TMI Blog1974 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Articles 29 and 30 of the Constitution are grouped under the heading Cultural and educational rights . Article 29(1) deals with right of any section of the citizens residing in India to preserve their language, script or culture. Article 30(1) provides that all religious and linguistic minorities have the right to establish and administer educational institutions of their choice. Article 29(2) prohibits discrimination in matters of admission into educational institutions of the types mentioned therein on grounds only of religion, race, caste, language or any of them. Article 30(2) prevents States from making any discrimination against any educational institution in granting aid on the ground that it is managed by a religious or linguistic minority. 5. Articles 29 and 30 confer four distinct rights. First is the right of any section of the resident citizens to conserve its own language script or culture as mentioned in Article 29(1). Second is the right of all religious and linguistic minorities to establish and administer educational institutions of their choice as mentioned in Article 30(1). Third is the right of an educational institution not to be discriminated against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity who can always have their rights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. If the scope of Article 30(1) is made an extension of the right under Article 29(1) as the right to establish and administer educational institutions for giving religious instruction or for imparting education in their religious teachings or tenets the fundamental right of minorities to establish and administer educational institution of their choice will be taken away. 9. Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in respect of language, script, culture as contemplated hi .Article 29. The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality. 10. In Re. The Kerald Education Bill [1959]1SCR995 this Court said that Article 30(1) covers institutions imparting general secular education. The object of Article 30 is to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole. 13. The second question which arises for consideration is whether religious and linguistic minorities who have the right to establish and! administer educational institutions of their choice, have a fundamental right to affiliation. It is contended on behalf of the petitioners that the right to establish educational institutions of their choice will be without any meaning if affiliation is denied. The respondents pose the question whether educational institutions established and administered by minorities for imparting general secular education have a fundamental right to be affiliated to a statutory University on terms of management different from those applicable to other affiliated colleges. 14. The consistent view of this Court has been that there is no fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of education. With regard to affiliation to a University, the minority and non-minority institutions must agree in the pattern and standards of education. Regulatory measures of affiliation enable the minority institutions to share the same-14--131 SupCI/75 courses of instruction and the same degrees with the non-minority institutions. 18. This Court in State of Kerala v. Very Rev. Mother Provincial, etc . [1971]1SCR734 explained the necessity and importance of regulatory measures of system and standard of education in the interest of the country and the people. When a minority institution applies for affiliation, it agrees to follow the uniform courses of study. Affiliation is regulating the educational character and content of the minority institutions. These regulations are not only reasonable in the interest of general secular education hut also conduce to the improvement in the stature and strength of the minority institutions. All institutions of general secular education whether established by the minorities or the non-minorities must impart to the students education not only for their intellectual attainment but also for pursuit of careers. Affiliation of minority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on the minority's claim to mould the institution as it thinks fit. It is said that the regulatory measures should not restrict the right of administration but facilitate the same through the instrumentality of the management of the minority institution. It is said that the management of the minority institution should not be displaced because that will amount to violation of the right to administer. 22. The Kerala Education Bill case (supra) upheld certain regulatory provisions as to administration of minority institution not to infringe the right to administer. The manager of an aided school was to be appointed subject to the approval of such officer as the Government might authorise. The Government prescribed the qualifications for appointment as teachers. The Public Service Commission selected candidates for appointment as teachers. The conditions of service were to be the same as in Government schools. No teacher was to be dismissed, removed or reduced in rank or suspended without the previous sanction of the officer authorised by the Government in this behalf. 23. The Kerala Education Bill case (supra) did not uphold the validity of Clauses 14 and 15 in the K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in those sections was to administer the colleges in accordance with the provisions of the Act, statutes, ordinances, regulations, bye-laws and orders mads thereunder. The powers and functions of the governing body, the removal of the members and the procedure to be followed by it were all to be prescribed by the statutes. These provisions amounted to vesting the management and administration of the institution in the hands of bodies with mandates from the University. 28. These rulings of this Court indicate how and when there is taking away or abridgement of the right of administration of minority institutions in regard to choice of the governing body, appointment of teachers and in the right to administer. 29. The decision of this Court in Rev. Sidhajbhai Sabhai v. State of Bombay [1963]3SCR837 illustrates as to how the right of the minority institution is violated by the State order requiring the minority institution to reserve under orders of Government 80 per cent of the seats on threat of withholding grant in aid for non-compliance with the order. This Court in Kerala Education Bill case (supra) said that the State cannot do indirectly what it cannot do directly. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 40 and 41 of the Gujarat University Act, 1949 as amended, referred to, as the Act. The second set consists of Section 33A(1)(a). The third set consists of Sections 51A and 52A. 34. Section 40 of the Act enacts that teaching and training shall be conducted by the university and shall be imparted by teachers of the university. Teachers of the university may be appointed or recognised by the university for imparting instructions on its behalf. As soon as the Court which is one of the authorities of the university determines that the teaching and training shall be conducted by the university the provisions of Section 41 of the Act come into force. 35. Section 41 of the Act consists of four sub-sections. The first subsection states that all colleges within the university area which are admitted to the privileges of the university under Sub-section (3) of Section 5 of the Act and all colleges which may hereafter be affiliated to the university shall be constituent colleges of the university. It is true that no determination has yet been made by the court of the university under Section 40 of the Act but the power exists. The power may be used in relation to minority inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by colleges and institutions in regard to libraries, laboratories and other equipments for teaching and research. Section 41(4)(v) confers power on the university to require colleges and institutions when necessary to confine the enrolment of students in certain subjects. Section 41(4)(vi) confers power on the university to levy contributions from colleges and institutions and to make grants to them. 38. In view of our conclusion that Sections 40 and 41 of the Act hang together and that Section 40 of the Act cannot have any compulsory application to minority institutions, it follows that Section 41 of the Act cannot equally have any compulsory application to minority institutions. It is not necessary to express any opinion on the provisions contained in Section 41 of the Act as to whether such provisions can be applied to minority institutions affiliated to a university irrespective of the conversion of affiliated colleges into constituent colleges. 39. The provisions contained in Section 33A(1)(a) of the Act state that every college shall be under the management of a governing body which shall include amongst its members, a representative of the university nominated by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in Section 33A(i)(a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different type are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in Section 33A(1)(a) cannot therefore apply to minority institutions. 41. The provisions contained in Section 33A(1)(b) of the Act were not challenged by the petitioners. The interveners challenged those provisions. The settled practice of this Court is that an intervener is not to raise contentions which are not urged by the petitioners. In view of the fact that notices were given to minority institutions to appear and those institutions appeared and made their submissions a special consideration arises here for expressing the views on Section 33A(1)(b) of the Act. The provisions contained in Section 33A(1)(b) of the Act are that for the recruitment of the Principal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, apply to minority institutions. 43. The provisions contained in Section 52A of the Act contemplate reference of any dispute between the governing body and any member of the teaching, other academic and non-teaching staff of an affiliated college which is connected with the conditions of service of such member to a Tribunal of Arbitration consisting of one member nominated by the governing body of the college, one member nominated by the member concerned and an Umpire appointed by the Vice-Chancellor. These references to arbitration will introduce an area of litigious controversy inside the educational institution. The atmosphere of the institution will be vitiated by such proceedings. The governing body has its own disciplinary authority. The governing body has its domestic jurisdiction. This jurisdiction will be displaced. A new jurisdiction will be created in administration. The provisions contained in Section 52A of the Act cannot, therefore, apply to minority institutions. 44. For these reasons the provisions contained, in Sections 40, 41. 33A(1)(a), 33A(1)(b), 51A and 52A cannot be applied to minority institutions. These provisions violate the fundamental rights of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasions. 49. We agree with the judgment of Hon'ble the Chief Justice just pronounced and with his conclusions that Sections 40, 41, 33A(1)(a), 33A(1)(b), 51A and 52A of the Act violate the fundamental rights of minorities and cannot, therefore, apply to the institutions established and administered by them. We would not ordinarily have found it necessary to write a separate opinion when the same thing has to be said as has been said so tersely by him, but in trying to re-state what has already been said, the impression is sometimes created that something new is being stated or some departure from the principles already adumbrated is being made. In order to avoid giving scope to any such contention being raised, we would merely refer to some earlier provisions already held to violate the fundamental rights of minorities guaranteed under Article 30(1) which are analogous to the impugned provisions which, in the view this Court has already taken, can be held to be violative in their application to the minority educational institutions. The reason for this separate opinion, however, is not so much to point out the invalidity of the impugned provisions which Hon'ble the Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooses to differ from them. 51. In respect of certain provisions of the Kerala Education Bill, namely, Clauses 9, 11(2) and 12(4), Das, C.J. stated : These are, no doubt, serious inroads on the right of administration and appear perilously near violating that right. But considering that those provisions are applicable to all educational institutions and that the impugned parts of Clauses 9, 11 and 12 are designed to give protection and security to the ill-paid teachers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at present advised, to treat these Clauses 9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions. It was also observed therein that Clauses. 7, 10, 11(1), 12(1), (2), (3) and (5) may easily be regarded as reasonable regulations or conditions for the grant of aid. But some of the provisions analogous to Clauses. 