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PETITIONER: IN  RE  THE KERALA EDUCATION BILL,  1957.   REFERENCE  UNDER

       Vs.

RESPONDENT:

DATE OF JUDGMENT: 15/03/1958

BENCH:

ACT: President’s Refercnce-Kerala Education Bill,  1957-Constitu- tional validity-Advisoyy jurisdiction of the Supreme  Court, scope  of-Cultural  and educational  rights  of  minorities- Constitution of India, Arts. 143(1), 14, 29, 30 and 226.

HEADNOTE: This was a reference under Art. 143(1) of the Constitution made by the President of India for obtaining the opinion  of the 996 Court upon certain questions relating to the  constitutional validity  of some of the provisions of the Kerala  Education Bill, 1957, which had been passed by the Kerala  Legislative Assembly   but  was  reserved  by  the  Governor   for   the consideration of the President.  The Bill, as its title  and preamble   indicated,   had  for  its  object   the   better Organisation  and  development of  the  educational  service throughout  the State, presumably, in implementation of  the provisions of Art. 45 of the Constitution and conferred wide powers of control on the State Government in respect of both aided  and recognised institutions.  Of the  four  questions referred  to  this Court, the first and third  impugned  cl. 3(5)  read  with  cl. 36 and cl. 15 of  the  Bill  as  being discriminatory under Art. 14, the second impugned cls. 3(5), 8(3)  and  cls. 9 to 13 Of the Bill as  being  violative  of minority rights guaranteed by Art. 30(1) and the fourth, cl. 33  of the Bill, as offending Art. 226 of the  Constitution. Clause 3(5) of the Bill made the recognition of new  schools subject  to the other provisions of the Bill and  the  rules framed by the Government under cl. (36), Cl. (15) authorised the Government to acquire any category of ’Schools, cl. 8(3) made  it  obligatory on all aided schools to hand  over  the fees to the Government, cls. 9 to 13 made provisions for the regulation and management of the schools, payment of  salary to  the  teachers  and the terms  and  conditions  of  their appointment  and cl. (33) forbade the granting of  temporary injunctions  and interim orders in restraint of  proceedings under the Act.  This Court took the view that since cl. 3(5) attracted  the other provisions of the Bill, in case  anyone of  them was found to be unconstitutional, cl.  3(5)  itself could not escape censure. Held  (per Das C. J., Bhagwati, B. P. Sinha, Jafer Imam,  S. K.  Das and J. L. Kapur JJ.), that although Art.  143(1)  Of the Constitution, which virtually reproduced the  provisions of s. 213(1) of the Government of India Act, 1935, gave this Court  the discretion, where it thought fit, to  decline  to express  any  opinion on the questions referred to  it,  the objection  that  such questions related, not  to  a  statute

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brought  into force but, to the validity of a Bill that  was yet  to  be  enacted, could be no ground  for  declining  to entertain the reference. Article  143(1) of the Constitution had for its  object  the removal  of  the doubts at the President and was in  no  way concerned  with any doubts that a party might entertain  and no  reference  could  be incomplete or  incompetent  on  the ground  that it did not include other questions  that  could have been included in it and it was not for this Court to go beyond the reference and discuss them. The  Advisory  jurisdiction  conferred by  Art.  143(1)  was different  from  that  conferred  by  Art.  143(2)  of   the Constitution  in that the latter made it obligatory on  this Court to answer the reference. In re Levy of Estate Duty, [1944] F.C.R. 3.17, relied on. 997 Attorney-General  for  Ontario v. Hamilton  Street  Railway, [1903] A.C.  524, Attorney-General for British Columbia  v. Attorney-General  for  Canada, [1914] A. C. 153, ln  re  The Regulation  and Control of Aeronautics In Canada, [1932]  A. C. 54, In re Allocation of Lands and Buildings, [1943] F. C. R.  20  and In Ye Delhi Laws Act, 1912, [1951]  S.C.R.  747, considered. A  directive principle of State policy could not override  a fundamental right and must subserve it, but no Court  should in  determining the ambit of a fundamental  right,  entirely ignore a directive principle but should try to give as  much effect  to  both as possible by adopting  the  principle  of harmonious construction. State of Madras v. Smt.  Champakam Doraiyajan, [1951] S.C.R. 525 and Mohd.  Hanif Quayeshi v. The State of Bihar,  [1959] S.C.R. 629, referred to. In  answering the questions under reference, the  merits  or otherwise  of  the policy of the Government  sponsoring  the Bill could be no concern of this Court and its sole duty was to  pronounce its opinion on the constitutional validity  of such  provisions  of  the  Bill  as  were  covered  by   the questions. judged in the light of the principles laid down by a  series of  decisions  of  this  Court explaining  Art.  14  Of  the Constitution,  the  clauses  of the Bill  that  came  within questions 1 and 3 could not be said to be violative of  that Article. The restriction imposed by cl. 3(5) read with cl. 26 of  the Bill,  which  made it obligatory on the  guardians  to  send their  wards to a Government or a private school in an  area of  compulsion and thus made it impossible for a new  school in  such  area,  seeking neither  aid  nor  recognition,  to function,  could not be said to be discriminatory since  the State   knew  best  the  needs  of  its  people,  and   such discrimination  was quite permissible, based, as it was,  on geographical classification. Mohd.  Hanif Ouareshi v. The State of Bihar, [1959] S. C. R. 629,  Chiyanjit Lal Chowdhury v. The Union of India,  [1950] S.C.R.  1045,  Ramkrishna  Dalmia  v.  Sri  justice  S.   R. Tendolkar, [1959] S.C.R. 279, referred to. No  statute  could be discriminatory unless  its  provisions discriminated, and since the provisions of the Bill did  not do  so,  it  could  not  be  said  to  have  violated  equal protection  of  law  by  its  uniform  application  to   all educational institutions although not similarly situate. Cumberland  Coal Co. v. Board of Revision, (1931) 284 U.  S. 23; 76 L. Ed. 146, held inapplicable. The  policy and purpose of a statute could be  deduced  from its  long  title and the preamble.  The impugned  Bill  laid

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down  its  policy  in the long title and  the  preamble  and reinforced it by 998 more  definite  statements  in the  different  clauses  and, consequently,  such discretion as it left to the  Government had to be exercised in implementing that policy.  The use of the word may in cl. 3(3) could make no difference, for  once the  purpose  was  established and  the  conditions  of  the exercise of the discretion were fulfilled, it was  incumbent on  the  Government to exercise it in  furtherance  of  that purpose.   If it failed to do so, the failure, and  not  the Bill, must be censured. Biswambar  Singh v. The State of Orissa, [1954]  S.C.R.  842 and  Julius  v. Lord Bishop of Oxford, (1880) 5  App.   CaS. 214, referred to. Discretionary power was not necessarily discriminatory,  and abuse  of  power  by the Government  could  not  be  lightly assumed.   Apart  from  laying down the  policy,  the  State Legislature provided for effective control by itself by  cl. 37  and  the proviso to cl. 15 of the Bill.  It  could  not, therefore,  be  said  that the Bill  conferred  unguided  or uncontrolled powers on the Government. Article  30(1)  Of the Constitution, which was  a  necessary concomitant to Art. 29(1) and gave the minorities the  right to  establish  and administer their  institutions,  did  not define the word ’minority’, nor was it defined anywhere else by  the  Constitution, but it was absurd to suggest  that  a minority  or section envisaged by Art. 30(1) and Art.  29(1) could  mean  only such persons as  constituted  a  numerical minority  in  the particular region  where  the  educational institution was situated or resided under a local authority. Article 350-A of the Constitution, properly construed, could lend no support to such a proposition.  As the impugned Bill extended  to the entire State, minorities in the State  must be  determined  on the basis of its entire  population,  and thus the Christians, the Muslims and the Anglo-Indians would be its minority communities. Article  30(1)  of  the  Constitution  made  no  distinction between  minority  institutions  existing  from  before  the Constitution  or established thereafter and protected  both. It  did  not require that a minority institution  should  be confined  to  the  members  of the  community  to  which  it belonged and a minority institution could not cease to be so by admitting a non-member to it. Nor  did  Art.  30(1) in any way limit the  subjects  to  be taught in a minority institution, and its crucial words " of their own choice ", clearly indicated that the ambit of  the rights  it conferred was determinable by the nature  of  the institutions   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. 999 The word ’aid’ used by Arts. 29(2) and 30(2) included grant’ under  Art. 337 of the Constitution and that word  occurring in the Bill must have the same meaning.  Consequently,  such clauses  of the Bill mentioned in question No. 2 as  imposed fresh and stringent conditions precedent to such grant  over and above those to which it was subject under Arts. 337  and 29(2), violated not only Art. 337 but also, in substance and effect,  Art.  30(1) of the Constitution and  were  to  that extent void.

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Rashid Ahmad v. Municipal Board, Kaiyana, [1950] S.C.R. 566, Mohd.   Yasin v. The Town Area Committee, jalalabad,  [1952] S.C.R.  572  and  The State of Bombay  v.  Bombay  Education Society, [1955] 1 S.C.R. 568, referred to. Although  there was no constitutional right to the grant  of aid  except for Anglo-Indian educational institutions  under Art. 337 Of the Constitution, State aid was indispensable to educational  institutions and Arts:, 28(2), 29(2) and  30(2) clearly contemplated the grant of such aid and Arts. 41  and 46  charged  the State with the duty of  aiding  educational institutions and promoting such interests of the minorities. But  the right of the minorities to administer their  educa- tional  institutions under Art. 30(1), was not  inconsistent with  the right of the State to insist on proper  safeguards against maladministration by imposing reasonable regulations as conditions precedent to the grant of aid.  That did  not, however,  mean  that  the State Legislature  could,  in  the exercise  of its powers of legislation under Arts.  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 indirectly. So  judged, cl. 3(5) of the Bill by bringing into  operation and  imposing cls. 14 and 15 as conditions precedent to  the grant of aid, violated Art. 30(1) of the Constitution. Similar  considerations  applied  to  the  grant  of   State recognition as well.  No minority institution could  fulfill its  real  object or effectively exercise its  rights  under Art. 30(1) without State recognition, as otherwise it  would not  be  open to its scholars under the  Education  Code  to avail  of  the  opportunities for higher  education  in  the University  or  enter  the public services.   While  it  was undoubtedly true that there could be no fundamental right to State  recognition,  denial of recognition  except  on  such terms  as virtually amounted to a surrender of the right  to administer  the institution, must, in substance  and  effect infringe Art. 30(1) of the Constitution. Clause 3(5), read with Cl. 20 of the Bill, in forbidding the charging  of tuition fees in the primary  classes,  deprived the  minority  institutions of a fruitful source  of  income without  compensation, as was provided by cl. (9) for  aided schools,  and  thus imposed a condition precedent  to  State recognition which was in 127 1000 effect  violative of Art. 30(1) and was, therefore, void  to that  extent.   No rules, when framed under the  Act,  could cure such invalidity. Article  45  of the Constitution did not require  the  State Government  to provide free and compulsory education to  the detriment    of   minority   rights   guaranteed   by    the Constitution,if  the  Government  so chose it  could  do  so through the Government and aided schools, and this Court was in  duty  bound  to uphold such fundamental  rights  as  the Constitution  had  thought  fit to confer  on  the  minority communities. The  wide  powers  and jurisdiction conferred  on  the  High Courts by Art. 226 of the Constitution could not be affected by  a provision such as cl. (33) of the Bill, which  forbade Courts  to issue temporary injunctions or interim orders  in restraint of any proceedings thereunder, and it must be read as  subject to the overriding provisions of Art. 226 of  the Constitution. Venkatarama  Aiyar J.-It was obvious that Art. 30(1) Of  the Constitution did not in terms confer a right on the minority institutions to State recognition, nor, properly  construed,

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could  it do so by implication, for such an implication,  if raised, would be contrary to the express provisions of  Art. 45  Of  the  Constitution.   Article  30(1)  was   primarily intended  to protect such minority institutions as  imparted purely  religious education and to hold that the  State  was bound  thereunder  to recognise them would be  not  only  to render  Art. 45 wholly infructuous but also to  nullify  the basic  concept  of  the  Constitution  itself,  namely,  its secular character. There was no conflict here between a fundamental right and a directive principle of State policy that must yield, and the principle  of Art. 45 must have full play.  Clause  (20)  of the Bill was designed to enforce that principle and cl. 3(5) Of  the  Bill in making it a condition  precedent  to  State recognition   could   not   violate  Art.   30(1)   Of   the Constitution. Nor  could a consideration of the policy behind  Art.  30(1) lead  to a different conclusion, assuming that the  question of policy could be gone into apart from the language,  since that policy was no other than that the majority community of the State should not have the power to destroy or impair the religious or linguistic rights of the minority communities. The  only  two obligations, one a positive and the  other  a negative,  that  Art. 30(1) read with Arts. 25, 26,  29  and 30(2)  of the Constitution imposed on the State were (1)  to extend equal treatment as regards aid or recognition to  all educational institutions, including those of the minorities, religious  or  linguistic,  and  (2)  not  to  prohibit  the establishment of minority institutions or to interfere  with their administration. To  hold that the State Government was further  bound  under Art.  30(1) to accord recognition to  minority  institutions would be 1001 to  put the minorities in a more favoured position than  the majority    community,   which   the   Constitution    never contemplated. City   Winnipeg  v.  Barrett : City of  Winnipeg  v.  Logan, [1892] A.C. 445, referred to.

JUDGMENT: ADVISORY JURISDICTION: Special Reference No. 1 of 1958. Reference by the President of India under Article 143(1)  of the  Constitution  of India on the  Kerala  Education  Bill, 1957. The  circumstances  which  led  to  this  Reference  by  the President  and the questions referred appear from  the  full text  of  the  Reference  dated March  15,  1958,  which  is reproduced below:- WHEREAS the Legislative Assembly of the state of Kerala  has passed  a  Bill to provide for the better  Organisation  and development  of  educational institutions in  the  State  of Kerala  (hereinafter referred to as the  Kerala  Educational Bill); AND WHEREAS the said Bill, a copy whereof is annexed hereto, has  been reserved by the Governor of Kerala, under  article 200 of the Constitution, for my consideration ; AND  WHEREAS  sub-clause 3 of clause (3) of  the  said  Bill enables  the Government of Kerala, inter alia, to  recognise any school established and maintained by any person or  body of  persons for the purpose of providing the facilities  set out in sub-clause (2) of the said clause to wit,  facilities for  general  education,  special  education  and  for   the

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training of teachers ; AND  WHEREAS  sub-clause (5) of clause 3 of  the  said  Bill provides, inter alia, that any new school established or any higher  class opened in any private school, after  the  Bill has become an Act and the Act has come into force, otherwise than  in accordance with the provisions of the Act  and  the rules  made under section 36 thereof, shall not be  entitled to be recognised by the Government of Kerala; AND WHEREAS a doubt has arisen whether the provisions of the said sub-clause (5) of clause 3 of the said Bill confer upon the Government an unguided 1002 power  in regard to the recognition of new schools and   the opening  of  higher classes in any private school  which  is capable   of   being   exercised   in   an   arbitrary   and discriminatory manner; AND WHEREAS a doubt has further arisen whether such power of recognition of new schools and of higher classes in  private schools  is  not  capable of being  exercised  in  a  manner affecting  the right of the minorities guaranteed by  clause (1)  of  article  30 of the Constitution  to  establish  and administer educational institutions of their choice; AND  WHEREAS  sub-clause (3) of clause 8 of  the  said  Bill requires  all fees and other dues, other than special  fees, collected  from the students in an aided school to  be  made over  to the Government of Kerala in such manner as  may  be prescribed,   notwithstanding  anything  contained  in   any agreement, scheme or arrangement ; AND  WHEREAS  a doubt has arisen  whether  such  requirement would  not affect the right of the minorities guaranteed  by clause  (1) of article 30 of the Constitution to  administer educational institutions established by them; AND  WHEREAS  clauses  9 to 13 confer  upon  the  Government certain  powers  in regard to the  administration  of  aided schools;, AND WHEREAS a doubt has arisen whether the exercise of  such powers in regard to educational institutions established  by the minorities would not affect the right to administer them guaranteed by clause (1) of article 30 of the Constitution; AND  WHEREAS  clause  15  of  the  said  Bill  empowers  the Government  of Kerala to take over, by notification  in  the Gazette, any category of aided schools in any specified area or  areas,  if  they are satisfied  that  for  standardising general  education in the State of Kerala or  for  improving the  level of literacy in any area or for  more  effectively managing  the aided educational institutions in an  area  or for  bringing education of any category under  their  direct control it is necessary to do so in the public interest, on 1003 payment of compensation on the basis of market value of  the schools so taken over after deducting therefrom the  amounts of aids or grants given by that Government for  requisition, construction or improvement of the property of the schools; AND  WHEREAS  a doubt has arisen whether such power  is  not capable   of   being   exercised  in   any   arbitrary   and discriminatory manner; AND  WHEREAS  clause  33 of the  said  Bill  provides  that, notwithstanding  anything  contained in the  Code  of  Civil Procedure,  1908,  or any other law for the  time  being  in force, no courts can grant any temporary injunction or  make any interim order restraining any proceedings which is being or about to be taken under the Act; AND WHEREAS a doubt has arisen whether the provisions of the said clause 33, in so far as they relate to the jurisdiction of  the  High  Courts,  would  offend  article  226  of  the

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Constitution ; AND  WHEREAS  there  is  likelihood  of  the  constitutional validity  of  the  provisions  of  the  Bill  herein  before referred  to  being questioned in courts of  law,  involving considerable litigation ; AND WHEREAS, in view of what has been here in before stated, it  appears to me that the questions of law hereinafter  set out  have  arisen  and  are  of  such  nature  and  of  such importance  that  it is expedient that the  opinion  of  the Supreme Court of India should be obtained thereon; NOW, THEREFORE, in exercise of the powers conferred upon  me by  clause  (1)  of  article 143  of  the  Constitution,  1, Rajendra  Prasad,  President  of  India,  hereby  refer  the following  questions  to  the Supreme  Court  of  India  for consideration and report thereon, namely :- "  (1)  Does  sub-clause  (5) of  clause  3  of  the  Kerala Education  Bill, read with clause 36 thereof, or any of  the provisions of the said sub-clause, offend article 14 of  the Constitution in any particulars or to any extent ? (2)  Do sub-clause (5) of clause 3, sub-clause (3) of 1004 clause  8 and clauses 9 to 13 of Kerala Education  Bill   or any  provisions thereof, offend clause (1) of article 30  of the Constitution in any particulars or to any extent? (3)  Does  clause  15 of the Kerala Education Bill,  or  any provisions thereof, offend article 14 of the Constitution in any particulars or to any extent ? (4)  Does  clause  33 of the Kerala Education Bill,  or  any provisions  thereof, offend article 226 of the  Constitution in any particulars or to any extent ? " 1958.  April 29, 30.  May 1, 2, 5, 6, 7, 8, 9 and 12. M.  0. Setalvad,  Attorney-General  for  India,  C.  K.   Daphtary, Solicitor-General   of  India,  H.  N.  Sanyal,   Additional Solicitor--General  of India, G. N. Joshi and R. H.  Dhebar, for   the   President  of  India.   The  preamble   to   the Constitution  of India lays emphasis on liberty of  thought, expression,  belief,  faith  and  worship  and  assures  the dignity  of the individual.  To give effect to these  ideals the   Constitution  provides  fundamental  rights  for   the individuals  in Arts. 19, 25 and 28 and for groups in  Arts. 26,  29 and 30.  The fundamental rights in Arts. 29  and  30 are  absolute  and no restrictions can be  placed  on  them, though  restrictions  can  be placed  on  other  fundamental rights.  These rights may be compared with the rights  under Art.  44  (2)  of the Irish Constitution and s.  93  of  the British North America Act.  The freedoms conferred by  Arts. 26,  29  and  30  were  considered  by  this  Court  in  The Commissioner,  Hindu  Religious Endowments,  Madras  v.  Sri Lakshmindra  Thirtha Swamiar of Sri Shirur Mulutt, (  [1954] S.C.R. 1005 at 1028-1029) and The State of Bombay v.  Bombay Education Society, ( [1955] 1 S.C.R. 568 at 578, 580,  586). Article  30  (1) gives absolute right to the  minorities  to establish  and administer educational institutions of  their choice.   The Constitution having ensured religious  freedom under  Art.  26 and cultural freedom in Art.  29,  left  the means  to  promote  and  conserve  these  freedoms  to   the minorities themselves to work out under Art. 30 (1). Clause  3  (5) of the Kerala Education Bill  which  provides that the establishment of new schools and opening of  higher classes shall be according to the Rules to 1005 be  framed under cl. 36 to entitle them to be recognised  by the  Government,  confers upon the  executive  unguided  and uncontrolled  powers and offends Art. 14.  The’  legislature does not lay down any policy, but leaves it to the executive

