. Even the legislature cannot do
indirectly what it certainly cannot do directly. Yet that will be the effect of
the application of these provisions of the Bill and according to the decisions
of this Court already referred to it is the real effect to which regard is to
be had in determining the constitutional validity of any measure. Clauses 6, 7,
9, 10, 11, 12, 14, 15 and 20 relate to the management of aided schools. Some of
these provisions, e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may easily be
regarded as reasonable regulations or conditions for the grant of aid. Clauses 9,
11(2) and 12(4) are, however, objected to as going much beyond the permissible
limit. It is said that by taking over the collections of fees, etc., and by
undertaking to pay the salaries of the teachers and other staff the Government
is in reality confiscating the school fund and taking away the prestige of the
school, for none will care for the school authority.
Likewise cl. II takes away an obvious item of
management, for the manager cannot appoint any teacher at all except out of the
panel to be prepared by the Public Service Commission, which, apart from the
question of its power of taking up such duties, may not be qualified at all to
select teachers who will be acceptable to religious denominations and in
particular sub-el. (2) of that clause is objectionable for it thrusts upon
educational institutions of religious minorities teachers of Scheduled Castes
who may have no knowledge of the tenets of their religion and may be otherwise
weak educationally. Power of dismissal, removal, reduction in rank or
suspension is an index of the right of management and that is taken away by cl.
12(4). These are, no doubt, serious inroads on the right of administration and
appear perilously near violating that right. But considering that those
provisions are applicable to all educational institutions and that the impugned
parts of cls. 9, 11 and 12 are designed to give protection and security to the
ill paid teachers who are engaged in rendering service to the nation and
protect the backward classes, we are prepared, as at present advised, to treat
these clauses 9, 11(2) and 12(4) as permissible regulations which the 1065
State may impose on the minorities as a condition for granting aid to their
educational institutions. We,, however, find it impossible to support cls. 14
and 15 of the said Bill as mere regulations. The provisions of those clauses
may be totally destructive of the rights under Art.
30(1). It is true that the right to aid is
not implicit in Art. 30(1) but the provisions of those clauses, if submitted to
on account of their factual compulsion as condition of aid, may easily be
violative of Art. 30(1) of the Constitution. Learned counsel for the State of
Kerala recognises that cls. 14 and 15 of the Bill may annihilate the minority
communities' right to manage educational institutions of their choice but
submits that the validity of those clauses is not the subject matter of
question 2.
But, as already explained, all newly
established schools seeking aid or recognition are, by el. 3(5), made subject
to all the provisions of the Act. Therefore, in a discussion as to the
constitutional validity of cl. 3(5) a discussion of the validity of the other
clauses of the Bill becomes relevant, not as and by way of a separate item but
in determining the validity of the provisions of el. 3(5). In our opinion,
sub-el. 3 of el. 8 and cls. 9, 10, 11, 12 and 13 being merely regulatory do not
offend. Art. 30(1), but the provisions of sub-cl. (5) of cl. 3 by making the
aided educational institutions subject to cls. 14 and 15 as conditions for the.
grant of aid do offend against Art.
30(1) of the Constitution.
We now come to the, last category of
educational institutions established and administered by minority communities
which seek only recognition but not aid from the State. The extreme arguments
advanced with regard to recognition by learned counsel for the State of Kerala
and learned counsel for the two Anglo-Indian schools and learned counsel for
the Muslim institutions proceed on the same lines as those advanced respectively
by them on the question as to granting of aid, namely, that the State of Kerala
maintains that the minority communities may exercise their fundamental right
under Art. 30(1) by establishing educational institutions of their choice
wherever they like and administer the same in their own way 1066 and need not
seek recognition from the Government, but that if the minority communities
desire to have 'State recognition hey must submit to the terms imposed, as
conditions precedent to recognition, on every educational institution. The
claim of the educational institutions of the minority communities, on the other
hand, is that their fundamental right under Art. 30(1) is absolute and cannot
be subjected to any restriction whatever. Learned counsel for the two Anglo-Indian
schools appearing on this reference, relying on some decisions of the American
Supreme Court, maintains that a child is not the creature of the State and the
parents have the right to get their child educated in educational institutions
of their choice. Those American decisions proceed on the language of the due
process clauses of the Fifth and the Fourteenth Amendments and have no
application to a situation arising under our Constitution -and we need not,
therefore, discuss them in detail here.