11, 12 (1), (2), (3) and (5) have been held invalid by this Court when they were challenged as offending fundamental rights of minority institutions. In the State of Kerala v. Very Rev. Mother Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held void by the cases referred to above : 53. In spite of the consistent and categorical decisions which have held invalid certain provisions of the University Acts of some of the Stales as interfering with the fundamental rights of management of minority in-situations inherent in the right to establish educational institutions of their choice under Article 30(1), the State of Gujarat has incorporated similar analogous provisions to those that have been declared invalid by this Court. No doubt education is a State subject, but in the exercise of that right any transgression of the fundamental right guaranteed to the minorities will have its impact beyond the borders of that State and the minorities in the rest of the country will feel apprehensive of their rights being invaded in a similar manner by other States. A kind of instability in the body politic will be created by action of a State which will be construed as a deliberate attempt to transgress the rights of the minorities where similar earlier attempts were successfully challenged and the offending provisions held invalid. 54. The Central Government to which notice was given probably realising the sensitive natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ople well versed in the tenets of their religion and in the traditions of their culture.... They also desire that scholars of their educational institutions should go out in the world well and sufficiently equipped with the qualifications necessary for a useful career in life. But according to the Education Code now in operation to which it is permissible to refer for ascertaining the effect of the 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 Article 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. The right under Article 30 cannot be exercised in vacua. Nor would it b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o State managed and maintained schools. The observations of Das, C.J. cannot therefore, strictly speaking, apply to this fact situation. When it is so read, they cannot be held to have laid down that the State must provide for giving recognition at least to the minority institutions or accord recognition subject in such conditions as would in truth and in effect not amount to an infringement of their right under Article 30(1). In other words, where the law does not provide for giving recognition or affiliation to any educational institution irrespective of whether it is a majority or a minority institution, can the minority institution claim recognition on the ground that without recognition or affiliation the educational institution established by them cannot fulfil the real objects of their choice and the minorities cannot effectively exercise their rights under Article 30(1) ? If the logical answer flowing from the observations is that it cannot, then the question would arise as to what is the purpose which Clause (1) of Article 30 serves ? The only purpose that the fundamental right under Article 30(1) would serve would in that case be that minorities may establish their instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffiliated, in respect of courses of study in the mother-tongue, to Universities and other authorities which are situated in the same State. However, it may not always be possible to make such arrangements; and having regard to the number of institutions of this kind, it may sometimes be convenient, both from the point of view of the Universities or the educational authorities concerned, and from the point of view of the institutions themselves, that they should be permitted to seek affiliation to appropriate bodies located outside the State. This may be regarded in fact as a necessary corollary to the provisions contained in Article 30 of the Constitution, which gives to the minorities the right to establish and administer educational institutions of their choice. But what would happen if the educational institutions of a minority find it inconvenient or impossible to secure such a recognition or affiliation even outside the State in which they are established ? In such circumstances, education including University education being a State subject and the legislative power of the State also being subject to Article 29(1) and Article 30(1), minorities able to establish an educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... College' means a University college or affiliated college made constituent under Section 41. (3) 'Degree College' means an affiliated college which is authorised to submit its students to an examination qualifying for any degree of the University. (8) 'Recognized Institution' means an institution for research or specialized studies other than an affiliated college .and recognized as recognized institution as may be declared to be teachers by the Statutes. (13) 'Teachers of the University' means teacher appointed or recognized by the University for imparting instruction on its behalf. (15A) 'University College' means a college which the University may establish or maintain under this Act or a ' college transferred to the University and maintained by it. (16) University Department' means any college, postgraduate or research institution or department maintained by the University. Section 39 of the Principal Act provided that within the University area, all post-graduate instruction, teaching and training shall be conducted by the University or by such affiliated colleges or institutions and in such subjects as may be presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liated colleges alter that date. On September 28, 1971 the Senate passed a resolution that all instructions, teaching and training beyond the stage of intermediate examination in the city of Ahmedabad be conducted by the University and imparted by the teachers of the University. The Registrar of the University was directed to communicate the decision of the Senate to the State Government. ' The petitioners and some others then filed petitions under article 226 of the Constitution in the Gujarat High Court on the ground that the powers of the Senate and the State Government under Section 40 of the principal Act had got exhausted on November 22, 1957 when the period of seven years from the commencement of the principal Act had expired. In the alternative, it was stated by the petitioners that the provisions of Sections 40 and 41 were violative of articles 14, 19, 26, 29 and 30 of the Constitution. In view of the pendency of these petitions, the State Government did not act upon the impugned resolution passed by the Senate on September 28, 1971. 64. The Gujarat University (Amendment) Act, 1972 (Act No. 6 of 1973) (hereinafter referred to as the amending Act) was thereafter pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and in such subjects as may be prescribed by the Statutes. 40. (1) The Court may determine that all instructions, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall within the University area be conducted by the University and shall be imparted by the teachers of the University and the Court shall communicate its decision to the State Government. (2) On receipt of the communication under Sub-section (1), the State Government may, after making such inquiry as it thinks fit, by notification in the Official Gazette declare that the provisions of Section 41 shall come into force on such date as may be specified in the notification. 41. (1) All colleges within the University area which are admitted to the privileges of the University under subsection (3) of Section 5 and all colleges within the said-area which may hereafter be affiliated to the University shall be constituent colleges of the University. (2) All institutions within the University area recognized under Sections 35 and 63 or approved under Section 35A shall be the constituent institutions of the University. (3) No educational institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of being heard in respect of those charges and until-- (a) he has been given a reasonable opportunity of making representation on any such penalty proposed to be inflicted on him, and (b) the penalty to be inflicted on him is approved by the Vice-Chancellor or any other officer of the University authorised by the Vice Chancellor in this behalf. (2) No termination of service of such member not amounting, to his dismissal or removal falling under Sub-section (1) shall be valid unless-- (a) he has been given a reasonable opportunity of showing cause against the proposed termination, and (b) such termination is approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in this behalf : Provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only. 52A. (1) Any dispute between the governing body and any member of the teaching, other academic and non-teaching staff of an affiliated college or recognized or approved institution which is connected with the conditions of service of such member, shall; on a request of the governing body, or of the member concerned be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bombay Act No. L of 1949) as amended by the Gujarat University (Amendment) Act, 1972 (Gujarat Act No. 6 of 1973) read with Section 20 (Clause XXXIX) as inserted in the Gujarat University Act, 1949 by the Gujarat University Amendment Act, 1972 are ultra vires Articles 14, 19(1)(f) and (g), 26, 29 and 30 of the Constitution of India. Prayer was also made by the petitioners for restraining the University from considering or passing the resolutions at items Nos. 144 and 145 of the agenda in the meeting proposed to be held on March 27, 28 and 29, 1973. When the petition came up for preliminary hearing on March 27, 1973 this Court made an order that the University might pass the resolutions in question on March 27, 28 and 29, 1975 but should not implement the same. The following resolution was passed by the Senate, in the meeting held on March 27 and 28, 1973 . It is hereby resolved that all instructions, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall within the University area be conducted by the University and shall be imparted by the teachers of the University. 66. In view of the stay order of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. 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. (2) 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. - 30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. 71. Article 28 forbids subject to the exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution as they think fit and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. The words of their choice qualify the educational institutions and show that the educational 'institutions established and administered by the minorities need not be of some particular class; the minorities have the right and freedom to establish and administer such educational institutions as they choose. Clause (2) of Article 30 prevents the State from making discrimination in the matter of grant of aid to any educational institution on the around that the institution is under the management of a minority whether based on religion or language. 74. Before we deal with the contentions advanced before us and the scope and ambit of Article 30 of the Constitution, it may be pertinent to refer to the historical background. India is the second most populous country of the world. The people inhabiting this vast land profess different religions and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. It is a mosai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterested than us in India in the protection of our minorities. Our mission is to satisfy every interest and safeguard the interests of all the minorities to their satisfaction. (The Framing of India's Constitution B. Shiva Rao Select Documents. Vol. II p. 66). 75. It is in the context of that background that we should view the provisions of the Constitution contained in Articles 25 to 30. The object of Articles 25 to 30 was to preserve the rights of religious and linguistic minorities, to place them on a secure pedestal and withdraw them from the vicissitudes of political controversy. These provisions enshrined, a befitting pledge to the minorities in the Constitution of the country whose greatest son had laid down his life for the protection, of the minorities. As long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be Constitutionally impermissible and liable to be struck down by the courts. Although the words secular state are not expressly mentioned in the Constitution, there can be no doubt that our Constitution-makers wanted establishment of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and Article 30, besides some other articles, is intended to afford and guarantee that protection. It may be apposite in this context to refer to the observations made by Latham CJ. in Adelaide Co. of Jehovah's' Witnesses Inc. v. The Commonwealth [1943] 67 CriLR 116 while dealing with Section 116 of the Commonwealth of Australia (Constitution) Act which provides inter alia that the Commonwealth shall not make any law for prohibiting the free exercise of any religion. Said the learned Chief Justice : . .. . it should not be forgotten that such a provision as Section 116, is not required for the protection of the religion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutes a general measure applicable to the majority as well as to the minority, it is hi conformity with the letter and the spirit of the stipulation . It was held by 8 votes to 3 that the plea of the Albanian Government that, as the abolition of private schools in Albania constitutes a general measure applicable to the majority as well as to the minority, it is in conformity with the letter and spirit of the stipulations laid down in Article 5, first paragraph, of the Declaration of October 2, 1921, is not well founded. In the above context the Court observed : 1. The Object of Minorities Treaties.