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tinder the rule-making powers.  A. Thangal Kunju Musaliar v. M.  Venkitachalam  Potti,  ([1955] 2 S.C.R.  1196  at  1239, 1241); The State of West Bengal v. Anwar Ali Sarkar, ([1952] S.C.R. 284 at 345, 346). It  is incorrect to say that Christians and Muslims are  not minorities  in  Kerala.   When the  Constitution  speaks  of minorities it speaks on an all India basis.  The fact that a certain  community  formed  a very high  percentage  of  the population  in a particular State did not detract  from  its status  as  a  minority.  The provisions of  the  Bill  make illusory  the rights granted by Art. 30 (1)  to  minorities. By using the instrument of Government aid the Bill seeks  to deprive  the minorities of their right to  administer  their own schools. Shirur Mutt Case, ( [1954] S.C.R. 1005 at 1028, 1029).   The  right of the minorities under  Art.  30(1)  to establish  and administer their institutions is an  absolute and  unfettered right and is consistent with  their  getting aid  from  the Government.  Article 337 makes  special  pro- vision for educational grants for the benefit of the  Anglo- Indian  community.  Article 30 (1) is infringed whether  the schools  go  in for aid or not.  Clause 8 (3)  of  the  Bill under  which in all aided schools all fees, etc.,  collected from  the  students  will  have  to  be  made  over  to  the Government   deprives  the  management  of  the   right   of administration.   Pierce v. Society of Holy  Sisters  Names, (69 L. Ed. 1070 at 1077); Maher v. Nebraska, (67 L. Ed. 1042 at 1044). Clause 15 of the Bill empowers the Government to acquire any category  of  aided  schools in any  specified  area.   This clause is wholly subversive of Art. 30 (1).  It also offends Art. 14 as it empowers the Government to pick and choose any schools,  by suitably selecting the category and  area,  for acquisition,  no criteria having been laid down  for  making the choice. Clause 33 of the Bill prohibits all Courts from 1006 granting any temporary injunction or interim order regarding any  proceedings  taken under the Act.  To the  extent  that this  clause  infringes  Art. 226 or Art. 32,  it  is  void. Interim  orders  are also passed under Arts. 226 and  32  as ancillary to the main relief.  The State of Orissa v.  Madan Gopal Rungta, ( [1952] S.C.R. 28 at 34).     Halsbury’s Laws of England, 3rd Edn., Vol. 11, p.  110, para. 204. Kaslival, Advocate-General of Rajasthan, R.H. Dhebar and  T. M. Sen, for the State of Rajasthan adopted the arguments  of the Attorney-General for India. G.   S.  Pathak,  with M. R. Krishna Pillai for  the  Kerala Christian Education Action Committee, with J. B.  Dadachanji for  the Kerala School Managers Association and with  V.  O. Abraham and J. B. Dadachanji for the Aided School  Managers’ Association  in  Badogara and Quilandy,  Catholic  Union  of India  and Catholic Association of Bombay.  The preamble  to the Constitution speaks of securing to the citizens of India fraternity  assuring the dignity of the individual  and  the unity of the Nation.  Articles 25 to 30 have been framed  to secure  this unity.  Art. 30 is in absolute terms  and  does not permit regulation or restriction of the rights conferred by it.  " Their choice " in Art. 30 cannot be controlled  by the  State.   It has been the normal method of  running  the minority institutions with aid and recognition.  Implict  in Art.  30(1) is the right of a parent or guardian  to  impart such education this children as he likes.  Bombay  Education Society v. The State of Bombay, (56 Bom.  L. R. 643 at 653). It is the right of every person of the minority community to educate   his  children  in  school  administered  by   that

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community. The State of Bombay v. Bombay Education  Society, [1955] 1 S. C. R. 568 at 586).  The word " administer should be interpreted as in 69 L.    Ed.  1070 at 1076, 67  L.  Ed. 1042 at 1045 and 71 L.   Ed.  646  at  647.   The   ordinary dictionary  meaning of administer is ’ to manage’ or  ’carry on’.   The legislature cannot even indirectly  infringe  the fundamental  rights.   Dwarkadas Shrinivas v.  The  Sholapur Spinning and Weaving Co. Ltd., ( [1954] S.C.R. 674 at 683); 1007 Punjab Province v. Daulat Singh, ( 73 1. A. 59) ; The  State of  Bombay v. Bombay Education Society, ( [1955] 1 S. C.  R. 568 at 583).  American Jurisprudence, Vol. 11, p. 724,  See. 95.  The whole scheme of the Bill is to secularise education and,  thus  it infringes the fundamental  rights  guaranteed under  Art.  30.   Clause  3  of  the  Bill  which  requires permission  to  be obtained to establish a  school,  cl.  10 which empowers the Government to prescribe qualifications of teachers  in  minority community schools and  cl.  26  which makes  it  obligatory on parents to send their  children  to Government or aided schools where compulsory education is in force, all offend Art. 30.  Similarly cls. 6, 7, 8, 11,  12, 14, 15 and 28 are destructive of this fundamental right. Frank Anthony and P.  C. Aggarwala, for the All India Anglo- Indian  Association and for the Apostolic  Carmel  Education Society  and  Roman Catholic Diocese.  Under Art.  143  this Court has the discretion to refuse to answer the  reference. In  Re Allocation of Lands and Buildings, ( [1943] F. C.  R. 20  at  22).  The present reference is most  incomplete  and wholly  unsatisfactory  and  the  Court  should,   following Zafrullah  Khan  J. in In re Levy of Estate Duty,  (  [1944] F.C.R.  317  at  334,  335),  decline  to  answer  it.   The reference  is  incomplete as this Court has  been  asked  to examine  whether  certain  provisions  of  the  Bill  offend certain  specified fundamental rights though actually  those provisions offend other fundamental rights also.  There  are several  important  provisions in the Bill, which  have  not specifically  been referred, which also  offend  fundamental rights.  Such a reference is unfair to the Court and  deadly to  my  clients.  If this Court is in favour of  giving  its opinion  on  the  reference, the  scope  thereof  should  be extended  to include all objections to the validity  of  the provisions  of  the  Bill,  and  this  Court  has   inherent jurisdiction to do so. Anglo-Indian  schools  occupy a special  position.   Article 30(1)  gives to the Anglo-Indian community  the  fundamental right to establish educational institutions of their choice. These  fundamental  rights were not subject  to  any  social control.  The object of the 128 1008 Kerala Education Bill was to strike at the Christian Church, especially  the Catholics, to eliminate their  religion,  to take  away  their  property,  to  eliminate  all   education agencies other than those of the State so that the State may regiment education and indoctrinate children. The  Bill which sought to implement directive principles  of State policy in Art. 45 by providing for free and compulsory education  infringed Art. 30(1).  Directive principles  must yield  to  fundamental rights.  The State of Madras  v.  Sm. Champakam  Dorairajan,  ([1951] S. C. R. 521 at  531).   The State cannot compel minority educational institutions not to charge  fees for primary classes.  This  compulsion  coupled with  the embargo imposed by the Bill on children  going  to schools  not recognised by the Government  would  extinguish the  choice  of  the  minorities  guaranteed  by  Art.   30.

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Recognition  was part of the right of the  minorities  under Art. 30.  Article 337 provides for special grants or aids to educational institutions run by Anglo-Indians and the  State cannot take that away or place conditions or restrictions on it. Clause  3(5) of the Bill infringes both Art. 30(1) and  Art. 14.   It discriminates between existing schools which  could continue to charge fees and primary classes and new  schools which cannot charge such fees if they want to be recognised. The conditions imposed on the opening of new schools by  the minorities  are  such that they deprive them  of  the  right under Art. 30(1). Nur-ud-Din Ahmed, S. S. Shukla and P. C. Aggarwala, for  the All  -India  Jamiat-ul-ulema-e-Hind.   The  Bill  seeks   to achieve nationalisation of educational institutions and thus to  deprive the minorities of their right to  establish  and administer schools of their own choice under Art. 30.   This right  includes the right of the minorities to  receive  aid and also get Government recognition of their schools without any  restrictions.  The provisions of the Bill gives  powers to the State without laying down the basis and standards for the exercise of that power. 1009 G.   C. Mathur and C. P. Lal for the state of U. P.  adopted the arguments of the Attorney-General for India. B.   K. B. Naidu, for the Kerala State Muslim League adopted the arguments of G. S. Pathak and Frank Anthony. D.N.  Pritt,  Sardar Bahadur and C. M.  Kuruvilla,  for  the State of Kerala.  The questions referred to the Court by the President  arose  out of certain doubts entertained  by  the President in respect of certain provisions of the Bill.   If the  President did not entertain certain other  doubts,  the parties cannot insist that the President must have had those other  doubts  also.  The Court has no power  to  go  beyond those  questions  which are raised in  the  reference.   The State  of  Kerala wants the Court to reply to all  the  four questions referred and it would abide by the view which  the Court will express on these questions. The  Kerala  Education  Bill  is  a  progressive  piece   of legislation which seeks to provide a better organisation and development of educational institutions in the State, and  a varied and comprehensive educational service throughout  the State.   It  seeks  to provide employment  to  about  70,000 teachers  and  to give security to the teachers.   The  Bill also  seeks to implement the directive principles  of  State policy  in  Art.  45 by providing for  free  and  compulsory primary education for all. The  Bill lays down a clear principle and policy, as  stated in  its objects, to provide for the better organisation  and development of education.  This is further made clear by the preamble   which   seeks  to  provide  for  a   varied   and comprehensive  educational  service  throughout  the  State. Nationalisation  which could have been easily  and  lawfully achieved  was  not  the policy adopted by  the  State.   Its policy  was  to maintain the three different  categories  of schools,  the  Government  run schools,  the  private  aided schools  and the private schools recognised by  the  Govern- ment.  The Court could not get a complete picture until  the rules were framed.  The framing of the 1010 rules had necessarily to be left to the Government.  ’a Such I delegated legislation’ is an integral and inevitable  part of a modern State power.  Clause 3(5) of the Bill read  with cl. 36 does not violate Art. 14.  Jadunandan Yadav v. R.  P. Singh  (A.  I. R. 1958 Pat. 43 at 47); Biswambhar  Singh  v.

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The State of Orissa ([1954] S. C. R. 842); Pannalal  Binjraj v. Union of India, ( [1957] S. C. R. 233 at 248, 256,  262); Sardar Inder Singh v. The State of Rajasthan ( [1957] S.  C. R. 605).  The rules to be framed by the Government would  go for  scrutiny before the same legislature which  passed  the Bill  and  when  passed by the legislature  the  rules  will become  part  of  the Act.  This was  not  really  delegated legislation but legislation in two stages. In  order  to protect certain privileges of  minorities  the State  cannot  discard the glorious principles of  free  and compulsory  education.   The  rights  of  minorities  cannot destroy the rights of citizens to universal free  education. If  the minorities want Government aid and  recognition  for their  schools, they could be granted on the  general  terms and  conditions applicable to others.  The words I of  their choice’  cannot be interpreted to mean the establishment  of schools with the aid of the tax payer’s money and also  with the assurance of enough pupils to attend those schools. Christians  and  Muslims  are  not  minorities  in   Kerala. Christians,   forming   the   second   largest    community, constituted  one  fourth of the population,  while  Muslims, forming the third largest community, constituted one seventh of  the total population.  Minorities in the context of  the educational  rights guaranteed under the  Constitution  mean only those sections of the population in particular areas of a  State  who are in a minority, and not those  who  can  be regarded as minorities in the country as a whole.  The  only minority community in Kerala which can claim the benefit  of Art. 30(1) are the Jews, who do not choose to have their own educational institutions. Schools  run  by  minorities in  Kerala  were  not  strictly minority schools as envisaged by Art. 30(1) as they were not run mainly for the children of the 1011 minority  community.  In most of these schools at  least  75 per cent. of the students were from non-minorities.  Article 30(1)  contemplates schools for the education of members  of the  minority  communities  only.   Right  of  the  minority communities  to  establish and  administer  institutions  of their  choice does not include the right to receive aid  and recognition   on  their  own  terms.   Article  30(2)   only prohibited   the  State  from  discriminating  against   any educational  institution  on  the  ground  of  religion   or language. In order to attract the operation of Art. 30(1) it should be established that there is a minority community, that it  has established   an  educational  institution  and   that   the educational  institution  is run for the  education  of  the members of that community.  Ramani Kanta Bose v. The Gauhati University  (I.  L. R. [1951] Ass. 348 at 352).  Not one  of these  conditions  is fulfilled in any  of  the  educational institutions in the State.  The choice in Art. 30(1) lies in the establishment of a school and not in its management. The provisions of the Bill relating to the establishment and recognition of schools, restrictions on alienation of school property, appointment of managers, selection of teachers  by the State Public Service Commission and the taking over  the management  of  the  schools  in  public  interest  are  all reasonable conditions imposed to ensure better  Organisation of  education  and  security of service  conditions  to  the teachers. The  category  of schools in respect of which the  power  of acquisition can be exercised under cl. 15 of the Bill  comes under  a classification which differentiates it  from  those other  categories  which are  excluded  from  classification

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being such as is calculated to further the purposes and  the policy  underlying  the  legislation.  Clause  15  does  not infringe Art. 14 at all. In enacting cl. 33 of the Bill the State Legislature did not intend, and must be presumed not to have intended, to affect the operation of Art. 226 in any way. S.   Easwara  Iyer  and  K. R.  Chaudhury,  for  the  Kerala Private Secondary School Office Staff 1012 Association and Kerala Private Teachers’ Federation, adopted the arguments of D. N. Pritt.                                        Cur. adv. vult. 1958.   May 22.  The opinion of Das C. J., Bhagwati,  B.  P. Sinha,  Jafer  Imam,  S. K. Das and J.  L.  Kapur,  JJ.  was delivered by Das C. J. Venkatarama Aiyar J.   delivered a separate opinion. DAS  C.  J.-This reference has been made by  the   President under  Art.  143 (1) of the Constitution of  India  for  the opinion  of  this  Court  on certain  questions  of  law  of considerable  public importance that have arisen out  of  or touching  certain provisions of the Kerala  Education  Bill, 1957, hereinafter referred to as "the said Bill", which  was passed by the Legislative Assembly of the State of Kerala on September 2, 1957, and was, under Art. 200, reserved by  the Governor  of Kerala for the consideration of the  President. After  reciting the fact of the passing of the said Bill  by the  Legislative Assembly of Kerala and of  the  reservation thereof  by  its  Governor  for  the  consideration  of  the President  and after setting out some of the clauses of  the said Bill and specifying the doubts that may be said to have arisen  out of or touching the said clauses,  the  President has  referred  to this Court certain  questions  hereinafter mentioned  for consideration and report.  It is to be  noted that the said Bill not having yet received the assent of the President  the doubts, leading up to this reference,  cannot obviously  be  said  to  have  arisen  out  of  the   actual application of any specified section of an Act on the  facts of  any particular case and accordingly the  questions  that have  been referred to this Court for its consideration  are necessarily  of an abstract or hypothetical nature  and  are not like specific issues raised in a particular case brought before  a court by a party aggrieved by the operation  of  a particular  law which he impugns.  Further,  this  reference has  been characterised as incomplete and unsatisfactory  in that, according to learned counsel appearing for some of the institutions   it  does  not  clearly  bring  out  all   the constitutional 1013 defects attaching to the provisions of the Bill and  serious apprehension has been expressed by learned counsel before us that our opinion on these isolated’ abstract or hypothetical questions  may very positively prejudice the  interests,  if not   completely   destroy  the  very  existence,   of   the institutions  they represent and, in the  circumstances,  we have been asked not to entertain this reference or give  any advisory opinion on the questions put to us. It  may  be of advantage to advert, at the  outset,  to  the ambit and, scope of the jurisdiction to be exercised by this Court  under  Art.  143 of the Constitution.   There  is  no provision similar to this in the Constitution of the  United States  of  America  or in  the  Commonwealth  of  Australia Constitution Act, 1900 (63 and 64 Vic.  Ch. 12) and, accord- ingly, the American Supreme Court as well as the High  Court of  Australia, holding that the jurisdiction and  powers  of the  court  extend only to the decision  of  concrete  cases

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coming before it, have declined to give advisory opinions to the  executive or legislative branches of the State.   Under s. 60 of the Canadian Supreme Court Act, 1906, the Governor- General-in-Council  may  refer important  questions  of  law concerning  certain  matters to the Supreme  Court  and  the Supreme  Court appears to have been held bound to  entertain the   reference  and  answer  the  questions  put   to   it. Nevertheless, the Privy Council has pointed out the  dangers of  such advisory opinion and has, upon  general  principles deprecated such references.  Said the Earl of Halsbury L. C. in  Attorney General for Ontario v. Hamilton Street  Railway (1):- "  They would be worthless as being speculative opinions  on hypothetical questions.  It would be contrary to  principle, inconvenient, and inexpedient that opinions should be  given up  on  such questions at all.  When they arise,  they  must arise  in concrete cases, involving private rights;  and  it would  be  extremely  unwise for any  judicial  Tribunal  to attempt beforehand to exhaust all possible cases and facts (1)  [1903] A. C. 524, 529. 1014 which  might  occur to qualify, cut down, and  override  the operation of the particular words when the concrete case  is not before it." To  the like effect are the observations of Lord Haldane  in Attorney  General for British Columbia v.  Attorney  General for Canada (1) :- "........Under this procedure questions may be put of a kind which  it is impossible to answer satisfactorily.  Not  only may  the question of future litigants be prejudiced  by  the court laying down principles in an abstract form without any reference  or relation to actual facts, but it may turn  out to   be  practically  impossible  to  define   a   principle adequately and safely without previous ascertainment of  the exact facts to which it is to be applied." Reference may, with advantage, be also made to the following observations of Lord Sankey I,.  C. in In Re The  Regulation and Control of Aeronautics In Canada (2) :- "......  It is undesirable that the Court should  be  called upon  to  express opinions which may affect  the  rights  of persons  not  represented before it or touching  matters  of such  a nature that its answers must be  wholly  ineffectual with regard to parties who are not and who cannot be brought before it-for example, foreign Government." Section  4  of  the Judicial Committee Act, 1833  (3  and  4 William  IV, Ch. 41) provides that " It shall be lawful  for His  Majesty  to refer to the said  Judicial  Committee  for hearing and consideration any such other matters  whatsoever as  His  Majesty shall think fit and  such  Committee  shall thereupon  hear and consider the same and shall  advise  His Majesty thereon in manner aforesaid." It is to be noted that it is made obligatory for the Judicial Committee to hear and consider  the  matter and advise His Majesty  thereon.   The Government of India Act, 1935, by s. 213(1), authorised  the Governor-General  to  consult the Federal Court, if  at  any time  it  appeared to the Governor-General  that  there  had arisen or was likely to arise a question of (1) [1914] A. C. 153, 162. (2) [1932] A. C. 54, 66. 1015 law which was of such a nature and of such public importance that  it was expedient to obtain the opinion of the  Federal Court  upon it and empowered that court, after such  hearing as  they  thought  fit, to report  to  the  Governor-General thereon.  This provision has since been reproduced word  for

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word, except as to the name of the court, in cl. (1) of  Art 143  of  our Constitution.  That Article has a  new  clause, being cl. (2) which empowers the President,  notwithstanding anything  in the proviso to Art. 131, to refer a dispute  of the  kind mentioned in the said clause to the Supreme  Court for opinion and the Supreme Court shall, after such  hearing as  it  thinks  fit, report to  the  President  its  opinion thereon.  It is worthy of note that, while under cl. (2)  it is obligatory on this Court to entertain a reference and  to report to the President its opinion thereon, this Court has, under  cl.  (1),  a discretion in the matter and  may  in  a proper  case  and for good reasons decline  to  express  any opinion  on the questions submitted to it.  In view  of  the language  used  in s. 213(1), on which Art.  143(1)  of  our Constitution  is based, and having regard to the  difference in the language employed in cls. (1) and (2) of our Art. 143 just  alluded to, the scope of a reference made  under  Art. 143(1) is obviously different from that of a reference under s.  4 of the Judicial Committee Act, 1833 and s. 60  of  the Canadian Supreme Court Act, 1906, and this Court, under Art. 143(1), has a discretion in the matter and consequently  the observations of their Lordships of the Privy Council  quoted above are quite apposite and have to be borne in mind. There  have been all told four references by  the  Governor- General  under  s. 213(1) of the Government  of  India  Act, 1935,  and in two of them some of the Judges of the  Federal Court have made observations on the ambit and scope of  such a  reference.   Thus  in  In  re  Allocation  of  Lands  and Buildings (1), Gwyer C. J. said :- " On considering the papers submitted with the case we  felt some doubt whether any useful purpose (I) [1943] F. C. R. 20, 22, 129 1016 would be served by the giving of an opinion under s. 213  of the  Act.   The  terms of that section  do  not  ’impose  an obligation  on  the  Court,  though  we  should  always   be unwilling to decline to accept a Reference, except for  good reason;  and two difficulties presented themselves.   First, it  seemed that questions of title might sooner or later  be involved,  if the Government whose contentions found  favour with  the  Court desired, as the papers show  might  be  the case, to dispose of some of the lands in question to private individuals,  and plainly no advisory Opinion under  s.  213 would furnish a good root of title such as might spring from a  declaration of this Court in proceedings taken  under  s. 204(1) of the Act by one Government against the other." In  In re Levy of Estate Duty (1) Spens C. J. said at  p.320 of the authorised report :- "  It may be stated at the outset that when  Parliament  has thought  fit to enact s. 213 of the Constitution Act  it  is not  in  our  judgment  for  the  Court  to  insist  on  the inexpediency  (according to a certain school of thought)  of the  advisory jurisdiction.  Nor does it assist to say  that the  opinions  expressed  by  the  Court  on  the  questions referred " will have no more effect than the opinions of the law  officers ": Attorney-General for Ontario  v.  Attorney- General for Canada (2).  That is the necessary result of the jurisdiction being advisory." Referring  to  the objection that the questions  related  to contemplated   legislation  and  not  to  the  validity   or operation  of  a measure already passed, the  learned  Chief Justice observed at p. 321 :- "  The  fact that the questions referred  relate  to  future legislation  cannot  by  itself  be  regarded  as  a   valid

