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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: BOMBAY   EDUCATION  SOCIETY  AND  OTHERS.(With Connected App

DATE OF JUDGMENT: 26/05/1954

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHAR CHAND (CJ) HASAN, GHULAM BHAGWATI, NATWARLAL H. JAGANNADHADAS, B.

CITATION:  1954 AIR  561            1955 SCR  568  CITATOR INFO :  R          1958 SC 956  (26)  R          1963 SC 996  (8)  R          1970 SC2079  (10)  F          1971 SC1731  (10)  R          1974 SC1389  (244)  R          1979 SC  83  (5)  RF         1988 SC 305  (7)

ACT: Constitution of India-Articles 29, 30(1),337 Second Proviso- Government Circular-Prohibiting admission into Schools main- tained  or  aided  by State on the  ground  of  language  of citizens--Such  circular  whether ultra  vires  of  Articles 29(2) and 337 Second Proviso--Article 29(1) and 30(1) of the Constitution - Word "Namely " -Meaning of.

HEADNOTE: The Education Society of Bombay (respondent No. 1) has  been running a recognised Anglo-Indian School called Barnes  High School  at  Deolali  which receives aid from  the  State  of Bombay.  J and G are its Directors.  English is used in  the said school as the medium of instruction.  The mother tongue of the Anglo-Indians is English.  The State of Bombay issued a circular order on 6th January, 1954, headed " Admission to Schools  teaching  through  the  medium  of  English."   The operative  portion of the order enjoined that no primary  or secondary school shall from the date of the order admit to a class where English is used as the medium 569 of  instruction any pupil other than a pupil belonging to  a section of citizens the language of which is English namely, Anglo-Indians and citizens of non-Asiatic descent.  One P, a citizen  of India and member of Indian  Christian  Community alleging  English to be the mother tongue of  his  daughter, and  one M, a citizen of India and member of  Gujrati  Hindu Community  alleging Gujrati to be the mother tongue  of  his son,  were  refused  admission  to  the  school  for   their respective  wards on the basis of the aforesaid order  dated 6th  January,  1964.   The Society  and  its  two  Directors

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presented   an   application  under  article  226   of   the Constitution  in  the High Court of Bombay praying  for  the issue  of a Writ in the nature of Mandamus  restraining  the State  of  Bombay and its officers from enforcing  the  said order  and to allow the petitioners to admit in  the  school any children of non-Anglo-Indian citizens or citizens of the Asiatic  descent and to educate them through the  medium  of English.   Similar  applications  were made  by  P  and  his daughter and by M and his son.  All these applications  were consolidated, heard together and accepted by the High  Court which made an order as prayed.  The State of Bombay came  in appeal  before  the  Supreme  Court.   Held:  (1)  that  the impugned  order  denying the right of students who  are  not Anglo-Indians or are of Asiatic descent to be admitted to  a recognised Anglo-Indian School (in this case the Barnes High School) which receives aid from the State and which  imparts education  through  the  medium  of  English  is  void   and unenforceable  as it offends against the  fundamental  right guaranteed   to  all  citizens  by  article  29(2)  of   the Constitution, because (a)The language of article 29(2) of the Constitution is wide and unqualified and covers all citizens whether they  belong to the majority or minority group. (b)The protection given by the said article extends  against the State or anybody who denies the right conferred by it. (a)The said article confers a special right on citizens  for admission  into the educational institutions  maintained  or aided by the State. (d)The  marginal  note  referring  to  minorities  does  not control  the plain meaning of the language in which  article 29(2) has been couched. The word " namely " imports enumeration of what is comprised in  the  preceding clause.  In other words it  equates  what follows with the clause described before. (2)Barnes  High  School at Deolali  and  other  Anglo-Indian School shave a right to admit non-Anglo-Indian students  and students of Asiatic descent inasmuch as article 337  proviso 2 imposes an obligation on the Anglo-Indian Schools to  make available at least 40 per cent. of the annual admissions  to non-Anglo-Indian students as a condition precedent of  their receiving  grant from the Government and the impugned  order is unconstitutional as it 73 570 prevents  the  Anglo-Indian schools  from  performing  their constitutional  obligation and exposes them to the  risk  of forfeiting their constitutional right to the special grant. In  view of the fundamental right guaranteed to  a  minority like  the  Anglo-Indian  community under  article  29(1)  to conserve its own language, script and culture and the  right to establish and administer educational institutions of  its own choice under article 30(1) there is implicit therein the right  to impart instruction in its own institutions to  the children  of its own community in its own language  and  the State  by  its police power cannot determine the  medium  of instruction in opposition to such fundamental right. Bhola Prasad v. The King-Emperor ([1942] F.C.R. 17, 25), The Queen  v. Burah (L.R. 1878 3 App.  Cas. 859), The  State  of Madras  v.  Srimathi Champakam Dorairajan  (  [1951]  S.C.R. 525),  Pierce v. Society of Sisters of Holy Names (268  U.S. 508), Yusuf Abdul Aziz v. State (A.I.R. 1951 Bom. 470),  Sm. Anjali  Boy v. State of West Bengal (A.I.R. 1952 Cal.  825), The State of Bombay v. Narasu Appal Mali (A.I.R. 1952)  Bom. 84),  Srinivasa Aiyar v. Saraswathi Ammal (A.I.R. 1952  Vad. 193),  Dattatraya  Motiram More v. State of  Bombay  (A.I.R.