Adverting to the two conflicting views
propounded before -us we repeat that neither of the two extreme propositions
can be sustained and we have to reconcile the two, if possible.
Article 26 gives freedom to religious
denominations or any section thereof, subject to public order, morality and
health, to establish and maintain institutions for religious and charitable
purposes. Article 29(1) gives protection to any section of -citizens residing
in the territory of India having a distinct language, script or culture of its
own the right to conserve the same. As we have already stated, the distinct
language, script or culture of a minority community can best be conserved by
and through educational institutions, for it is by education that their culture
can be inculcated into the impressionable minds of the children of their
community. It is through educational institutions that the language and script
of the minority community can be preserved, improved and strengthened. It is,
therefore, that Art. 3O(1) confers on all minorities, whether based on religionor
language, the right to establish and administer educational institutions of
their choice. The minorities, quite understandably, regard it as essential that
the education 1067 of their children should be in accordance with the teachings
of their religion and they hold, quite honestly, that such an education cannot
be obtained in ordinary schools designed for all the members of the public but
can only be secured in schools conducted under the influence and guidance of
people well versed in the tenets of their religion and in the traditions of
their culture. The minorities evidently desire that education should be
imparted to the children of their community in an atmosphere congenial to the
growth of their culture. Our Constitution makers recognised the validity of
their claim and to allay their fears conferred on them the fundamental rights
referred to above. But the conservation of the distinct language, script or
culture is not the only object of choice of the minority communities.
They also desire that scholars of their
educational institutions should go out in the world well and sufficiently
equipped with the qualifications necessary for a useful career in life. But
according to the Education Code now in operation to which it is permissible to
refer for ascertaining the effect of the impunged provision on existing state
of affairs, the scholars of unrecognised schools are not permitted to avail
themselves of the opportunities for higher education in the University and are
not eligible for entering the public services. Without recognition, therefore,
the educational institutions established or to be established by the minority
communities cannot fulfill the real objects of their choice and the rights
under Art. 30(1) cannot be effectively exercised.
The right to establish educational
institutions of their choice must, therefore, mean the right to establish real
institutions which will effectively serve the needs of their community and the
scholars who resort to their educational institutions. There is, no doubt, no
such thing as fundamental right to recognition by the State but to deny
recognition to the educational institutions except upon terms tantamount to the
surrender of their constitutional right of administration of the educational
institutions of their choice is in truth and in effect to deprive them of their
rights under Art. 30(1). We repeat that the legislative power is subject to the
1068 fundamental rights and the legislature cannot indirectly take away or
abridge the fundamental rights which it could not do directly and yet that will
be the result if the said Bill containing any offending clause becomes law.
According to the decisions of this Court referred to above, in judging the
validity of any law regard must be had to its real intendment and effect on the
rights of the aggrieved parties, rather than to its form. According to the
Education Codes certain conditions are prescribed-whether as legislative or as
executive measures we do not stop to enquire-as conditions for the grant of
recognition and it is said, as it was said during the discussion on the
question of aid, that the said Bill imposes no more burden than what these
minority educational institutions along with those of other communities are
already subjected to. As we have observed there can be no question of the loss
of a fundamental right merely by the non-exercise of it. There is no case here
of any estoppel, assuming that there can be any estoppel against the
Constitution. Therefore, the impugned provisions of the said Bill must be
considered on its merits.
By cl. 19 the following clauses, namely, 7
(except sub-cls. I and 3 which apply only to aided schools), 10 and 20 were
made applicable to recognised schools. We are prepared to accept the provisions
of sub-cls. 2, 4 to 9 of cl. 7 and the provisions of cl. 10 as permissible
regulations but it is difficult to treat el. 20 as merely regulatory. That
clause peremptorily requires that no fees should be charged for tuition in the primary
classes. There is no dispute that the number of pupils in the primary classes
is more than that in the other classes. The 1955-1956 figures of school going
children, as to which there is no dispute, show that of the age group) of 6 to
II cent per cent. of boys attend classes, while 91 per cent. of girls of that
age group do the same. There is a drop in attendance when we come to age group
11 to 14. In that age group 36.2 per cent. of boys and 29 per cent. of girls go
to school. It is clear, therefore, that although the rate of fees charged in
primary classes is lower than those charged in higher classes, the total amount
collected from scholars 1069 attending primary classes is quite considerable
and forms an appreciable part of the total income of the school. If this Bill
becomes law, all these schools will have to forego this fruitful source of
income. There is, however, no provision for counterbalancing the loss of fees
which will be brought about by el. 20 when it comes into force. There is no provision,
such as there is in el. 9 which applies to aided schools only, that the State
should make good that loss.
