TaxTMI 
TaxTMI 
1974 (4) TMI 108
X X X X Extracts X X X X
X X X X Extracts X X X X
....) and 29(1) of the Constitution are mutually exclusive. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on religious and linguistic minorities so that the majority 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 gener....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elop the commonness of boys and girls of our country. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rpose of coordinating and harmonising the standards 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ster means autonomy in administration. Emphasis is 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ution it founded. The governing body contemplated 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ative of Article 30, The first set consists 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 po....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e facilities provided and expenditure incurred 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 repr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve no say, the administration would be displaced. 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions. Section 51A of the Act cannot, therefore, 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 pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onounced in no uncertain terms" on earlier occasions. 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 im....
X X X X Extracts X X X X
X X X X Extracts X X X X
....these cases, unless this larger Bench chooses 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. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he nature of the provisions which have been 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 give....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... schools conducted under the influence and guidance of people 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 unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on at all or where the teaching was confined only to 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ational institutions like schools and colleges can be affiliated, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ree college or an intermediate college. (2A) 'Constituent 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....November 22, 1957. The colleges affiliated to the Gujarat University accordingly continued to be affiliated 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 (Amend....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sity 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 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 u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llege and recognized or approved institution shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable 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 n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 55 of 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; (3) That Section 33A inserted in the Gujarat University Act 1949 (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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onal institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. (3) No person attending any educational institution 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....institution means the right to effectively manage and conduct the affairs of the institution.. Administration connotes management of the affairs of the institution. The management must be free of control so that the founders or their nominees can mould the institution 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 cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ernment that they have a special responsibility--a special obligation--for protection of the interests of the minorities. They claim to have more special interest than we have. It is for us to prove that it is a bogus claim, a false claim, and that nobody can be more interested 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to brine about an equilibrium, 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 provide....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Permanent Count of International Justice to give an Opinion on the question "whether, regard being had to the above-mentioned Declaration of October 2, 1921, . as a whole, the Albanian Government is justified in its plea 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 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... alone can satisfy the special requirements of the minority groups, and their re placement by government institutions, would destroy this equality of treatment, for its effect would be to deprive the minority of the institutions appropriate to its needs, whereas the majority would continue to have them supplied in the 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 there....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the minority communities chose to establish and the three categories into which such institutions could thus be classified were (1) those that sought neither aid nor recognition from the State, (2) those that sought aid, and (3) those that sought recognition but not aid. The impugned Bill was concerned only with institutions of the second and third categories. 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 suc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ominated teachers was irregular and against Government policy. Warning was administered to the petitioners that disregard of the Government orders would result in the stoppage of grant. The petitioners thereupon approached this Court under Article 32 of the Constitution on the allegation that the directions issued to them were violative of Article 30(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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....niversities Act whereby it was provided that the governing body of affiliated colleges established by a minority based on religion or language would be entitled to make appointments, dismissals, termination of service or reduction in rank of teachers or take other disciplinary measure's subject only to the approval of the Commission and the Syndicate 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anaging council for private colleges under one corporate management. The Sections provided for the composition of the two bodies so as to include Principals and Managers of the private colleges, nominees of the University and Government, as well as elected representatives of teachers. Subsection (2) provided that the new bodies would be bodies corporate 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ereafter by circular dated June 15, 1970 the University declared that Punjabi would be the sole medium of instruction and examination for the pre-University even for science groups, with effect from the academic year 1970-71. On October 7, 1970 a modification was made allowing English as an alternative medium of examination. It was, however, mentioned 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... were a religious minority. Clauses 2(1)(a) and 17 of Chapter V of the statutes were struck down by the Court as offending Article 30(1) because they interfered with the right of the religious minority to administer their educational institutions. Clause 18 was held not to suffer from the same vice as Clause 17. 88. I have given above the gist 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 ensur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. 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 ob....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts. Regulations to prevent anti-national activities in educational institutions can, therefore,, be considered to be reasonable. 