--'The idea underlying the treaties for the protection of minorities is to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and co-operating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuring special needs. In order to attain that object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institutions created by the State. 80. It would be appropriate to refer at this stage to the cases wherein this Court has dealt with the impact of Article 30 on the educational institutions established by the minorities. The first case: [1959]1SCR995 was a reference made by the President under Article 143(1) of the Constitution for obtaining the opinion of this Court upon certain questions relating to the Constitutional validity of the provisions of the Kerala Education Bill which had been passed by the Kerala Legislative Assembly and had been reserved by the Governor for the consideration of the President, four questions were referred to the Court, out of which we are at present concerned with question No. 2 which was as under : Do sub- Clause (5) of Clause 3, Sub- clause (3) of Clause 8 and Clauses 9 to 13 of Kerala Education Bill, or any provision thereof, offend Clause (1) of Article 30 of the Constitution in any particulars or to any extent ? 81. Clause 3(5) of the Bill made the recognition of new schools subject to other provisions of the Bill and the rules framed by the Government under Clause 36. Clause 15 authorised the Government to acquire any category of schoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and third categories. It was further held : The right of the minorities to administer their educational institutions under Article 30(1), was not inconsistent with the right of the State to insist on proper safeguards against misadministration by imposing reasonable regulations as conditions precedent to the grant of aid. That did not, however, mean that State Legislature could, in the exercise of its powers of legislation under Articles 245 and 246 of the Constitution, override the fundamental rights by employing indirect methods, for what it had no power to do directly, it could not do in-directly. Dealing with the question of State recognition of the minority institutions, the Court held : While it was undoubtedly true that there could be no fundamental right to State recognition, denial of recognition except on such terms as virtually amounted to a surrender of the right to administer the institution, must, in substance and effect infringe Article 30(1) of the Constitution. Venkatarama Aiyar J. in his minority opinion held that Article 30(1) of the Constitution did not in terms confer a right on the minority institutions to State recognition, nor, properly con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) and other provisions of the Constitution. It was held by a Bench of six judges speaking through Shah J. (as he then was) that the rules for recognition of private training institutions, in so far as they related to reservation of seats therein under orders of Government and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to- withhold grant-in-aid and recognition of the college, infringed the fundamental freedom under Article 30(1). 83. Rev Father W. froost and Ors. v. The State of Bihar and Ors. [1969]2SCR73 was the next case wherein this Court dealt with the protection afforded by Article 30(1) to educational institutions established by the minorities. The case related to the St. Xavier's College Ranchi which had been established by the Jesuits of Ranchi and was affiliated to Patna University. The object of founding the College, inter alia, was to give Catholic youth a full course of moral and liberal education, by imparting a thorough religious instruction and by maintaining a Catholic atmosphere in the Institution. However, the College was open to non-Catholics and all non-Catholic students received a course of moral science ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate of the University. While allowing the petition filed by the petitioners, it was held by a Constitution Bench of this Court speaking through Hidayatullah C.J. that the protection claimed by the petitioners clearly flowed from the Words of Article 30(1) of the Constitution. It was further held that the width of Article 30(1) could not be cut down by introducing in it considerations on which Article 29(1) was based. 84. Rt. Rev. Bishop S. K. Patro and Ors. v. State of Bihar and Ors. [1970]1SCR172 was the next case wherein this Court dealt with a claim based on Article 30(1) of the Constitution. The case related to a school founded in 1954 at Bhagalpur. The school was being managed by the National Christian Council of India. Two persons were elected as the President and Secretary of the school and their election was approved by the President of the Board of Secondary Education. The order of the President of the Board of Secondary Education 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate having perpetual succession and a common seal. Sub-section (4) provided that the members would hold office for four years. Subsection (5) of each Section cast a duty on the new governing body or the managing council to administer the private college or colleges in accordance with the provisions of the Act. Sub-section (6) of each Section laid down that the powers and functions of the new bodies, the removal of members thereof and the procedure to be followed by them, would be prescribed by statutes. The petitioners challenged the provisions of those two Sections as also Sub-sections (1), (2), (3) and (9) of Section 53 which conferred on the Syndicate of the University the power to veto the decisions of the governing council and a right of appeal to any person aggrieved by their action. Likewise, the petitioners challenged Section 56, which conferred ultimate powers on the University and the Syndicate in disciplinary matters in respect of teachers, Section 58, which removed membership of the Legislative Assembly as a disqualification for teachers and Section 63(1), which provided that whenever Government was satisfied that a grave situation had arisen in the working of a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned that qualifying in the elementary Punjabi papers would be obligatory for the students offering English medium. Petitions were thereafter filed in this Court under Article 32 of the Constitution on the ground that the University had no power to make Punjabi as the sole medium of instruction. It was held by this Court that the circular of June 15, 1970 as amended by the circulars of July 2, 1970 and October 7, 1970 was invalid and ultra vires the powers vested in the University. The Court further held that the petitioners were institutions maintained by a religious minority and as such the directive for the exclusive use of the Punjabi language in the Gurmukhi script as the medium for instruction and for examination in all colleges directly infringed the petitioners' right to conserve their script and administer their institutions. The relaxation made subsequently in the earlier directive of the University, it was observed, made little difference because the concession did not benefit students with Hindi as the medium and Devnagri as the script. The right of the minorities to establish and administer educational institutions of their choice, it was further held, included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist of the different decisions of this Court dealing with Articles 29 and 30. Having done that, we should now consider the principle which should be adopted in construing those articles. 89. A liberal, generous and sympathetic approach is reflected in the Constitution in the matter of the preservation of the right of minorities so far as their educational institutions are concerned. Although attempts have been made in the past to whittle down the rights of the minorities in this respect, the vigilant Sections of the minorities have resisted such attempts. Disputes have consequently arisen and come up -before this Court for determining whether the impugned measures violate the provisions of the Constitution embodied in Articles 29 and 30. This Court has consistently upheld the rights of the minorities embodied in those Articles and has ensured that the ambit and scope of the minority rights is not narrowed down. The broad approach has been to see that nothing is done to impair the rights of the minorities in the matter of their educational institutions and that the width and scope of the provisions of the Constitution dealing with those rights are not circumscribed. The principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed : they secure the proper functioning of the institution, in matters educational (fee observations of Shah J. in Rev. Sidhajbhai Sabhai, supra, p. 850). Further, as observed by Hidayatullah CJ. in the case of Very Rev. Mother Provincial (supra) the standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations they must be followed, subject however to special subjects which the institutions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulations nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation. As observed by this Court in the case of Rev. Sidhajbhai Sabhai (supra), regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority institution effective as an educational institution. Such regulation must satisfy a dual test--the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. 93. It has been said in the context of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is any limitation on. the prescription of regulations for minority educational institutions. So far as this aspect is concerned, the authority prescribing the regulations must bear in mind that the Constitution has guaranteed a fundamental right to the minorities for establishing and administering their educational institutions. Regulations made by the authority concerned should not impinge upon that right. Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable. 95. It has not been disputed on behalf of the petitioners that if the State or other statutory authorities make reasonable regulations for educational institutions, those regulations would not violate the right of a minority to administer educational institutions. We agree with the stand taken by the petitioners in this respect. It would be wrong to assume that an unrestricted right as in Article 30 postulates absence of regulations. Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guments whether the educational institutions referred to in Clause (1) of Article 30 must only be those institutions which have been established with a view to conserve language, script or culture of a minority. To put it in other words, the question is whether Clause (1) of Article 30 is subject to the provisions of Clause (1) of Article 29. In this respect I am of the view that Clause (1) of Article 29 and Clause (1) of Article 30 deal with distinct matters, and it is not permissible to circumscribe or restrict the right conferred by Clause (1) of Article 30 by reading in it any limitation imported from Clause (1) of Article 29. Article 29(1) confers a right on any Section of citizens having a distinct language, script or culture of its own to conserve the same. It is not necessary, as mentioned earlier, for invoking this Clause that the Section of citizens should constitute a minority. As against that, the right conferred by Article 30(1) is only upon minorities which are based either on religion or language. The right conferred by Article 29(1) is for the conservation of language, script or culture, while that guaranteed by Article 30(1) is for the establishment and administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. Hidayatullah CJ. expressed somewhat similar view in the following words : In our opinion, the width of Article 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 language, script or culture. The former is a special right to establish educational institutions of their choice. This choice is not limited to institutions seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two Articles create two separate rights, although it is possible that they ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l effectively serve the needs of their community and the scholars who resort to their educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their Constitutional right of administration of the educational institutions of their choice-is in truth and in effect to deprive them of their rights under Article 30(1). We repeat that the legislative power is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending Clause becomes law. Similar view was expressed in the case of Rev. Sidhajbhai Sabhai (supra) wherein it was observed : The Government also holds examinations for granting certificates to successful candidates as trained primary teachers, and scholars receiving training in recognized institutions alone are entitled to appear at the examination. Manifestly, in the absence or recognition by the Government training in the College will have little practical util ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of those Clauses might be totally destructive of the rights under Article 30(1). These observations were intended to describe the effect of those clauses. There is, however, nothing in those observations to indicate that this Court would have upheld those Clauses if those Clauses had abridged or partially destroyed the right under Article 30(1) and not totally destroyed that right. 