Therefore, the ,imposition of such
restriction against the collection of fees from any pupil in the primary
classes as a condition for recognition will in effect make it impossible for an
educational institution established by a minority community being carried on.
It is true that el. 36(2)(c) empowers the Government to make rules providing
for the grant of recognition to private schools and we are asked to suspend our
opinion until the said Bill comes into force and rules are actually made. But
no rule to be framed under el. 36(2)(c) can nullify the constitutional
infirmity of cl. 3(5) read with cl. 20 which is calculated to infringe the fundamental
rights of minority communities in respect of recognised schools to be
established after the commencement of the said Bill.
Learned counsel for the State of Kerala
referred us to the directive principles contained in Art. 45 which requires the
State to endeavour to provide, within a period of ten years from the
commencement of the Constitution, for free and compulsory education for all
children until they complete the age of fourteen years and with considerable
warmth of feeling and indignation maintained that no minorities should be
permitted to stand in the way of the implementation of the sacred duty
cast-upon the State of giving free and compulsory primary education to the
children of the country so as to bring them up properly and to make them fit
for discharging the duties and responsibilities of good citizens. To pamper to
the selfish claims of these minorities is, according to ].earned counsel, to
set back the hands of the clock of progress. Should these minorities, asks
learned counsel, be permitted to perpetuate the sectarian fragmentation of the
people 1070 and to keep them perpetually segregated in separate and isolated
cultural enclaves and thereby retard the unity of the nation ? Learned counsel
for the minority institutions were equally cloquent as to the sacred.
obligation of the State towards the minority communities. It is not for this
Court to question the wisdom of the supreme, law of the land. We the people of
India have given unto ourselves the Constitution which is not for any particular
community or section but for all. Its provisions are intended to protect all,
minority as well as the majority communities. There can be no manner of doubt
that our Constitution has guaranteed certain cherished rights of the minorities
concerning their language, culture and religion. These concessions must have
been made to them for good and valid reasons. Article 45, no doubt, requires
the State to provide for free and compulsory education for all children, but
there is nothing to prevent the State from discharging that solemn obligation
through Government and aided schools and Art. 45 does not require that
obligation to be discharged at the expense of the minority communities. So long
as the Constitution stands as it is and is not altered, it is, we conceive, the
duty of this Court to uphold the fundamental rights and thereby honour our
sacred obligation to the minority communities who are of our own. Throughout
the ages endless inundations of men of diverse creeds, cultures and
races-Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans
and Mughalshave come to this ancient land from distant regions and climes.
India has welcomed them all. They have met and gathered. given and taken and
got mingled, merged and lost in one body India's tradition has thus been
epitomised in the following noble lines:
" None shall be turned away From the
shore of this vast sea of humanity That is India ".
Indeed India has sent out to the world her
message of goodwill enshrined and proclaimed in our National Anthem:
Poems by Rabindranath Tagore.
1071 Day and night ,the voice goes out from
land to land, calling Hindus, Buddhists, Sikhs and Jains round thy throne and
Parsees, Mussalmans and Christians.
Offerings are brought to thy shrine by the
East and the West to be woven in a garland of love.
Thou bringest the hearts of all peoples into
the harmony of one life, Thou Dispenser of India's destiny, Victory, Victory,
Victory to thee."* It is thus that the genius of India has been able to
find unity in diversity by assimilating the best of all creeds and cultures.
Our Constitution accordingly recognises our sacred obligations to the
minorities. Looking at the rights guaranteed to the minorities by our
Constitution from the angle of vision indicated above, we are of opinion that
el.
7 (except sub-cls. I and 3 which apply only
to aided schools) and cl. 10 may well be regarded as permissible regulation
which the State is entitled to impose as a condition for according its
recognition to any educational institution but that el. 20 which has been
extended by el. 3 (5) to newly established recognised schools, in so far as it
affects -educational institutions established and administered by minority
communities, is violative of Art.
30 (1).