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1953  Bom. 311), Punjab Province v. Daulat Singh (1946  L.R. 73 I.A. 59), Robert V. Meyer v. State of Nebraska (262  U.S. 390),  August  Bartels v. State of Iowa (262 U.S.  404)  and Ottawa Separate Schools Trustees v. Mackell (L.R. 1917  A.C. 62) referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 64 to 66 of 1954. Appeals  under article 132(1) of the Constitution  of  India from  the Judgment and Order dated the 13th February,  1954, of  the  High  Court  of Judicature  at  Bombay  in  Special Applications Nos. 259, 288 and 289 of 1954 respectively. M.   C. Setalvad, Attorney-General for India, and C.   K. Daphtary, Solicitor-General for India (G.  N. Joshi, M.   M. Desai, Porus A. Mehta and P. G. Gokhale, with them) for  the appellant in all the appeals. N.   A.  Palkhivala,  J.  B. Dadachanji, J.  K.  Munshi  and Rajinder Narain for respondents Nos. 1 and 2 in C.     A. No. 64. Frank  Anthony, J. B. Dadachanji, J. K. Munshi and  Rajinder Narain for respondent No. 3. N.   A.  Palkhivala,  J.  B. Dadachanji, J.  K.  Munshi  and Rajinder Narain for the respondent No. I in C. A, No. 65. 571 Frank Anthony and Rajinder Narain for respondent No. 2. N.   A. Palkhivala, Frank Anthony, J. B. DadachanjiJ.  K.’ Munshi and Rajinder Narain for respondent No.     I in C. A. No. 66. Frank  Anthony, J. B. Dadachanji, J. K. Munshi and  Rajinder Narain for respondent No. 2. 1954.  May 26.  The Judgment of the Court was delivered by DAS  J.-These three appeals, filed by the State  of  Bombay, with  a  certificate granted by the Bombay High  Court,  are directed  against the Judgment and Order pronounced by  that High  Court  on  the 15th February,  1954,  on  three  Civil Applications under article 226.  By that Judgment and  Order the High Court held that the circular order No. SSN  2054(a) issued by the State of Bombay, Education Department, on  the 6th  January,  1954,  was bad in  that  it  contravened  the provisions of article 29(2) and article 337 and directed the issue  of  a writ prohibiting the State from  enforcing  the order   against  the  authorities  of  Barnes  High   School established  and  run  by the Education  Society  of  Bombay (hereinafter referred as the Society). The Society, which is the first respondent in Appeal No.  64 of  1954,  is a Joint Stock Company incorporated  under  the Indian  Companies Act, 1913.  The other two  respondents  in that  appeal  Venble Archdeacon A. S. H.  Johnson  and  Mrs. Glynne Howell are members and Directors of the Society.  The Ven’ble Archdeacon A. S. H. Johnson is also the Secretary of the  Society.   Both of them are citizens of India  and  are members of the Anglo-Indian Community.  The mother tongue of these  respondents as of other members of  the  Anglo-Indian Community is English.  In  the  State of Bombay there are in  all  1403  Secondary Schools. 1285 of these Schools import education through  the medium  of some language other than English.  The  remaining 118   Schools  have  adopted  English  as  the   medium   of instruction.   Thirty  out of these 118 Schools  are  Anglo- Indian  Schools.   In these thirty Schools there  are  three thousand Anglo-Indian 572