92. A regulation which is designed to prevent maladministration of an educational institution cannot be said to offend Clause (1) of Article 30. At the same time it has to be ensured that under the power of making 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 in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tandard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for the authority concerned to prescribe regulations which must be complied with before an institution can seek and retain affiliation and recognition. Question then arises whether 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 authori....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nstitution when he said that "obligation to obey the laws which apply generally to the community is not regarded as inconsistent with freedom". It would, therefore, follow that the unrestricted nature of a right does not prevent the-making of regulations relating to the enforcement of the right. 96. Question has been posed during the course of arguments 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anguage only. What the Article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. 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 choic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....out 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. 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) wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulations are in the national interest or public interest, are valid. 101. It is, no doubt, true that on page 1065 of the case Re Kerala Education Bill Das CJ. while dealing with Clauses 14 and 15 of the Bill observed that the 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 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ose teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). In the case of Rev. Father W. Proost (supra), this Court while dealing with Section 48-A of the Bihar Universities 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed that the approval is to be withheld only in case the dismissal, removal, reduction in rank or termination of service is mala fide or by way of victimisation, or other similar cause. The conferment of such blanket power on the Vice-Chancellor or other officer authorised by him for vetoing the disciplinary action of the managing body of an educational institution makes a serious inroad on the right 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-Chanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e proviso to Sub-section (4) of Section 41 no instructions, teaching and training in undergraduate courses of study, which has hitherto fore been conducted by the affiliated colleges, would be conducted by these colleges, because the same would have to be conducted by the University and would have to be imparted by the teachers of the University. The affiliated colleges would also as a result of 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 h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....behalf of the respondents to the recommendation of Dr. Radhakrishnan Commission made in 1948-49 wherein preference was shown for constituent colleges. So far as this aspect is concerned, I may observe that if any statutory provision is found to be violative of Article 30(1) of the Constitution, the fact that it has been enacted in pursuance of the recommendation of an expert body would not prevent 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lso been argued on behalf of the respondents that we Should not strike down the impugned Sections but should wait till statutes or ordinances are made in pursuance of those sections. In this respect I am of the view that since the impugned Sections confer the power to frame statutes or regulations violative of the fundamental right under Article 30(1), the very provisions of the Act conferring 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 S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....down of the impugned provision. 115. As a result of the above, I hold that Sections 33A, Section 40, Section 41 and Section 52A of the Gujarat University Act, 1949 as amended by the Gujarat University (Amendment) Act, 1972 are violative of Article 30(1) and as such are void in respect of minority educational institutions. As regards Section 51A of the Act, I uphold the validity of Clause (a) of Sub-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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmunity, having established an educational institution of its choice, also admits members of other communities, and, that the two Articles create two separate rights, although it is possible that they may meet in a given case. 122. In Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay [1963]3SCR837 the Court overruled the contention that Article 30(1) is limited to conserve only the language, script 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ish and administer educational institutions. It is true that under Article 29(1) a Section of the citizens having a distinct language, script or culture, might establish an educational institution for conserving the same. But, under Article 30(1), the right conferred on the religious or linguistic minority is not only the right to establish an educational institution for the purpose of conserving 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 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itor General is of far reaching Constitutional importance not only in the sphere of the right of the religious and linguistic minorities to impart general secular education but also in other areas and merits an examination of its juristic basis. And, we also think, that the question has to be disposed of within the strict confines of legal reasoning which laymen might too often deem to be invidiously 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-dominan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der 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) [see In re: The Kerala Education Bill, 1957 (supra)]. 135. The reason why the Constitution-makers were at pains to grant religious minorities the fundamental right to establish and administer educational institutions of their 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 branc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cation accompanied by optional religious training in minority schools and colleges, if the secular education is conducted there according to the prescribed curriculum and standard. Article 28(3) implies that a religious minority administering an educational institution imparting general secular education has the liberty to provide for religious education in the institution. The continued willingness to rely on colleges 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e monopoly. The fundamental right of the religious and linguistic minorities to establish and administer educational institutions of their choice is the only legal barrier to confine the bursting expansionism of the new Educational Leviathan. Great diversity of opinion exists among the people of this country concerning the best way to train children for their place in society. Because of these differences and because 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve, it is conditioned by its primal duty of promoting justice, respecting guaranteed rights and ensuring equality of differences. 148. The framers of the Constitution were not unaware that under the system which they created, most of the legislative or governmental curtailments of the guaranteed fundamental rights will have the support of legislative judgment that public interest will be served by its curtailment than by 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 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t contracts resulting from expanded budge's, has greatly increased the total number of benefits or privileges which can be conferred by government, thus affording the government countless new opportunities to bargain for the surrender of Constitutional rights. With the growth of spending power of the State--a necessary accompaniment of the modern welfare State--the potentiality of control through the power of purse has 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 po....