Re. Question 4 : This question raises the
constitutional validity of cl. 33 of the said Bill. That clause, which has
hereinbefore been set out in full, provides that notwithstanding anything
contained in the Code of Civil Procedure, 1908, or any other law for the time
being in force no Court shall grant any temporary injunction or make any
interim order restraining any proceeding which is being or about to be taken
under the provisions of the Bill when it becomes an Act. Article 226 of the
Constitution confers extensive jurisdiction and power on the High Courts in the
States. This jurisdiction and power extend throughout the territories in
relation to which the High Court exercises *Rabindranath Tagore.
136 1072 jurisdiction. It can issue to any
person or authority, including in appropriate cases any Government, within
those territories, directions, orders or writs of the nature mentioned therein
for the enforcement of the fundamental rights or for any other purpose. No
enactment of a State Legislature can, as long as that Article stands, take away
or abridge the jurisdiction and power conferred on the High Court by that
Article. The question is whether cl. 33 does so. The doubts which have arisen
with regard to cl. 33 are thus formulated in the order of reference :" AND
WHEREAS clause 33 of the said Bill provides that, notwithstanding anything
contained in the Code of Civil Procedure, 1908, or any other law for the time
being in force, no courts can grant any temporary injunction or make any
interim order restraining any proceedings which is being or about to be taken
under the Act;
AND WHEREAS a doubt has arisen whether the
provisions of the said clause 33, in so far as they relate to the jurisdiction
of the High Courts, would offend Article 226 of the Constitution, The State of
Kerala in their statement of case disowns in the following words all intentions
in that behalf :
" 52. Kerala State asks this Honourable
Court to answer the fourth question in the negative, on the ground that the
power given to High Courts by Art. 226remains unaffected by the said cl. 33.
53. Kerala State contends that the argument
that cl.33 affects Art. 226 is without foundation.
54. The Constitution is the paramount law of
the land, and nothing short of a constitutional amendment as provided for under
the Constitution can affect any of the provisions of the Constitution,
including Art. 226. The power conferred upon High Courts under Art. 226 of the
Constitution is an Over-riding power entitling them, under certain conditions
and circumstances, to issue writs, orders and directions to subordinate courts,
tribunals and authorities notwithstanding any rule or law to the contrary
Learned counsel for the State of Kerala submits that el. 33 must be read
subject to Arts. 226 and 32 of the 1073 Constitution. He relies on the well
known principle of construction that if a provision in a statute is capable of
two interpretations then that interpretation should be adopted which will make
the provision valid rather than the one which will make it invalid. He relies
on the words " other law for the time being in force " as positively
indicating that the clause has not the constitution in contemplation, for it
will be inapt to speak of the Constitution as a " law for the time being
in force ". He relies on the meaning of the word "Law "
appearing in Arts.
2, 4, 32 (3) and 367(1) of the Constitution
where it must mean law enacted by a legislature. He also relies on the
definition of " Indian Law " in s. 3(29) of the General Clauses Act
and submits that the word " Law " in cl. 33 must mean a law of the
same kind as the Civil Procedure Code of 1908, that is to say, a law made by an
appropriate Legislature in exercise of its legislative function and cannot
refer to the Constitution. We find ourselves in agreement with this contention
of learned counsel for the State of Kerala. We are not aware of any
difficulty-and none has been shown to us in construing cl. 33 as a provision
subject to the overriding provisions of Art. 226 of the Constitution and our
answer to question No. 4 must be in the negative.
In accordance with the foregoing opinion we
report on the questions as follows: Question No. 1 : No. Question No. 2: (i)
Yes, so far as Anglo-Indian educational institutions entitled to grant under
Art. 337 are concerned.
(ii) As regards other minorities not entitled
to grant as of right under any express provision of the Constitution, but are
in receipt of aid or desire such aid and also as regards AngloIndian
educational institutions in so far as they are receiving aid in excess of what
are due to them under Art.
337, clauses 8(3), and 9 to 13 do not offend
Art. 30(1) but clause 3(5) in so far as it makes such educational institutions
subject to clauses 14 and 15 do offend Art.
30(1). (iii) Clause 7 (except sub-cls. (1)
and (3) which applies only to aided schools), cl. 10 in 1074 so far as they
apply to recognised schools to be established after the said Bill comes into
force do not offend Art.
30(1) but cl. 3(5) in so far as it makes the
new schools established after the commencement of the Bill subject to el. 20
does offend Art. 30(1).
Question No. 3: No.
Question No. 4: No ; clause 33 is subject to
Art. 226 of the Constitution.