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objection.   Section  213 empowers the  Governor-General  to make  a  reference  when questions of law are  "  likely  to arise...................................................  In this  class  of  cases, the reference should,  in  the  very nature of things, be made before the legislation has been (1)  [1944] F. C. R. 3I7, 320, 321, 350). (2)  [1912] A. C. 57I, 589.                      1017 introduced  and  the objection based upon  the  hypothetical character  of  the questions can have no  force.   We.  may, however,  add that instances were brought to our’ notice  in which  references  had  been made  under  the  corresponding provision in the Canadian Supreme Court Act when the  matter was at the stage of a Bill." Zafrulla Khan J. declined to entertain the reference and  to answer the questions on high authority quoted and  discussed elaborately  in  his separate opinion.  The  learned  Judge, after  pointing out in the earlier part of his opinion  that it  was  "  a  jurisdiction the exercise  of  which  on  all occasions  must  be  a matter of  delicacy  and  caution  ", concluded  his  opinion with the following  observations  at page 350:- " In the state of the material made available to us I do not think any useful purpose would be served by my attempting to frame   answers  to  the  questions  referred.   Indeed,   I apprehend, that any such attempt might result in the opinion delivered  being made the foundation of  endless  litigation hereafter,  apart altogether from any question  relating  to the vires of the proposed law, and operating to the  serious prejudice  of  persons whom it might be attempted  to  bring within  the  mischief  of that law.  It is  bound  to  raise ghosts far more troublesome than any that it might serve  to lay.   For  these  reasons I am  compelled  respectfully  to decline to express any opinion on the questions referred." The  present reference is the second of its kind under  Art. 143(1)  of the Constitution, the first one  being  concerned with  the  In Re Delhi Laws Act, 1912 (1).  The  nature  and scope  of the reference under Art. 143(1) was not  discussed in the In Re Delhi Laws Act case (1), but, we conceive, that the  principles laid down by the Judicial Committee and  the Federal   Court quoted above will serve as a valuable  guide indicating the line of approach to be adopted by this  Court in  dealing with and disposing of the reference  now  before us.  The principles established by judicial (1)  [1951] S.C.R. 747. 1018 decisions  clearly  indicate  that the  complaint  that  the questions  referred to us relate to the validity, not  of  a statute  brought into force but, of a Bill which has yet  to be  passed  into  law by being accorded the  assent  of  the President  is  not a good ground for  not  entertaining  the reference  for,  as  said by Spens C. J.  Art.  143(1)  does contemplate  the  reference of a question of law that  is  " likely  to  arise  ". It is  contended  that  several  other constitutional  objections  also arise out of  some  of  the provisions  of  the Bill considered in the  light  of  other provisions of the Constitution, e.g., Art. 19(1)(g) and Art. 337  and that as those objections have not been included  in the reference this Court should not entertain an  incomplete reference,  for  answers given to the questions put  may  be misleading in the absence of answers to other questions that arise.   In  the  first place it is  for  the  President  to determine  what questions should be referred and if he  does not  entertain any serious doubt on the other provisions  it is  not for any party to say that doubts arise also  out  of

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them and we cannot go beyond the reference and discuss those problems.   The  circumstance  that the  President  has  not thought   fit   to   refer  other  questions   as   to   the constitutional  validity of some of the clauses of the  said Bill  on the ground that they infringe other  provisions  of the  Constitution  cannot  be a good or  cogent  reason  for declining  to  entertain  this  reference  and  answer   the questions  touching matters over or in respect of which  the President does entertain some doubt. In  order  to  appreciate  the  true  meaning,  import   and implications of the provisions of the Bill which are said to have  given  rise to doubts, it will be necessary  to  refer first  to certain provisions of the Constitution  which  may have  a bearing upon the questions under  consideration  and then  to the actual provisions of the Bill.   The  inspiring and nobly expressed preamble to our Constitution records the solemn  resolve of the people of India to  constitute  India into  a  SOVEREIGN DEMOCRATIC REPUBLIC  and,  amongst  other things, to secure to all its citizens JUSTICE, LIBERTY,  and EQUALITY and to promote among 1019 them all FRATERNIT Y assuring the dignity of the  individual and  the  unity of the Nation.  One of  the  most  cherished objects of our Constitution is, thus, to’ secure to all  its citizens  the liberty of thought, expression, belief,  faith and  worship.  Nothing provokes and stimulates  thought  and expression  in people more than education.  It is  education that clarifies our belief and faith and helps to  strengthen our  spirit  of  worship.  To implement  and  fortify  these supreme purposes set forth in the preamble, Part III of  our Constitution has provided for us certain fundamental rights. Article 14, which is one of the articles referred to in  two of  the  questions, guarantees to every person,  citizen  or otherwise, equal protection of the laws within the territory of  India.  Article 16 ensures equality of  opportunity  for all   citizens   in  matters  relating  to   employment   or appointment  to  any office under the State.   In  order  to avail themselves of the benefit of this Article all citizens will presumably have to have equal opportunity for acquiring the qualifications, educational or otherwise, necessary  for such employment or appointment.  Article 19(1) guarantees to citizens the right, amongst others, to freedom of speech and expression (sub-cl. (a)) and to practise any profession,  or to carry on any occupation, trade or business (sub-cl. (g)). These  rights  are,  however,  subject  to  social   control permitted by cls. (2) and (6) of Art. 19.  Under Art. 25 all persons  are  equally  entitled, subject  to  public  order, morality and health and to the other provisions of Part III, to  freedom of conscience and the right freely  to  profess, practise  and  propagate religion.  Article 26  confers  the fundamental  right  to every religious denomination  or  any section  thereof,  subject  to public  order,  morality  and health, to establish and maintain institutions for religious and  charitable  purposes,  to manage  its  own  affairs  in matters  of religion, to acquire property and to  administer such  property in accordance with law.  The ideal  being  to constitute  India,  into  a  secular  State,  no   religious instruction  is,  under Art. 28(1), to be  provided  in  any educational institution wholly maintained out of State funds and under cl. (3) of the 1020 same Article no person attending any educational institution recognised by the State or receiving aid out of State  funds is to be required to take part in any religious  instruction that  may be imparted in such institution or to  attend  any

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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.  Article 29(1) confers on any  section  of the  citizens having a distinct language, script or  culture of its own to have the right of conserving the same.  Clause (2) of that Article provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.  Article 30, cl. (1) of which is the subject-matter of question 2 of this reference, runs as follows:- "  30(1)  All  minorities,  whether  based  on  religion  or language,  shall have the right to establish and  administer educational institutions of their choice. (2)  The  State  shall not, in granting aid  to  educational institutions,    discriminate   against   any    educational institution on the ground that it is under the management of a minority, whether based on religion or language.  " While  our fundamental rights are guaranteed by Part III  of the  Constitution,  Part IV of it, on the other  hand,  lays down  certain  directive principles of  State  policy.   The provisions contained in that Part are not enforceable by any court,   but   the  principles  therein   laid   down   are, nevertheless,  fundamental in the governance of the  country and  it  shall  be  the duty of the  State  to  apply  these principles in making laws.  Article 39 enjoins the State  to direct  its policy towards securing, amongst  other  things, that the citizens, men and women, equally, have the right to an  adequate means of livelihood.  Article 41  requires  the State, within the limits of its economic capacity and  deve- lopment, to make effective provision for securing the right, inter alia, to education.  Under Art. 45 the State 1021 must endeavour to provide, within a period of ten years from the   commencement  of  the  Constitution,  for   free   and compulsory  education for all children until  they  complete the age of fourteen years.  Article 46 requires the State to promote  with  special  care  the  education  and   economic interests  of  the weaker sections of the  people,  and,  in particular,  of  the  Scheduled  Castes  and  the  Scheduled Tribes,  and to protect them from social injustice  and  all forms of exploitation. Part  XVI  of our Constitution also  makes  certain  special provisions  relating  to  certain classes.   Thus  Art.  330 provides  for the reservation of seats for Scheduled  Castes and  Scheduled Tribes in the House of the  People.   Article 331  provides  for the representation  of  the  Anglo-Indian community  in  the House of the  People.   Reservations  are made,  by Arts. 332 and 333, for the representation for  the Scheduled Castes and Scheduled Tribes and the  Anglo-Indians in  the  Legislative Assembly of every State for  ten  years after which, according to Art. 334, these special provisions are  to cease.  Special provision is also made by  Art.  336 for the Anglo-Indian community in the matter of  appointment to  certain services.  Article 337 has an important  bearing on  the  question before us.  It provides  that  during  the first  three financial years after the commencement of  this Constitution, the same grants, if any, shall be made by  the Union and by each State for the benefit of the  Anglo-Indian community  in  respect  of education as were  made  in  the, financial year ending on the thirty first day of March, 1948 and that during every succeeding period of three years  this grant  may  be  less by ten per cent.  than  those  for  the immediately  preceding period of three years, provided  that

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at  the  end  of  ten years from  the  commencement  of  the Constitution such grants, to the extent to which they are  a special concessions shall cease.  The second proviso to that Article,  however, provides that no educational  institution shall  be entitled to receive any grant under  this  Article unless  at  least forty per cent. of the  annual  admissions therein  are made available to members of communities  other than the Anglo-Indian community.  This is 1022 clearly  a condition imposed by the Constitution  itself  on the right of the Anglo-Indian community to receive the grant provided  under this Article.  Article 366(2) defines  an  " Anglo-Indian ". Presumably to implement the directive principles alluded  to above  the Kerala Legislative Assembly has passed  the  said Bill in exercise of the legislative power conferred upon  it by Arts. 245 and 246 of the Constitution read with entry  II of  List  11 in the Seventh Schedule  to  the  Constitution. This  legislative power is, however, to be  exercised  under Art. 245 "     subject to the provisons of this Constitution ".  Therefore,  although  this  legislation  may  have  been undertaken  by  the  State of Kerala  in  discharge  of  the obligation  imposed  on  it  by  the  directive   principles enshrined   in  Part  IV  of  the  Constitution,  it   must, nevertheless,  subserve  and not over-ride  the  fundamental rights conferred by the provisions of the Articles contained in  Part III of the Constitution and referred to above.   As explained  by  this  Court in the State of  Madras  v.  Smt. Champakam  Dorairajan (1) and reiterated recently  in  Mohd. Hanif  Quareshi  v. The State of Bihar (2) "  The  directive principles  of  State policy have to conform to and  run  as subsidiary to the Chapter on Fundamental Rights ". Neverthe- less, in determining the scope and ambit of the  fundamental rights  relied on by or on behalf of any person or body  the court may not entirely ignore these directive principles  of State  policy laid down in Part IV of the  Constitution  but should  adopt the principle of harmonious  construction  and should  attempt to give effect to both as much as  possible. Keeping  in  view  the  principles  of  construction   above referred to we now proceed to examine the provisions of  the said Bill in order to get a clear conspectus of it. The long title of the said Bill describes it as " A Bill  to provide  for  the better Organisation  and  ’development  of educational institutions in the State." Its preamble recites thus: " Whereas it is deemed necessary to pro- (1)  [1951] S.C.R. 525, 53I. (2)  [1959] S.C.R. 629. 1023 vide   for  the  better  Organisation  and  development   of educational institutions in the State providing a varied and comprehensive educational service throughout the State."  We must, therefore, approach the substantive provisions of  the said  Bill in the light of the policy and purpose  deducible from the terms of the aforesaid long title and the  preamble and  so  construe  the  clauses of the  said  Bill  as  will subserve the said policy and purpose.  Sub-clause (3) of cl. I provides that the Bill shall come into force on such  date as  the  Government  may, by notification  in  the  Gazette, appoint  and different dates may be appointed for  different provisions  of  this Bill-a fact which is said  to  indicate that  Government  will study the situation  and  bring  into force  such  of the provisions of the said Bill  which  will best  subserve  the  real needs of  its  people.   Clause  2 contains definitions of certain terms used in the said  Bill of which the following sub-clauses may be noted:-

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"  (1)  "  aided school " means a private  school  which  is recognised by and is receiving aid from the Government; (3)  "  existing  school " means any  aided,  recognised  or Government  school  established before the  commencement  of this Act and continuing as such at such commencement; (6) " private school " means an aided or recognised school; (7)  " recognised " means a private school recognised by the Government under this Act Clause  3  deals  with " Establishment  and  recognition  of schools.   "  Sub-clause (1) empowers the  Government  to  " regulate  the  primary  and other stages  of  education  and courses  of instructions in Government and private  schools. "  Sub-clause  (2) requires the Government to "  take,  from time  to time, such steps as they may consider necessary  or expedient,  for  the  purpose of  providing  facilities  for general education, special education 130 1024 and  for the training of teachers." Sub-clause (3)  provides that "the Government may, for the purpose of providing  such facilities:-(a)  establish  and  maintain  schools;  or  (b) permit  any  person  or body of  persons  to  establish  and maintain  aided  schools;  or (c) to  recognise  any  school established  and  maintained  by  any  person  or  body   of persons." All existing schools, which by the definition mean any  aided,  recognised or  Government  schools  established before  and continuing at the commencement of the Bill  are, by  sub-cl.  (4) to be deemed to have  been  established  in accordance  with this Bill.  The proviso to  sub-clause  (4) gives an option to the educational agency of an aided school existing  at  the commencement of that clause, at  any  time within one month of such commencement after giving notice to the Government of its intention so to do, to opt to run  the school as a recognised school subject to certain  conditions therein mentioned.  Sub-clause (5) of cl. 3, which forms, in part, the subject matter of two of the questions referred to runs as follows:- "   3   (5)  After  the  commencement  of  this   Act,   the establishment  of  a new school or the opening of  a  higher class  in  any  private  school  shall  be  subject  to  the provisions of this Act and the rules made thereunder and any school or higher class established or opened otherwise  than in accordance with such provisions shall not be entitled  to be recognised by the Government." Clause  4  of the Bill provides for the  constitution  of  a State  Education Advisory Board consisting of officials  and non-officials as therein mentioned, their term of office and their duties.  The purpose of the setting up of such a Board is   that  it  should  advise  the  Government  on   matters pertaining  to educational policy and administration of  the Department  of Education.  Clause 5 requires the manager  of every aided school on the first day of April of each year to furnish  to the authorised officer of the Government a  list of  properties, moveable and immoveable, of the  school.   A default  in furnishing such list entails, under sub-cl.  (2) of  that clause, the withholding of the  maintenance  grant. Clause 6 imposes restrictions on the alienation of any 1025 property  of  an  aided school,  except  with  the  previous permission  ill  writing of the authorised  officer  of  the Government.  An appeal is provided against the order of  the authorised  officer  refusing or  granting  such  permission under  sub-cl. (1).  Sub-clause (3) renders any  transaction in contravention of sub-cl. (1) or sub-el. (2) null and void and on such contravention the Government, under sub-cl. (4),

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is authorised to withhold any grant to the school.  Clause 7 deals  with  managers  of  aided  schools.   Sub-clause  (1) authorises any Education agency to appoint any person to  be a manager of an aided school, subject to the approval of the authorised  officer,  all  the existing  managers  of  aided schools  being deemed to have been appointed under the  said Bill.   The manager is made responsible for the  conduct  of the  school in accordance with the provisions of  this  Bill and  the rules thereunder.  Subclause (4) makes it the  duty of  the manager to maintain such record and accounts of  the school and in such manner as may be prescribed by the rules. The  manager  is,  by sub-cl. (5), required  to  afford  all necessary  and reasonable assistance and facilities for  the inspection of the school and its records and accounts by the authorised  officer.  Sub-clause (6) forbids the manager  to close  down  any  school without giving  to  the  authorised officer one year’s notice expiring with the 31st May of  any year  of  his intention so to do.  Sub-clause  (7)  provides that,   in  the  event  of  the  school  being   closed   or discontinued or its recognition being withdrawn, the manager shall  make over to the authorised officer all  the  records and  accounts  of the school.  Sub-clause (8)  provides  for penalty for the contravention of the provisions of  sub-cls. (6) and (7).  Clause 8 provides for the recovery of  amounts due from the manager of an aided school as an arrear of land revenue.  Sub-clause (3) of cl. 8, which is also referred to in one of the questions, runs as follows:- "  8 (3) All fees and other dues, other than  special  fees, collected  from  the students in an aided school  after  the commencement of this section shall, notwithstanding anything contained in any agreement, scheme 1026 or  arrangement,  be  made over to the  Government  in  such manner as may be prescribed." Clause  9 makes it obligatory on the Government to  pay  the salary  of all teachers in aided schools direct  or  through the  headmaster of the school and also to pay the salary  of the non-teaching staff of the aided schools.  It gives power to  the Government to prescribe the number of persons to  be appointed   in  the  non-teaching  establishment  of   aided schools, their salaries, qualifications and other conditions of  service.   The Government is authorised,  under  sub-cl. (3), to pay to the manager a maintenance grant at such rates as  may be prescribed and under sub-cl. (4) to  make  grants in-aid  for  the purchase, improvement and  repairs  of  any land,  building or equipment of an aided school.  Clause  10 requires  Government to prescribe the qualifications  to  be possessed   by  persons  for  appointment  as  teachers   in Government  schools  and in private schools  which,  by  the definition,  means aided or recognised schools.   The  State Public Service Commission is empowered to select  candidates for appointment as teachers in Government and aided  schools according  to the procedure laid- down in cl.  11.   Shortly put, the procedure is that before the 31st May of each  year the Public Service Commission shall select for each district separately candidates with due regard to the probable number of vacancies of teachers that may arise in the course of the year,  that  the  list of candidates so  selected  shall  be published in the Gazette and that the manager shall  appoint teachers  of  aided  schools only  from  the  candidates  so ,selected  for the district in which the school  is  located subject to the proviso that the manager may, for  sufficient reason,  with  the  permission of  the  Commission,  appoint teachers  selected for any other district.   Appointment  of teachers in Government schools are also to be made from  the