X X X X Extracts X X X X
X X X X Extracts X X X X
....till adhered to the views about conditional privileges b2 which he had expressed in McAuliffe v. New Bedford(supra) and Davis v. Massachusetts, (supra) Writing for the court in Pullman Co. v. Adams 189 U.S. 420 he disposed summarily of a contention that a tax of local business was so heavy as to burden the inter-state operations of the Pullman Company saying: The Company cannot complain of being taxed for the privilege of doing a local business 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....clearly to be the fountainhead of the doctrine which now goes by that name (Unconstitutional Conditions" by Maurice H. Merrill, 77 University of Pennsylvania Law Rev., 879, 880 ). 159. The doctrine of "unconstitutional condition" means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some Constitutional right. This doctrine takes for granted that the petitioner has no right to be a 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 Califor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m, it is clear that any attempt to exert the latter, separately and substantively must fall before the paramount authority of the Constitution. Then the question is, could it stand in the conditional form in which it is made ? The learned judge-said that if this could be done, Constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, 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 invo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which the power can normally be exerted without conditions(See ''Unconstitutional Conditions and Constitutional Rights", 35 Columbia Law Rev., 321 357 ). The latter limitation, it will be noted, is essentially the same as that voiced by Justice Frankfurter in the Douds Case American Communications Assoc. v. Douds. 339 U. S. 382 that Congress may not 'exact surrender of freedoms unrelated to the purpose of the facilities'. 166. The most significant characteristic of the 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 So....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iz., the privilege of affiliation with all the conditions, is being offered without discrimination; that the State or university does not withhold the privilege from any persons or entities, but that the person or entity himself or itself decides whether to accept or reject it. We are of the opinion that, in fact, everyone is not being offered the same package since the condition serves as a significant restriction on the activities only of those who have the fundamental right of the nature guaranteed by Article 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lso all other persons and institutions. It cannot be said that by these general laws, the State in any way takes away or abridges the right guaranteed under Article 30(1). Because article 30(1) is couched in absolute terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to is abasement. It is a total misconception to say that because the right is couched in absolute terms, the exercise of the right cannot be regulated or that every regulation of that right 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course have some effect upon the right under Article 30(1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgement, if an educational institution established by a religious minority seeks no recognition, affiliation or aid, the state may have no right to prescribe the curriculum, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from regulations by the legislature or the university if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. As we said, such regulations will be permissible if they are relevant to the purpose of securing or 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 regu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f education are not a part of management as such, that the standards of education concern the body politic and are dictated by considerations of the advancement of the country and its people and, therefore, if universities establish syllabi for examinations, they must be followed, subject, however, to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the heal and hygiene of students and that these regulations 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 gener....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rsity nominated by the Vice Chancellor and the Head of the Department if any, concerted with the subject to be taught by such member. 181. We think that the provisions of Sub-sections (1)(a) and (1)(b) of Section 33A abridge the right of the religious minority to administer educational institutions of their choice. The requirement that the college should have a governing body which shall include persons other than those who are members of the government body of the Society of Jesus would take away the management of the college from the 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 instit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the religious or linguistic minority is an abridgement of the right of the religious minorities to administer the educational institution established by it (see also W. Proost v. Bihar [1969]2SCR73 and Rev. Bishop S. K. Parto v. Bihar [197] 1 S.C.R. 172. 