VENKATARAMA AIYAR J.-I agree that the answer
to Questions Nos 1, 3 and 4 should be as stated in the judgment of My Lord, the
Chief Justice. But as regards Question No. 2, 1 am unable to concur in the view
expressed therein that Cl.
(20) of the Bill is, in its application to
educational institutions of minorities, religious or linguistic, repugnant to
Art. 30(1) of the Constitution , and is, in consequence, to that extent void.
Clause (20) provides that:
" No fee shall be payable by any pupil
for any tuition in the primary classes in any Government or private
school." Now, the question is whether this Clause is violative of the
right which Art. 30(1) confers on all minorities based on religion or language,
to establish and administer educational institutions of their choice. Ex facie,
Cl. (20) does not prohibit the establishment or administration of such
institutions by the minorities; it only provides that in private schools no fee
shall be payable by students in the primary classes. On the terms of this
Clause, therefore, it is difficult to see how it offends Art. 30(1).
But it is contended by learned counsel who
appeared for the minorities that in practice no school could be run unless fees
are collected from the students, that therefore Cl. (20) must, if operative,
result in the extinction of the educational institutions of minorities, and
that was a direct invasion of their right to establish and maintain those
institutions. It is no doubt the law that in deciding on the constitutionality
of an enactment, regard must be had not merely to its language but also to its
effect on the rights of the parties, not merely to what it says but to what it
does. Even so, it is difficult to see how 1075 Cl. (20) can be said to infringe
Art. 30(1). It applies only to Government and private schools, and a private
school is defined in Cl. 2(6) as " meaning an aided or recognised school
". Clause (38) provides that :
" Nothing in this Act shall apply to any
school which is not a Government or a private school." The result is that
there is no prohibition against minorities, religious or linguistic, establishing
their own educational institutions and charging fees, so long as they do not
seek aid or recognition from the State. It is only when they make a demand on
the State for aid or recognition that the provisions of the Bill will become
applicable to them.
But it is argued that the right of the
minorities to establish their own educational institutions will be Tendered
illusory, if the students who pass out of them cannot sit for public
examinations held by the State or be eligible for recruitment to State
services, and that, it is said, is the effect of the non-recognition of the
institutions. It is accordingly contended that for the effective exercise of
the rights under Art. 30(1), it is necessary to imply therein a right in the
minorities to have those institutions recognised by the State. That is the
crucial question that has to be determined. If there is no right in the
minorities to have their institutions recognised by the State, then the
question whether Cl. (20) is ail invasion of that right would not arise for
decision.
It is only if we hold that such right is to
be implied in Art. 30(1) that the further question will have to be considered
whether Cl. (20) infringes that right. Now, whether minorities, religious or
linguistic, have a right to get recognition for their institutions under Art.
30(1) must depend on the interpretation to be put on that Article.
There is nothing in it about recognition by
the State of' educational institutions established by minorities, and if we are
to accept the contention of learned counsel appearing for them, we must read
into the statute words such as " and it shall be the duty of the State to
recognise such institutions." It is a rule of construction well
established that words are not to be 1076 added to a statute unless they are
required to give effect to its intention otherwise manifest therein, and that
rule must apply with all the greater force here, seeing that what we are
interpreting is a Constitution. Now, a reference to the relevant provisions of
the Constitution shows that such a right is not implicit in Art. 30(1). Article
28(1) provides that no religious instruction shall be provided in any
educational institution maintained wholly out of State funds. Article 28(3)
enacts that no person attending any educational institution recognised by the
State or receiving aid out of State funds shall be required to take part in
religious instruction. Under Art. 29(2), no person is to be denied admission
into any educational institution maintained by the State or receiving aid out
of State funds on grounds only of religion, race, caste, language or any of
them. In Art. 30(2), there is express provision that in granting aid no
discrimination should be made against any educational institution on the ground
that it is under the management of a minority based on religion or language. It
is clear from the above catena of provisions that the Constitution makes a
clear distinction between State-maintained, State-aided and State-recognised
educational institutions, and provides for different rights and obligations in
relation to them. If it intended that the minorities mentioned in Art. 30(1)
should have a fundamental right in the matter of the recognition of their
educational institutions by the State, nothing would have been easier than to
have said so. On the other hand, there is good reason to infer that it has
deliberately abstained from imposing on the State such an obligation.
