TMI Blog1954 (5) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... bad in that it contravened the provisions of article 29(2) and article 337 and directed the issue of a writ prohibiting the State from enforcing the order against the authorities of Barnes High School established and run by the Education Society of Bombay (hereinafter referred as the Society). The Society, which is the first respondent in Appeal No. 64 of 1954, is a Joint Stock Company incorporated under the Indian Companies Act, 1913. The other two respondents in that appeal Venble Archdeacon A. S. H. Johnson and Mrs. Glynne Howell are members and Directors of the Society. The Ven'ble Archdeacon A. S. H. Johnson is also the Secretary of the Society. Both of them are citizens of India and are members of the Anglo-Indian Community. The mother tongue of these respondents as of other members of the Anglo-Indian Community is English. In the State of Bombay there are in all 1403 Secondary Schools. 1285 of these Schools import education through the medium of some language other than English. The remaining 118 Schools have adopted English as the medium of instruction. Thirty out of these 118 Schools are Anglo- Indian Schools. In these thirty Schools there are three thousand Ang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Primary and Secondary stages of education. It was pointed out that since 1926-27 the University of Bombay permitted pupils to answer questions in modern Indian languages at the Matriculation examination in all subjects except English and other foreign languages and that this had resulted in 1285 out of 1403 schools in the State ceasing to use English as the medium of instruction. It was then stated that in 1948 instructions were issued to all English teaching schools that admissions to such Schools should ordinarily be restricted to pupils who did not speak any of the regional languages of the State or whose mother tongue was English. It was said that in 1951, after a review of the -position, a general policy had been laid down to the effect that admission to such schools should be restricted only to four categories of children therein mentioned. Reference was then made to the recommendations of the Secondary Education Commission that the mother tongue or the regional language should generally be the medium of instruction throughout the Secondary school stage, subject to the. provision for special facilities for linguistic minorities. In paragraph 4 of the Circular order it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n but that the Government would be prepared to consider, in consultation with the State Board of Anglo-Indian Education, whether in consequence of this order, any change was necessary in the existing procedure for the equitable distribution of the total grant among individual Anglo-Indian Schools. In conclusion the attention of the Headmasters was particularly invited to the concluding sentence of paragraph 7 of that circular order, and it was pointed out that the grants contemplated therein were intended to be in addition to, the grants available under article 337. Major Pinto, who is a citizen of India, belongs to the Indian Christian Community. He claims that his mother tongue, as that of a section of the Indian Christian Community, is English and that his entire family speak and use English at home. Two of his sons were then studying in the Barnes High School and were being educated through the medium of English. On 2nd February, 1954, Major Pinto accompanied by his daughter Brenda approached the Headmaster of Barnes High School seeking admission for her to the said School. He was informed by the Headmaster about the order issued by the State of Bombay on the 6th January, 1954, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court accepted the petitions and made an order as prayed. The State of Bombay has now come up in appeal against the said Orders. On the facts of these cases two questions arise namely (1) as to the right of students who are not Anglo-Indians or who are of Asiatic descent to be admitted to Barnes High School which is a recognized Anglo-Indian School which imparts education through the medium of English, and (2) as to the right of the said Barnes High School to admit non-Anglo- Indian students and students of Asiatic descent. The questions, thus confined to the particular facts of these cases, appear to us to admit of a very simple solution, as will be presently explained. Re (1) : As already indicated Barnes High School is a recognized Anglo-Indian School which has all along been imparting education through the medium of English. It receives aid out of State funds. The daughter of Major Pinto and the son of Dr. Gujar are citizens of India and they claim admission to Barnes High School in exercise of the fundamental right said to have been guaranteed to them by article 29(2) of the Constitution. The School has declined to admit either of them in view of the circular order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on only to Anglo Indians and citizens of nonAsiatic descent whose language is English. This inter. pretation finds support from the decision mentioned in clause 4 to withdraw all special and interim concessions in respect of admissioni to Schools referred to in clause 4. Facilities to linguistic minorities provided for in the circular order, therefore, may be read as contem plating facilities to be given only to the Anglo- Indians and citizens of non-Asiatic descent. Assuming, however, that under the impugned order a section of citizens, other than Anglo-Indians and citizens of non Asiatic descent, whose language is English, may also get admission, even then citizens,, whose language is not English, are certainly debarred by the order from admission to a School where English is used as 'a medium of instruction in all the cases. Article 29(2) ex facie puts no limitation or qualification on the expression citizen. Therefore, the construction sought to be put upon clause 5 does not apparently help the learned Attorney-General, for even on that construction the order will contravene the provisions of article 29(2). The learned Attorney-General then falls back upon two content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r minority groups. If it is urged that the citizens of the majority group are amply protected