182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching 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 manag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he institutions so established by teachers appointed by the minority. If this essential component of the right of administration is taken away from the minority and vested in the university, there can be no doubt that its right to administer the educational institution guaranteed under Article 30(1) is taken away. 189. Section 39 provides that the university shall conduct post-graduate instructions. That means that teaching, training and instruction in post-graduate courses will be conducted by the university. The word conduct occurring 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er is that of an employer and employee and it passes one's understanding why the management cannot terminate the services of a teacher on the basis of the contract of employment. Of course, it is open to the State in the exercise of its regulatory power to require that before the services of a teacher are terminated, he should be given an opportunity of being heard in his defence. But to require that for terminating the services of a teacher after an inquiry has been conducted, the management should have the approval of an outside agency like the Vice-Chancellor or of his 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 manageme....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... therefore, they can have no application to educational institutions established and administered by religious or linguistic minorities. M. Hameedullah Beg, J. 197. The two questions to be answered by us are : (1) Whether the impact of Article 30(1) of the Constitution upon any of the provisions of the Act before us, or, to put it conversely, whether the effect of any of the provisions of the Act upon the fundamental rights guaranteed to minorities by Article 30(1) is such as to invalidate these provisions ? (2) Whether the rights guaranteed by Article 30 are in 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e benefits resulting from affiliation, the exercise of certain rights which may, in another context, appear to be unwarranted impairments of its fundamental rights. 200. It is true that, if the object of an enactment is to compel a minority Institution, even indirectly, to give up the exercise of its fundamental rights, the provisions which have this effect will be void or inoperative against the minority Institution. The price of affiliation cannot be a total abandonment of the right to establish and administer a minority Institution conferred by Article 30(1) of the Constitution. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... so that it could be removed by the institution concerned whenever it is prepared to pay the price of its removal by giving up certain advantages which are not parts of its fundamental right. Such a conditional bar may be construed only as a permissible regulatory restriction. 202. The first provision which has a compulsive effect on Ahmedabad St. Xaviers College Society is Section 5(1) of the Act which says : 5(1). No educational Institution situate within the University area shall, save with the sanction of the State Government be associated in any way with, or seek admission 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 petiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der Section 38B of the Act for which the petitioning college has already applied. The range of choices open is thus wide, A minority is left absolutely free to make any choice it likes. It has necessarily to pay the price of each choice it makes knowing what it entails. 206. If the combined effect of provisions of the statute is that four alternative courses are open to the College due to its initial option to apply for "affiliation" which is" strictly speaking, only a statutory and not a fundamental right, can its rights under Article 30(1) of the Constitution be said to be violated unless and until it is shown 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 provi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s attempt to become an autonomous college that the question of the impact of Sections 20, 33A, 51A and 52A could arise. The only Sections which could stand in the way of its becoming an autonomous institution could be Sections 5, 40 and 41 of the Act. Therefore, it seems unnecessary in the case before us, to consider the impact of provisions other than Sections 5, 40 and 41 of the Act upon the rights of the petitioning college at present. These questions could be considered premature here. 208. Assuming, however, that we must consider the impact of Sections 20, 33A, 51A, 52A apart the fundamental rights of the 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 re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... contravention". Thus, a mere incidental regulation of or restriction upon the exercise of a fundamental right intended to secure and actually ensuring its more effective enjoyment could not be said to be really directed at an abridgement or taking away of the fundamental right at all or to have that effect. Such a law, when analysed, will be found to aim at something quite different from the abridgement of a minority's fundamental rights under Article 30(1) of the Constitution. It would not really take away or abridge the fundamental rights even though it regulates their exercise. If, on the other hand, a law 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he obligations of statutory rights. It is only when the terms of the statute necessarily compel a minority institution to abandon the core of its fundamental rights under Article 30(1) that it could amount to taking away or abridgement of a fundamental right within the meaning of Article 13(2) of the Constitution. It is only then that the principle could apply that what cannot be done directly cannot be achieved by indirect means. Having stated my approach to the interpretation of Article 30(1) of the Constitution, I proceed now to consider the effect of this Article on the impugned provisions. 