The educational institutions protected by
Art. 30(1) might impart purely religious instruction. Indeed, it seems likely
that it is such institutions that are primarily intended to be protected by
Art. 30(1). Now, to compel the State to recognise those institutions would
conflict with the fundamental concept on which the Constitution is framed that
the State should be secular in character. If institutions which give only
religious education can have no right to compel recognition by the State 1077
under Art. 30(1), how could educational institutions established by minorities
and imparting secular education be held to possess that right? The contents of
Art. 30(1) must be the same as regards all institutions falling within its
ambit. Construing, therefore, Art.30(1) on its language, it is difficult to
support the conclusion that it implies any right in the minorities to have
their educational institutions recognised by the State.
The matter does not rest there. There is in
the Constitution a provision which seems clearly to negative the right, which
is claimed on behalf of the minorities.
Article 45 provides that:
" The State shall endeavour to provide,
within. a period of ten years from the commencement of this Constitution, for
free and compulsory education for all children until they complete the age of
fourteen years." It is precisely this obligation laid on the State by the
Constitution that is sought to be carried out in cl. (20) of the Bill. Now, it
should be clear that if the right of the minorities to establish and maintain
educational institutions under Art. 30(1) carries with it an implied right to
be recognised by the State, then no law of the State can compel them to admit
students free and therefore Art. 45 can never become operative, since what it
provides is free education for all children and not merely for children other
than those who attend institutions falling within Art. 30(1). It is contended
that the directive principles laid down in Part IV cannot override the
fundamental rights guaranteed by the Constitution, and that Art. 45 cannot be
applied so as to defeat the rights conferred on minorities under Art. 30(1).
This is quite correct. But the question here is, not whether a directive
principle can prevail over a fundamental right, but whether there is a
fundamental right in the minorities to have their educational institutions recognised
by the State, and when there is nothing express about it in Art. 30(1) and it
is only by implication that such a right is sought to be raised, it is
pertinent to ask, can we by implication infer a right which is inconsistent
1078 with the express provisions of the Constitution? Considering the question,
therefore, both on the language of Art. 30(1) and on the principle laid down in
Art. 45, 1 find myself unable to accept the contention that the right of the
minorities is not merely to establish educational institutions of their choice
but to have them recognised by the State. That must be sufficient to conclude
this question.
But then it was argued that the policy behind
Art. 30(1) was to enable minorities to establish and maintain their own
institutions, and that that policy would be defeated if the State is not laid
under an obligation to accord recognition to them. Let us assume that the
question of policy can be gone into, apart from the language of the enactment.
But what is the policy behind Art. 30(1) ? As I conceive it, it is that it
should not be in the power of the majority in a State to destroy or to impair
the rights of the minorities, religious or linguistic. That is a policy which
permeates all modern Constitutions, and its purpose is to encourage individuals
to preserve and develop their own distinct culture. It is well-known that
during the Middle Ages the accepted notion was that Sovereigns were entitled to
impose their own religion on their subjects, and those who did not conform to it
could be dealt with as traitors. It was this notion that was responsible during
the 16th and 17th Centuries for numerous wars between nations and for civil
wars in the Continent of Europe, and it was only latterly that it came to be
recognised that freedom of religion is not incompatible with good citizenship
and loyalty to the State, and that all progressive societies must respect the
religious beliefs of their minorities. It is this concept that is embodied in
Arts. 25, 26, 29 and 30. Article 25 guarantees to persons the right to freely
profess, practice and propagate religion. Article 26 recognises the right of
religious denominations to establish and maintain religious and charitable
institutions. Article 29(1) protects the rights of sections of citizens to have
their own distinct language, script or culture. Article 30(1) belongs to the
same category as Arts. 25, 26 and 29, 1079 and confers on minorities, religious
or linguistic, the right to establish and maintain their own educational
institutions without any interference or hindrance from the State. In other
words, the minorities should have the right to live, and should be allowed by
the State to live, their own cultural life as regards religion or language.
That is the true scope of the right conferred under Art. 30(1), and the
obligation of the State in relation thereto is purely negative. It cannot
prohibit the establishment of such institutions, and it should not interfere
with the administration of such institutions by the minorities. That right is
not, as I have already pointed out, infringed by Cl. (20). The right which the
minorities now claim is something more. They want not merely freedom to manage
their own affairs, but they demand that the State should actively intervene and
give to their educational institutions the imprimatur of State recognition.
