TMI Blog1958 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... sident 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 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y without previous ascertainment of the exact facts to which it is to be applied. 4. Reference may, with advantage, be also made to the following observations of Lord Sankey L. C. in In Re The Regulation and Control of Aeronautics In Canada ([1932] A.C. 54, 66) :- ......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. 5. 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 section 213(1), authorised the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 213 would furnish a good root of title such as might spring from a declaration of this Court in proceedings taken under section 204(1) of the Act by one Government against the other. 7. In In re Levy of Estate Duty ([1944] F.C.R. 317, 320, 321, 350) 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 section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act case, ([1951] S.C.R. 747) 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise, necessary for such employment or appointment. Article 19(1) guarantees to citizens the right, amongst others, to freedom of speech and expression (sub-clause (a)) and to practise any profession, or to carry on any occupation, trade or business (sub-clause (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 clause (3) of the same Article no person attending any educational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed to examine the provisions of the said Bill in order to get a clear conspectus of it. 15. 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 provide for the better organisation and development 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 clause 1 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 definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss established or opened otherwise than in accordance with such provisions shall not be entitled to be recognised by the Government. 17. 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-clause (2) of that clause, the withholding of the maintenance grant. Clause 6 imposes restrictions on the alienation of any property of an aided school, except with the previous permission in 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-clause (1). Sub-clause (3) renders any transaction in contravention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Government is authorised, under sub-clause (3), to pay to the manager a maintenance grant at such rates as may be prescribed and under sub-clause (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 clause 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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-clause (5) the Government is to pay such rent as may be fixed by the Collector in respect of the properties taken possession of. On taking over any 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-clause (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 clause 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 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. We may skip over a few clauses, not material for our purpose, until we come to clause 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. 21. Clause 36 confers power on the Government to make rules for the purposes 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Kerala Education Bill, or any provisions thereof, offend article 226 of the Constitution in any particulars or to any extent ? 24. On receipt of the reference this Court issued notices to persons and institution 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 has 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. 25. It will be necessary, at this stage, to clear the ground by disposing of a point as to the scope and ambit of questions 1 and 2. It will be noticed that both these questions ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even if clause 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, neither of the two extreme positions can be seriously maintained. 26. 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-clause (5) of clause 3 was to attract only those provisions of the Bill which related only to the establishment of a new school and if sub-clause (3) of clause 3 was the only provision in that behalf, apart from the rules to be framed under clause 36(2)(a), then as a matter of intelligible drafting it would have been more appropriate to say, in sub-clause (3) of clause 3, that the establishment of new schools shall be subject to the provisions of this clause and the rules to be made under clause 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, clause 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment 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 clause 3(5) attracts only clause 3(3) will be putting a too narrow construction on sub-clause (5) not warranted by the wide language thereof or by the language of clause 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-clause (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-clause (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 to any other clause in support of their case. If clause 3(5) did not expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional validity of sub-clause (5) of clause 3 of the said Bill read with clause 36 thereof on the ground that the same violates the equal protection of the laws guaranteed to all persons by Art. 14 of the Constitution. Question 3 attacks clause 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 under both the questions is the same, it will be convenient to deal with them together. 29. 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 ([1950] S.C.R. 869). In Budhan Choudhry v. The State of Bihar 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 v. Sri Justice S. R. Tendolkar ([1959] S.C.R. 279), the position was reviewed at length by this Court by its judgment delivered on March 28, 1958, and the several principles firmly established by the decisions of this Court were set out seriatim in that judgment. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Dalmia's case ([1959] S.C.R. 279) 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 re-opening 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. 31. Coming now to the main argument founded on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aided 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 therefrom 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. 34. 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 35. 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 institution started by all minority communities including the Anglo-Indians are protected by Arts. 29 and 30. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 36. 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 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 ([1954] S.C.R. 842, 855) as an instance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple is indicated and no arbitrary or unguided power has been delegated to the Government. Likewise the power, under clause 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 which clearly indicates that the power cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 when we consider the question of the validity of clause 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 ([1959] S.C.R. 279) as contended by Shri G. S. Pathak but within category (iv) and if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement 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 therefrom that they form a minority within the meaning of Art. 30(1). 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 I.L.R. (1951) 3 Assam 384, it was held that persons who are alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Bengalis 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. 350A in support of the argument that a local authority may be taken as a unit. The illustration give 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communities in the 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. 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. 41. 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 linguistic minorities should have the right to establish educational institutions for teaching their language only. What the article say 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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 clause 26, enjoined, on pain of penalty provided by clause 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 clause 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 clause 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. 43. As regards the second category, we shall have to sub-divide it into two classes, namely, (a) those which are by the Constitution itself exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rala the grant that they are entitled to under Art. 337. Their grievance is that by introducing 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 is expressly applying to them the stringent provisions of cls. 8(3), and 9 to 13 besides other clauses attracted by clause 3(5) of the Bill curtailing and, according to them, completely taking away, their constitutional right to manage their own 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 Anglo-Indian 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-In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 do in substance and effect infringe their fundamental rights under Art. 30(1) and are to that extent void. It is urged the 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. Nor do we think that there is any substance in the argument advanced by learned counsel for Kerala that this Bill has not introduced anything new 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 non-exercise of it. There is no case of estoppel here, assuming that there can be an estoppel against the Constitution. There can be no question, therefore, that the Anglo-Indian educational institutions which are entitled to their grants under Art. 337 are being subjected to onerous conditions and the provisions of the said Bill which legitimately come within questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 Bill, 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 els. 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial 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 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-ulema-i-Hind, 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. 30(1) which confers on the citizens the fundamental right to carry on any business and then to clause 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 under Art. 30(1) must be held to be absolute and cannot be subjected to any restricti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al institutions of their choice. The right to administer cannot obviously include the right to maladminister. 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 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 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 mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 clause 11 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-clause (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 suspen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 and need not seek recognition from the Government, but that if the minority communities desire to have State recognition they 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 impugned provisions 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 fulfil 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 instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt collected from scholars 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 clause 20 when it comes into force. There is no provision, such as there is in clause 9 which applied 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 clause 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 clause 36(2)(c) can nullify the constitutional infirmity of clause 3(5) read with clause 20 which is calculated to infringe the fundamental rights of minority commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities 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 Mughals - have 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 (Poems by Rabindranath Tagore). 50. Indeed India has sent out to the world her message of goodwill enshrined and proclaimed in our National Anthem : Day and night, thy 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. (Rabindranath Tagore) 51. It is thus that the genius of India has been able to find unity in divers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions 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; . 53. 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. 226 remains unaffected by the said clause 33. 53. Kerala State contends that the argument that clause 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. 54. Learned counsel for the State of Kerala submits that clause 33 must be read subject to Arts. 226 and 32 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 3 : No. Question No. 4 : No; clause 33 is subject to Art. 226 of the Constitution. Venkatarama Aiyar, J. 56. 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, I am unable to concur in the view expressed therein that Clause (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. 57. 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, Clause (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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried out in clause (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 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 Clause (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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 64. Now, the facts are that there were in Manitoba denominational schools run by Roman Catholics which were maintained with fees paid by students and donations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 clause (20). But it is unnecessary to pursue this aspect further, as I consider that even otherwise, the vires of Clause (20) is not open to question. In my view, that Clause does not offend Art. 30(1) and is intra vires. 67. 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 to 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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