102. In the light of the above principles, it can be stated that a law which interferes with the minorities choice of a governing body or management council would be violative of the light guaranteed by Article 30(1). This view has been consistently taken by this Court in the cases of Rt. Rev. Bishop: S. K. Patro, Mother Provincial and D.A.V. College affiliated to the Guru Nanak University (Supra). 103. Section 33-A which provides for a new governing body for the management of the college and also for selection committees as well as the Constitution thereof would consequently have, to be quashed so far as the minority educational institutions are concerned because of the contravention of Article 30(1). The provisions of this Section have been reproduced earlier and are similar to those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iversities Act observed that the said provision completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission. The petitioners in that case were, therefore, held entitled to the protection of Article 30(1) of the Constitution. The provisions of that b2 Section have been referred to earlier. According to the section, subject to the approval of University appointments, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the governing body of the college on the recommendation of the University Service Commission. The Section further provided that the said Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission. 105. In the case of D-A.V. College which was affiliated to the Guru Nanak University, statute 17 framed under the Guru Nanak University (Amritsar) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the managing body to administer an educational institution. Clause (b) of each of the two sub-Sections of Section 51A should, therefore, be held to be violative of Article 30(1) so far as minority educational institutions are concerned. 108. Section 52A of the Act relates to the reference of disputes between a governing body and any member of the teaching, other academic and non-teaching staff of an affiliated college or recognized or approved institution connected with the conditions of service of such member to a Tribunal of Arbitration, consisting of one nominated by the governing body of the college or, as the case may be, of the recognised or approved institution, one member nominated by the member of the staff involved in the dispute and an Umpire appointed by the Vice-Chancellor. Section 52A is widely worded, and as it stands it would cover within its ambit every dispute connected with the conditions of service of a member of the staff of an educational institution, however trivial or insignificant it may be, which may arise between the governing body of a college and a member of the staff. The effect of this Section would be that the managing committee of an educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above become constituent colleges. A provision which makes it imperative that teaching in under-graduate courses can be conducted only by the University and can be imparted only by the teachers of the University plainly violates the rights of minorities to establish and administer their educational institutions. Such a provision must consequently be held qua minority institutions to result in contravention of Article 30(1). I would, therefore, strike down Section 40 so far as minority educational institutions are concerned as being violative of Article 30(1) Further, once Section 40 is held to be unconstitutional so far as minority educational institutions are concerned, the same vice would afflict Section 41 because Section 41 can operate only if Section 40 survives the attack and is held to be not violative of Article 30(1). I would therefore, hold Section 40 and 41 to be void in respect of minority educational institutions. 110. It has been argued on behalf of the respondents that in the case of Re Kerala Education Bill (supra) this Court upheld Clauses 11 and 12. Clause 11 made it obligatory for all aided schools to select teachers from a panel of candidates selected for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent the Court from striking down that provision. It may also be mentioned that in the case of Mother Provincial (supra) reliance was placed upon the report of the Education Commission. This Court in that context remarked that that fact as well as the fact that the provisions were salutary could not stand in the face of the Constitutional guarantee. Reference to the said report was, therefore, considered to be not necessary. I may further mention that subsequent to the report of Dr. Radhakrishnan Commission, three other bodies submitted their reports. One of the reports was given by Kothari Committee in 1965. The other was the report of the Education Commission presided over by Dr. Kothari in 1966. The third was the report of Dongerkery Commission submitted in 1972. There was no reference to the conversion of affiliated colleges into constituent colleges in any of these three reports. No observation was also made in any of the reports that the provisions of Article 30(1) and the construction placed upon that had in any way stood in the way of raising the standards of education or improving the excellence of educational institutions. It may also be mentioned that the concept of const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such power are void so far as minority institutions are concerned. The abridgement of the right of the minorities to establish and administer educational institutions of their choice is writ large on the face of the impinged provisions. The fact that no statutes or ordinances have been framed in pursuance of the impugned provisions would consequently be hardly of much significance in determining the Constitutional validity of the impugned provisions. It would not, therefore, be a correct approach to wait till statutes are framed violating the right under Article 30(1). No rules or statutes or ordinances framed under the provisions of the Act can take away the Constitutional infirmity of those provisions. It is, as observed by the Judicial Committee in the case Trustees of the Roman Catholic Separate Schools for Ottawa v. Ottawa Corporation and Ors. [1917] A. C. 76 the creation of the power and not its exercise that is subject to objection and the objection would not be removed even though the powers conferred were never exercised at all. Similar view was expressed hi the case of Re Kerala Education Bill (supra) wherein Das CJ. while dealing with Clause 3(5) read with Clause 20 obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-sections (1) and (2) of that section. Clause (b) of each of those two sub-section is violative of Article 30(1) and as such is void so-far as minority educational institutions are concerned. 116. MATHEW, J. (on behalf of himself and Chandrachud, J.) We agree respectfully with the conclusions of the learned Chief Justice, but we propose to state our reasons separately. 117. The first question that arises for consideration in writ petition No. 232/1973 is whether Article 30(1) of the Constitution confers on the religious and linguistic minorities, only the right to establish and administer educational institutions for conserving their language, script or culture, or, whether the scope of the guarantee under that Article is wide enough to enable them to establish and administer any other educational institutions of their choice. 118. Article 30(1) reads :-- All minorities, whether based on religion or language, shall have the right to establish and administer, educational institutions of their choice. 119. The respondents submitted that Article 29(1) which provides that any Section of the citizens residing in the territory of India or any part thereof having a distin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt or culture of religious and linguistic minorities. 123. The question was examined again by this Court in Rt. Rev. Bishop S. K. Patro and Ors. v. State of Bihar and Ors. [1970]3SCR172 where, Shah, J., speaking for a bench of five judges quoted with approval the observations of Hidayatullah, C.J. in Rev. Father W. Proost's case and held that Articles 29(1) and 30(1) confer separate rights, though in a given case, these rights may overlap. 124. In D.A.V. College, etc. v. State of Punjab and Ors. [1971] Supp. 2 S. C. R. 688, Reddy, J., speaking on behalf of the Court, observed that Article 29(1) is wider than Article 30(1), in that, while any Section of the citizens including the minorities can invoke the rights guaranteed under Article 29(1), the right guaranteed under Article 30(1) is only available to the minorities based on religion or language. He then went on to say that a reading of these two Articles together would lead to the conclusion that a religious or linguistic minority has the right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right, however, is subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng its language, script or culture, but any educational institution of its choice. Whereas Article 29 does not deal with education as such, Article 30 deals only with the establishment and administration of educational institutions. It might be that in a given case, the two Articles might overlap. When a linguistic minority establishes an educational institution to conserve its language, the linguistic minority can invoke the protection of both the articles. When Article 30(1) says that a linguistic minority can establish and administer educational institutions of its choice, it means that it can establish and administer any educational institution. If a linguistic minority can establish only an educational institution to conserve its language, then the expression of their choice in Article 30(1) is practically robbed of its meaning, 128. A mere look at the two Articles would be sufficient to show that Article 29(1) cannot limit the width of Article 30(1). There are religious minorities in this country which have no distinct language, script or culture, as envisaged in Article 29(1). For these religious minorities, Article 29(1) guarantees no right. Yet, Article 30(1) gives them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously technical. As judges, we are neither Jew nor Gentile, neither Cathtolic nor agnostic and we would not be justified in writing our private opinions no matter how deeply we might cherish them. And what is said in support of the decision should insulate us as far as rationally possible from the political or religious conflict beneath the issues. We owe equal allegiance to the Constitution and are equally bound by judicial obligation to support it. (See the observations of Justice frankfurter in West Virginia State Board of Educations. Bernette, 319 U. S. 624. ) 132. It is necessary in the interest of clarity of thought to begin with an understanding of the real reason for protection of minorities in a democratic polity. Protection of minorities is the protection of non-dominant groups, which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish them from the majority of the population. The protection applies equally to individuals belonging to such groups and wishing the same protection. It follows that differential treatment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir choice is to give the parents in those communities an opportunity to educate their children in institutions having an atmosphere which is congenial to their religion. Whatever be one's own predilection those who think that man does not live by bread alone but also by the word that comes from God cannot remain indifferent to the problem of religion in relation to and as part qt education. 136. As a matter of fact, according to several religious minorities, the State maintains a system of schools and colleges which is not completely satisfactory to them, inasmuch as no place is given to religion and morality. The sheer omission of religion from curriculum is itself a pressure against religion. Since they realize that the teaching of religion and instruction in the secular branches cannot rightfully or successfully be separated one from the other, they are compelled to maintain their own system of schools and colleges for general education as well as for religious instruction. It is important to examine the reason d'etre of educational institutions administered by religious groups. Clearly, their establishment does not come about because of a deep conviction that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olleges conducted by religious or linguistic minorities for imparting secular education strongly suggests that a wide segment of informed opinion has found that these colleges do an acceptable job of providing secular education. The State, concededly, has power to regulate and control the education of its children, but it cannot, by a general law compelling attendance at public school or college, preclude attendance at the school or college established by the religious minority, when the parents seek to secure the benefit of religious instruction not provided in public schools. The parents have the right to determine to which school or college their children should be sent for education. 