212. It appears 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t which necessarily involves statutory restrictions. Of course, if these provisions, could be held to be invalid on any grounds as against all affiliated colleges, whether they are administered by minorities or majorities in a State, they could be held to be invalid against the petitioning college too on those grounds. But, as I have already said, we are not concerned here with such grounds or questions at all. 215. In Re. The Kerala Education Bill, 1957 (supra), this Court rejected the argument that minority institutions have an absolute right to be free from all control in managing their institutions. The majority 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cally leave no choice open before a minority institution except to submit to statutory regulations as the price to be paid for its existence at all as an educational institution. It did not deal with the case in which a minority institution had the option of choosing more or less autonomy, udder the terms of a statute, depending upon the state of efficiency and excellence achieved by it, as is the position in the statute before us. Both the majority and minority view expressed there was that the recognition by the State was not part of the guaranteed fundamental right under Article 30(1) of the Constitution, and also that such recognition 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t to administer for the purpose of ensuring essential conditions of good education and the health and well being of those connected with imparting of education at an institution. 221. In Rev. Father W. Proost and Ors. v. The State of Bihar and Ors. [1969]2SCR73 the right of St. Xavier's College at Ranchi to impart general education, not circumscribed by the requirements of Article 29(1) of the Constitution, was recognised in view of the width of Article 30(1). No doubt it was held here that a provision for subjecting the managerial functions of the governing body of the college to the supervision of a statutory University Service Commission 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce group from the year 1970-71", became applicable to it. Apparently, there was no reasonable means of escape from these provisions so that the affected institution was compelled to change its character and medium of instruction in order to comply with the provisions of the Act. In such a situation, its rights protected both by Articles. 29(1) and 30(1) were held to be infringed by the offending provisions. 226. In D.A.V. College etc. v. State of Punjab and Ors. [1971] Su. S.C.R. 688 the validity of certain Sections of Guru Nanak University (Amritsar) Act 21 of 1969, and of some statutes of the University made under it, was considered by this Court in 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....want to pay the price of the same statutory controls as majority managed colleges for affiliation and recognition, but provisions which apply uniformly to minority as well as majority managed colleges could not be invalidated on such a ground. In other words, it may be that Article 30(1) of the Constitution enables a minority to contend that, in order to secure an equal protection of laws, the State should make some statutory provision so that minority institutions may obtain recognition or teach for degrees recognised by the State without sacrificing any part of it rights of management guaranteed by Article 30(1) of the Constitution. No claim for an order directing 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 se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isfying itself whether the standards of education in such college, institution or Department are so developed that it would be in the interest of education to allow the college, institution or (ii) make such further inquiry as may appear to it to be necessary: (b) after consulting the Academic Council on the question whether the college, institution, or Department should be allowed to enjoy autonomy in the specified matters and stating the result of the inquiry under Clause (a) record its opinion on that question; and (c) make a report to the Court on that question embodying in such report the result of the inquiries, the opinion of the Academic Council and the opinion 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....easing illusion". But, is it anything more than an illusion to view the choice of a minority as to what it does with its educational institution as a matter of unconcern and indifference to the whole organised society which the State represents ? 