Rt. Rev. Bishop S. K. Patro & Ors
Vs. State of Bihar & Ors [1969] INSC 100 (2 April 1969)
02/04/1969 SHAH, J.C.
SHAH, J.C.
HIDAYATULLAH, M. (CJ) RAMASWAMI, V.
MITTER, G.K.
GROVER, A.N.
CITATION: 1970 AIR 259 1970 SCR (1) 172 1969
SCC (1) 863
CITATOR INFO:
D 1974 SC1389 (25,84,101,102,121,182,220) RF
1975 SC1821 (23,38,40)
ACT:
Constitution of India, Arts. 29 and
30-Educational institution founded at Bhagalpur by Christians in 1854 with help
of funds received from Landon Missionary Society Institution claiming benefit
of Art. 30 when asked by State Educational Authorities to constitute its
managing committee according to their directions-For claiming benefit of
Article whether an institution founded before adoption of Constitution has to
prove that it was established by members of minority who were residents or
citizens of India Difference between Arts. 29 and 30.
HEADNOTE:
The Government of the State of Bihar framed
certain rules under the Bihar High School (Control and Regulation of Administration)
Act 13 of 1960. Rule 41 provided that the said rules will not apply to schools
established and administered by minorities whether based on religion or language.
A school founded in 1854 at Bhagalpur and managed by the National Christian
Council of India was asked by the Bihar Government Educational authorities to
constitute its managing committee according to the directions given in the
order of the Secretary to the Government dated May 22, 1967.
This order was challenged before the High
Court in a writ petition. The High Court dismissed the writ petition holding
that -though the institution was administered by the Christian minority ill
India it had been established by the Church Missionary Society of London, and
therefore not having been established by members of a minority who were
residents of India or citizens of India it could not claim the benefit of Art.
30 Against he High Court's judgment appeals were filed in this Court and
_petitions under Art.
32 were also filed by persons interested.
HELD:(i) There was ample evidence on record,
which showed that although assistance was undoubtedly obtained from other
bodies including the Church Missionary Society London, the school was set up by
the Christian Missionaries and the local residents of Bhagalpur with the aid of
funds part of which were contributed by them. [178 F] (ii) The Christian
Missionaries who had settled in India and the local Christian residents of
Bhagalpur formed a minority community. It is true that the minority competent
to claim the, protection of Art. 30(1) and on that account the privilege of
establishing and maintaining educational institutions of its choice must be a
minority of persons residing in India. it does not confer on foreigners not
residing in India the right to set up educational institutions of their choice.
Persons setting up educational institutions must be resident in India and they
must form a well defined religious and linguistic minority.
It is however not predicated that protection
of the right guaranteed under Art. 30 may be availed of only, in respect of an
institution established before the Constitution, by persons born and resident
in British India. [179 D] Therefore the fact that the funds were obtained from
the United Kingdom for assisting in setting up and developing the School or
that the management of the institution was carried on by some persons who may
not have been born in India was not a ground for denying the, protection of
Art.
30(1). [180 C-D] 173 (iii). The High Court
was also wrong in holding that for claiming the benefit of Art. 30(1) all
persons or a majority of them who established the institution should have-been
"Indian Citizens" in the year 1854. There being no Indian
citizen-ship in the year 1854 independently of the citizenship of the British
Empire,, to incorporate in the, interpretation of Art. 30 in respect of an
institution established by a minority the condition that it must in addition be
proved to have been established by persons who would if the institution had
been set up after the Constitution have claimed Indian citizenship, is to
whittle down the protection of Art. 30 in a manner not warranted by the
provisions of the Constitution. [180 E-F] The protection of the rights under
Art. 29 may be claimed only by Indian citizens. Article 30 guarantees the right
of minorities to establish and administer educational institutions : the
article does not expressly refer to citizenship as a qualification for the
members of the minorities. [179 F-G] (iv) On the above findings the order
passed by the Educational authorities requiring the Secretary of the School to
take steps to constitute a managing committee in accordance with the order
dated May 22, 1967 must be declared invalid. [180-G] In re : The Kerala
Education Bill, 1957 [1959] S.C.R. 995, Rev. Father W. Proost & Ors. v. The
State of Bihar & Ors.