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list  of candidates so published.  In  selecting  candidates the  Commission is to have regard to the provisions made  by the Government under cl. (4) of Art. 16 of the Constitution, that  is  to  say, give representation  in  the  educational service  to  persons belonging to the  Scheduled  Castes  or Tribes 1027 -a  provision which has been severely criticised by  learned counsel   appearing   for  the   Anglo-Indian   and   Muslim communities.  Clause 12 prescribes the conditions of service of  the  teachers  of aided schools  obviously  intended  to afford  some  security of tenure to the  teachers  of  aided schools.   It provides that the scales of pay applicable  to the  teachers of Government schools shall apply to  all  the teachers of aided schools whether appointed before or  after the  commencement of this clause.  Rules applicable  to  the teachers  of  the Government schools are also  to  apply  to certain  teachers of aided schools as mentioned  in  sub-cl. (2).   Sub-clause (4) provides that no teacher of ail  aided school  shall  be  dismissed, removed, reduced  in  rank  or suspended  by the manager without the previous  sanction  of the authorised officer.  Other conditions of service of  the teacher  of aided schools are to be as prescribed by  rules. Clause 14 is of considerable importance in that it provides, by sub-clause (1), that the Government, whenever it  appears to it that the manager of any aided school has neglected  to perform  any of the duties imposed by or under the  Bill  or the  rules made thereunder, and that in the public  interest it  is  necessary so to do, may, after giving  a  reasonable opportunity  to  the manager of the Educational  agency  for showing  cause  against the proposed action, take  over  the management for a period not exceeding five years.  In  cases of  emergency  the Government may, under sub-el.  (2),  take over the management after the publication of notification to that effect in the Gazette without giving any notice to  the Educational agency or the manager.  Where any school is thus taken over without any notice the Educational agency or  the manager  may, within three months of the publication of  the notification, apply to the Government for the restoration of the  school showing the cause therefor.  The  Government  is authorised  to  make  orders  which  may  be  necessary   or expedient  in  connection  with  the  taking  over  of   the management  of  an  aided school.   Under  sub-el.  (5)  the Government  is  to  pay  such rent as  maybe  fixed  by  the Collector in respect of the properties taken possession  of, On taking over any 1028 school the Government is authorised to run it affording  any special  educational facilities which the school  was  doing immediately before such taking over.  Right of appeal to the District  Court  is  provided  against  the  order  of   the Collector fixing the rent.  Sub-cl. (8) makes it lawful  for the  Government to acquire the school taken over under  this clause  if the Government is satisfied that it is  necessary so to do in the public interest, in which case  compensation shall be payable in accordance with the principles laid down in  cl.  15 for payment of compensation.   Clause  15  gives power to the Government to acquire any category of  schools. This  power  can  be exercised only  if  the  Government  is satisfied  that for standardising general education  in  the State or for improving the level of literacy in any area  or for   more  effectively  managing  the   aided   educational institutions  in any area or for bringing education  of  any category  under  their direct control and if in  the  public interest  it  is necessary so to do.   No  notification  for

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taking  over any school is to be issued unless the  proposal for  the  taking over is supported by a  resolution  of  the Legislative Assembly.  Provision is made for the  assessment and apportionment of compensation and an appeal is  provided to the District Court from the order passed by the Collector determining the amount of compensation and its apportionment amongst  the  persons  entitled  thereto.   Thus  the   Bill contemplates and provides for two methods of acquisition  of aided  schools,  namely,  under sub-cl. (8) of  el.  14  the Government   may  acquire  a  school  after   having   taken possession  of  it under the preceding  sub-clauses  or  the Government may, under el. 15, acquire any category of  aided schools  in  any  specified  area for  any  of  the  several specific purposes mentioned in that clause.  Clause 16 gives power to the Government to exempt immoveable properties from being  taken over or acquired.  Clause 17 provides  for  the establishment   of   Local  Education   Authorities,   their constitution and term of office and clause 18 specifies  the functions  of the Local Education Authorities.   Clauses  19 and 20 are important and read as follows:- 1029 "  19.   Recognised schools:-The provisions  of  subsections (2),  (4),  (5), (6), (7), (8) and (9) of  section  7  shall apply  to recognised schools to the same extent’ and in  the same manner as they apply to aided schools." " 20.  No fee to be charged from pupils of primary classes:- No fee shall be payable by any pupil for any tuition in  the primary classes in any Government or private school." Part  II  of  the Bill deals with the  topic  of  compulsory education.  That part applies to the areas specified in  el. 21.  Clause 23 provides for free and compulsory education of children  throughout the State within a period of ten  years and  is intended obviously to discharge the obligation  laid on the State by Art. 45 of the directive principles of State policy.   Clauses  24 and 25 deal with the  constitution  of Local Education Committees and the functions thereof  Clause 26,  which has figured largely in the discussion  before  us runs as follows : " 26.  Obligation on guardian to send children to school:-In any  area of compulsion, the guardian of every child  shall, if such guardian ordinarily resides in such area, cause such child  to attend a Government, or private school and once  a child has been so caused to attend school under this Act the child  shall  be compelled to complete the  full  course  of primary education or the child shall be compelled to  attend school till it reaches the age of fourteen." We  may  skip  over  a few clauses,  not  material  for  our purpose, until we come to el. 33 which is referred to in one of   the  questions  we  have  to  consider.   That   clause provides-- "  33.   Courts  not  to  grant   injunction-Notwithstanding anything contained in the Code of Civil Procedure, 1908,  or in any other law for the time being in force, no court shall grant  any  temporary injunction or make any  interim  order restraining  any proceedings which is being or about  to  be taken under this Act." Clause 36 confers power on the Government to make 1030 rules for the purpose of carrying into effect the provisions of  the  Bill  and  in particular for  the  purpose  of  the establishment  and  maintenance of schools,  the  giving  of grants and aid to private schools, the grant of  recognition to private schools, the levy and collection of fees in aided schools, regulating the rates of fees in recognised schools, the  manner  in which the accounts,  registers  and  records

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shall  be  maintained, submission of  returns,  reports  and accounts by managers, the standards of education and  course of study and other matters specified in sub-cl. (2) of  that clause.  Clause 37 is as follows:- " 37.  Rules to be laid before the Legislative Assembly:-All rules  made under this Act shall be laid for not  less  than fourteen  days  before the Legislative Assembly as  soon  as possible  after they are made and shall be subject  to  such modifications  as the Legislative Assembly may  make  during the session in which they are so laid." Under cl. 38 none of the provisions of the Bill applies to a school which is not a Government or a private school, i. e., aided or recognized school. The  above summary will, it is hoped, clearly bring out  the purpose and scope of the provisions of the said Bill.  It is intended  to  serve as showing that the said  Bill  contains many provisions imposing considerable State control over the management  of  the educational institutions in  the  State, aided  or  recognised.  The provisions, in so  far  as  they affect the aided institutions, are much more stringent  than those  which  apply only to  recognised  institutions.   The width  of the power of control thus sought to be assumed  by the  State  evidently  appeared  to  the  President  to   be calculated to raise doubts as to the constitutional validity of  some  of the clauses of the said Bill on the  ground  of apprehended  infringement of some of the fundamental  rights guaranteed to the minority communities by the  Constitution, and  accordingly in exercise of the powers vested in him  by Art.  143(1) the President has referred to this  Court,  for consideration and report the following questions: 1031 "  (1)  Does  sub-clause  (5) of  clause  3  of  the  Kerala Education  Bill, read with clause 36 thereof or any  of  the provisions of the said sub-clause, offend article 14 of  the Constitution in any particulars or to any extent? (2)  Do sub-clause (5) of clause 3, sub-clause (3) of clause 8  and clauses 9 to 13 of the Kerala Education Bill, or  any provisions  thereof, offend clause (1) of article 30 of  the Constitution in any particulars or to any extent ? (3)  Does  clause  15 of the Kerala Education Bill,  or  any provisions thereof, offend article 14 of the Constitution in any particulars or to any extent ? (4)  Does  clause  33 of the Kerala Education Bill,  or  any provisions  thereof, offend article 226 of the  Constitution in any particulars or to any extent ?" On  receipt  of the reference this Court issued  notices  to persons and institutions who appeared to it to be interested in  the  matter calling upon them to file  their  respective statements of case concerning the above mentioned questions. Three  more  institutions were subsequently,  on  their  own applications,  granted leave to appear at the hearing.   The Union of India, the State of Kerala and all the said persons and  institutions have filed their respective statements  of case  and have appeared before us by counsel and taken  part in  the debate.  A body called the Crusaders’ League his  by post sent its views but has not appeared at the hearing.  We have had the advantage of hearing very full arguments on the points  arising  out  of the questions  and  we  are  deeply indebted  to learned counsel appearing for the  parties  for the very great assistance they have rendered to us. It will be necessary, at this stage, to clear the ground  by disposing of a point as to the scope and ambit of  questions I  and  2.  It will be noticed  that  both  these  questions challenge the constitutional validity, inter alia, of clause 3  (5)  of the said Bill which has already  been  quoted  in

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extensor  The  argument  advanced by  the  learned  Attorney General  and other learned counsel appearing for  bodies  or institutions challeng- 131 1032 ing  the validity of the said Bill is that the provision  of cl.  3(5),  namely, that the establishment of a  new  school "shall  be  subject to the provisions of this  Act  and  the rules  made thereunder " attracts all other clauses  of  the said  Bill  as if they are set out seriatim in  sub-el.  (5) itself.   Therefore,  when questions I and 2  challenge  the constitutional validity of el. 3(5) they, in effect, call in question the validity of all other clauses of the said Bill. Learned counsel appearing for the State of Kerala,  however, opposes  this line of argument on several grounds.  In’  the first  place, he contends that cl. 3(5) attracts only  those provisions of this Bill which relate Lo the establishment of a  new school. When asked to specify what provisions of  the said  Bill  relate  to I he establishment of  a  new  school which, according to him, are attracted by cl. 3(5), the only provision that he refers to is sub-cl. (3) of cl. 3. Learned counsel  for  the State of Kerala maintains  that  el.  3(5) attracts only el. 3(3) and the rules that may be made  under el.  36(2)(a)  and  no other clause of the  said  Bill  and, therefore,  no other clause is included within the scope  of the  questions  unless,  of course,  they  are  specifically mentioned  in the questions, as some of the clauses are,  in fact,  specifically mentioned in question 2. If the  mention of  cl. 3(5) in those questions, ipso  facto, attracted  all other  clauses of the said Bill, why, asks learned  counsel, were other clauses specifically mentioned in, say,  question 2  ?  Learned counsel also contends that after a  school  is established  the other clauses will proprio vigore apply  to that  school  and  there was no  necessity  for  an  express provision  that a newly established school would be  subject to  the other provisions of the Bill.  As the other  clauses of the Bill will apply to all schools established after  the Bill becomes an Act without the aid of cl. 3(5), a reference to  that clause in the questions cannot bring  within  their ambit  any  clause of the Bill which is not  separately  and specifically  mentioned in the questions.   Finally  learned counsel  contends that -even if cl. 3(5) attracts the  other provisions of the Bill, it does not necessarily follow  that the  other  provisions also form the subject matter  of  the questions.  In our judgement, 1033 neither  of  the  two extreme, positions  can  be  seriously maintained. The contentions advanced by learned counsel for the State of Kerala  appear to us to be open to several  criticisms.   If the  intention of sub-cl. (5) of cl. 3 was to  attract  only those  provisions  of  the Bill which related  only  to  the establishment  of a new school and if sub-cl. (3) of  cl.  3 was the only provision in that be-half, apart from the rules to  be  framed  under  el. 36(2)(a), then  as  a  matter  of intelligible drafting it would have been more appropriate to say, in siib-cl. (3) of el. 3, that the establishment of new schools ",,;hall be subject to the provisions of this clause and  the rules to be made under el. 36(2)(a) ". Clause  3(5) is  quite  clearly concerned with the establishment  of  new schools  Government, aided or recognised schools,  and  says that  after  the Bill becomes law all new  schools  will  be subject to the other provisions of the Bill.  So far as  new Government   schools  are  concerned,  el.  3(5)   certainly attracts  el.  3(3)(a), for that  provision  authorises  the

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Government  to  establish new schools; but to say  that  el. 3(5)  only  attracts el. 3(3) appears to be  untenable,  for that   sub-clause  does  not  in  terms  provide   for   the establishment  of  new  aided  or  recognised  schools.   As already observed, el. 3(3)(a) specifically provides for  the establishment   and  maintenance  of  new  schools  by   the Government  only.   Clause  3(3)(b) provides  only  for  the giving  of permission by the Government to a person or  body of   persons  to  establish  and  maintain  aided   schools. Likewise  el.  3(3)(c)  authorises the  Government  only  to recognise  any  school established, and  maintained  by  any person or body of persons.  Clause 3(4) introduces a fiction whereby  all  existing  schools,  which  mean  all  existing Government, aided or recognised schools, shall be deemed  to have  been established in accordance with this  Bill.   Then comes  cl.  3(5) which is couched in very  wide  terms.   It says,  inter  alia,  that  after  the  commencement  of  the operation of the said Bill the establishment of new  schools should  be subject to the other provisions of the  Bill  and the rules made thereunder.  The rules to be framed under cl. 36(2)(a), (b) & 1034 (c)  appear  to be respectively correlated to  cl.  3(3)(a), (b)  & (c).  Bearing in mind the provisions of cl. 38  which places all schools other than Government and private, i. e., aided  or  recognised schools, outside the  purview  of  the Bill, the establishment of what sort of new schools, we ask, does  sub-cl.  (5) contemplate and  authorise  ?   Obviously aided  or  recognised  schools established  after  the  Bill becomes  law.   Clause 3(5), like cl. 3(3),  has  apparently been very inartistically drawn, but reading the clause as  a whole  and particularly the concluding part of  it,  namely, that  any school ’established otherwise than  in  accordance with such provisions shall not be entitled to be  recognised by  the  Government,  there can be no doubt  that  cl.  3(5) itself contemplates and authorises the establishment of  new schools as aided or recognised schools.  The opening of  new schools  and  the securing of aid or  recognition  from  the Government  constitute  the  establishment  of  new  schools contemplated  by el. 3(5) read with cl. 3(3).   Reading  el. 3(5)  in the context of its setting, we have no  doubt  that its purpose is not merely to authorise the establishment  of new  schools  but  to subject the new  schools  to  all  the provisions  of the said Bill and the rules made  thereunder. To  accept the restrictive argument that el.  3(5)  attracts only  el. 3(3) will be putting a too narrow construction  on sub-cl. (5) not warranted by the wide language thereof or by the  language  of cl. 3(3).  We do not think that  there  is much  force  in the argument that it was  not  necessary  to expressly   provide  for  the  application  of   the   other provisions  to new schools to be established after the  Bill became law and that the other clauses of the said Bill would by their own force and without the aid of sub-cl. (5)  apply to  such  newly established schools, for having,  in  terms, expressly  made  the  new  schools  subject  to  the   other provisions it is not open to the State of Kerala now to  say that sub-el. (5) need not have made the other provisions  of the  said Bill applicable to new schools  established  after the  said  Bill  comes into operation or that  it  does  not attract the other. clauses although it expressly purports to do  or that it is not open to those who oppose the  Bill  to refer 1035 to  any other clause in support of their case.  If el.  3(5) did   not  expressly  attract  the  other  provisions,   the

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President   would   perhaps  have   framed   the   questions differently. If,  therefore, it be held, as we are inclined to  do,  that cl.  3(5)  makes  the  new  schools  subject  to  the  other provisions of the said Bill, what will be the position ? If, as  submitted  by  the  learned  AttorneyGeneral  and  other counsel supporting him, some of the clauses of the said Bill impinge  upon the fundamental rights of the members  of  the minority  community or educational institutions  established or  to  be established by them and if el. 3(5)  makes  those clauses  applicable  to the new schools they  may  establish after  the  Bill becomes law, then not only do  those  other clauses  violate their rights but el. 3(5) which openly  and expressly  makes  those  other clauses  apply  to  such  new schools    must    also   encounter   the    challenge    of unconstitutionality.    In   other  words,   the   vice   of unconstitutionality,  if  any, of those other  clauses  must attach  to cl. 3(5) because it is the latter which in  terms makes  the  new  schools  subject  to  those   objectionable clauses.  Therefore, in a discussion on the validity of  el. 3(5) it becomes germane to discuss the validity of the other clauses. In short, though the validity of the other  clauses is  not by itself and independently, the  subject-matter  of either  of those questions, yet their validity or  otherwise has  to  be  taken into  consideration  in  determining  the constitutional  validity  of  el.  3(5)  which  makes  those clauses applicable to the newly established schools.  It  is in  this sense that, we think, a discussion of the  validity of the other clauses comes within the purview of questions I and  2. We do not, in the circumstances, consider it  right, in  view  of  the language employed in  this  el.  3(5),  to exclude the consideration of the constitutional validity  of the  other  clauses  of  the Bill  from  the  discussion  on questions  I  and  2  which  challenge  the   constitutional validity  of  el.  3(5) of the said Bill.   Indeed,  in  the argument before us frequent references have been made to the other clauses of the said Bill in discussing questions I and 2 and we have heard the respective contentions of learned 1036 counsel on the validity or otherwise of those clauses in  so far as they have a bearing on the questions put co us  which we now proceed to consider and answer. Re.    Questions  1  and  3.  Question  I   challenges   the constitutional validity of sub-cl. (5) of el. 3 of the -said Bill  read with el. 36 thereof on the ground that, the  same violates  the equal protection of the laws guaranted to  all persons by Art. 14 of the Constitution.  Question 3  attacks el. 15 of the said Bill on the same ground, namely, that  it is violative of Art. 14 of the Constitution.  As the  ground of attack tinder both the questions is the same, it will  be convenient to deal with them together. The  true  meaning,  scope  and effect of  Art.  14  of  our Constitution have been the subject-matter of discussion  and decision  by this Court in a number of cases beginning  with the  case of Chiranjit Lal Chowdhuri v. The Union  of  India and  others (1).  In Budhan Choudhry v. The State  of  Bihar (2)  a  Constitution  Bench of seven Judges  of  this  Court explained  the  true  meaning and  scope  of  that  Article. Recently  in the case of Ram Krishna Dalmia and others   Sri Justice  S. R. Tendolkar (3), the position was at length  by this  Court,  by its judgment  on March 28,  1958,  and  the several  principles firmly established by the  decisions  of this  Court  were set out seriatim in  that  judgment.   The position  -",as  again summarised in the still  more  recent case of land. Hanif Quaeshi v. The State of Bihar (1) in the

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following words:- "  The  meaning, scope and effect of Art. 14, which  is  the equal  protection  clause  in  our  Constitution,  has  been explained  by this Court in a series of decisions  in  cases begining with Chiranjit Lal Chowdhury v. The Union Of  India (1) and ending with the recent case of Ram Krishna Dalmia v. Sri Justice S. R. Tendolkar (1).  It is now well-established that  while  Art. 14 forbids class legislation it  does  not forbid   reasonable  classification  for  the  purposes   of legislation (1)  [1950] S. C. E. 869. (2)  [1955] 1 S. C. R. I045. (3)  [1959] S.C.R. 279. (4)  [1959] S.C.R. 6,g. 1037 and  that in order to pass the test of  permissible  classi- fication  two conditions must be fulfilled, namely, (i)  the classification   must   be  founded   on   an   intelligible differentia which distinguishes persons or things that,  are grouped together from others left out of the group and  (ii) such differentia must have a rational relation to the object sought  to  be  achieved by the statute  in  question.   The classification,  it  has  been  held,  may  be  founded   on different  bases,  namely,  geographical  or  according   to objects or the occupations or the like and what is necessary is  that  there  must  be  a  nexus  between  the  basis  of classification   and   the   object  of   the   Act   tinder consideration  .  The pronouncements of this  Court  further establish,  amongst  other things, that there  is  always  a presumption  in  favour  of  the  constitutionality  of   an enactment  and that the burden is upon him, who attacks  it, to  show  that,  there has been a  clear  violation  of  the constitutional principles.  The courts, it is accepted, must presume that, the legislature understands and correctly  the needs  of  its  own people, that its laws  are  directed  to problems   made   manifest  by  experience  and   that   its discriminations  are based on adequate grounds.  It must  be borne  in  mind that the legislature is  free  to  recognise degrees  of harm and may confine its restrictions  to  those cases  where  the  need is deemed to  be  the  clearest  and finally  that  in  order  to  sustain  the  presumption   of constitutionality  the  Court may  take  into  consideration matters  of common knowledge, matters of common report,  the history  of  the times and may assume every state  of  facts which can be conceived existing at the time of legislation." In  the judgment of this Court in Ram Krishna Dalmia’s  case (1) the statutes that came up for consideration before  this Court  were  classified  into  five  several  categories  as enumerated therein.  No useful purpose will be served by re- opening the discussion and, indeed, no attempt has been made in, that behalf by learned counsel.  We, therefore,  proceed to  examine  the  impugned provisions in the  light  of  the aforesaid principles enunciated by this Court. Coming now to the main argument founded on (1)  [1959] S.C.R. 279. 1038 Art.  14,  the  Bill, it is said,  represents  a  deliberate attempt  on the part of the party now in power in Kerala  to strike  at the Christian Church and especially that  of  the Catholic  persuasion, to eliminate religion, to  expropriate the minority communities of the properties of their  schools established  for  the purpose of conserving  their  distinct language, script and culture, and in short, to eliminate all educational  agencies  other than the State so as  to  bring about  a regimentation of education and by and  through  the

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educational  institutions to propagate the tenets  of  their political  philosophy  and indoctrinate  the  impressionable minds  of the rising generation.  It is unfortunate  that  a certain  amount  of heat and passion was introduced  in  the discussion  of what should be viewed as a purely  legal  and constitutional problem raised by the questions ; but perhaps it is understandable in the context of the bitter  agitation and  excitement  provoked by the said Bill in the  minds  of certain  sections  of the people of the State.   We  desire, however, to emphasise that this Court is not concerned  with the merit or otherwise of the policy of the Government which has  sponsored this measure and that all that we are  called upon  to  do  is to  examine  the  constitutional  questions referred to us and to pronounce our opinion on the  validity or  otherwise  of  those provisions of the  Bill  which  may properly come within the purview of those questions. The  doubts which led to the formulation of question  1  are thus  recited in the order of reference which had better  be stated in its own terms:- "  AND WHEREAS sub-clause (3) of clause 3 of the  said  Bill enables  the Government of Kerala, inter alia, to  recognise any school established and maintained by any person or  body of  persons for the purpose of providing the facilities  set out in subclause (2) of the said clause, to wit,  facilities for general education, special education and for the  train- ing of teachers; AND  WHEREAS  sub-clause (5) of clause 3 of  the  said  Bill provides, inter alia, that any new school established or any higher class opened in any private 1039 school,  after  the Bill has become an Act and the  Act  has come  into  force,  otherwise than in  accordance  with  the provisions  of the Act and the rules made under  section  36 thereof,  shall  not  be entitled to be  recognised  by  the Government of Kerala; AND WHEREAS a doubt has arisen whether the provisions of the said sub-clause (5) of clause 3 of the said Bill confer upon the   Government  an  unguided  power  in  regard   to   the recognition of new schools and the opening of higher classes in any private school which is capable of being exercised in an arbitrary and discriminatory manner; AND WHEREAS a doubt has further arisen whether such power of recognition of new schools and of higher classes in  private schools  is  not  capable of being  exercised  in  a  manner affecting  the right of the minorities guaranteed by  clause (1)  of  article  30 of the Constitution  to  establish  and administer educational institutions of their choice; Likewise the doubts concerning cl. 15 are formulated in  the following recitals in the order of reference :- "  AND  WHEREAS  clause 15 of the  said  Bill  empowers  the Government  of Kerala to take over, by notification  in  the Gazette, any category of aided schools in any specified area or  areas,  if  they are satisfied  that  for  standardising general  education in the State of Kerala or  for  improving the  level of literacy in any area or for  more  effectively managing the aid-Id educational institutions in any area  or for  bringing education of any category under  their  direct control it is necessary to do so in the public interest,  on payment of compensation on the basis of market value of  the schools so taken over after deducting therefrom the  amounts of aids or grants given by that Government for  requisition, construction or improvement of the property of the schools; AND  WHEREAS  a doubt has arisen whether such power  is  not capable   of   being   exercised   in   an   arbitrary   and discriminatory manner."