234. The Nineteenth Century "liberal" view of freedom as absence of constraint", which was largely negative, was voiced by J.S. Mill in his "Essay on Liberty" (American State Papers--Federalist--J.S. Mill, p. 267@271 and 305 ). In the introduction, the learned author set out the purpose of his essay as follows (See: "Great Books of the Western World", J. S. Mill at page 271) : The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted would detract more from the general sum of good. Finally, if by his vices or follies a person does no direct harm to others, he is nevertheless (it may be said) injurious by his example; and ought to be compelled to control himself for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead. 236. Even if Article 30(1) of the Constitution is held to confer absolute and unfettered rights of management upon minority institutions, subject only to absolutely minimal and negative controls in the interests of health and law and order, it could not be meant to exclude a greater degree of regulation and control when a minority institution enters the wider sphere of general secular and non-denominational education, 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 m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....afeguards the religious freedom of a group of persons in respect of certain specified matters. The individual and the group may belong to a minority community as well as to the majority community. In contrast, Article 30(1) safeguards the right of the minority community. It has nothing to do with the majority community. Thus, although Article 30(1) safeguards a group-right like Article 26, is radically different from Article 26 as it is confined only to the minority community. 241. While Articles. 25 and 26 are concerned with religious freedom, Article 30(1) extends the right of establishing and administering an educational institution not only to a religious minority but also to a linguistic minority who may be even atheists. So the scope 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or profession. A citizen may acquire, hold and sell any kind of property or carry on any business or profession. Of course, these freedoms are subject to State regulation under Art, 19(3),(5) and (6). But freedom without choice is no freedom. So it seems to me that the words 'of their choice' merely make patent what is latent in Article 30(1). Those words are not intended to enlarge the area of choice already implies fin the right conferred by Article 30(1). 247. The Court has already held that the right to establish an educational institution under Article 30(1) is not confined to the purposes specified in Article 29(1). [See the State of Bombay v. Bombay Education Society [1955]1SCR568 ;; In Re. Kerala Education Bitl [1959]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 fun....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that as freedom of circulation is held to be implied in freedom of speech and expression, so the right of affiliation should be implied in the right to establish educational institutions The argument is plausible but fallacious. There is a distinction between freedom of thought and freedom of speech and expression. The former gives freedom to a man to think whatever he likes; the latter gives him freedom to communicate what he thinks to one or more persons. Consequently, the latter necessarily implies freedom of propagation or circulation of ideas. But the right of affiliation is not necessarily implied in that sense in the right of establishing educational institutions. History shows that educational institutions have existed with vigour 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 unaffil....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on account of the injunction of Article 13(2). 254. It is true that Article 30(1) is expressed in spacious and unqualified language. And so is Article 14 : "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." However, this Court has read the limitation of classification in the general and unrestricted language of Article 14. The general language of Article 14... has been greatly qualified by the recognition of the State's regulating power to make laws operating differently on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given 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 : ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....been held that this 'absolute' freedom is subject to regulation. The words "absolutely free" "have occasioned the greatest problems in relation to Section 92. It was early settled that they were not limited to pecuniary burdens, but while it is clear that the nature of freedom predicated does not involve: an abnegation of all legal restrictions upon trade, commerce, and intercourse, the precise extent of permitted interference is not easy to formulate.... The difficulty of stating a general rule applicable to all cases arises from the impossibility of reducing an essentially practical subject to general abstract terms. The precise nature of trade, commerce and intercourse, exactly what it comprehends for the purpose of sec. 92, no more, 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 W....