139. We fail to see how affiliation of an education institution imparting religious instruction in addition to secular education to pupils as visualized in Article 28(3) would derogate from the secular character of the state. Our Constitution has not erected a rigid wall of separation between church and state. We have grave doubts whether the expression secular state as it denotes a definite pattern of church and state relationship can with propriety be applied to India. It is only in a qualif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reluctance to permit a single iron cast system of education to be imposed upon a nation compounded of several strains, the Constitution has provided this right to religious and linguistic minorities. 143. Today, education is an important function of State and local governments. Compulsory school attendance laws and the mounting expenditure for education both demonstrate a recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment [see Brown v. Board of Education 349 U.S. 294]. 144. If there is a symbol of democracy in education, it is not the public school as the single democratic school. Rather it is the co-existence of several types of schools and colleges including affiliated colleges on a looting of juridical equality with a consequent proportionately equal measure of State encouragement and support. And, juridical equality postulates that the religious mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Constitutional protection. There can be no surrender of Constitutional protection of the right of minorities to popular will masquerading as the common pattern of education. This is the reason why this Court has, time and again pointed to the importance of a searching judicial enquiry into legislative judgment in situations where prejudice against discrete and insular minorities : may tend to curtail rights intended to protect them. That the minorities might be unable to find protection in political process and, therefore, the Court might appropriately regard their interest with special solicitude was suggested by Stone, J. in his famous foot-note to United States v. Carolene Prod., Co. 304, U.S. 144 149. Over the years, this Court has held that without recognition or affiliation, there can be no real or meaningful exercise of the right to establish and administer educational institutions under Article 30(1) (see In re , The Kerala Education Bill, 1957 [1959]1SCR995 ; Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay [1963]3SCR837 and D.A.V- College, etc. v. State of Punjab and Ors. [1971] Su, S. C. K. 688. Let us now examine the validity of the argument that as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grown apace. (See The New Property'- by Charles A Reich, 73 yrde Law at 733 ) 151. Though the courts have recognized that Article 14 applies to public benefits and public employment as fully as to other acts of State, they are less quick to demand Constitutional justification when a benefit or privilege like recognition, affiliation or aid is so conditioned that, to get it, one must surrender some part of one's basic freedoms. 152. The story begins with the judgment of Justice Holmes in McAuliffe v. New Bedford 155 Mass 216 where he dispatched the petition of a policeman who had been discharged from his service for voting a regulation which restricted his political activities by saying that the petitioner may have a Constitutional right to talk politics: but he has no Constitutional right to be a policeman.. . The servant cannot complain as he takes the employment on terms which are offered to him. 153. The notion that the petitioner has no Constitutional right to be a policeman although he has a Constitutional right to talk politics' is a specific application of the larger view that no one has a Constitutional right to government largess or privilege and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness which it is free to renounce. And, when in 1910, the majority of the Court swung to the opposite position in Western Union Co. v. Kansas 216 U.S. 1 he dissented saying Even in the law the whole generally includes its parts. If the State may prohibit, it may prohibit with the privilege of avoiding the prohibition in a certain way. A very perceptive critic has written : (Thomas Read Powell: 16 Columbia Law Rev. 99, at 110-111 ) The pith of his (Holmes') argument was expressed in the aphorism: 'Even in the law the whole generally includes its parts'. He thus implies that the power of total exclusion is a 'whole', of which the power to impose any burdens what-so-ever on these admitted is a 'part' . He went on to say : Logically a thing which may be absolutely excluded is not the same as a thing which may be subjected to burdens of a different kind, even though such burdens would be regarded by all as less onerous than the burden of absolute exclusion. The 'power of absolute exclusion' is a term not identical with the power of relative exclusion' or the 'power to impose any burdens whatsoever . When Justice Holmes w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policeman' but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right to talk politics . The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is un-reasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution (see William W. Van Alstyne : The Demise of the Right-Privilege Distinction in Constitution Law ). 81 Harv. Law Rev. 1439. 160. In Frost and Frost Trucking Co. v. Railroad Comm. 271 U.S. 583 the Supreme Court of United States was concerned with the question of the validity of a statute of California requiring a certificate of public convenience and necessity to be secured by carriers, whether common or private, as a prerequisite to carrying on their business over the public highways of the state. The Act was interpreted by the Supreme Court as imposing upon the applicant the obligation to assume the duties and liabilities of a common carrier as a condition precedent to the issuance of the certificate It held the statute, so construed, unconstitutional , primaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, in fact lacks none of the elements of compulsion. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool--an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden. 162. This is much the sane as what Das, C.J. said in In re : The Kerala Education Bill [1959] S.C.R. 99 : No educational institutions can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights, they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1). In this situation, the condition which involves surrender is as effective a deterrent to the exercise of the right under Article 30(1) as a direct prohibition would be. Thus considered, it is apparent that the religious minority does not voluntarily waive its right--it has been coerced because of the basic importance of the privilege involved, namely, affiliation. 163. It is doubtful whether the fundamental right under Article 30(1) can be bartered away or surrendered by any voluntary act or that it can be waived. The rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to impose a condition in this area is the relevancy of the condition to the attainment of the objective involved in the grant of the privilege or benefit. 167. A condition may be invalidated on the ground that denying a benefit or privilege because of the exercise of a right in effect penalizes its exercise (see Steinberg v. United States 163 F. Su. 590) . In Sherbert v. Verner 374 US 398 the doctrine of Unconstitutional condition has been applied by the United States Supreme Court to forbid a state to discontinue unemployment benefits to a Seventh Day Adventist refusing Saturday employment on account of the day being the Sabbath day of her faith. The Court said : Nor may the South Carolina Court's construction of the statute be saved from Constitutional infirmity on the ground that unemployment compensation benefits are not appellant's. 'right' but merely a 'privilege'. It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. American Communications Asso v. Doitds (supra) Wiemait v. Undegraff 344 US 183 Hannegan v. Esquire, Inc 327 U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 30(1), namely, the religious and linguistic minorities, and who desire to exercise the right required to be waived as a condition to the receipt of the privilege. It is contradictory to speak of a Constitutional right and yet to discriminate against a person who exercises that right. 170. To avoid invalidation of a condition on any of these grounds, it would seem necessary to show that the granting of the benefit or privilege places the recipient in a position which gives the State or the university a legitimate interest in regulating his rights. It appears that there are two legitimate interests which may justify such regulation. First is the interest in ensuring that the benefit or facility given or granted, namely, recognition or affiliation is maintained for the purposes intended, in order to protect the effectiveness of the benefit or the facility itself. Second, social interests must be protected against thaw whose capacity for inflicting harm is increased by possession of the benefit or facility(Unconstitutional Conditions . 74 Hary. Law Rev. 1395 ). 171. An examination of the traditional bases of the power to impose conditions upon governmental benefits or priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight would be an abridgement of the right Justice Holmes said in Hudson Country Water Co., v. McCarter 209 U. S. 349 : All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighbourhood of principles of policy which are other than those on which the particular right is funded, and which become strong enough to hold their own when a certain point is reached No right, however absolute, can be free from regulation. The Privy Council said in Commonwealth of Australia v. Bank of New South wales [1950] A. C. 235 that regulation of freedom of trade and commerce is compatible with their absolute freedom; that Section 92 of the Australian Commonwealth Act is violated only when an Act restricts commerce directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote. Likewise, the fact that trade and commerce are absolutely free under Article 301 of the Constitution is compatible with their regulation which will not amount to restriction The Automobile Transport (Kajasthan) Ltd., v. State of Rajasthan and Ors . [1963]1SCR491 . 173. The application of the term & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lum, syllabi or the qualification of the teachers. 174. We find it impossible to subscribe to the proposition that State necessity is the criterion for deciding whether a regulation imposed on an educational institution takes away or abridges the right under Article 30(1). If a legislature can impose any regulation which it thinks necessary to protect what in its view is in the interest of the state or society, the right under Article 30(1) will cease to be a fundamental right. It sounds paradoxical that a right which the Constitution makers wanted to be absolute can be subjected to regulations which need only satisfy the nebulous and elastic test of state necessity. The very purpose of incorporating this right in Part III of the Constitution in absolute terms in marked contrast with the other fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of state necessity as conceived by the majority would be to subvert the very purpose for which the right was given. 