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132 1040 The  legal  aspect  of the matter arising  out  of  the  two questions  is  further elaborated thus  by  learned  counsel appearing  for  the persons or institutions  contesting  the validity of the Bill: Clause 3 (5) makes all the  provisions of   the  Bill  applicable  to  new  schools  that  may   be established after the Bill becomes law.  Clause 3 (5)  gives the  Government  an unguided, uncontrolled  and  uncanalised power which is capable of being exercised "with an evil  eye and an unequal hand" and the Government may, at its whim  or pleasure,  single out any person or institution and  subject him or it to hostile and discriminatory treatment.  The Bill does  not lay down any policy or principle for the  guidance of the Government in the matter of the exercise of the  wide powers  so conferred on it by the different clauses  of  the Bill.   It is pointed out that cl. 3 does not lay  down  any policy or principle upon which the Government may or may not permit  any  person  or body of  persons  to  establish  and maintain  an aided school or grant recognition to  a  school established  by any person.  The Government may  grant  such permission or recognition to persons who support its  policy but  not to others who oppose the same.  Clause 6 does  riot say  in  what circumstances the authorised  officer  of  the Government may or may not give permission to the  alienation of the property of an aided school.  He may give  permission in  one case but arbitrarily withhold it in another  similar case.  Likewise the authorised officer may not, under el. 7, approve of the appointment of a particular person as manager of  in aided school for no better reason than the  prejudice or  dislike of his Government for that  particular  person’s political views or affiliations.  The Government may,  under cl. 9, pay the maintenance grant to the manager of one aided school  but not to that of another.  Particular  schools  or categories of schools in particular areas may be singled out for  discriminatory  treatment under cls. 14 and 15  of  the Bill.  It is next pointed out that if cl. 3 (5) is read with cls.  21, 26 and 28 of the Bill the result will be  palpably discriminatory  because in an area which is not an  area  of compulsion  a new school which may be established after  the Bill 1041 comes  into operation and which may not seek recognition  or aid  can  charge  fees and yet attract scholars  but  a  new school  similarly established in an area of compulsion  will be hit directly by cl. 26 and will have no scholars, for  no guardian will be able lawfully to send his ward to a  school which  is neither a Government school nor a  private  school and  such a new school will not be able to function at  all, for it will have no scholar and the question of its charging fees in any class will not arise.  There is no force in this last  mentioned point, for the Legislature, it must  be  re- membered,  knows the needs of its people and is entitled  to confine its restriction ’to those places where the needs are deemed  to be the clearest and, therefore, the  restrictions imposed in areas of compulsion are quite permissible on  the ground  of classification on geographical  basis.   Whatever other  provisions of the Constitution, such restriction  may or  may  not  violate, which will  be  discussed  later,  it certainly does not infringe Art. 14. A further possibility of discrimination is said to arise  as a  result of the application of the same provisions  of  the Bill  to all schools which are not similarly  situate.   The argument is thus developed: The Constitution, it is  pointed out,   deals  with  the  schools  established  by   minority

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communities  in a way different from the way it  deals  with other  schools.  Thus Anglo-Indian schools are given  grants under Art. 337 of the Constitution and educational  institu- tions  started  by all minority  communities  including  the Anglo-Indians  are  protected  by  Arts.  29  and  30.   The educational   institutions  of  the  minorities   are   thus different  from the educational institutions established  by the majority communities who require no special privilege or protection  and  yet the Bill purports to put  in  the  same class  all educational institutions although they  have  not the   same  characteristics  and  place  equal  burdens   on unequals.   This  indiscriminate  application  of  the  same provisions   to  different  institutions  having   different characteristics  and  being unequal brings about  a  serious discrimination  violative of the equal protection clause  of the Constitution.  In 1042 support of this argument reliance is placed on the  decision of  the  American Supreme Court in Cumber’land Coal  Co.  v. Board of Revision (1).  That decision, in our judgment,  has no  application to the facts of the case before  us.   There the taxing authorities assessed the owners of coal lands  in the  city  of Cumberland by applying a flat rate of  50  per cent.  not on the actual value of the properties but  on  an artificial valuation of $ 260 per acre arbitrarily  assigned to  all  coal  lands  in  the  city  irrespective  of  their location.  It was not disputed that the value of  properties which were near the river-banks or close to the railways was very much more than that of properties situate far away from the  river-banks or the railways.  The artificial  valuation of  $  260 per acre was much below the actual value  of  the properties which were near the river-banks or the  railways, whereas  the value of the properties situate far away,  from the  riverbank  or the railways was about the same  as  tile assigned  value.  ’The result of applying the equal rate  of tax, namely, 50 per cent. on the assigned value was that the owners of more valuable properties had to pay much less than what they would have been liable to pay upon the real  value of  those properties.  Therefore, the method  of  assessment worked  out  clearly to the disadvantage of  the  owners  of properties situate in the remoter parts of the city and  was obviously  discriminatory.  There the discrimination was  an integral  part  of  that mode of taxing.  That  is  not  the position  here,  for  there  is  no  discrimination  in  the provisions  of the said Bill and consequently the  principle of that decision can have no application to this case.  This does  not, however, conclude the matter and we have  yet  to deal with the main argument that the Bill does not lay  down any  policy or principle for the guidance of the  Government in the exercise of the wide powers vested in it by the Bill. Reference  has already been made to the long title  and  the preamble  of  the Bill.  That the policy and  purpose  of  a given  measure  may be deduced from the long title  and  the preamble thereof has been recognised (1)  (1931) 284 U. S. 23; 76 L. Ed.  I46,150. 1043 in many decisions of this Court and as and by way of’  ready reference we may mention our decision in Biswambar Singh  v. The  State  of  Orissa (1) as an instances  in  point.   The general  policy  of the Bill as laid down in its  title  and elaborated  in the preamble is " to provide for  the  better Organisation  and  development of  educational  institutions providing  a  varied and comprehensive  educational  service throughout the State." Each and every one of the clauses  in the Bill has to be interpreted and read in the light of this

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policy.   When, therefore, any particular clause leaves  any discretion  to the Government to take any action it must  be understood  that such discretion is to be exercised for  the purpose  of  advancing and in aid of  implementing  and  not impeding this policy.  It is, therefore, not correct to  say that no policy or principle has at all been laid down by the Bill  to  guide the exercise of the discretion left  to  the Government  by  the clauses in this Bill.  The  matter  does not, however, rest there.  The general policy deducible from the  long  title  and  preamble  of  the  Bill  is   further reinforced  by  more  definite.  statements  of  policy   in different  clauses  thereof.  Thus the power vested  in  the Government  under cl. 3(2) can be exercised only "  for  the purpose  of  providing  facilities  for  general  education, special education and for the training of teachers ". It  is "  for the purpose of providing such facilities "  that  the three  several powers under heads (a), (b) and (c)  of  that sub-clause have been conferred on the Government.  The clear implication  of  these provisions read in the light  of  the policy  deducible  from the long title and the  preamble  is that in the matter of granting permission or recognition the Government  must be guided by the consideration whether  the giving of such permission or recognition will enure for  the better   Organisation   and   development   of   educational institutions  in the State, whether it will  facilitate  the imparting of general or special education or the training of teachers and if it does then permission or recognition  must be  granted  but  it  must be refused  if  it  impedes  that purpose.  It is true that the (1)  [1954] S. C. R. 842, 855. 1044 word " may " has been used in sub-el. (3), but, according to the  well  known rule of construction of statutes,  ’if  the existence  of the purpose is established and the  conditions of  the  exercise  of  the  discretion  are  fulfilled,  the Government  will  be  under an obligation  to  exercise  its discretion in furtherance of such purpose and no question of the  arbitrary  exercise of discretion can  arise.  [Compare Julius v. Lord Bishop of Oxford (1) ]. If in actual fact any discrimination   is  made  by  the  Government   then   such discrimination  will  be  in violation  of  the  policy  and principle deducible from the said Bill itself and the  court will then strike down not the provisions of the Bill but the discriminatory act of the Government.  Passing on to cl. 14, we  find that the power conferred thereby on the  Government is to be exercised only if it appears to the Government that the manager of any aided school has neglected to perform the duties imposed on him and that the exercise of the power  is necessary  in public interest.  Here again the principle  is indicated  and  no  arbitrary or  unguided  power  has  been delegated to the Government.  Likewise the power, under el.. 15(1)  can be exercised only if the Government is  satisfied that  it  is necessary to exercise it  for  "  standardising general education in the State or for improving the level of literacy  in any area or for more effectively  managing  the aided  educational institutions in any area or for  bringing the  education of any category under their direct control  " and  above all the exercise of the power is necessary  "  in the public interest ". Whether the purposes are good or  bad is a question of State policy with the merit of which we are not  concerned in the present discussion.  All that  we  are now  endeavouring  to  point out is that  the  clause  under consideration does lay down a policy for the guidance of the Government  in the matter of the exercise of the  very  wide power  conferred on it by that clause.  The exercise of  the

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power is also controlled by the proviso that no notification under  that sub-clause shall be issued unless  the  proposal for  the  taking over is supported by a  resolution  of  the Legislative Assembly-a proviso (1)  (1880) 5 App.  Cas. 214. 1045 which  clearly indicates that the power cannot be  exercised by the Government at its whim or pleasure.  Skipping over  a few  clauses,  we come to cl. 36.  The’ power given  to  the Government by cl. 36 to make rules is expressly stated to be exercised  "  for the purpose of carrying  into  effect  the provisions  of this Act ". In other words, the rules  to  be framed  must implement the policy and purpose laid  down  in its  long title and the preamble and the provisions  of  the other  clauses of the said Bill.  Further, under el. 37  the rules  have to be laid for not less than 14 days before  the Legislative Assembly as soon as possible after they are made and  are  to  be  subject  to  such  modifications  as   the Legislative  Assembly may make during the session  in  which they  are  so  laid.  After the rules are  laid  before  the Legislative  Assembly they may be altered or amended and  it is then that the rules, as amended become effective.  If  no amendments are made the rules come into operation after  the period  of 14 days expires.  Even in this latter  event  the rules  owe  their  efficacy  to  the  tacit  assent  of  the Legislative Assembly itself.  Learned counsel appearing  for the  State of Kerala submitted in picturesque language  that here  was what could be properly said to be  legislation  at two  stages  and  the  measure  that  will  finally   emerge consisting  of  the  Bill  and the  rules  with  or  without amendment  will  represent  the  voice  of  the  Legislative Assembly  itself and, therefore, it cannot be said  that  an unguided  and  uncontrolled power of  legislation  has  been improperly   delegated  to  the  Government.    Whether   in approving the rules laid before it the Legislative  Assembly acts  as the Legislature of Kerala or acts as the  delegatee of  the  Legislature  which  consists  of  the   Legislative Assembly and the Governor is, in the absence of the standing orders  and  rules  of business of  the  Kerala  Legislative Assembly, more than we can determine.  But all that we  need say is that apart from laying down a policy for the guidance of  the Government in the matter of the exercise  of  powers conferred  on it under the different provisions of the  Bill including cl. 36, the Kerala Legislature has, by cl. 15  and el. 37 provided further safeguards.  In this 1046 connection  we must bear in mind what has been laid down  by this  Court  in  more  decisions  than  one,  namely,   that discretionary  power  is not  necessarily  a  discriminatory power  and the abuse of power by the Government will not  be lightly assumed.  For reasons stated above it appears to  us that  the  charge  of  unconstitutionality  of  the  several clauses  which  come  within the  two  questions  now  under consideration  founded on Art. 14 cannot be sustained.   The position  is  made  even clearer  whether  we  consider  the question  of the validity of el. 15(1) for, apart  from  the policy  and principle deducible from the long title and  the preamble  of the Bill and from that sub-clause  itself,  the proviso  thereto clearly indicates that the Legislature  has not  abdicated its function and that while it has  conferred on  the Government a very wide power for the acquisition  of categories  of  schools it has not only provided  that  such power  can  only  be exercised  for  the  specific  purposes mentioned  in the clause itself but has also kept a  further and  more effective control over the exercise of the  power,

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by requiring that it is to be exercised only if a resolution is  passed  by  the  Legislative  Assembly  authorising  the Government  to do so.  The Bill, in our opinion,  comes  not within category (iii) mentioned in Ram Krishna Dalmia’s case (1)  as contended by Shri G. S. Pathak but  within  category (iv)  and  if  the  Government  applies  the  provisions  in violation of the policy and principle laid down in the  Bill the  executive action will come under category (v)  but  not the  Bill and that action will have to be struck down.   The result,  therefore, is that the charge of invalidity of  the several  clauses of the Bill which fall within the ambit  of questions I and 3 on the ground of the infraction of Art. 14 must stand repelled and our answers to both the questions  I and 3 must, therefore, be in the negative. Re.  Question 2 : Articles 29 and 30 are set out in Part III of our Constitution which guarantees our fundamental rights. They are grouped together under the sub-head " Cultural  and Educational  Rights  ". The text and the marginal  notes  of both the Articles show that their purpose is to confer those fundamental (1)  [1959] S.C.R. 279. 1047 rights   on  certain  sections  of  the,   community   which constitute  minority communities.  Under cl. (1) of Art.  29 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 has the right to conserve  the  same. It  is  obvious that a minority  community  can  effectively conserve  its  language, script or culture  by  and  through educational  institutions  and,  therefore,  the  right   to establish  and  maintain  educational  institutions  of  its choice  is a necessary concomitant to the right to  conserve its distinctive language, script or culture and that is what is conferred on all minorities by Art. 30(1) which has here- in  before  been quoted in full.  This  right,  however,  is subject, to el. 2 of Art. 29 which provides that no  citizen shall  be denied admission into any educational  institution maintained by the State or receiving aid out of State  funds on grounds only of religion, race, caste, language or any of them. As  soon  as we reach Art. 30 (1) learned  counsel  for  the State  of  Kerala  at once poses the  question:  what  is  a minority  ?  That  is a term which is  not  defined  in  the Constitution.   It is easy to say that a minority  community means  a  community which is numerically less  than  50  per cent, but then the question is not fully answered, for  part of the question has yet to be answered, namely,50 per  cent. of what ? Is it 50 percent of the entire population of India or 50 per cent. of the population of a State forming a  part of the Union ? The position taken up by the State of  Kerala in its statement of case filed herein is as follows: "There is yet another aspect of the question that falls  for consideration,  namely as to what is a minority  under  Art. 30(1) The state          contends that Christians, a certain section  of whom is vociferous in its objection to the  Bill on  the allegation that it offends Art. 30(1), are not in  a minority in the State.  It is no doubt true that  Christians are  not a mathematical majority in the whole  State.   They constitute  about one-fourth of the population; but it  does not  follow therefrom that they form a minority  within  the meaning of Art. 30 (1). 133 1048 The  argument  that  they  do,  if  pushed  to  its  logical conclusion,  would  mean  that any  section  of  the  people

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forming  under fifty per cent. of the population  should  be classified as a minority and be dealt with as such. Christians  form  the  second largest  community  in  Kerala State;  they form, however, a majority community in  certain area of the State.  Muslims form the third largest community in  the  State, about one-seventh of the  total  population. They  also, however, form the majority community in  certain other  areas  of the State. (In (1951) 3 Assam 384,  it  was held that persons who are alleged to be a minority must be a minority  in the particular region in which the  institution involved is situated)." The  State of Kerala, therefore, contends that in  order  to constitute a minority which may claim the fundamental rights guaranteed  to minorities by Art. 29 (1) and 30 (1)  persons must  numerically be a minority in the particular region  in which  the  educational  institution in question  is  or  is intended  to be situate.  A little reflection will  at  once show  that  this is not a satisfactory test.  Where  is  the line to be drawn and which is the unit which will have to be taken  ?  Are we to take as our unit a district, or  a  sub- division  or  a  taluk  or  a  town  or  its  suburbs  or  a municipality  or its wards ? It is well known that  in  many towns  persons  belonging to a  particular  community  flock together  in  a  suburb  of  the  town  or  a  ward  of  the municipality.   Thus Anglo-Indians or Christians or  Muslims may  congregate  in one particular suburb of a town  or  one particular  ward  of  a municipality and they may  be  in  a majority  there.   According  to  the  argument  of  learned counsel  for  the  State  of  Kerala  the  Anglo-Indians  or Christians  or  Muslims of that locality, taken as  a  unit, will  not  be  a  " minority " within  the  meaning  of  the Articles  under  consideration and will not,  therefore,  be entitled to establish and maintain educational  institutions of their choice in that locality, but if some of the members belonging to the Anglo-Indian or Christian community  happen to reside in another suburb of the same town or another ward of the same municipality 1049 and  their number be less than that of the members of  other communities residing there, then those members of the Anglo- Indian or Christian community will be a minority within  the meaning of Arts. 29 and 30 and will be entitled to establish and  maintain  educational institutions of their  choice  in that   locality.    Likewise  the  Tamilians   residing   in Karolbagh,  if they happen to be larger in number  than  the members of other communities residing in Karolbagh, will not be  entitled to establish and maintain a Tamilian school  in Karolbagh, whereas the Tamilians residing in, say, Daryaganj where they may be le-,is numerous than the members of  other communities  residing  in Daryaganj will be  a  minority  or section within the meaning of Arts. 29 and 30.  Again Bihari labourers  residing  in  the industrial  areas  in  or  near Calcutta  where  they may be the majority in  that  locality will  not be entitled to have the minority rights and  those Biharis will have no educational institution of their choice imparting education in Hindi, although they are  numerically a  minority  if we take the entire city of Calcutta  or  the State of West Bengal as a unit.  Likewise Bengolis  residing in a particular ward in a town in Bihar where they may  form the  majority  will  not  be  entitled  to  conserve   their language,  script  or  culture  by  imparting  education  in Bengali.   These are, no doubt, extreme  illustrations,  but they serve to bring out the fallacy inherent in the argument on this part of the case advanced by learned counsel for the State  of Kerala.  Reference has been made to Art. 350-A  in