X X X X Extracts X X X X
X X X X Extracts X X X X
....260. The right, of admission is further curtailed by Article 15(4) which provides an exception to Article 29(2). Article 15(4) enables the State to make any special provision for the advancement of any socially and educationally backward class of citizens or for the scheduled caste and scheduled tribes in the matter of admission in the educational institutions maintained by the State or receiving aid from the State. 261. Article 28(3) imposes a third restriction on the right in Article 30(1). It provides that no person attending any educational institution recognised or receiving aid by the State 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. 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 aga....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is accepted, then full effect can be given to Article. 26(b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Article 25(2)(b) will prevail. While, in the former case, Article 25(2)(b) win. be put wholly out of operation, in the latter, effect can be given to both that provision and Article 25(b). We must accordingly hold that Article 26(b) must be read subject to Article 25(2)(b)." (Sri Venkataramana Devaru and Ors. v. State of Mysore [1958] 2 S.C.R. 895. 264. Accordingly the right in Article 30(1) cannot, in my view, be so exercised as to violate a citizen's legal or Constitutional rights. Thus the management cannot punish a member of the teaching or non-teaching 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....istic minorities in the light and socially needful education of students of the minorities. The students do not belong only to the minorities; they belong also to the Nation. The over-accentuated argument of imparting secular general education a religious atmosphere seems to me to overlook this important national aspect. Secular general education should be the Nation's first concern. It may legitimately be assumed that the Constitution makers were alive to the priority which education should receive in the programme of our Republic. (See Articles 41, 45 and 46). How could they then intend to confer an absolute or near-absolute right on a religious or linguistic minority to establish and administer an educational institution for imparting secular general education ? 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....litary academy, marine engineering, in which the State is vitally interested for various reasons. 272. The extent of regulatory power may vary from class to class as well as within a Sections For instance, institutions receiving aid and recognition may be subject to greater regulation than those which receive neither. Similarly, institutions imparting secular general education may be subject to greater regulation than those which are imparting religious, cultural and linguistic instruction solely. 273. An educational institution would consist of : (1) the managing body of the institution, (2) teaching staff, (3) non-teaching staff, (4) students and' (5) property of various kinds. Here again, the extent of the regulatory power may vary from one constituent 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the State in its curriculum or syllabus. It appears to me that the State prescribes the curriculum and syllabus as much from the point of view of excellence of instruction as from the point of view of having a uniform standard of instruction. A uniform standard is perhaps necessary owing to the different calibre of students coming from different developed and undeveloped strata of society and from different developed and undeveloped geographical regions of the country. 277. But it is pressed upon us that the prescribing a curriculum and syllabus is not a part of the administration of an educational institution. With profound respect to the learned Judges who decided the Mother Provincial case [1971]1SCR734 , I find it difficult to accept this argument. 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 educationa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....authority. Likewise Clause 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all except out of the panel to be prepared by the Public Service Commission, which, apart from the question of its power of taking up such duties may not be qualified at all to select teachers who will be acceptable to religious denominations and in particular sub- Clause (2) of that Clause is objectionable for it thrusts upon educational institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenants of their religion and .may be otherwise weak educationally. Power of dismissal, removal, reduction in rank or suspension is an index, of the right of management and that is taken away by Clause 12(4). These are, no doubt, serious inroads on the right of administration and appear perilously near violating that right. But considering that those provisions are applicable to all educational institutions and that the impugned parts of 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ar. Take for instance the right of any citizen, including a religious or linguistic minority to establish and administer a military academy for imparting theoretical as well as practical training to the students admitted to it. Sri Nanavatty, counsel for the petitioners, conceded that this right may be restricted and regulated in the interest of the security of the State. The State may make a regulation for effective control and supervision of the arms and ammunition belonging to the academy by the officers of its own choice and confidence. The State may, I believe, go to the length of even prescribing that the arms and ammunition should be kept in the government armory and should be issued by a State officer holding charge of the armory. The right under Article 30(1) forms 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 initiall....