by article 15 and do not require the protection of article 29(2), then there are several obvious answers to that argument. The language of article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of article 29(2) extends against the State or anybody who denies the right conferred by it. Further article 15 protects all citizens against discrimination generally but article 29(2) is a -protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. In the next place article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or-aided by the State. To limit this right only to citizens belonging to minority gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anton encroachment on the liberty of the parents and guardians to direct the education and upbringing of their children and wards reliance has been placed on the following observations of McReynolds J. in Pierce v. Society of Sisters of Holy Names 268 U.S. 508; 69 L. Ed. 1070 at p. 1078 :- The fundamental theory of liberty upon which all Governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. It is also urged that the main, if not the sole, object of the impugned order is to discriminate against, and if possible to stifle the language of the Anglo-Indian Community in utter disregard of the constitutional inhibition. It is pointed out that to compel the Anglo- Indian Schools to open parallel classes in any Indian language will not necessarily facilitate the advancement of the Hindi language for the language adopted for such parallel classes may not be Hindi. Further the openi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt upheld the actual decision in the first mentioned Bombay case not on clause (1) but on clause(3) of article 15. These cases, therefore, have no direct bearing on article 29(2). The arguments advanced by the learned Attorney-General overlook the distinction between the object or motive underlying the impugned -order and the mode and manner adopted therein for achieving that object. The object or motive attributed by the learned Attorney-General to the impugned order is. undoubtedly a laudable one but its validity has to be judged by the method of Its operation and its effect on the fundamental right guaranteed by article 29(2). A similar question of construction arose in the case of Punjab Province v. Daulat Singh (1916) L.R. 73 I.A. 59 One of the questions in that case was whether the provision of the new section 13-A of the Punjab Alienation of Land Act was ultra vires the Provincial Legislature as contravening sub-section (1) of section 298 of the Government of India Act, 1935, in that in some cases that section would operate as a prohibition on the ground of descent alone. Beaumont J. in his dissenting judgment took the view that it was necessary for the Court to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of educationally backward classes of citizens but, that object notwithstanding, this Court struck down the order as unconstitutional because the modus operandi to achieve that object was directly based only on one of the forbidden grounds specified in the article. In our opinion the impugned order offends against the fundamental right guaranteed to all citizens by article 29(2). Re. 2:-Coming to the second question as to whether the impugned order infringes any constitutional right of Barnes High School, the learned AttorneyGeneral contends that although any section of the citizens having distinct language, script or culture of its own, has under article 29(1) the right to conserve the same and although all minorities, whether based on religion or language, have, under article 30(1), the right to establish and administer educational institutions of their choice, nevertheless such sections. or minorities cannot question the power of the State to make reasonable regulations for all Schools including a requirement that they should give instruction in a particular language which is regarded as the national language or to prescribe a curriculum for institutions which it supports. Undou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 'a girls' School,' 'a boys' school,' or 'an infants' school,' and a I kind' of school, within the meaning of that sub-section, is not a school where any special language is in common use. Where, however, a minority like the Anglo-Indian Community, which is based, inter alia, on religion and language, has the fundamental right to conserve its language, script and culture under article 29(1) and has the right to establish and administer educational institutions of their choice under article 30(1), surely then there must be implicit in such fundamental right the right to impart instruction in their own institutions to the children of their own Community in their own language. To hold otherwise will be to deprive article 29(1) and article 30(1) of the greater part of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it. We now pass on to article 337 which is in Part XVI under the heading Special Provisions relating to certain classes. Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order, of some change becoming necessary in the existing procedure for the equitable distribution of the total grant among Anglo-Indian Schools, although the impugned order was not intended to affect the total grant available for distribution to Anglo- Indian Schools under the Constitution. If, in the light of the covering circular, clause 7 is to ,be treated as operative, in the sense that a noncompliance with it will entail loss of the whole or part of this grant as a result of the change' in the existing procedure for the equitable distribution, then it undoubtedly adds to article 337 of the Constitution a further condition for the receipt by Anglo- Indian Schools, of the special grant secured to them by that article. On the other hand if clause 7 is to be treated merely as advice, which may or may not be accepted or acted upon,then clause 5 will amount to An absolute prohibition against the admission of pupils who are not Anglo-Indians or citizens of non-Asiatic descent into Anglo-Indian Schools and will compel the authorities of such Schools to commit a breach of their Constitutional obligation under article 337 and thereby forfeit their constitutional right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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