175. What then are the additional regulations which can legitimately be imposed upon an educational institution established and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a regulation comes up for consideration before the court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it. The question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, ex-hypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulations do not bear directly upon management as such although they may indirectly affect it. The Court said further that the right of the state to regulate education, educational standards and allied matters cannot be denied since the minority institutions cannot be allowed to fall below the standards, or under the guise of exclusive right of management, to decline to follow the general pattern and that while the management must be left to them, they may be compelled to keep in step with others. What the Court said in answer to the contention of Mr. Mohan Kumaramangt-lam that the provisions in the Kerala University Act which were struck down were conceived in the interest of general education is instructive in this context: Mr. Mohan Kumaramangalam brought to our notice passages from the Report of the Education Commission in which the Commission had made suggestions regarding the conditions of service of the teaching staff in the universities and the colleges and standards of teaching. He also referred to the Report of the Education Commission on the status of teachers, suggestions for improving the teaching methods and standards. He argued that what has been done by the Keral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governing body constituted by the Society of Jesus and vast it in a different body. The right to administer the educational institution established by a religious minority is vested in it. It is in the governing body of the Society of Jesus that he religious minority which established the college has vested the right to administer the institution and that body alone has the right to administer the same. The requirement that the college should have a governing body including persons other than those who constitute the governing body of the Society of Jesus has the effect of divesting that body of its exclusive right to manage the educational institution. That it is desirable in the opinion of the legislature to associate the Principal of the college or the other persons referred to in Section 33A(1)(a) in the management of the college is not a relevant consideration. The question is whether the provision has the effect of divesting the governing body as constituted by the religious minority of its exclusive right to administer the institution. Under the guise of preventing mal administration, the right of the governing body of the college constituted by the religious minority to adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice Chancellor should be on the Selection Committee for recruiting the Principal or for the insistence of head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them. 183. Section 40(1) provides that the Court (senate) may determine that all instructions, teaching and training in courses of studies i respect of which the university is competent to hold examination shall, within the university area be conducted by the university and shall be imparted by the teachers of the university and the Court shall communicate its decision to the State Government. Sub-section (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 40 cannot have a meaning different from what it has in Section 39. If in Section 39 it means that the university is the exclusive teaching and training agency in post-graduate instruction, there is no reason to think that any vestige of the right to teach, train or instruct will be left to the minority after these matters are taken over by the university. The teaching and training in the college will thereafter be done by the teachers of the university for and on behalf of the university. The definition of the term 'teachers of the university given in Section 2(13) would indicate ,that they are teachers appointed by the university for imparting instruction on its behalf. 190. If this Section is ultra vires Article 30(1), we do not think that Section 41 which in the present schema of legislation is dependent upon Section 40 can survive and therefore it is unnecessary to express any view upon the Constitutionality of its provisions. 191. Sub-Sections (1) and (2) of Section. 51A read : 51A(1) No member of the teaching, other academic and non-teaching staff of an affiliated college and recognized or approved institution shall be dismissed or removed or reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nominee would be an abridgement of its right to administer the educational institution. No guidelines are provided by the legislature to the Vice-Chancellor for the exercise of his power . The fact that the power can be delegated by the Vice-Chancellor to any officer of the university means that any petty officer to whom the power is delegated can exercise a general power of veto. There is no obligation under the Sub-sections (1)(b) and (2)(b) that the Vice Chancellor or his nominee should give any reason for disapproval. As we said a blanket power without any guideline to disapprove the action of the management would certainly encroach upon the right of the management to dismiss or terminate the services of a teacher after an enquiry. While we uphold the provisions of sub-Clauses (1)(a) and (2) (a) of Section 51A we think that Sub-clauses (1)(b) and (2)(b) of Section 51A are violative of the right under Article 30 of the religious minority in question here. In In re : The Kerala Education Bill 1957, this Court no doubt, upheld provisions similar to those in Section 51A(1)(b) and 51A(2)(b). But the subsequent decisions of this Court leave no doubt that the requirement of subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any way circumscribed by Article 29 ? 198. On the second question, I have nothing significant to add to what has fallen from My Lord the Chief Justice- I am in entire agreement with the view that, although, Articles 29 and 30 may supplement each other so far as certain rights of minorities are concerned, yet, Article 29 of the Constitution does not, in any way, impose a limit on the kind or character of education which a minority may choose to impart through its Institution to the children of its own members or to those of others who may choose to send their children to its schools. In other words, it has a right to impart a general secular education. I would, however, like to point out that, as rights and duties are correlative, it follows, from the extent of this wider right of a minority under Article 30(1) to impart even general or non-denominational secular education to those who may not follow its culture or subscribe to its beliefs, that, when a minority Institution decides to enter this wider educational sphere of national education, it, by reason of this free choice itself, could be deemed to opt to adhere to the needs of the general pattern of such education in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This aspect of the matter, therefore, raises the question whether any of the provisions of the Act are intended to have that effect upon a minority Institution. Even if that intention is not manifest from the express terms of statutory provisions, the provisions may be vitiated if that is their necessary consequence or effect. I shall endeavour to show that the view which this Court has taken whenever questions of this kind have arisen before it on the effect of the provisions of a statute, though theoretically and logically perhaps not quite consistent always on propositions accepted, has the virtue of leaving the result to the balancing of conflicting considerations to be carried out on the particular provisions and facts involved in each case. 201. When we examine either the Act as a whole or the impugned provisions of the Act before us, we find no mention whatsoever of anything which is directed against a minority or its educational Institutions. The impugned provisions of the Gujarat University Act, 1949 (hereinafter referred to as 'the Act') are : Section 20 (Clause XXXIX) inserted in the Gujarat University Act, 1949, as amended by the Gujarat University (Amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any privileges of, any other University established by law. 203. As St. Xavier's College is apparently situated within the University area, it is prevented from seeking affiliation to any other University established by law. This would, in my opinion, have the effect of compelling it to abandon its fundamental rights guaranteed by Article 30(1) of the Constitution as a price for affiliation by the Gujarat University because it is not permitted to affiliate with any other University without the sanction of the Govt. The petitioner has not, however, in the reliefs prayed for by the petition, asked for a declaration that Section 5 is invalid. But, the compulsive effect of Section 5 was one of the arguments advanced by Mr. Nanavati for the petitioner. The Additional Solicitor General, arguing for the State, had .practically conceded that Section 5 of the Act will be invalid against the petitioner. He, however, hoped to save it in case we could so interpret it as to impose an obligation upon the State Govt. to give its sanction in every case where a minority Institution applies for affiliation with another University. Inasmuch as Section 5 of the Act has a compulsive effect by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown that its application for autonomy has been or is bound to be rejected ? Compelling the College to become a constituent part of the University amounts to taking away of its separate identity by the force of law. But, if the College has really attained such standards of organisation and excellence as it claims to have done, it can have an autonomous status under Section 38B of the Act with all its advantages and freedoms practically for the asking. Could it, in these circumstances, be said that loss of the identity of the College is a necessary consequence of the provisions of the statute before us? No other statute with identically similar provisions and effect was interpreted in any case which has so far come to this Court. 207. If the petitioning College, which has applied for the status of an autonomous College under Section 38B of the Act as amended in 1972, is provided with an avenue of escape by the amended provisions themselves, it seems quite unnecessary to consider the impact of Section 20, Section 33A and Section 51A and 52A of the Act, which have been introduced by the Act of 1972, on fundamental rights protected by Article 30. Section 20 does not lay down any fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioning collage as it would, lit least until it gets an autonomous status, be affected and governed by them if they are valid, questions arise as to the source or basis and extent of permissible regulation or restriction upon the rights conferred upon the petitioning college by Article 30(1) of the Constitution. Each and every learned Counsel appearing for a minority institution has conceded that, despite the absoluteness of the terms in which rights under Article 30(1) may be expressed, there is a power in the State to regulate their exercise. This Court has also repeatedly recognised the validity of the regulation of the rights under Article 30 on various grounds without explicitly stating the actual basis of such power to regulate. I venture to think that if we are able to formulate the exact basis or source of the power of regulation or restriction upon the fundamental rights contained in Article 30(1) of the Constitution we will be able to lay down with less indefiniteness and more precision and certitude the extent to which the State can regulate or restrict fundamental rights protected by Article 30(1) of the Constitution. 209. Provision for and regulation by the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily has the compelling effect of a substantial abridgement or taking away of the fundamental right from a minority institution, it would not be saved simply because it does not say so but produces that effect indirectly. For the purposes of applying Article 13(2) of the Constitution we have to look at the total effect of statutory provisions and not merely intention behind them. This is how I understand the majority view in Re. Kerala Education Bill, [1959]1SCR995. 211. The essence of the right guaranteed by Article 30(1) of the Constitution is a free exercise of their choice by minority institutions of the pattern of education as well as of the administration of their educational institutions. Both these, taken together, determine the kind or character of an educational institution which a minority has the right to choose. Where these patterns are accepted voluntarily by a minority institution itself, even though the object may be to secure certain advantages for itself from their acceptance, the requirement to observe these patterns would not be a real violation of rights protected by Article 30(1). Indeed, the acceptance could be more properly viewed as an assertio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to me that Section 20 of the Act, which deals with the powers of the Executive Council of the Gujarat University, does not directly or indirectly touch a minority institution's rights under Article 30(1)' of the Constitution merely because the Executive Council many take decisions which may have that effect. Indeed, if Article 30(1) operates as a fetter on the powers of the Executive Council as well, the Council is powerless to take such decisions under Section 20 of the Act which take away or abridge fundamental rights so as to be struck by Article 13. In any case, it is only when specific decisions and actions said to have that effect are brought before the Courts that their validity, in purported exercise of powers conferred by Section 20 of the Act, could be determined because the Section itself gives a general power not specifically directed against minority institutions.' 213. Section 33A of the Act requires the observance of a general pattern with regard to the Constitution of the governing body of an affiliated college irrespective of whether it is a minority or a majority institution. The mere presence of the representatives of the Vice-Chancellor, the Tea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajority of the learned Judges held (at p. 1062): 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 . 216. The function of education was set out there as' follows (at page 1019) : One of the most cherished objects of our Constitution is, thus, to secure to all its citizens the liberty of thought, expression, belief, faith, and worship. Nothing provokes and stimulates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by the State could entail payment of a price for it. The majority and the minority views differed only with regard to the reasonably permissible amount of statutory compression as a price for aid and recognition. If the price to be paid is a fetter upon the exercise of a fundamental right, the very essence or core of the fundamental right being an exercise of choice, what is reasonable or not must, necessarily, depend upon the total effect of all the provisions considered! together and not of particular provisions viewed in isolation from the rest. And, we should, I venture to think, remind ourselves that we cannot lightly substitute our own opinions for the legislative verdict on such a question. 