[1969] 2 S.C.R. 73 and Rev. Sidhajbhal Sabhai
& Ors. v. State of Bombay & Anr. [1963] 3 S.C.R. 837, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2346 of 1968.
Appeal from the judgment and order dated
September 10, 1968 of the Patna High Court in Civil Writ Jurisdiction Case No. 503
of 1967 -and Writ Petitions Nos. 430 and 431 of 1968.
Petitions under Art. 32 of the Constitution
of India for the enforcement of fundamental rights.
M. C. Setalvad and R. Gopalakrishnan for the
appellants (in C.A. go. 2346 of 1968).
R. Gopalakrishnan, for the petitioners (in
W.P. Nos. 430 and 431 of 1968).
D. Goburdhun, for the respondents (in C.A.
No. 2346 of 1968).
B. P. Jha for the respondents (in W.Ps. Nos.
430 and 431 of 1968).
The Judgment of the Court was delivered by
Shah, J. A primary school started in 1854 at Bhagalpur was later converted into
a Higher Secondary School.
The Legislature of the State of Bihar enacted
the Bihar High Schools (Control and Regulation of Administration) Act 13 of
1960 which by s. 8 invested the State Government with power to frame rules.
Section 8(1) provides 174 "The State Government may, after previous
publication and subject to the provisions of articles 29, 30 and 337 of the
Constitution of India, make rules not inconsistent with this Act for carrying
out the purposes of this Act." In 1964 rules were framed under the Act by
the State Government of Bihar. Rule 41 provides:
"These rules shall not apply to the
schools established and administered by the minorities whether based on
religion or language." By order dated September 4, 1963, the President of
the Board of Secondary Education approved the election of Bishop Parmar as
President and Rev. Chest as Secretary of the Church Missionary Society Higher
Secondary School. This order was set aside by the Secretary to the Government,
Education Department, by order dated May 22, 1967. On June 21, 1967, the
Regional Deputy Director of Education, Bhagalpur, addressed a letter to the
Secretary, Church Missionary Society School,, Bhagalpur, inviting his attention
to the order dated May 22, 1967, and requested him to take steps to constitute
a Managing Committee of the School "in accordance with that order".
A petition was then filed in the High Court
of Patna by four petitioners (who are appellants in Appeal No. 2346 of 1968)
for a writ quashing the order dated May 22, 1967, and for an order restraining
the respondents-the State of Bihar the Secretary to the Government of Bihar,
Government of Education and the educational authorities of the State-from
interfering with the, right of the petitioners to control, administer and
manage the affairs of the School. The High Court of Patna dismissed the
petition. The High Court held that the primary School at Bhagalpur was
established by the Church Missionary Society of London; that the School had
developed into the present Church Missionary Society Higher Secondary School;
and that the school was administered in recent times by the Church
Missionary-Society of the Bhagalpur Diocese; and that the School not being an
education institution established by a minority, protection was not afforded
thereto by Art. 30 of the Constitution.
Against the order dismissing the petition,
Civil Appeal No. 2346 of 1968 has been filed in this Court.
Two other petitions are filed in this Court
claiming relief on the footing that by the order dated May 22, 1967, of the
Government of Bihar the fundamental right of the Christian minority to maintain
an educational institution of its choice and guaranteed by Art. 30(1) is
infringed. Writ Petition No. 430 of 1968 175 is filed by the Principal, Church
Missionary Society Higher Secondary School, Bhagalpur, the Secretary, Bihar
Christian Council, Gaya, the Secretary, Santhalia Christian Council, Bhagalpur,
and the Secretary National Christian Council of India, Nagpur. Writ Petition
No. 431 of 1968 has been filed by Rev. M. P. Hembrom, Parish Priest, Church
Missionary Society, Bhagalpur, two of whose children are being educated at the
School. These petitions are heard with Civil Appeal No. 2346 of 1968.