That, in my opinion, is not within Art. 30(1). The true intention of that
Article is to equip minorities with a shield whereby they could defend
themselves against attacks by majorities, religious or linguistic, and not to
arm them with a sword whereby they could compel the majorities to grant
concessions. It should be noted in this connection that the Constitution has
laid on the State various obligations in relation to the minorities apart from what
is involved in Art. 30(1). Thus, Art. 30(2) provides that a State shall not,
when it chooses to grant aid to educational institutions, discriminate against
institutions of minorities based on language or religion. Likewise, if the
State frames regulations for recognition of educational institutions, it has to
treat all of them alike, without discriminating against any institution on the
ground of language or religion. The result of the constitutional provisions
bearing on the question may thus be summed up:
(1)The State is under a positive obligation
to give equal treatment in the matter of aid or recognition to all educational
institutions, including those of the minorities, religious or linguistic.
137 1080 (2)The State is under a negative
obligation as regards those institutions, not to prohibit their establishment
or to interfere with their administration.
Clause 20 of the Bill violates neither of
these two obligations. On the other hand, it is the contention of the
minorities that must, if accepted, result in discrimination by the State. While
recognised institutions of the majority communities will be subject to el.
(20), similar institutions of minority communities falling within Art.
30(1) will not be subject to it. The form
cannot collect fees, while the latter can. This surely is discrimination.
It may be stated that learned counsel for the
minorities, when pressed with the question that on their contention Art.
45 must become a dead letter, answered that
the situation could be met by the State paying compensation to the minority
institutions to make up for the loss of fees. That serves clearly to reveal
that what the minorities fight for is what has not been granted to them under
Art. 30(2) of the Constitution, viz., aid to them on the ground of religion or
language. In my opinion, there is no justification for putting on Art. 30(1) a
construction which would put the minorities in a more favoured position than
the majority communities.
I have so far discussed the scope of Art.
30(1) on its language and on the principle underlying it. Coming next to the
authorities, cited before us, the observations in City of Winnipeg v. Barrett:
City of Winnipeg v. Logan (1) would appear to support the contention of the
State of Kerala that Cl. (20) does not offend Art. 30(1). That was a decision
on s. 22 of the Manitoba Act, 1870, which is as follows:
" In and for the province, the said
legislature may exclusively make laws in relation to education, subject and
according to the following provisions:
(1)Nothing in any such law shall
prejudicially affect any right or privilege with respect to denominational
schools which any class of persons have by law or practice in the province at
the Union." Now, the facts are that there were in Manitoba denominational
schools run by Roman Catholics which (1) [1892] A.C. 445. 457 1081 were
maintained with fees paid by students and donation,,;
from the Church. In 1890, the Provincial
Legislature passed the Public Schools Act, and it enacted that all Protestant
and Roman Catholic school districts should be subject to the provisions of this
Act, and that all public schools should be free schools. A portion of the
legislative grant for education was to be allotted to public schools, and it
was provided that any school not conducted according to all the provisions of
the Act or the regulations of the Department of Education should not be deemed
to be a public school within the meaning of the Act and was not to be entitled
to participate in the grant. The validity of these provisions was challenged by
the Roman Catholic institutions on the ground that they contravened s. 22 of
the Manitoba Act, and infringed the rights and privileges guaranteed therein.
The Supreme Court of Canada upheld this contention; but this judgment was reversed
by the Privy Council, and it was held that the provisions of the Act did not
offend s. 22 of the Manitoba Act. Lord Macnagliten delivering the judgment of
the Board observed:
" Notwithstanding the Public Schools
Act, 1890, Roman Catholics and members of every other religious body in
Manitoba are free to establish schools throughout the province ; they are free
to maintain their schools by school fees or voluntary subscriptions; they are
free to conduct their schools according to their own religious tenets without
molestation or interference ".
In the result, it was held that the Act did
not infringe the rights of the denominational institutions under s. 22. These
observations appear to be very apposite to the present contention. The position
occupied by the minority institutions under Art. 30(1) is not dissimilar to
that of the Roman Catholic schools of Manitoba under s. 22 of the Act of 1870,
and the position created by Cl. (20) is precisely that which the 1890 Act
created in that Province.