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support of the argument that a local authority may be  taken as a unit.  The illustrations given above will apply to that case also.  Further such a construction will necessitate the addition  of the words " within their jurisdiction  "  after the  words " minority groups ". The last sentence,  of  that Article  also appears to run counter to such  argument.   We need  not,  however, on this occasion go  further  into  the matter  and  enter  upon a discussion and  express  a  final opinion as to whether education being a State subject  being item  11  of  List  11  of  the  Seventh  Schedule  to   the Constitution  subject only to the provisions of entries  62, 63, 64 and 66 of List I and 1050 entry 25 of List III, the existence of a minority  community should in all circumstances and for purposes of all laws  of that  State be determined on the basis of the population  of the  whole State or whether it should be determined  on  the State basis only when the validity of a law extending to the whole  State  is  in  question  or  whether  it  should   be determined  on the basis of the population of  a  particular locality  when  the law under attack applies  only  to  that locality,  for the -Bill before us extends to the  whole  of the  State of Kerala and consequently the minority  must  be determined  by  reference to the entire population  of  that State.   By this test Christians, Muslims and  Anglo-Indians will certainly be minorities in the State of Kerala.  It  is admitted that out of the total population of 1,42,00,000  in Kerala  there  are only 34,00,000 Christians  and  25,00,000 Muslims.   The  Anglo-Indians in the  State  of  Travancore- Cochin  before  the re Organisation of the  States  numbered only  11,990  according  to the 1951 Census.   We  may  also emphasise  that  question 2 itself proceeds on  the  footing that there are minorities in Kerala who are entitled to  the rights conferred by Art. 30 (1) and, strictly speaking,  for answering  question  2  we need not enquire  as  to  what  a minority community means or how it is to be ascertained. We  now  pass  on to the main  point  canvassed  before  us, namely, what are the scope and ambit of the right  conferred by  Art.  30  (1).  Before coming to  grips  with  the  main argument on this part of the case, we may (teal with a minor point raised by learned counsel for the State of Kerala.  He contends  that  there  are three conditions  which  must  be fulfilled  before the protection and privileges of  Art.  30 (1)  may  be claimed, namely, (1) there must be  a  minority community, (2) one or more of the members of that  community should, after the commencement of the Constitution, seek  to exercise  the right to establish an educational  institution of -his or their choice, and (3) the educational institution must  be  established for the members of his  or  their  own community.   We  have already determined, according  to  the test  referred to above, that the Anglo-Indians,  Christians and Muslims are minority communities in the 1051 State  of Kerala.  We do not think that the  protection  and privilege  of  Art. 30 (1) extend only  to  the  educational institutions  established  after the date  our  Constitution came  into operation or which may hereafter be  established. On this hypothesis the educational institutions  established by  one or I more members of any of these communities  prior to  the  commencement  of  the  Constitution  would  not  be entitled  to  the benefits of Art. 30 (1).  The  fallacy  of this  argument becomes discernible as soon as we direct  our attention  to Art. 19(1)(g) which, clearly  enough,  applies alike  to  a  business,  occupation  or  profession  already started  and carried on as to those that may be started  and

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carried  on  after  the commencement  of  the  Constitution. There  is no reason why the benefit of Art. 30(1) should  be limited  only to educational institutions established  after the commencement of the Constitution.  The language employed in Art. 30(1) is wide enough to cover both  pre-Constitution and   post-Constitution  institutions.   It  must   not   be overlooked that Art. 30(1) gives the minorities two  rights, namely, (a) to establish, and (b) to administer, educational institutions  of  their choice.  The  second  right  clearly covers  pre-Constitution schools just as Art. 26 covers  the right  to maintain pre-Constitution religious  institutions. As  to  the third condition mentioned  above,  the  argument carried  to its logical conclusion comes to this that  if  a single  member  of any other community is  admitted  into  a school established for the members of a particular  minority community, then the educational institution ceases to be  an educational   institution  established  by  the   particular minority community.  The argument is sought to be reinforced by  a  reference  to  Art.  29(2).   It  is  said  that   an educational institution established by a minority  community which does not seek any aid from the funds of the State need not  admit a single scholar belonging to a  community  other than  that for whose benefit it was established but that  as soon  as such an educational institution seeks and gets  aid from  the  State coffers Art. 29(2) will  preclude  it  from denying  admission  to members of the other  communities  on grounds only of religion, race, caste, 1052 language or any of them and consequently it will cease to be an  educational  institution of the choice of  the  minority community  which  established it.  This  argument  does  not appear to us to be warranted by the language of the  Article itself.   There is no such limitation in Art. 30(1)  and  to accept this limitation will necessarily involve the addition of  the  words " for their own community "  in  the  Article which  is  ordinarily  not  permissible  according  to  well established  rules of interpretation.  Nor is it  reasonable to  assume  that the purpose of Art. 29(2)  was  to  deprive minority  educational institutions of the aid  they  receive from  the State.  To say that an institution which  receives aid   on  account  of  its  being  a  minority   educational institution  must  not  refuse to admit any  member  of  any other  community only on the grounds therein  mentioned  and then to say that as soon as such institution admits such  an outsider  it  will  cease to be a  minority  institution  is tantamount to saying that minority institutions will not, as minority  institutions,  be entitled to any aid.   The  real import Of Art. 29(2) and Art. 30(1) seen-is to us to be that they  clearly  contemplate a, minority  institution  with  a sprinkling of outsiders admitted into it. admitting   a non- member  into it the minority institution does not  shed  its character  and cease to be a minority  institution.   Indeed the object of conservation of’ the distinct language, script and   Culture  of  a  minority  may  be  better  served   by propagating  the same amongst non-members of the  particular minority  community. In our opinion, it is not  possible  to read this condition into Art’ 30(1) of the Constitution. Having  disposed of the minor point, referred to  above,  we now  take up the main argument advanced before us as to  the content of Art. 30(1).  The first point to note is that  the Article   gives  certain  rights  not  only   to   religious minorities  but also to linguistic minorities.  In the  next place,  the  right  conferred  on  such  minorities  is   to establish educational institutions of their choice.  It does not say that, minorities based on religion should  establish

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educational institutions for teaching religion only, or that linguistie minorities 1053 should have the right to establish educational  institutions for teaching their language 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,  educa- tional institutions of their choice will necessarily include institutions  imparting general secular education also.   In other  words,  the  Article leaves it  to  their  choice  to establish  such educational institutions as will serve  both purposes, namely, the purpose of conserving their  religion, language  or  culture,  and also the  purpose  of  giving  a thorough,  good  general education to their  children.   The next thing to note is that the Article, in terms, gives  all minorities,  whether  based  on religion  or  language,  two rights,  namely, the right to establish and the right to  ad -minister  educational institutions of their The key to  the understanding  of  the true meaning and implication  of  the Article  under  consideration are the words " of  their  own choice  ". It is said that the dominant word is "  choice  " and the content of that Article is as wide as the choice  of the particular minority community may make it.  The ambit of the  rights  conferred by Art:30(1) has,  therefore,  to  be determined on a consideration of the matter from the  points of  view  of the educational institutions  themselves.   The educational institutions established or administered by  the minorities  or to be so established or administered by  them in exercise of the rights conferred by that, Article, may be classified into three categories, namely, (1) those which do not seek either aid or recognition from the State, (2) those which  want aid, and (3) those which want  only  recognition but not aid. As  regards  the institutions which come  within  the  first category, they are, by cl. 38 of the Bill, outside 1054 the  purview of the Bill and, according to  learned  counsel for the State of Kerala, nothing can be done for or  against them under the Bill.  They have their right under Art. 30(1) and  they can, says learned counsel, exercise that right  to their  heart’s  content  unhampered by  the  Bill.   Learned counsel  appearing  for  the  institutions  challenging  the validity of the Bill, on the other hand, point to cl. 26  of the Bill to which reference has already been made.  They say that  if  the educational institutions, present  or  future, which  come within the first category happen to  be  located within  an area of compulsion they will have to  close  down for want of scholars, for all guardians residing within such area  are, by cl. 26, enjoined, on pain of penalty  provided by el. 28, to-send their wards only to Government schools or private  schools which, according to the  definition,  means aided  or  recognised  schools.  Clause  26,  it  is  urged, abridges  and  indeed  takes  away  the  fundamental   right conferred on the minorities by Art. 30(1) and is, therefore, unconstitutional.    The  educational  institutions   coming within  the  first category, not being aided  or  recognised are, by el. 38, prima facie outside the purview of the Bill. None of the provisions of the Bill including those mentioned

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in  the  Question apply to them and  accordingly  the  point sought to be raised by them, namely, the infraction of their right  under Art. 30(1) by el. 26 of the Bill does not  come within the scope of question 2 and we cannot, on the present reference, express any opinion on that point. As regards the second category, we shall have to  sub-divide it  into  two classes, namely, (a) those which  are  by  the Constitutional itself expressly made eligible for  receiving grants, and (b) those which are not entitled to any grant by virtue  of  any express provision of the  Constitution  but, nevertheless, seek to get aid. Anglo-Indian  educational  institutions  come  within   sub- category  (a).  An Anglo-Indian is defined in  Art.  366(2). The Anglo-Indian community is a wellknown minority community in India based on religion as well as language and has  been recognised 1055 as  such  by  this Court in The State of  Bombay  v.  Bombay Education Society (1).  According to the figures set out  in the  statement  of  case  filed  by  the"  two  Anglo-Indian institutions  represented before us by Shri  Frank  Anthony, about  which  figures  there is no dispute,  there  are  268 recognised  Anglo-Indian schools in India out of  which  ten are  in  the  State  of  Kerala.   Anglo-Indian  educational institutions  established  prior  to 1948  used  to  receive grants  from  the Government of those  days.   Article  337, presumably  in view of the special circumstances  concerning the Anglo-Indian community and to allay their natural  fears for  their  future well being, preserved this bounty  for  a period  of ten years.  According to that Article all  Anglo- Indian educational institutions which were, receiving grants up  to  the financial year ending on March  31,  1948,  will continue  to  receive the same grant  subject  to  triennial diminution  of ten per cent. until the expiry of  ten  years when the grant, to the extent it is a special concession  to the  Anglo-Indian  community,  should  cease.   The   second proviso imposes the condition that at least 40 per cent.  of the annual admissions must be made available to the  members of  comnunities  other  than  the  Anglo-Indian   community. Likewise  Art. 29 (2) provides, inter alia, that no  citizen shall  be denied admission into any educational  institution receiving  aid  out  of  State  funds  on  grounds  only  of religion,  race, caste, language or any of them.  These  are the  only  constitutional limitations to the  right  of  the Anglo-Indian   educational  institutions  to  receive   aid. Learned  counsel  appearing  for  two  Anglo-Indian  schools contends that the State of Kerala is bound to implement  the provisions of Art. 337. lndeed it is stated in the statement of  case  filed by the State of Kerala  that  all  Christian schools  are aided by that State and, therefore, the  Anglo- Indian  schools, being also Christian schools, have been  so far getting from the State of Kerala the grant that they are entitled  to  under Art,. 337.  Their grievance is  that  by introducing (1) [1955] 1 S.C.R. 568, 583. 134 1056 this  Bill  the State of Kerala is now  seeking  to  impose, besides  the  constitutional limitations  mentioned  in  the second proviso to Art. 337 and Art. 29 (2), further and more onerous  conditions  on  this  grant  to  the  Anglo  Indian educational institutions although their constitutional right to such grant still subsists.  The State of Cls. 8(3),and  9 to13  besides other clauses attracted by cl. 3(5) of  the Bill curtailing and, according to  them            completly

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takeing away, their constitutional      right to manageown affairs  as a price for the grant to which under  Art.  337, they  are  entitled  unconditionally except  to  the  extent mentioned in the second proviso to that article and in  Art. 29  (2).  Learned counsel for the State of Kerala  does  not seriously  dispute, as indeed he cannot fairly do,  that  so far  as  the grant under Art. 337 is  concerned  the  Anglo- Indian educational institutions are entitled to receive  the same without any fresh strings being attached to such grant, although he faintly suggests that the grant received by  the Anglo-Indian educational institutions under Art. 337 is  not strictly speaking " aid " within the meaning of that word as used  in the Bill.  We are unable to accept I that  part  of his argument as sound.  The word " aid" has not been defined in  the Bill.  Accordingly we must give this simple  English word its ordinary and natural meaning.  It may, in  passing, be  noted that although the word " grant " is used  in  Art. 337 the word " aid " is used in Art. 29 (2) and Art. 30 (2), but there can be no question that the word " aid " in  these two  Articles  will  cover the " grant  "  under  Art.  337. Before  the  passing  of  the  said  Bill  the  Anglo-Indian educational institutions were receiving the bounty  formerly from the State of Madras or Travancore-Cochin and after  its formation  from  the present new State of  Kerala.   In  the circumstances,  the  amount  received  by  the   AngloIndian institutions as grant under Art. 337 must be construed as  " aid  " within the meaning of the said Bill and these  Anglo- Indian  educational  institutions in receipt of  this  grant payable under Art. 337 must accordingly be regarded as aided schools " within 1057 the  meaning of the definitions in cl. 2, sub-cls.  (1)  and (6). The  imposition  of stringent terms  as  fresh  or additional conditions precedent to this grant to the  Anglo- Indian  educational institutions will,  therefore,  infringe their rights not only under Art. 337 but also under Art.  30 (1).   If the Anglo-Indian educational  institutions  cannot get  the grant to which they are entitled except upon  terms laid down by the provisions of the Bill then, if they insist on the right of administration guaranteed to them by Art. 30 (1)  they  will  have to exercise their  option  tinder  the proviso   to  el.  3  (4)  and  remain  content  with   mere recognisation,  subject to certain terms  therein  mentioned which may also be an irksome and intolerable encroachment on their  right of administration.  But the real point is  that no  educational institution can in modern times,  afford  to subsist and efficiently function without some State aid and, therefore, to continue their institutions they will have  to seek  aid  and  will  virtually  have  to  surrender   their constitutional    right   of    administering    educational institutions  of their choice.  the premises, they  may,  in our opinion, legitimately complain that so far as the grants under Art. 337 are concerned, the provisions of the  clauses of  the I-’)ill mentioned in question 2 do in substance  and effect  infringe their fundamental rights under Art. 30  (1) and are to that extent void.  It is urged by learned counsel for  the State of Kerala that this Court should  decline  to answer  this  question  until rules are framed  but  if  the provisions of the Bill are obnoxious on the face of them, no rule can cure that defect.  No or do we think that there  is any  substance in the argument advanced by  learned  counsel for  Kerala that this Bill has ]lot introduced anything  now and  the  Anglo-Indian schools are not  being  subjected  to anything beyond what they have been submitting to under  the Education Acts and Codes of Travancore or Cochin or  Madras.

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In  1945  or  1947  when those  Acts  and  codes  came  into operation there were no fundamental rights and there can  be no  loss of fundamental right merely on the ground  of  non- exercise of it.  There is no case of estoppel here, assuming that there can be an estoppel against the 1058 Constitution.   There  can be no question,  therefore,  that the Anglo-Indian educational institutions which are entitled to  their  (,rants  under Art. 337 are  being  subjected  to onerous conditions and the provisions of the said Bill which legitimately  come  within  question 2 as  construed  by  us infringe  their  rights  not only under Art.  337  but  also violate  their  rights under Art. 30 (1) in  that  they  are prevented  from  effectively  exercising  those  rights.  it should   be   borne  in  mind  that   in   determining   the constitutional validity of a measure or a provision  therein regard must be had to the real effect and impact thereof  on the  fundamental right.  See the decisions of this Court  in Rashid  Ahmad v. Muunicipal Board Kairana’s case (1),  Mohd. Yasin  v. The Town Area Committee, Jalalabad’s case (2)  and The State of Bombay v. Bombay Education Society’s case (3). Learned counsel for the State of Kerala next urges that each and  every one of the Anglo-Indian educational  institutions are  getting much more than what they are entitled to  under Art. 337 and that consequently, in so far as-, these  Anglo- Indian  educational institutions are getting more than  what is  due  to them under Art. 337, they are,  as  regards  the excess,   in  the  same  position  as   other   Anglo-Indian educational   institutions  started  after  1948   and   the educational institutions established by other minorities who have  no  right to aid under any express  provision  of  the Constitution  but are in receipt of aid or seek to  get  it. This  takes  us  to the consideration of the  cases  of  the educational institutions which fall within sub-category  (b) mentioned  above,  namely, the institutions  which  are  not entitled  to  any  grant of aid by  virtue  of  any  express provision of the Constitution but, nevertheless, seek to get aid from the State. We have already seen that Art. 337 of the Constitution makes special   provision   for  granting  aid   to   Anglo-Indian educational  institutions established prior to 1948.   There is  no  constitutional provision for such grant  of  aid  to educational institutions established by (1) [1950] S.C.R. 566, 571.     (2) [1952] S.C.R. 572, 577. (3) [1955] 1 S.C.R. 568, 583. 1059 the   Anglo-Indian   community  after  1948  or   to   those established by other minority communities at any time.   The other   minority  communities  or  even   the   Anglo-Indian community  in respect of post-1948 educational  institutions have  no constitutional right, fundamental or otherwise,  to receive  any  grant from the State.  It is,  however,  well- known  that in modern times the demands and  necessities  of modern   educational   institutions  to  be   properly   and efficiently run require considerable expense which cannot be met  fully by fees collected from the scholars  and  private endowments  which  are  not  adequate  and,  therefore,   no educational  institution  can be maintained in  a  state  of efficiency  and usefulness without substantial aid from  the State.    Articles   28(3),  29(2)   and   30(2)   postulate educational  institutions receiving aid out of State  funds. By the bill now under consideration the State of Kerala also contemplates   the   granting   of   aid   to    educational institutions.   The  said Pill, however,  imposes  stringent terms  as  conditions  precedent  to the  grant  of  aid  to

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educational  institutions.  The provisions of the Bill  have already been summarised in detail in an earlier part of this opinion  and need not be recapitulated.  Suffice it  to  say that  if the said Bill becomes law then, in order to  obtain aid  from State funds, an educational institution will  have to submit to the conditions laid down in cls. 3. 5, 6, 7, 8, 9,  10,  11,  12, 14, 15 and 20.   Clause  36  empowers  the Government to make rules providing for the giving of aids to private   schools.   Learned  counsel  appearing   for   the educational  institutions  opposing the Bill  complain  that those  clauses  virtually  deprive their  clients  of  their rights under Art. 30(1). Their  grievances are thus stated: The gist of the right  of administration  of  a school is the  power  of  appointment, control  and  dismissal of teachers and  other  staff.   But under the said Bill such power of management is  practically taken away.  Thus the manager must submit annual  statements (el.  5).  The fixed assets of the aided schools are  frozen and  cannot be dealt with except with the permission of  the authorised  officer  (cl. 6).  No educational agency  of  an aided 1060 school  can appoint a manager of its choice and the  manager is  completely under the control of the authorised  officer, for he must keep accounts in the manner he is told to do and to give periodical inspection of them, and on the closure of the school the accounts must be made over to the  authorised officer  (el. 7).  All fees etc. collected will have  to  be made  over to the Government (el. 8 (3)).   Government  will take up the task of paying the teachers and the non-teaching staff (cl. 9).  Government will prescribe the  qualification of teachers (cl. 10).  The school authorities cannot appoint a  single teacher of their choice, but must appoint  persons out  of the panel settled by the Public  Service  Commission (cl. 11).  The school authorities must provide amenities  to teachers and cannot dismiss, remove, reduce or even  suspend a  teacher without the previous sanction of  the  authorised officer  (cl. 12).  Government may take over the  management on  being  satisfied  as to certain  matters  and  can  then acquire  it  outright (el. 14) and it can also  acquire  the aided  school,  against on its satisfaction  is  to  certain matters  on  which  it  is  easily  possible  to   entertain different views (cl. 15).  Clause 20 peremptorily prevents a private  school, which means an aided or recognised  school, from  charging any fees for tuition in the  primary  classes where  the number of scholars are the  highest,  Accordingly they contend that those provisions do offend the fundamental rights conferred on them by Art. 30(1). Learned  counsel appearing for the State of Kerala  advances the  extreme  contention  that Art. 30 (1)  Confers  on  the minorities the fundamental right to establish and administer educational  institutions of their choice and nothing  more. They  are free to exercise such rights as much as they  like and  as long as they care to do so on their  own  resources. But  this  fundamental  right goes  no  further  and  cannot possibly  extend to their getting financial assistance  from the coffers of the State.  If they desire or seek to  obtain aid  from the State they must submit to the terms  on  which the  State offers aid to all other educational  institutions established by other people just as a person 1061 will  have to pay 15 naye paise if he wants to buy  a  stamp for an inland letter.  Learned counsel appearing for the two Anglo-Indian  schools as well. as learned counsel  appearing for the Jamait-ul-ulemia-iHind, on the other hand, insist in