The High Court found on a consideration of
the evidence that the Church Missionary Society Higher Secondary School is a
"denominational institution", that "scripture classes are held
in the School and lessons on the life and teaching of Lord Jesus Christ are
taught" and examinations are held in the subject for all students, that
every morning, before the classes begin, the prayers from the prescribed Church
Books are offered by the students and the members of the staff, and each
meeting of the Managing Committee of the Schools begins and closes with prayers
from the "Book of Common Prayer". Correctness of the finding recorded
by the High Court is not challenged before us. The finding recorded by the High
Court that the School originally started in the year 1854 as a primary school
had since developed into the present Church Missionary Society Higher Secondary
School is also not challenged before us.
The only question which falls to be
determined is whether the petitioners in the two writ petitions and the
appellants in appeal No. 2346 of 1968 are entitled to claim the protection-of
Art. 30 of the Constitution on the ground that the Church Missionary Society
Higher Secondary School at Bhagalpur is an educational institution of their
choice established by a minority.
Article 30 of the Constitution by Cl. (1)
provides "All minorities whether based on religion or language, shall have
the right to establish and administer educational institutions of their
choice." The guarantee of protection under Art. 30 is not restricted to
educational institutions established after the Constitution : institutions
which had been established before the Constitution and continued to be
administered by minorities either based on religion or language qualify for the
protection of the right of minorities declared by Art.
30 of the Constitution. In Re. The Kerala
Education Bill, 1957(1) Das, C.J., observed at p. 1051 "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
(1)[1959] S.C.R. 995.
176 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." It was the case of the State and the parties intervening in
the writ petition before the High Court that the School was established by the
Church Missionary Society, London, which they claimed was a Corporation with an
alien domicile and "such a Society was not a minority based on religion or
language" within the meaning of Art. 30 of the Constitution., On behalf of
the appellants in the appeal and the petitioners in the two writ petitions
filed in this Court it is claimed that the School was started in 1854 by the
local Christian residents of Bhagalpur. They concede that the Church Missionary
Society of London did extend financial aid in the establishment of the School,
but they contend that on that account, the School did not cease to be an
educational institution established by -a religious minority in India.
There is on the record important evidence
about establishment in 1854 of the Lower Primary School at Bhagalpur. It is
unfortunate that sufficient attention was not directed to that part of the
evidence in the High Court. The "Record Book" of the Church
Missionary Association at Bhagalpur which is Annexure 'D' to Writ Petition No.
430 of 1968 furnishes evidence of vital importance having a bearing on the
establishment of the School. It contains copies of letters written from
Bhagalpur and minutes of meetings held and the resolutions passed by the Local
Council of Bhagalpur. On June 1, 1948, Rev. Vaux informed the Calcutta
Corresponding Committee of the Church Missionary Society by a letter that if
the Calcutta Society were to establish a School at Champanagar, "local
assistance shall not be wanting to the extent of 1000 or 1200 rupees a year,
besides providing a school house and residence for the master", and that
"At first, for breaking up the fallow ground and setting the school a
going the presence of a Missionary of tact and experience may be
necessary". On June 26, 1948, Rev. Vaux by another letter informed the
Calcutta Corresponding Committee that a special service was held in the Church
on June 22, 1848 and thereafter on Friday June 23, 1848, a meeting was held
and. contributions were invited from persons present including Indian
residents, -that monthly subscriptions of Rs. 202 for the "salary of
masters" and other expenses were promised, and that an amount of Rs. 1,647
was 177 donated for building the school and residence for the master; that the
general impression made was so favorable to the cause that he felt justified in
assuring the Calcutta Committee that the local Committee were in a position to
guarantee certain requisites for making a commencement such as payment of the
salary of the School Master and Mistress and the building of a house for their
accommodation which may afterwards be enlarged so as to form a suitable
residence for a Mission.