220. It seems to me, with great respect, that, in Rev. Sidhrajbhal Sabhai and Ors. v. State of Bombay and Anr. 1966 3 S.C.R. 837 this Court went somewhat beyond the majority view in Re. Kerala Education Bill case (supra) after pointing out that no general principle on which reasonableness, or otherwise of a regulation may be tested was sought to be laid down by the Court in that case. It was held there that it was not necessary that a regulation should be deemed to be unreasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was unconstitutional . This, however, was not a decision in the context of a provision, such as Section 38B of the Act before us, which offers the right to the petitioning college to become quite independent and free from the administrative control of the University beyond a general supervision . The effect of that decision must, in my opinion, be confined to the situation which emerged from a consideration of the terms of the statute before this Court for interpretation on that occasion, 222. In Rt. Rev. Bishop S, K. Patro and Ors. v. State of Bihar and Ors. [1970]1SCR172 an order passed by the Education Secretary to the Govt. of Bihar, setting aside the elections of the President and Secretary of the Church Missionary Society Higher Secondary School and directing the institution to take steps to constitute a managing Committee in accordance with the terms of the orders sent to it was challenged. The legal sanction for such an order itself was not clear. It was, therefore, after references to the provisions of Article 30(1) of the Constitution and the earlier cases decided by this Court, set side. Apart from the question that it was a case on the ambit of the right under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled to keep in step with others. 224. Evidently, what was meant was that the right to exclusive management of the institution is separable from the right to determine the character of education and its standards. This may explain why standards ' of education were spoken of as not part of management at all. It meant that the right to manage, having been conferred in absolute terms, could not be interfered with at all although the object of that management could be determined by a general pattern to be laid down by the State which could prescribe the syllabi and standards of education. Speaking for myself, I find it very difficult to separate the objects and standards of teaching from a right to determine who should teach and what their qualifications should be. Moreover, if the standards of education are not part of management, it is difficult to see how they are exceptions to the principle of freedom of management from control. Again, if what is aimed at directly is to be distinguished from an indirect effect of it, the security of tenure 08 teachers and provisions intended to ensure fair and equitable treatment for them by the management of an institution would also n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the light of fundamental rights guaranteed by Articles 29(1) ft 30(1) as well as Article 19(1)(c) of the Constitution. The attacks on Sections 4 and 5 of the Guru Nanak University Act as well as on Clause 18 under Chap. V of the University statutes failed but Clauses 2(1) (a) and 17 were struck down for conflict with the rights guaranteed by Article 30(1) of the Constitution since their effect was to compel compliance with their provisions as conditions of affiliation . It was held there (at p. 709 ): Clause 18 however in our view does not suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority institutions empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the larger interests of the institutions to ensure their efficiency and excellence. It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular subjects. Uniformity in the conditions of service and conduct of teachers in all non-Government Colleges would make for harmony and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recting the State to make such alternative provision for the petitioning minority institution is made before us. 229. What is really claimed is that the minority institutions must get affiliation on terms other than those prescribed for majority managed institutions when the statute before us has no provisions for affiliation on any such special alternative terms for minority colleges. The impugned provisions applicable to affiliated colleges, whether majority or minority managed, apart from Sections 5,40 and 41 which are separable, are contained in Sections 20, 33A, 51A and 52A of the Act. If we were to hold that affiliation is open to a minority institution on some other terms not found in the statutory provisions at all, it would, it seems to me, really amount to nothing short of legislation which is really not our function. Moreover, in the case before us, on the claims put forward on behalf of the petitioning college, it appears very likely that the college will get the benefit of Section 38B of the Act, and, therefore, will escape from the consequences of affiliation found in the impugned sections. 230. It is true that Section 38B of the Act imposes certain conditions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n recorded by it. (3) On receipt of the report under Sub-section (2), the Court shall, after such further inquiry, if any, as may appear to it to be necessary record its opinion on the question whether the college, institution or Department should be allowed autonomy in the specified matters. (4) The Registrar shall thereupon submit the proposals for conferring such autonomy on such college, institution or Department and all proceedings, if any, of the Academic Council, the Executive Council and the Court relating thereto, to the State Government. (5) On receipt of the proposals and proceedings under Sub-section (4), the State Government, after such inquiry as may appear to it to be necessary, may sanction the proposals or reject the proposals. (6) Where the State Government sanctions the proposals it shall by an order published in the Official Gazette confer on the college, institution or Department specified in the proposals, power to regulate the admission of students to the college, institution or, as the case may be, the Department, prescribing the course of studies in the college, institution or Department, the imparting of instructions, teaching and training in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm- to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... largely employs teachers who are not members of the particular minority concerned, and when it derives large parts of its income from the fees paid by those who are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interests of those who are affected by the management of the minority institution and the education it imparts but who are not members of the minority in management. In other words, the, degree of reasonably permissible control must vary from situation to situation. For the reasons already given above, I think that, Sections 5, 40 and 41 of the Act, directly and unreasonably impinge upon the rights of the petitioning minority managed college, protected by Article 30(1) of the Constitution, but the other provisions do not have that effect. On the situation under consideration before us, the minority institution affected by the enactment has, upon the claims put forward on its behalf, also a means of escape from the impugned provisions other than Sections 5, 40 and 41 of the Act by resorting to Section 38B of the Act. 237. Consequently, I hold that Sections 5, 40 and 41 of the Act are restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope of Article 30(1), as regards both the content of the right and the beneficiaries of the right, is wider than that of Articles 25 and 26. 242. Article 25(2) disentangles certain activities, including secular activity, from religious practices and makes them subject to legal regulation or restrictions. But Article 30(1) secures the right to a secular activity to a religious or linguistic minority. Such a minority may establish and administer institutions for imparting secular general education. The right to establish and administer educational institutions for imparting secular general education cannot be disentangled from the whole plexus of rights under Article 30(1), and the right under Article 30(1) cannot be confined to the mere imparting of religious or linguistic education. Contrast between Article 29(1) and Article 30(1) 243. The content of the right under Article 29(1) differs from the content of the right under Article 30(1). Article 29(1) secures the right of a Section of citizens having distinct script, language or culture to conserve the same. Article 30(1), on the other hand, guarantees the right of a religious or linguistic minority to establish and admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ]1SCR995 ;; Rev- Father W. Proost and Ors. v. State of Bihar [1969]2SCR73 and D.A.V. College v. State of Punjab [1971] Su. S.C.R. 688. The Right of Affiliation 248. Three different arguments have been urged before us on this issue : (1) The right is necessarily implied in Article 30(1). Accordingly the right of affiliation is also a fundamental right. (2) It is neither expressly nor impliedly granted by Article 30(1). Accordingly it is not a fundamental right. On the contrary, affiliation is a statutory concept and may be obtained on the fulfilment of the conditions prescribed therefore by a statute. (3) Although it is not a fundamental right, it is necessarily implicit in Article 30(1) that affiliation cannot be denied for refusal of a minority institution to give us totally or partially its right under Article 30(1). 249. Evidently, there is no express grant of the right of affiliation, in Article 30(1). In my view, it is also not necessarily implied in Article 30(1). My reasons are these : (1) The context does not favour the asserted implication. The framers of the Constitution have taken special care to dissipate doubts as regards choice by the words 'of their ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur and excellence without State recognition or affiliation. In Europe unaffiliated academies have made great contribution to the development of science and humanities. In pre-independent India there were a number of unaffiliated and unrecognised educational institutions of good repute. One of our late Prime Ministers was a product of one of those institutions. The vast area of private sector employment would be open to students coming out of unaffiliated educational institutions, if they are otherwise merited. The mere accident of recruitment to the State services being made on the basis of recognised degrees and diplomas should not be a sufficient reason to read the right of affiliation in Article 30(1). The State may at any time abandon this facile and mechanical suitability test and may make selections by competitive examinations open to all, whether possessing or not possessing a recognised degree or diploma. 251. However, in case of an affiliating University affiliation cannot be denied to a minority institution on the sole ground that it is managed by a minority whether based on religion or language or on arbitrary or irrational basis. Such a denial would be violative of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect to as a safeguard against arbitrary State action. ( State of West Bengal v. Anwar All Sarkar : 1952CriLJ510 per Patanali Sastri C.J.). Article 14 confers a right by enacting a prohibition which in form, at least is absolute... but.... Article 14 is not really absolute, for the doctrine of classification has been incorporated in it by judicial decisions. Article 14, as interpreted by the Courts would run in some such words as these : The State shall not deny to any person equality before the law or equal protection of the law provided that nothing herein contained shall prevent the State from making a law based on or involving a classification founded on an intelligible differentia having a rational relation to the object sought to be achieved by the law. (Constitutional Law of India by H. M. Seervai, 1967 Edn. p. 188). According to Patanjali Sastri C.J., the necessity of making special laws to attend particular ends' obliged the Court to read down the wide language of Article 14. ( Charanjit Lot v. Union of india [1950]1SCR869 and Kathi Raning Rawat v. State of Saurashtra 1952CriLJ805 . 