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students  forming  37  per  cent. of  the  total  number  of students   receiving  instruction  in   those   Anglo-Indian Schools.  The rest 63 per cent. consist of  non-Anglo-Indian students. In furtherance of its object the Society in 1925 established and  since  then has been conducting and  running  a  School known as Barnes High School at Deolali in Nasik District  in the  State  of Bombay.  The School is  a  recognized  Anglo- Indian  School  having Primary, Secondary  and  High  School classes.   The  School receives considerable  aid  from  the State.   The  total  number of students  in  the  School  in December, 1953, was 415, out of which 212 were Anglo-Indians and the remaining 203 belonged to other Indian  Communities. In all the classes in the said School English is used as the medium  of  instruction  and  has been  so  used  since  the inception  of  the School.  The entire staff of  the  School consist  of 17 teachers who, with the exception of one,  are trained  and  qualified  to  teach  only  in  English,   the exception being the teacher who teaches Hindi which is,  the second language taught in that School. On  the 16th December, 1953, the Inspector  of  Anglo-Indian Schools,  Bombay State, and Educational  Inspector,  Greater Bombay,  sent a circular letter to the Headmaster of  Barnes High  School  intimating  that  the  Government  had   under consideration  the issue of orders regulating admissions  to Schools in which the medium of instruction was English.  The orders  under  consideration  were  stated  to  be  on   the following lines, namely, (1) that from the next School  year admissions to English medium School should only be  confined to  children  belonging  to the  Anglo-Indian  and  European Communities,  and (2) that those pupils who, ’prior  to  the issue of the orders, were studying in recognized Primary  or Secondary  English medium Schools, could continue to do  so. The letter in conclusion advised the Headmaster not to  make any admission for the academic year beginning from  January, 1954,  of  pupils  other  than  Anglo-Indians  or  Europeans pending  further  orders  which, it was  said,  would  issue shortly. The contemplated order came on the 6th January, 1954, in the shape of circular No. SSN 2054(a) headed 573 "Admissions  to  Schools  teaching  through  the  medium  of English".   In  paragraphs  1,  2 and  3  of  this  circular reference  was made to the development of the policy of  the Government  regarding  the  medium  of  instruction  at  the Primary  and Secondary stages of education.  It was  pointed out  that since 1926-27 the University of  Bombay  permitted pupils to answer questions in modern Indian languages at the Matriculation examination in all subjects except English and other  foreign languages and that this had resulted in  1285 out  of 1403 schools in the State ceasing to use English  as the medium of lnstruction.  It was then stated that in  1948 instructions  were  issued to all English  teaching  schools that  admissions  to  such  Schools  should  ordinarily   be restricted  to pupils who did not speak any of the  regional languages  of the State or whose mother tongue was  English. It was said that in 1951, after a review of the -position, a general  policy  had  been  laid down  to  the  effect  that admission to such schools should be restricted only to  four categories  of  children therein mentioned.   Reference  was then made to the recommendations of the Secondary  Education Commission  that the mother tongue or the regional  language should generally be the medium of instruction throughout the Secondary  school  stage,  subject  to  the.  provision  for special facilities for linguistic minorities.  In  paragraph