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their turn, on an equally extreme proposition, namely,  that their clients’ fundamental rights under Art. 30 (1) are,  in terms,  absolute and not only can it not be taken  away  but cannot  even  be  abridged to any  extent.   They  draw  our attention  first  to Art. 19 (1) (g) which  confers  on  the citizens the fundamental right to carry on any business  and then  to  cl.  6 of that article  which  permits  reasonable restrictions  being  imposed on that fundamental  right  and they contend that, as there is no such provision in Art.  30 (1) conferring on the State any police power authorising the imposition of social control, the fundamental rights  tinder Art.  30  (1)  must be held to be  absolute  and  cannot  be subjected to any restriction whatever.  They reinforce their arguments  by  relying on Arts. 28 (3), 29 (2)  and  30  (2) which, they rightly submit, do contemplate the grant of  aid to  educational  institutions established by  minority  com- munities.   Learned counsel also strongly rely on  Arts.  41 and 46 of the Constitution which, as directive principles of State  policy,  make  it  the  duty  of  the  State  to  aid educational  institutions  and to  promote  the  educational interests  of the minorities and the weaker sections of  the people.   Granting  of aid to educational  institutions  is, according  to  learned counsel, the normal function  of  the Government.   The  Constitution  contemplates   institutions wholly  maintained  by  the  State,  as  also   institutions receiving  aid from the State.  If, therefore, the  granting of  aid  is a governmental function, it must, they  say,  be discharged  in a reasonable way and without  infringing  the fundamental  rights  of  the minorities.  There  may  be  no fundamental right given to any person or body  administering an  educational  institution to get aid from the  State  and indeed  if  the  State has not sufficient  funds  it  cannot distribute  any.  Nevertheless if the State does  distribute aid it cannot, they contend, attach such conditions to it as will deprive the 1062 minorities  of  their fundamental rights under  Art.  30(1). Attaching  stringent conditions, such as those  provided  by the  said  Bill and summarised above, is  violative  of  the rights   guaranteed  to  the  minorities  by   Art.   30(1). Surrender  of fundamental rights cannot, they  conclude,  be exacted as the price of aid doled out by the State. We are thus faced will a problem of considerable  complexity apparently difficult of solution.  There is, on the one hand the  minority  rights  under Art.  30(1)  to  establish  and administer educational institutions of their choice and  the duty  of the Government to promote education, there  is,  on the other side the obligation of the State under Art. 45  to endeavour  to introduce free and compulsory  education.   We have  to reconcile between these two  conflicting  interests arid  to give effect to both if that is possible  and  bring about a synthesis between the two.  The directive principles cannot  ignore or override the fundamental rights but  must, as  we have said, subserve the fundamental rights.  We  have already  observed  that Art. 30(1) gives two rights  to  the minorities,   (1)  to  establish  and  (2)  to   administer, educational  institutions  of their choice.   The  right  to administer   cannot   obviously   include   the   right   to maladminister.   The minority cannot surely ask for  aid  or recognition  for an educational institution run by  them  in unhealthy  surroundings,  without  any  competent  teachers, possessing  any semblance of Qualification, and  which  does not  maintain  even  a fair standard of  teaching  or  which teaches  matters subversive of the welfare of the  scholars. It stands to reason, then, that the constitutional right  to

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administer  an educational institution of their choice  does not  necessarily militate against the claim of the State  to insist that in order to In grant aid the State may prescribe reasonable  regulations  to  ensure the  excellence  of  the institutions   to  be  aided.   Learned  Attorney   -General concedes  that  reasonable  regulations  may  certainly   be imposed  by  the state as a condition for aid  or  even  for recognition.  There is no right in any minority, other  than Anglo-Indians,  to  get aid, but, he contends, that  if  the State chooses to 1063 grant  aid then it must not say-" I have money and  I  shall distribute  aid but I shall not give you any aid unless  you surrender to me your right of administra . tion." The  State must  not  grant aid in such manner as will  take  away  the fundamental  right  of  the minority  community  under  Art. 30(1).   Shri  (’X.   S. Pathak appearing for  some  of  the institutions opposing the Bill agrees that it is open to the State  to lay down conditions for recognition, namely,  that an  institution  must have a particular amount of  funds  or properties  or number of students or standard  of  education and  so  forth  and it is open to the State to  make  a  law prescribing conditions for such recognition or aid provided, however,  that  such  law is  constitutional  and  does  not infringe   any   fundamental  right   of   the   minorities. Recognition and grant of aid, says Shri G. S. Pathak, is the governmental  function  and,  therefore,  the  State  cannot impose  terms  as  condition  precedent  to  the  grant   of recognition  or aid which will be violative of  Art.  30(1). According  to  the statement of case filed by the  State  of Kerala, every Christian school in the State is aided by  the State.   Therefore, the conditions imposed by the said  Bill on  aided  institutions  established  and  administered   by minority  communities,  like the Christians,  including  the Anglo-Indian community, will lead to the closing down of all these  aided schools unless they are agreeable to  surrender their  fundamental  right  of  management.   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 Art. 30(1).  The legislative powers conferred on the legislatures of the States by Arts. 245 and 246 are subject to the  other provisions   of  the  Constitution  and  certainly  to   the provisions  of  Part III which  confers  fundamental  rights which  are,  therefore, binding on the  State  legislatures. The  State  legislatures cannot, it is clear,  disregard  or override  those  provisions  merely  by  employing  indirect methods of achieving exactly the 135 1064 same result.  Even the legislature cannot do indirectly what it  certainly  cannot  do directly.  Yet that  will  be  the effect  of the application of these provisions of  the  Bill and  according  to  the  decisions  of  this  Court  already referred  to it is the real effect to which regard is to  be had  in  determining  the  constitutional  validity  of  any measure.  Clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20  relate to   the  management  of  aided  schools.   Some  of   these provisions,  e.g.,  7, 10, 11(1), 12(1)(2)(3)  and  (5)  may easily  be regarded as reasonable regulations or  conditions for  the  grant  of aid.  Clauses 9, 11(2)  and  12(4)  are, however,  objected to as going much beyond  the  permissible limit.   It is said that by taking over the  collections  of fees,  etc., and by undertaking to pay the salaries  of  the

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teachers  and  other  staff the  Government  is  in  reality confiscating the school fund and taking away the prestige of the  school,  for none will care for the  school  authority. Likewise  cl.  II 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-el.  (2)  of   that   clause   is objectionable  for it thrusts upon educational  institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenets of their religion and may be otherwise weak educationally.  Power of dismissal,  removal, reduction in rank or suspension is an index of the right  of management and that is taken away by cl. 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 cls. 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  pre- pared,  as  at present advised, to treat  these  clauses  9, 11(2) and 12(4) as permissible regulations which the 1065 State  may  impose  on the minorities  as  a  condition  for granting  aid  to  their  educational  institutions.    We,, however, find it impossible to support cls. 14 and 15 of the said  Bill  as mere regulations.  The  provisions  of  those clauses may be totally destructive of the rights under  Art. 30(1).  It is true that the right to aid is not implicit  in Art. 30(1) but the provisions of those clauses, if submitted to  on account of their factual compulsion as  condition  of aid,   may  easily  be  violative  of  Art.  30(1)  of   the Constitution.   Learned  counsel  for the  State  of  Kerala recognises  that cls. 14 and 15 of the Bill  may  annihilate the  minority  communities’  right  to  manage   educational institutions  of their choice but submits that the  validity of  those clauses is not the subject matter of  question  2. But,  as  already explained, all newly  established  schools seeking aid or recognition are, by el. 3(5), made subject to all  the provisions of the Act.  Therefore, in a  discussion as  to the constitutional validity of cl. 3(5) a  discussion of  the  validity of the other clauses of the  Bill  becomes relevant,  not  as  and by way of a  separate  item  but  in determining the validity of the provisions of el. 3(5).   In our  opinion, sub-el. 3 of el. 8 and cls. 9, 10, 11, 12  and 13  being merely regulatory do not offend.  Art. 30(1),  but the  provisions of sub-cl. (5) of cl. 3 by making the  aided educational  institutions  subject  to cls.  14  and  15  as conditions  for  the. grant of aid do  offend  against  Art. 30(1) of the Constitution. We   now   come  to  the,  last  category   of   educational institutions   established  and  administered  by   minority communities which seek only recognition but not aid from the State.   The  extreme  arguments  advanced  with  regard  to recognition  by learned counsel for the State of Kerala  and learned counsel for the two Anglo-Indian schools and learned counsel  for  the Muslim institutions proceed  on  the  same lines as those advanced respectivly by them on the  question as  to  granting of aid, namely, that the  State  of  Kerala maintains  that the minority communities may exercise  their fundamental   right   under  Art.  30(1)   by   establishing educational institutions of their choice wherever they  like

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and administer the same in their own way 1066 and need not seek recognition from the Government, but  that if   the   minority  communities  desire  to   have   ’State recognition  hey  must  submit  to  the  terms  imposed,  as conditions  precedent to recognition, on  every  educational institution.   The claim of the educational institutions  of the  minority communities, on the other hand, is that  their fundamental right under Art. 30(1) is absolute and cannot be subjected to any restriction whatever.  Learned counsel  for the  two Anglo-Indian schools appearing on  this  reference, relying  on  some decisions of the American  Supreme  Court, maintains that a child is not the creature of the State  and the  parents have the right to get their child  educated  in educational  institutions of their choice.   Those  American decisions proceed on the language of the due process clauses of  the  Fifth  and the Fourteenth Amendments  and  have  no application  to a situation arising under  our  Constitution -and  we need not, therefore, discuss them in  detail  here. Adverting to the two conflicting views propounded before -us we  repeat that neither of the two extreme propositions  can be sustained and we have to reconcile the two, if  possible. Article  26 gives freedom to religious denominations or  any section  thereof,  subject  to public  order,  morality  and health, to establish and maintain institutions for religious and charitable purposes.  Article 29(1) gives protection  to any section of -citizens residing in the territory of  India having a distinct language, script or culture of its own the right to conserve the same.  As we have already stated,  the distinct language, script or culture of a minority community can  best be conserved by and through  educational  institu- tions,  for  it is by education that their  culture  can  be inculcated into the impressionable minds of the children  of their  community.   It is through  educational  institutions that  the language and script of the minority community  can be preserved, improved and strengthened.  It is,  therefore, that Art. 3O(1) confers on all minorities, whether based  on religion- or language, the right to establish and administer educational  institutions of their choice.  The  minorities, quite  understandably,  regard  it  as  essential  that  the education 1067 of their children should be in accordance with the teachings of  their religion and they hold, quite honestly, that  such an education cannot be obtained in ordinary schools designed for all the members of the public but can only be secured in schools conducted under the influence and guidance of people well  versed  in  the tenets of their religion  and  in  the traditions  of  their  culture.   The  minorities  evidently desire that education should be imparted to the children  of their community in an atmosphere congenial to the growth  of their  culture.   Our  Constitution  makers  recognised  the validity  of their claim and to allay their fears  conferred on  them the fundamental rights referred to above.  But  the conservation of the distinct language, script or culture  is not  the only object of choice of the minority  communities. 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 impunged  provision  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

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not  eligible  for entering the  public  services.   Without recognition,   therefore,   the   educational   institutions established or to be established by the minority communities cannot  fulfil  the  real objects of their  choice  and  the rights  under  Art. 30(1) cannot be  effectively  exercised. The  right  to establish educational institutions  of  their choice  must,  therefore, mean the right to  establish  real institutions which will effectively serve the needs of their community  and the scholars who resort to their  educational institutions.   There  is,  no  doubt,  no  such  thing   as fundamental  right to recognition by the State but  to  deny recognition  to  the educational  institutions  except  upon terms  tantamount to the surrender of  their  constitutional right  of administration of the educational institutions  of their  choice is in truth and in effect to deprive  them  of their   rights  under  Art.  30(1).   We  repeat  that   the legislative power is subject to the 1068 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.  According to the decisions of this Court referred to above, in judging the  validity  of  any law regard must be had  to  its  real intendment  and  effect  on  the  rights  of  the  aggrieved parties,  rather  than  to  its  form.   According  to   the Education Codes certain conditions are prescribed-whether as legislative  or  as  executive measures we do  not  stop  to enquire-as conditions for the grant of recognition and it is said,  as it was said during the discussion on the  question of aid, that the said Bill imposes no more burden than  what these minority educational institutions along with those  of other  communities  are already subjected to.   As  we  have observed  there  can  be  no  question  of  the  loss  of  a fundamental  right merely by the non-exercise of it.   There is no case here of any estoppel, assuming that there can  be any  estoppel  against  the  Constitution.   Therefore,  the impugned  provisions of the said Bill must be considered  on its merits. By cl. 19 the following clauses, namely, 7 (except  sub-cls. I  and 3 which apply only to aided schools), 10 and 20  were made  applicable to recognised schools.  We are prepared  to accept the provisions of sub-cls. 2, 4 to 9 of cl. 7 and the provisions  of cl. 10 as permissible regulations but  it  is difficult to treat el. 20 as merely regulatory.  That clause peremptorily  requires  that no fees should be  charged  for tuition  in the primary classes.  There is no  dispute  that the  number  of pupils in the primary classes is  more  than that in the other classes.  The 1955-1956 figures of school- going  children, as to which there is no dispute, show  that of  the age group) of 6 to II cent per cent. of boys  attend classes,  while 91 per cent. of girls of that age  group  do the same.  There is a drop in attendance when we come to age group  11 to 14.  In that age group 36.2 per cent.  of  boys and  29  per  cent. of girls go to  school.   It  is  clear, therefore, that although the rate of fees charged in primary classes  is lower than those charged in higher classes,  the total amount collected from scholars 1069 attending primary classes is quite considerable and forms an appreciable part of the total income of the school.  If this Bill becomes law, all these schools will have to forego this fruitful source of income.  There is, however, no  provision for counterbalancing the loss of fees which will be  brought about  by  el.  20 when it comes into force.   There  is  no

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provision, such as there is in el. 9 which applies to  aided schools  only,  that the State should make good  that  loss. Therefore,  the ,imposition of such restriction against  the collection of fees from any pupil in the primary classes  as a  condition for recognition will in effect make  it  impos- sible  for  an  educational  institution  established  by  a minority  community being carried on.  It is true  that  el. 36(2)(c) empowers the Government to make rules providing for the grant of recognition to private schools and we are asked to suspend our opinion until the said Bill comes into  force and rules are actually made.  But no rule to be framed under el. 36(2)(c) can nullify the constitutional infirmity of cl. 3(5)  read with cl. 20 which is calculated to  infringe  the fundamental  rights  of minority communities in  respect  of recognised schools to be established after the  commencement of the said Bill. Learned  counsel for the State of Kerala referred us to  the directive principles contained in Art. 45 which requires the State to endeavour to provide, within a period of ten  years from  the  commencement of the Constitution,  for  free  and compulsory  education for all children until  they  complete the  age of fourteen years and with considerable  warmth  of feeling and indignation maintained that no minorities should be  permitted to stand in the way of the  implementation  of the  sacred  duty  cast-upon the State of  giving  free  and compulsory primary education to the children of the  country so  as  to bring them up properly and to make them  fit  for discharging   the  duties  and  responsibilities   of   good citizens.   To  pamper  to  the  selfish  claims  of   these minorities  is, according to ].earned counsel, to  set  back the   hands  of  the  clock  of  progress.    Should   these minorities, asks learned counsel, be permitted to perpetuate the sectarian fragmentation of the people 1070 and  to  keep them perpetually segregated  in  separate  and isolated  cultural enclaves and thereby retard the unity  of the  nation ? Learned counsel for the minority  institutions were  equally cloquent as to the sacred. obligation  of  the State towards the minority communities.  It is not for  this Court  to  question the wisdom of the supreme,  law  of  the land.  We the people of India have given unto ourselves  the Constitution  which is not for any particular  community  or section but for all.  Its provisions are intended to protect all,  minority as well as the majority  communities.   There can  be  no  manner  of  doubt  that  our  Constitution  has guaranteed  certain  cherished  rights  of  the   minorities concerning  their  language, culture  and  religion.   These concessions  must have been made to them for good and  valid reasons.   Article  45,  no doubt,  requires  the  State  to provide for free and compulsory education for all  children, but  there is nothing to prevent the State from  discharging that solemn obligation through Government and aided  schools and  Art.  45  does  not  require  that  obligation  to   be discharged  at the expense of the minority communities.   So long as the Constitution stands as it is and is not altered, it  is,  we conceive, the duty of this Court to  uphold  the fundamental rights and thereby honour our sacred  obligation to the minority communities who are of our own.   Throughout the  ages  endless  inundations of men  of  diverse  creeds, cultures  and  races-Aryans and non-Aryans,  Dravidians  and Chinese,  Scythians, Huns, Pathans and Mughalshave  come  to this  ancient land from distant regions and  climes.   India has  welcomed them all.  They have met and  gathered.  given and  taken  and  got mingled, merged and lost  in  one  body India’s tradition has thus been epitomised in the  following

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noble lines: " None shall be turned away                From  the shore of this vast sea of  humanity That is India ". Indeed  India  has  sent out to the  world  her  message  of goodwill enshrined and proclaimed in our National Anthem: Poems by Rabindranath Tagore. 1071         Day and night ,the voice goes out from                           land to land,        calling Hindus, Buddhists, Sikhs and Jains                     round thy throne       and Parsees, Mussalmans and Christians.         Offerings are brought to thy shrine by            the East and the West          to  be woven in a garland of love.     Thou bringest the hearts of all peoples      into the harmony of one life,        Thou Dispenser of India’s destiny,          Victory, Victory, Victory to thee."* It  is thus that the genius of India has been able  to  find unity  in diversity by assimilating the best of  all  creeds and  cultures.  Our Constitution accordingly recognises  our sacred obligations to the minorities.  Looking at the rights guaranteed  to the minorities by our Constitution  from  the angle of vision indicated above, we are of opinion that  el. 7  (except  sub-cls.   I and 3 which  apply  only  to  aided schools)  and  cl. 10 may well be  regarded  as  permissible regulation  which  the  State is entitled  to  impose  as  a condition  for according its recognition to any  educational institution but that el. 20 which has been extended by el. 3 (5) to newly established recognised schools, in so far as it affects    -educational   institutions    established    and administered  by minority communities, is violative of  Art. 30 (1). Re.   Question 4 : This question raises  the  constitutional validity of cl. 33 of the said Bill.  That clause, which has hereinbefore   been   set  out  in   full,   provides   that notwithstanding  anything  contained in the  Code  of  Civil Procedure,  1908,  or any other law for the  time  being  in force no Court shall grant any temporary injunction or  make any interim order restraining any proceeding which is  being or  about to be taken under the provisions of the Bill  when it becomes an Act.  Article 226 of the Constitution  confers extensive  jurisdiction and power on the High Courts in  the States.   This jurisdiction and power extend throughout  the territories in relation to which the High Court exercises *Rabindranath Tagore. 136 1072 jurisdiction.   It  can issue to any  person  or  authority, including in appropriate cases any Government, within  those territories,  directions,  orders  or writs  of  the  nature mentioned  therein  for the enforcement of  the  fundamental rights  or for any other purpose.  No enactment of  a  State Legislature  can, as long as that Article stands, take  away or abridge the jurisdiction and power conferred on the  High Court by that Article.  The question is whether cl. 33  does so.  The doubts which have arisen with regard to cl. 33  are thus formulated in the order of reference :- "  AND  WHEREAS clause 33 of the said  Bill  provides  that, notwithstanding  anything  contained in the  Code  of  Civil Procedure,  1908,  or any other law for the  time  being  in force, no courts can grant any temporary injunction or  make any interim order restraining any proceedings which is being

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or about to be taken under the Act; AND WHEREAS a doubt has arisen whether the provisions of the said clause 33, in so far as they relate to the jurisdiction of  the  High  Courts,  would  offend  Article  226  of  the Constitution, The  State of Kerala in their statement of case  disowns  in the following words all intentions in that behalf : " 52. Kerala State asks this Honourable Court to answer  the fourth  question  in the negative, on the  ground  that  the power given to High Courts by Art. 226remains   unaffected by the said cl. 33.    53.    Kerala State contends that the argument that cl.33 affects Art. 226 is without foundation. 54.  The Constitution is the paramount law of the land,  and nothing short of a constitutional amendment as provided  for under  the Constitution can affect any of the provisions  of the  Constitution, including Art. 226.  The power  conferred upon  High Courts under Art. 226 of the Constitution  is  an Over-riding  power entitling them, under certain  conditions and circumstances, to issue writs, orders and directions  to subordinate     courts,    tribunals     and     authorities notwithstanding any rule or law to the contrary Learned counsel for the State of Kerala submits that el.  33 must be read subject to Arts. 226 and 32 of the 1073 Constitution.   He  relies on the well  known  principle  of construction that if a provision in a statute is capable  of two  interpretations  then  that  interpretation  should  be adopted which will make the provision valid rather than  the one  which will make it invalid.  He relies on the  words  " other  law  for  the time being in  force  "  as  positively indicating  that  the  clause has not  the  constitution  in contemplation,  for  it  will  be  inapt  to  speak  of  the Constitution  as a " law for the time being in force  ".  He relies on the meaning of the word "Law " appearing in  Arts. 2,  4, 32 (3) and 367(1) of the Constitution where  it  must mean  law enacted by a legislature.  He also relies  on  the definition  of  " Indian Law " in s. 3(29)  of  the  General Clauses Act and submits that the word " Law " in cl. 33 must mean  a law of the same kind as the Civil Procedure Code  of 1908,  that  is  to  say,  a  law  made  by  an  appropriate Legislature  in  exercise of its  legislative  function  and cannot  refer  to the Constitution.  We  find  ourselves  in agreement  with this contention of learned counsel  for  the State  of  Kerala.  We are not aware of  any  difficulty-and none  has  been  shown  to us in  construing  cl.  33  as  a provision  subject to the overriding provisions of Art.  226 of the Constitution and our answer to question No. 4 must be in the negative. In  accordance with the foregoing opinion we report  on  the questions as follows:- Question No. 1 : No. QuestionNo. 2: (i) Yes, so far as Anglo-Indian educational institutions entitled to grant under Art. 337 are concerned. (ii) As regards other minorities not entitled to grant as of right  under any express provision of the Constitution,  but are in receipt of aid or desire such aid and also as regards AngloIndian  educational institutions in so far as they  are receiving  aid in excess of what are due to them under  Art. 337, clauses 8(3), and 9 to 13 do not offend Art. 30(1)  but clause  3(5)  in  so  far  as  it  makes  such   educational institutions  subject  to clauses 14 and 15 do  offend  Art. 30(1).  (iii)  Clause 7 (except sub-cls. (1) and  (3)  which applies only to aided schools), cl. 10 in 1074