255. Like Article 30(1), the I Amendment of the U.S.A. Constitution is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and no less and the quality of the freedom prescribed are questions which have been differently answered and with differing results. (W. S. A. Waynes : legislative, Executive and Judicial Powers in Australia, 2nd Edn. p. 339). ) 257. The Privy Council has recently held that the regulation of trade, commerce and intercourse amongst the State is compatible with its absolute freedom. (Commonwealth of Australia and Ors. v. Bank of New South Wales and Ors. [1950] A.C. 235 As to the extent of regulation, the Privy Council said: Their Lordship do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency or in some other body be justified. Every case must be judged on its own facts and in its own setting of time and circumstances, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation and that inter-State trade, commerce and intercourse thus prohibited and thus monopolized 'remained absolutely free. 258. This sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Obviously, Article 28(3) prohibits a religious minority establishing and administering an educational institution which receives aid or is recognised by the State from compelling any citizen reading in the institution to receive religious instruction against his wishes or if minor against the wishes of his guardian. It cannot be disputed that the right of a religious minority to impart religious instruction in an educational institution forms part of the right to administer the institution. And yet Article 28(3) curtails that right to a certain extent. 262. To sum up, Articles 29(2), 15(4) and 28(3) place certain express limitations on the right in Article 30(1). There are also certain implied limitations on this right. The right should be read subject to those implied limitations. 263. Part III of the Constitution confers certain rights on individuals, on groups and on certain minority groups. Those rights constitute a single indivisible balancing system of Liberty in our Constitution. The system implies order and harmony amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaching staff or a student for legitimate exercise of his freedom of speech and expression or of forming associations or unions. 265. The Constitution makers have endeavoured to unite the people of our country in a democratic Republic. The democratic Republic would not last long if its members were in constant war among themselves for the ascendancy of their separate rights. It will soon drift into Absolutism of one kind or another. European history demonstrates that whenever one group has attempted to deny liberty to another group, it has lost its own liberty. Pagans persecuted Christians and lost their own liberty. Christians, in their turn, denied religious freedom to pagans and surrendered their own freedom either to an Absolute Emperor or to an Infallible Pope. Catholics and Protestants denied religious freedom to one another and strengthened the absolutism of the monarchy. 266. Absolute rights are possible only in the moon. It is impossible for a member of a civilized community to have absolute rights. Some regulation of rights is necessary for due enjoyment by every member of the society of his own rights. 267. It cannot be disputed that the right under Article 30(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation ? 269. It is well to remember that it is the Constitution which we are expounding. A statute is a specific contrivance for dealing with the specific needs of the people at a particular time and place. But the Constitution is a general contrivance for the good government and happiness of all the people of our developing Republic. It is made for the present as well as for the future. Like all great organic texts, it is written in broad and accommodating language. (The words of the Veda are commodious--M.B., Shanti Parwa, XIX, 1). Far from implying state inaction, the general language of Article 30(1) is to my mind, designed to give due flexibility to the legislature and to the courts in adjusting the rights in Article 30(1) to the necessities of each case. 270. Bose J. has observed : (The) true content (of the words of the Constitution) is not to be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are not mathematical formulas which have then essence in mere form. They constitute a framework of government written for men of fundamentally differing opinions and written as much for the future as for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituent to another. For instance, the teaching staff and property may be subject to greater regulation than the composition of the managing body. Plainly, no minority educational institution can be singled out for treatment different from one meted out to the majority educational institution. A regulation meting out such a discriminatory treatment will be obnoxious to Article 30(1). 274. Subject to these preliminary remarks, it is now necessary to consider how far a regulation may touch upon the right conferred by Article 30(1) without incurring the wrath of Article 13(2). In other words, what is the test for deciding whether a regulation imposed on a minority educational institution takes away or abridges the right conferred by Article 30(1) ? It has already been discussed earlier that the test of a valid regulation is necessity. Any regulation which does net go beyond what is necessary for protecting the interests of the society (which includes the minorities also) or the rights of the individual members of the society should be Constitutional. It cannot be said that such a regulation takes away or abridges the rights conferred by Article 30(1). 275. No hard and fast rule ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Counsel supporting the petitioners have maintained that the State could not prescribe curriculum and syllabus for religious, cultural or linguistic instruction which is being imparted in a religious or linguistic minority unaided and unrecognised educational institution. The reason obviously is that curriculum and syllabus is a vital part of the administration of an educational institution. 278. As far as Catholic educational institutions are concerned. Catholics believe that education belongs pre-eminently to the Church. Catholic dogma categorically denies the premise that secular general education can be isolated from religious teaching. In the encyclical 'Christian Education of Youth' Pope Pius XI has commended : The only school approved by the Church is one (where) the Catholic religion permeates the entire atmosphere (and where) all teaching and the whole organisation of the school and its teachers, syllabus and textbooks in every branch (is) regulated by the Christian spirit. (Pfeiffer, Church, State and Freedom, 1953 Edn. p. 294). 279. Nor should the regulatory power be hamstrung by such concepts as real and effective exercise of the right should not be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubt, serious inroads on the right of administration and appear perilously near violating that right. But considering that those provisions are applicable to all educational institutions and that the impugned parts of Clauses. 9, 11 and 12 are designed to give protection and security to the ill paid teachers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at present advised, to treat these Clauses 9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions. (Supra at p. 1064) 281. At the moment I am not concerned with the correctness or incorrectness of the view that Clauses 9, 11(2), 12(4) are Constitutional. I have quoted this passage in order to bring out the technique of adjudging the Constitutionality of a statute which has commended itself to the majority of the Court, That technique requires the Court to balance the right conferred by Article 30(1) and the social and individual interests which it is necessary to protect. 282. In Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay [1963]3SCR837 Shah J. said: Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms part of a complex and inter-dependent group of diverse social interests. There cannot be a perpetually fixed adjustment of the right and those social interests. They would need adjustment and readjustment from time to time and in varying circumstances. 286. In D. A. V. College vs. State of Punjab [1971] Su. 1 S. C. R. 688, this Court struck down Clause 17 of the statutes which provided that the staff initially appointed should be approved by the Vice-Chancellor and that all subsequent changes should be referred to the University for the Vice-Chancellor's approval. However, Reddy J., speaking for the unanimous Court, observed!: In our view there is no possible justification for the provisions contained in Clause . 17 of Chapter V of the statutes which decidedly interfere(s) with the rights of management of the Petitioners College. These provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1). The words no possible justification in the passage seem to me to suggest that the Court would have upheld Clause 17 if the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of all categories at present in operation will be closed. Following this amendment certain Albanian minorities, presumably of Greek origin, complained to the League of Nations regarding the violation of their right guaranteed by Article 5 of the Declaration. The matter went to the Permanent Court of International Justice for consideration. The majority of the Court (with three dissents) was of opinion that the Constitutional amendment violated the rights of the 30(1). Obviously, the context of Article 30(1), both notional as well as textual, bears no comparison with the context of the Albanian 290. Constitutional Amendment and Article 5 of the Declaration. It is now necessary to examine the various impugned provisions in the light of the construction of Article 30(1) suggested earlier in miss judgment. Section 33A(4)(1)(a) 291. I agree with the plurality view that it is obnoxious to Article 30(1), and I have nothing further to add. 292. Counsel for the petitioners, Sri Nanavatty, abandoned the attack against this provision. Counsel for the State and the Gujarat University accordingly gave no reply. Sri Nanavatty did not attack the provision even in his reply. So I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to University control in the matter of appointment of teachers. But the Motilal Nehru Medical College, Allahabad, which is a constituent college of that University, is not subject to such control. While the Selection .Committee selecting teachers to the associate colleges consists of certain University authorities, the selection of teachers to the constituent colleges is made wholly by the U.P. Public Service Commission and the University has no voice what-so-ever in the selection of the teachers. (See Allahabad University Calendar 1968). Sub-section (3) cannot also be objected to. It permits an affiliated college which does not want to be a constituent college to get affiliated to another University with the permission of the State and the Gujarat University. 297. Serious objection on behalf of the petitioner has, however, been taken to Clauses (ii) to (vi) of Sub-section (4). Sub Section (4) may be divided in two parts. According to the first part the relations of the constituent colleges and the University shall be governed by the statutes to be made in that behalf. The second part provides that any such statutes may provide in particular for the exercise by the Univer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is clarified that this provision shall not apply to a person who is appointed for a temporary period. Like Sub-section (1), this power is also made subject to the approval of the Vice-Chancellor or any other officer of the University authorised by the Vice-Chancellor. No legitimate objection can be taken to the first part of Sub-sections (1) and (2). But serious objection is taken to the provision for the approval of the Vice-Chancellor or any other officer of the University authorised by the Vice-Chancellor in this behalf. 301. It is true that the right to fire an employee belongs to the employer under the contract of service. It is also true that the .right to fire is a management right safeguarded under Article 30(1). But this right cannot include the right to take away or abridge the employee's Constitutional right to form associations, to carry on his profession and other Constitutional and legal rights. The purpose of Section 15A is to check this kind of misuse of the right to fire an employee. So the Vice-Chancellor's power of approval is not unguided and unreasonable. After the Chancellor, the Vice-Chancellor is the next highest officer of the University. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary in the interest of the security of service of the teaching and non-teaching staff. Security of service is necessary to promote efficiency and honest discharge of duty. It is calculated to improve-the institution in the long run. The members of the teaching and non-teaching staff cannot ordinarily afford to go to courts for redress of their grievances. Section 51A provides a cheaper and more expeditious remedy to them for the redress of their grievances. The impugned provision is identical to Section 33, Industrial Disputes Act which this Court has held to be valid. 306. It may be stated that this aspect of the matter which I have considered in regard to Section 51A was not placed before the Court in the earlier cases. As the power of approval' is confined to checking the abuse of the right to fire employees, I am of opinion that it does not offend Article 30(1). Section 52A. 307. It consists of two Sub-sections. Sub-section (1) provides that any dispute between the governing body and any member of the teaching and non-teaching staff of an affiliated college which is connected with the conditions of service of such member shall, on a request of the governing body ..... X X X X Extracts X X X X X X X X Extracts X X X X
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