By letter dated July 10, 1948 the Secretary,
Calcutta Corresponding Committee, informed Rev. Vaux that they were looking out
for a prominent person to commence missionary operations by opening a School
"which is indeed a common way of be-inning a Mission". In a letter
dated December 22, 1848, written from Bhagalpur it was stated "The Society
will provide for the Missionary's salary and trust that local funds will
provide a residence for him of a suitable kind. All other Mission requirements,
such as school teachers etc., should be left to be provided on the spot."
Then there are minutes of the resolutions passed at a meeting held on October
24, 1849 by the Parent Committee and another resolution dated October 25, 1851,
of the Local Committee, to raise funds, and to determine upon disbursements
with the advice of the Missionary to promote the objects of the Mission. In the
minutes of the meeting dated October 25, 1851, it is recorded that a statement
of account of receipts and disbursements upto September 30, 1851 including
expenses of a boy's school and salary of masters, "hire of school rooms
and furniture" and expenses of a girls' school "including cost of
working materials upto date" was submitted.
In a letter from the Treasurer of the
Committee dated May 10,1852, it was stated :
"One of the conditions on which the
Church Missionary Society consented to send a Missionary to this station was
that he should be provided by local friends with a suitable residence. As this
appeared to be as in a qua non, subscriptions were raised for the purpose of
building a Mission house; . . . To this end I propose, that, as soon as the
balance in hand amounts to, Rs. 1 1,000 that sum be transferred by me as your
Treasurer to the Calcutta Corresponding Committee of the C.M.S.; to be held by
them in trust as the "Bhagalpur Mission Fund". The interest of this
sum will be more than sufficient to pay the rent of the present Mission
premises, viz.
Rs. 45 per month; and accordingly, as soon as
the transfer is effected responsibility. The whole 178 of our remaining local
funds and future collections can then be devoted to the support of schools,
orphanage &., and we shall be better able to regulate our expenditure by
our means, and increase our efforts in proportion to our wants." At a
meeting of the Local Committee held on March 22, 1853, it was resolved that the
Committee expresses their satisfaction at the progress made by Mr. Droese in
building the Bungalow and that the Treasurer be authorised to pay to Mr. Droese
,out of the Reserve Fund the further sum of Rs. 3,500 required to complete the
building.
At a meeting of the Local Committee held on
August 23, 1856, it was recorded that on an area of 21 big has of land for
which a perpetual lease was obtained on November 26, 1853, the Association had
built a Bungalow and offices for the Missionary, houses for native Christians
and an orphanage.
At a meeting held on October 17, 1856, it was
resolved that the Committee desired sincerely to thank Mr. Brown for
"kind, active and liberal interest he had taken in the Mission from the
first and particularly for making over to the Society mission property which
his own exertions had in great measure secured".
It appears from this correspondence and the
resolutions and the discussions at the meetings that a permanent home for the
Boy's School was set up in 1854 on property acquired by local Christians and in
buildings erected from funds collected by them. The institution along with the
land on which it was built and the balance of money from the local fund were
handed over to the Church Missionary Society in 1856. It is also true that
substantial assistance was obtained from the Church Missionary Society, London.
But on that account it cannot be said that the School was not established by
the local Christians with their own efforts and was not an educational
institution established by a minority.
The Church Missionary Society Higher Secondary
School is an educational institution administered by a minority : that was so
found by the High Court and is not now in controversy. The High Court held that
the primary school started in the year 1854 was started by the Church
Missionary Society, London, and such a Society cannot be said to be a citizen
of India and that in any event the persons who constituted the Society were
aliens and on that account it cannot be said that the Church Missionary Society
Higher Secondary School is an educational institution established by a
minority. It is unnecessary to dilate upon these matters at length, for, in our
judgment, the conclusion that the :School was established not by the local
Christians of Bhagalpur, 179 but by the Church Missionary Society, London, is
not justified on the evidence. The extracts from the Record Book clearly show
that the local residents of Bhagalpur had taken a leading role in establishing
and maintaining the school. Assistance was undoubtedly obtained from other
bodies including the Church Missionary Society, London. But the School was set
up by the Christian Missionaries and the local residents of Bhagalpur with the aid
of funds part of which were contributed by them.