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Albanian nationals .who belong to racial, religious or linguistic minorities will enjoy the same treatment and security in law and in fact as other Albanian nationals. In particular they shall have an equal right to maintain, manage and control at their own expense or to establish in the future, charitable, religious and social institutions, schools and other educational establishments, with the right to use their language and to exercise their religion freely therein." In 1933 the Albania National Assembly amended the Albanian Constitution thus: "The instruction and education of Albanian subjects are reserved to the State and will be given in State schools. Primary education is compulsory for all Albanian nationals and will be given free of charge. Private schools 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 Constituti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....associated with or seek permission to any privileges of any other University. 296. I do not think that any legitimate objection can be taken to. Sub-section (1). Merely because an affiliated college is made a constituent college of the University, would not necessarily offend Article 30(1). The definition of the expression 'constituent college' by itself is innocuous. After all, someone has said: "What is there in a name!" The concept of a constituent college is fluid. It is the degree of external control exercised over the administration of a minority college, and not its statutory name, that is relevant for the purposes of Article 30(1), For instance, the associate colleges (which are similar to affiliated colleges) of the Allahabad University are subject 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 Commissi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n a reasonable opportunity of making representation against the penalty proposed, he cannot be punished. This part of Sub-section (1) is similar to Article 311(2) of the Constitution, and no legitimate objection can be taken to it. Sub-section (1) also contains another rider on the power of the administration to fire its staff. According to this rider, the penalty inflicted by the management shall not take effect, until it is approved by the Vice-Chancellor or any other officer of the University authorised by the Vice-Chancellor in this behalf. 300. Sub-section (2) provides that the services of no member of the teaching and non-teaching staff shall be terminated unless he had been given a reasonable opportunity of showing cause against the proposed termination. 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iversity for this purpose. Section 8 of the Act enumerates the officers of the University. They are: (1) the Chancellor; (2) the Vice Chancellor; (3) the Pro-Vice-Chancellor; (4) the Deans of Faculties; (5) the Registrar; (6) the University Librarian; and (7) such other officers of the University as may be declared by the statutes to be the officers of the University.' The first six officers are all important and responsible officers of the University. They can be trusted to exercise the power of approval in a reasonable manner. It has not been pointed out to us whether statutes have made any other officer an officer of the University. So we are not concerned with the last clause. 305. It seems to me that the power of approval by the Vice-Chancellor is necessary 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the district in which the school is located provided that manager may, for sufficient reason,, with the per- mission of the Public Service Commission, appoint teachers selected for any other district, Appointment of teachers in Gov- ernment schools shall also be made from the list of candidates so published. (2) In selecting candidates under sub- section (1), the Public Service Commission shall have regard to the provisions made by the Government under cl. (4) of Art. 16 of the Constitution. Appointment of teachers in private col leges- (1) Posts of principal of private colleges shall be selection posts, (2) Appointment to the post of princi- pal in a private college shall be made by the governing body or managing coun- cil, as the case may be, from among teachers of the college or of all the colleges, as the case may be or if there is no suitable person in such college or colleges, from other persons. (9) Any teacher aggrieved by an appointment under sub-section (7) may within sixty days from the date of the appointment, appeal to the Syndicate, and the decision of the Syndicate thereon shal....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or dismissal and to order such other remedial measures as it deems fit, and the governing body or managing council, as the case may be, shall comply with the order. Statute 17-The staff initially appointed All subsequent changes shall be reported to the University for Vice-Chancellor's approval. In the case of training institu tions the teachers, pupil ratio shall not be less than 1:12. Non-Government Colleges shall comply with the require- ments laid down in the Ordinance, govern- ing service and conduct of teachers in non-Government Colleges as may be framed by the University. (1) Section 48-Governing body for private college not under corporate management- (1) The educational agency of a private college, other than a private college under a corporate management, shall constitute in accordance with the provisions of the statutes a governing body consisting of following members, namely: (a) the principal of the private college; (b) the manager of the private college; (c) a person nominated by the Univer sity in accordance with the provisions in that behalf contained in the statutes. (d) a p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erson nominated by the Govern- ment; (e) two persons elected in accordance with such procedure as may be prescribed by the Statutes from among themselves hy the permanent teachers of all the pri- vate colleges: and (2) (f) not more than fifteen persons nomi- nated by the educational agency. (2) The managing council shall be a body corporate having perpetual succession and a common seal, (3) The manager of the private colleges shall be the chairman of the managing council. (4) A member of the managing council shall hold office for a period of four years from the date of the constitution, (5) It shall be the duty of the manag ing council to administer all the private colleges under the corporate management in accordance with the provisions of this Act and the Statutes, Ordinances, Regu- lations, Bye-laws and Orders made there- under. (6) The powers and functions of the managing council, the removal of members thereof and the procedure to be followed by it, including the delegation of its powers, shall be prescribed by the Statu- tes. (7) Notwithstanding anything contained in sub-section....