It remains to notice the contention advanced
by Mr. Pritt that the basis on which the arguments of the counsel for the
minorities proceeded that students 1082 who pass out of unrecognised
institutions were at a ,disadvantage in the matter of eligibility to sit at
public examinations or to be admitted in the services to the State, was itself
without foundation, and that even if there was any substantial discrimination
in treatment between students who pass out of unrecognised schools and those
who pass out of Government or recognised schools, that was the result of
provisions of the Education Codes in force in the State, that it might be that
those provisions are -bad as infringing Art. 30(1) of the Constitution, but
that did not affect the validity of cl. (20) as that was inapplicable to
unrecognised institutions by virtue of cl. (38), and that, in consequence,
there was nothing in the Bill which could be said to offend Art. 30(1). The
rules of the Education Code are not really before us, and they are not the subjectmatter
of the present reference. In my view, there is much to be said in favour of the
contention that if Art. 30(1) is at all infringed, it is by the rules of the
Education Code and not by el. (20). But it is unnecessary to pursue this aspect
further, as I consider that even otherwise, the vires of Cl. (20) is not open
to question. In my view, that Clause does not offend Art. 30(1) and is intra
vires.
I agree that Cls. (14) and (15) must be held
to be bad, and the ground of my decision is this: It may be taken-and indeed it
is not disputed-that if the State grants aid to an educational institution, it
must have the power to see that the institution is properly and efficiently
run, that the education imparted therein is of the right standard, that the teachers
possess the requisite qualifications, that the funds are duly applied for the
purpose of the institution and the like. In other words, the State must have
large powers of regulation and of control over State-aided educational
institutions. These powers must be liberally construed, and the decision of the
Legislature as to what they should be is not to be lightly interfered with, as
it is presumed to know best the needs of the State, the nature and extent of
the evils rampant therein and the steps that should be taken to remedy them.
But the power to regulate does not, in general, comprehend 1083 the power to
prohibit, and the right to control the affairs of an institution cannot be
exercised so as to extinguish it. Now, Cls. (14) and (15) operate to put an end
to the right of private agencies to establish and maintain educational
institutions and cannot be upheld as within the power of the State to regulate
or control. The State is undoubtedly free to stop aid or recognition to a
school if it is mismanaged. It can, even as an interim measure, arrange in the
interests of the students to run that school, pending its making other
arrangements to provide other educational facilities. It can also resume
properties which had been acquired by the institutions with the aid. of State
grant. But it cannot itself compulsorily take over the school and run it as its
own, either on the terms set out in Cl. (14) or Cl. (15). That is not a power
which springs directly from the grant of aid. To aid is not to destroy.
Those clauses would, in my opinion, infringe
the right to establish and maintain institutions, whether such right is to be
founded on Art. 19(1)(g) or Art. 30(1).
I should add that in Question No. 2, the
question of the validity of Cl. (20) or Cls. (14) and (15) is not expressly
referred for our opinion. But it is said that the reference to Cl. 3(5)
attracts all the provisions of the Bill, because the establishment of new
institutions or schools is under that Clause subject to the provisions of the
Bill and the rules made there under. I have grave doubts whether on the terms
of the reference, we are called upon to express our opinion on the validity of
all the provisions of the Bill.
The reference is not generally on the vires
of the provisions of the Bill. It is limited to the validity of specified
provisions, Cls. 3(5), 8(3) and 9 to 13. There has been no satisfactory answer
to the question as to why if it was intended that we should pronounce on the
validity of all the provisions of the Bill, Cls. 8(3) and (9) to (13) should
have been specifically mentioned. Moreover, the reference is preceded by
detailed recitals as to the doubts which had been raised in the mind of the
President as to the validity of certain provisions, and there is no hint
therein that there was any doubt 138 1084 concerning the vires of provisions
other than those expressly mentioned. If the maxim "Expressum facit
cessare tacitum " can properly be invoked in the construction of
instruments, it must a fortiori be so, in interpreting a document drawn up by
the Union Government with great care and deliberation. And having regard to the
nature of the advisory jurisdiction under Art. 143, the reference should be
construed narrowly rather than broadly. But this discussion is academic, as
there have been full arguments on the validity of all the provisions, and we
are expressing our opinion thereon.
In the result, my answer to Question No. 2 is
that, excepting Cls. (14) and (15), the other provisions of the Bill do not
offend Art. 30(1) of the Constitution.
As regards schools of the Anglo-Indian
Communities, Art. 337 provides for aid being given to them on the conditions
and to the extent specified therein. That is outside Art. 30(1) and independent
of it, and I agree with My Lord, the Chief Justice, that the provisions of the
Bill are, to the extent they affect or interfere with the rights conferred by
that Article, bad.
Reference answered accordingly.
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