It is unnecessary to enter upon an enquiry
whether all the persons who took part in establishing the School in 1854 were
"Indian citizens". Prior to the enactment of the Constitution there
was no settled concept of Indian citizenship, and it cannot be said that
Christian Missionaries who had settled in India and the local Christian
residents of Bhagalpur did not form a minority It is true that the minority
competent to claim the protection of Art. 30 (1) and on that account the privilege
of establishing and maintaining educational institutions of its choice must be
a minority of persons residing in India. It does not confer upon foreigners not
resident in India the right to set up educational institutions of their choice.
Persons setting up educational institutions
must be resident in India and they must form a well defined religious or
linguistic minority. It is not however predicated that protection of the right
guaranteed under Art. 30 may be availed of only in respect of an institution
established before the Constitution by persons born and resident in British India.
It is necessary to bear in mind the
difference in the phraseology used in Arts. 29 and 30 of the Constitution. By
Art. 29(1) any section of the citizens residing in the territory of India or
any part thereof having a distinct language, script or 'Culture of its own
shall have the right to conserve the same, and cl. (2) guarantees 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. The protection of the rights under Art.
29 may be claimed only by Indian citizens. Article 30 guarantees the right of
minorities to establish and administer educational institutions : the article
does not expressly refer to citizenship as a qualification for the members of
the minorities. In Rev. Father W. Proost and Ors. v. The State of Bihar and
Ors. (1) this Court observed :
"In our opinion the width of Art. 30(1)
cannot be cut down by introducing in it considerations on which Article 29(1)
is based. The latter article is a general protection which is given to
minorities to conserve their (1) [1969] 2 S.C.R. 73.
180 language, script or culture. ......The
two articles create two separate rights, although it is possible that they may
meet in a given case." The Court then observed, after referring to the
judgment in Rev. Sidhajbhai Sabhai and Others v. State of Bombay and Another(1)
that "...... the language of Article 30(1) is wide and must receive full
meaning. We are dealing with protection of minorities and attempts to whittle
down the protection cannot be allowed.
We need not enlarge the protection but we may
not reduce a protection naturally flowing from the words. Here the protection
clearly flows from the words and there is nothing on the basis of which aid can
be sought from Article 29(1)." The fact that funds were obtained from the
United Kingdom for assisting in setting up and developing the School or that
the management of the institution was carried on by some persons who may not
have been born in India is, not a ground for denying the protection of Art.
30(1).
We are also unable to agree with the High
Court that before any protection can be claimed under Art. 30(1) in respect of
the Church Missionary Society Higher Secondary School it was required to be
proved that all persons or a majority of them who established the institution
were "Indian citizens" in the year 1854. There 'being no Indian
'Citizenship in the year 1854 independently of the citizenship of the British
Empire, to incorporate in the interpretation of Art. 30 in respect of an
institution established by a minority the condition that it must in addition be
proved to have been established by persons who would, if the institution had
been set up after the Constitution, have claimed Indian citizenship, is to
whittle down the protection of Art. 30 in a manner not warranted by the
provisions of the Constitution.
The order passed by the Educational
authorities requiring the Secretary of the Church Missionary Society Higher
Secondary School to take steps to constitute a Managing Committee in accordance
with the order dated May 22, 1967, is declared invalid.
The appeal is allowed and the rule in the two
writ petitions is made absolute. There will be no order as to costs in the two
writ petitions. Since it appears that all the requisite materials were not
placed prominently before the High Court in the writ petition, out of which
Appeal No. 2346 of 1968 has arisen, we direct that in the appeal the parties
shall bear their own costs throughout.
G.C.
Appeal allowed.
(1) [1963] 3.S.C.R.837.
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