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so far as they apply to recognised schools to be established after  the  said Bill comes into force do  not  offend  Art. 30(1)  but  cl. 3(5) in so far as it makes the  new  schools established  after the commencement of the Bill  subject  to el. 20 does offend Art. 30(1). Question No. 3: No. Question No. 4: No ; clause 33 is subject to Art. 226 of the Constitution. VENKATARAMA  AIYAR J.-I agree that the answer  to  Questions Nos  1,  3 and 4 should be as stated in the judgment  of  My Lord,  the Chief Justice.  But as regards Question No. 2,  1 am  unable to concur in the view expressed therein that  Cl. (20)  of  the  Bill is, in its  application  to  educational institutions   of  minorities,  religious   or   linguistic, repugnant  to  Art. 30(1) of the Constitution , and  is,  in consequence, to that extent void. Clause (20) provides that: "  No fee shall be payable by any pupil for any  tuition  in the primary classes in any Government or private school." Now, the question is whether this Clause is violative of the right  which Art. 30(1) confers on all minorities  based  on religion   or   language,  to   establish   and   administer educational  institutions  of their choice.  Ex  facie,  Cl. (20)  does not prohibit the establishment or  administration of  such  institutions by the minorities; it  only  provides that in private schools no fee shall be payable by  students in  the  primary  classes.  On the  terms  of  this  Clause, therefore, it is difficult to see how it offends Art. 30(1). But it is contended by learned counsel who appeared for  the minorities  that in practice no school could be  run  unless fees  are  collected from the students, that  therefore  Cl. (20)  must,  if operative, result in the extinction  of  the educational  institutions  of  minorities, and  that  was  a direct  invasion  of their right to establish  and  maintain those institutions.  It is no doubt the law that in deciding on the constitutionality of an enactment, regard must be had not  merely  to its language but also to its effect  on  the rights  of  the parties, not merely to what it says  but  to what it does.  Even so, it is difficult to see how 1075 Cl.  (20)  can be said to infringe Art. 30(1).   It  applies only to Government and private schools, and a private school is  defined in Cl. 2(6) as " meaning an aided or  recognised school ". Clause (38) provides that : " Nothing in this Act shall apply to any school which is not a Government or a private school." The   result  is  that  there  is  no  prohibition   against minorities, religious or linguistic, establishing their  own educational institutions and charging fees, so long as  they do  not seek aid or recognition from the State.  It is  only when they make a demand on the State for aid or  recognition that  the provisions of the Bill will become  applicable  to them. But  it  is  argued  that the right  of  the  minorities  to establish   their  own  educational  institutions  will   be Tendered  illusory,  if the students who pass  out  of  them cannot  sit for public examinations held by the State or  be eligible for recruitment to State services, and that, it  is said,   is  the  effect  of  the  non-recognition   of   the institutions.   It  is accordingly contended  that  for  the effective  exercise  of the rights under Art. 30(1),  it  is necessary to imply therein a right in the minorities to have those  institutions  recognised by the State.  That  is  the crucial question that has to be determined.  If there is  no right   in  the  minorities  to  have   their   institutions

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recognised by the State, then the question whether Cl.  (20) is ail invasion of that right would not arise for  decision. It  is only if we hold that such right is to be  implied  in Art.  30(1)  that  the  further question  will  have  to  be considered  whether  Cl. (20) infringes  that  right.   Now, whether minorities, religious or linguistic, have a right to get recognition for their institutions under Art. 30(1) must depend  on  the interpretation to be put  on  that  Article. There  is nothing in it about recognition by the  State  of’ educational  institutions established by minorities, and  if we are to accept the contention of learned counsel appearing for them, we must read into the statute words such as "  and it  shall  be  the  duty of  the  State  to  recognise  such institutions." It is a rule of construction well established that words are not to be 1076 added  to a statute unless they are required to give  effect to  its intention otherwise manifest therein, and that  rule must apply with all the greater force here, seeing that what we are interpreting is a Constitution.  Now, a reference  to the relevant provisions of the Constitution shows that  such a  right  is  not implicit in  Art.  30(1).   Article  28(1) provides that no religious instruction shall be provided  in any  educational institution maintained wholly out of  State funds.   Article 28(3) enacts that no person  attending  any educational institution recognised by the State or receiving aid  out  of State funds shall be required to take  part  in religious instruction.  Under Art. 29(2), no person is to be denied admission into any educational institution maintained by the State or receiving aid out of State funds on  grounds only of religion, race, caste, language or any of them.   In Art. 30(2), there is express provision that in granting  aid no  discrimination  should be made against  any  educational institution on the ground that it is under the management of a minority based on religion or language.  It is clear  from the above catena of provisions that the Constitution makes a clear distinction between State-maintained, State-aided  and State-recognised educational institutions, and provides  for different rights and obligations in relation to them.  If it intended that the minorities mentioned in Art. 30(1)  should have a fundamental right in the matter of the recognition of their  educational institutions by the State, nothing  would have  been easier than to have said so.  On the other  hand, there  is  good  reason to infer that  it  has  deliberately abstained  from  imposing on the State such  an  obligation. The  educational institutions protected by Art. 30(1)  might impart  purely  religious  instruction.   Indeed,  it  seems likely  that  it  is such institutions  that  are  primarily intended to be protected by Art. 30(1).  Now, to compel  the State  to recognise those institutions would  conflict  with the fundamental concept on which the Constitution is  framed that   the  State  should  be  secular  in  character.    If institutions which give only religious education can have no right to compel recognition by the State 1077 under   Art.  30(1),  how  could  educational   institutions established by minorities and imparting secular education be held to possess that right?  The contents of Art. 30(1) must be  the same as regards all institutions falling within  its ambit.  Construing, therefore, Art.30(1) on its language, it is  difficult to support the conclusion that it implies  any right   in   the  minorities  to  have   their   educational institutions recognised by the State. The   matter  does  not  rest  there.   There  is   in   the Constitution a provision which seems clearly to negative the

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right,  which  is  claimed  on  behalf  of  the  minorities. Article 45 provides that: " The State shall endeavour to provide, within. a period  of ten  years from the commencement of this  Constitution,  for free  and compulsory education for all children  until  they complete the age of fourteen years." It  is  precisely this obligation laid on the State  by  the Constitution that is sought to be carried out in cl. (20) of the Bill.  Now, it should be clear that if the right of  the minorities    to   establish   and   maintain    educational institutions  under  Art. 30(1) carries with it  an  implied right  to  be recognised by the State, then no  law  of  the State  can compel them to admit students free and  therefore Art.  45 can never become operative, since what it  provides is  free  education  for all children  and  not  merely  for children  other than those who attend  institutions  falling within  Art.  30(1).   It is contended  that  the  directive principles  laid  down  in  Part  IV  cannot  override   the fundamental rights guaranteed by the Constitution, and  that Art.  45  cannot  be  applied so as  to  defeat  the  rights conferred  on  minorities under Art. 30(1).  This  is  quite correct.  But the question here is, not whether a  directive principle can prevail over a fundamental right, but  whether there is a fundamental right in the minorities to have their educational  institutions recognised by the State, and  when there  is nothing express about it in Art. 30(1) and  it  is only  by  implication  that such a right  is  sought  to  be raised, it is pertinent to ask, can we by implication  infer a right which is inconsistent 1078 with   the   express   provisions   of   the   Constitution? Considering the question, therefore, both on the language of Art. 30(1) and on the principle laid down in Art. 45, 1 find myself unable to accept the contention that the right of the minorities   is   not  merely   to   establish   educational institutions of their choice but to have them recognised  by the  State.   That  must  be  sufficient  to  conclude  this question. But  then it was argued that the policy behind    Art. 30(1) was to enable minorities to establish and maintain their own institutions, and that that policy would be defeated if  the State is not laid under an obligation to accord  recognition to  them.  Let us assume that the question of policy can  be gone  into, apart from the language of the  enactment.   But what is the policy behind Art. 30(1) ? As I conceive it,  it is  that it should not be in the power of the majority in  a State to destroy or to impair the rights of the  minorities, religious  or linguistic.  That is a policy which  permeates all  modern Constitutions, and its purpose is  to  encourage individuals  to  preserve  and develop  their  own  distinct culture.   It is well-known that during the Middle Ages  the accepted notion was that Sovereigns were entitled to  impose their own religion on their subjects, and those who did  not conform to it could be dealt with as traitors.  It was  this notion  that  was  responsible  during  the  16th  and  17th Centuries  for numerous wars between nations and  for  civil wars  in the Continent of Europe, and it was  only  latterly that  it came to be recognised that freedom of  religion  is not  incompatible with good citizenship and loyalty  to  the State,  and that all progressive societies must respect  the religious  beliefs of their minorities.  It is this  concept that  is  embodied in Arts. 25, 26, 29 and 30.   Article  25 guarantees to persons the right to freely profess,  practice and propagate religion.  Article 26 recognises the right  of religious denominations to establish and maintain  religious

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and  charitable  institutions.  Article 29(1)  protects  the rights  of sections of citizens to have their  own  distinct language,  script or culture.  Article 30(1) belongs to  the same category as Arts. 25, 26 and 29,                       1079 and  confers  on minorities, religious  or  linguistic,  the right  to  establish  and  maintain  their  own  educational institutions without any interference or hindrance from  the State.  In other words, the minorities should have the right to  live, and should be allowed by the State to live,  their own cultural life as regards religion or language.  That  is the true scope of the right conferred under Art. 30(1),  and the  obligation of the State in relation thereto  is  purely negative.   It  cannot prohibit the  establishment  of  such institutions,   and  it  should  not  interfere   with   the administration of such institutions by the minorities.  That right  is not, as I have already pointed out,  infringed  by Cl.  (20).   The  right which the minorities  now  claim  is something  more.   They want not merely  freedom  to  manage their  own  affairs, but they demand that the  State  should actively   intervene   and   give   to   their   educational institutions the imprimatur of State recognition.  That,  in my opinion, is not within Art. 30(1).  The true intention of that  Article is to equip minorities with a  shield  whereby they could defend themselves against attacks by  majorities, religious  or linguistic, and not to arm them with  a  sword whereby   they   could  compel  the  majorities   to   grant concessions.  It should be noted in this connection that the Constitution  has laid on the State various  obligations  in relation  to the minorities apart from what is  involved  in Art.  30(1).  Thus, Art. 30(2) provides that a  State  shall not,   when   it  chooses  to  grant  aid   to   educational institutions,    discriminate   against   institutions    of minorities based on language or religion.  Likewise, if  the State  frames  regulations for  recognition  of  educational institutions,  it  has to treat all of them  alike,  without discriminating  against  any institution on  the  ground  of language  or  religion.  The result  of  the  constitutional provisions bearing on the question may thus be summed up: (1)The State is under a positive obligation to give  equal treatment  in  the  matter  of aid  or  recognition  to  all educational institutions, including those of the minorities, religious or linguistic. 137 1080 (2)The  State  is under a negative obligation  as  regards those  institutions, not to prohibit their establishment  or to interfere with their administration. Clause  20  of  the  Bill  violates  neither  of  these  two obligations.  On the other hand, it is the contention of the minorities that must, if accepted, result in  discrimination by the State.  While recognised institutions of the majority communities   will   be  subject  to   el.   (20),   similar institutions  of  minority communities falling  within  Art. 30(1)  will not be subject to it.  The form  cannot  collect fees, while the latter can.  This surely is  discrimination. It  may be stated that learned counsel for  the  minorities, when pressed with the question that on their contention Art. 45  must become a dead letter, answered that  the  situation could  be  met  by  the State  paying  compensation  to  the minority institutions to make up for the loss of fees.  That serves clearly to reveal that what the minorities fight  for is what has not been granted to them under Art. 30(2) of the Constitution, viz., aid to them on the ground of religion or language.   In  my opinion, there is  no  justification  for

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putting  on  Art. 30(1) a construction which would  put  the minorities  in  a more favoured position than  the  majority communities. I  have  so  far discussed the scope of Art.  30(1)  on  its language and on the principle underlying it.  Coming next to the  authorities, cited before us, the observations in  City of Winnipeg v. Barrett: City of Winnipeg v. Logan (1)  would appear to support the contention of the State of Kerala that Cl. (20) does not offend Art. 30(1).  That was a decision on s. 22 of the Manitoba Act, 1870, which is as follows: "  In  and  for  the  province,  the  said  legislature  may exclusively make laws in relation to education, subject  and according to the following provisions: (1)Nothing in any such law shall prejudicially affect  any right  or privilege with respect to  denominational  schools which  any class of persons have by law or practice  in  the province at the Union." Now,  the  facts  are  that there  were  in  Manitoba  deno- minational schools run by Roman Catholics which (1)  [1892] A.C. 445. 457 1081 were  maintained with fees paid by students and  donation,,; from the Church.  In 1890, the Provincial Legislature passed the  Public Schools Act, and it enacted that all  Protestant and Roman Catholic school districts should be subject to the provisions  of this Act, and that all public schools  should be  free  schools.  A portion of the legislative  grant  for education  was to be allotted to public schools, and it  was provided that any school not conducted according to all  the provisions  of the Act or the regulations of the  Department of  Education  should not be deemed to be  a  public  school within the meaning of the Act and was not to be entitled  to participate in the grant.  The validity of these  provisions was  challenged  by the Roman Catholic institutions  on  the ground that they contravened s. 22 of the Manitoba Act,  and infringed the rights and privileges guaranteed therein.  The Supreme  Court  of Canada upheld this contention;  but  this judgment was reversed by the Privy Council, and it was  held that  the provisions of the Act did not offend s. 22 of  the Manitoba  Act.  Lord Macnagliten delivering the judgment  of the Board observed: "  Notwithstanding  the  Public  Schools  Act,  1890,  Roman Catholics  and  members  of every other  religious  body  in Manitoba  are  free  to  establish  schools  throughout  the province ; they are free to maintain their schools by school fees  or voluntary subscriptions; they are free  to  conduct their  schools  according  to  their  own  religious  tenets without molestation or interference ". In the result, it was held that the Act did not infringe the rights of the denominational institutions under s. 22. These observations  appear  to  be very apposite  to  the  present contention.    The   position  occupied  by   the   minority institutions  under Art. 30(1) is not dissimilar to that  of the  Roman Catholic schools of Manitoba under s. 22  of  the Act  of  1870,  and  the position created  by  Cl.  (20)  is precisely that which the 1890 Act created in that Province. It  remains to notice the contention advanced by  Mr.  Pritt that the basis on which the arguments of the counsel for the minorities proceeded that students 1082 who  pass  out  of  unrecognised  institutions  were  at   a ,disadvantage in the matter of eligibility to sit at  public examinations or to be admitted in the services to the State, was  itself without foundation, and that even if  there  was any substantial discrimination in treatment between students

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who pass out of unrecognised schools and those who pass  out of Government or recognised schools, that was the result  of provisions  of  the Education Codes in force in  the  State, that  it  might  be  that  those  provisions  are  -bad   as infringing Art. 30(1) of the Constitution, but that did  not affect the validity of cl. (20) as that was inapplicable  to unrecognised  institutions by virtue of cl. (38), and  that, in consequence, there was nothing in the Bill which could be said to offend Art. 30(1).  The rules of the Education  Code are  not  really before us, and they are  not  the  subject- matter of the present reference.  In my view, there is  much to be said in favour of the contention that if Art. 30(1) is at  all infringed, it is by the rules of the Education  Code and  not by el. (20).  But it is unnecessary to pursue  this aspect further, as I consider that even otherwise, the vires of  Cl.  (20)  is not open to question.  In  my  view,  that Clause does not offend Art. 30(1) and is intra vires. I agree that Cls. (14) and (15) must be held to be bad,  and the  ground  of  my decision is this: It  may  be  taken-and indeed it is not disputed-that if the State grants aid to an educational institution, it must have the power to see  that the  institution is properly and efficiently run,  that  the education  imparted therein is of the right  standard,  that the teachers possess the requisite qualifications, that  the funds  are duly applied for the purpose of  the  institution and  the  like.  In other words, the State must  have  large powers  of  regulation  and  of  control  over   State-aided educational  institutions.  These powers must  be  liberally construed,  and the decision of the Legislature as  to  what they  should be is not to be lightly interfered with, as  it is presumed to know best the needs of the State, the  nature and  extent of the evils rampant therein and the steps  that should  be taken to remedy them.  But the power to  regulate does not, in general, comprehend 1083 the power to prohibit, and the right to control the  affairs of  an institution cannot be exercised so as  to  extinguish it.   Now, Cls. (14) and (15) operate to put an end  to  the right   of  private  agencies  to  establish  and   maintain educational institutions and cannot be upheld as within  the power  of  the State to regulate or control.  The  State  is undoubtedly  free to stop aid or recognition to a school  if it  is  mismanaged.   It can, even as  an  interim  measure, arrange in the interests of the students to run that school, pending  its  making  other arrangements  to  provide  other educational facilities.  It can also resume properties which had been acquired by the institutions with the aid. of State grant.   But  it cannot itself compulsorily  take  over  the school and run it as its own, either on the terms set out in Cl.  (14)  or Cl. (15).  That is not a power  which  springs directly  from the grant of aid.  To aid is not to  destroy. Those  clauses would, in my opinion, infringe the  right  to establish  and maintain institutions, whether such right  is to be founded on Art. 19(1)(g) or Art. 30(1). I  should  add that in Question No. 2, the question  of  the validity of Cl. (20) or Cls. (14) and (15) is not  expressly referred for our opinion.  But it is said that the reference to Cl. 3(5) attracts all the provisions of the Bill, because the  establishment of new institutions or schools  is  under that  Clause subject to the provisions of the Bill  and  the rules  made thereunder.  I have grave doubts whether on  the terms  of the reference, we are called upon to  express  our opinion  on the validity of all the provisions of the  Bill. The  reference  is  not  generally  on  the  vires  of   the provisions  of the Bill.  It is limited to the  validity  of

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specified  provisions, Cls. 3(5), 8(3) and 9 to  13.   There has been no satisfactory answer to the question as to why if it was intended that we should pronounce on the validity  of all  the provisions of the Bill, Cls. 8(3) and (9)  to  (13) should  have  been specifically  mentioned.   Moreover,  the reference is preceded by detailed recitals as to the  doubts which had been raised in the mind of the President as to the validity  of  certain  provisions,  and  there  is  no  hint therein that there was any doubt 138 1084 concerning   the  vires  of  provisions  other  than   those expressly mentioned.  If the maxim "Expressum facit  cessare tacitum  "  can properly be invoked in the  construction  of instruments,  it  must a fortiori be so, in  interpreting  a document  drawn up by the Union Government with  great  care and  deliberation.  And having regard to the nature  of  the advisory  jurisdiction under Art. 143, the reference  should be  construed  narrowly  rather  than  broadly.   But   this discussion is academic, as there have been full arguments on the  validity of all the provisions, and we  are  expressing our opinion thereon. In  the  result,  my  answer to  Question  No.  2  is  that, excepting  Cls. (14) and (15), the other provisions  of  the Bill do not offend Art. 30(1) of the Constitution. As regards schools of the Anglo-Indian Communities, Art. 337 provides  for aid being given to them on the conditions  and to the extent specified therein.  That is outside Art. 30(1) and  independent of it, and I agree with My Lord, the  Chief Justice, that the provisions of the Bill are, to the  extent they  affect or interfere with the rights conferred by  that Article, bad. Reference answered accordingly. 1085