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4  of the Circular order it was stated that  the  Government felt   that  the  stage  had  then  been  reached  for   the discontinuance  of  English as a medium of  instruction  and that  the  Government  had  decided  that  subject  to   the facilities to be given to linguistic minorities all  special and  interim concessions in respect of admission to  Schools (including Anglo-Indian Schools) using English as the medium of  instruction, should thereafter be withdrawn.  Then  came the  operative  part of the order, the relevant  portion  of which is set out below: "5. Government has accordingly decided as follows : Subject  to the exceptions hereinafter provided, no  primary or  secondary  school shall from the date  of  these  orders admit to a class where English is used as 574 a  medium  of  instruction  any pupil  other  than  a  pupil belonging to a section of citizens the language of which  is English  namely,  Anglo-Indians and citizens  of  nonAsiatic descent." There  were three exceptions made to this general  order  in favour  of  three categories of students who, prior  to  the date  of  the  order, were studying through  the  medium  of English.   Provision  was  made  for  admission  of  foreign pupils,  other than those of Asiatic descent,  belonging  to foreign possessions in India, to Schools using English as  a medium  of  instruction  or to any  other  School  of  their choice.   The concluding paragraph of the Order was  in  the following terms :- "7.  All  Schools  (including  Anglo-Indian  Schools)  using English   as  a  medium  of  instruction   should   regulate admissions  according  to  this circular.  With  a  view  to facilitating the admission of pupils who under these  orders are  not  intended  to be educated  through  the  medium  of English,  these  schools are advised to  open  progressively divisions of Standards using Hindi or an Indian language  as the medium of instruction, starting from Standard I in 1954. Government  will  be  prepared to consider  the  payment  of additional grant on merits for this purpose." The  above  order was followed by another Circular  No.  SSN 2054  (b) issued on the same date drawing the  attention  of the  heads of all Anglo-Indian Schools to the  Circular  No. SSN  2054(a)  of  the  same date,  and  requesting  them  to regulate   thereafter   admissions  to  their   Schools   in accordance  with  that  circular.  It was  stated  that  the orders  in  that circular were not intended  to  affect  the total  grant  available  for  distribution  to  Anglo-Indian Schools under the Constitution but that the Government would be  prepared  to consider, in consultation  with  the  State Board of Anglo-Indiain Education, whether in consequence  of this  order,  any  change  was  necessary  in  the  existing procedure for the equitable distribution of the total  grant among  individual Anglo-Indian Schools.  In  conclusion  the attention of the Headmasters was particularly invited to the concluding  sentence of paragraph 7 of that circular  order, and it was pointed out that 575 the  grants  contemplated  therein were intended  to  be  in addition to, the grants available under article 337. Major  Pinto,  who  is a citizen of India,  belongs  to  the Indian  Christian  Community.   He claims  that  his  mother tongue,  as  that  of  a section  of  the  Indian  Christian Community,  is English and that his entire family speak  and use English at home.  Two of his sons were then studying  in the  Barnes High School and were being educated through  the medium  of  English.   On 2nd February,  1954,  Major  Pinto

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accompanied by his daughter Brenda approached the Headmaster of Barnes High School seeking admission for her to the  said School.   He was informed by the Headmaster about the  order issued by the State of Bombay on the 6th January, 1954,  and was told that, in view of the said order, the Headmaster was compelled  to  refuse  admission to her since  she  did  not belong  to  the AngloIndian Community nor was  she  of  non- Asiatic  descent,  although  she  had-  all  the   necessary qualifications for admission to the said School. Dr. Mahadeo Eknath Gujar is also a citizen of India and is a member of the Guzrati Hindu Community.  His mother tongue is Guzrati.   I-le  desires that his son  Gopal  Mahadeo  Gujar should  become  a  medical practitioner and  go  abroad  for higher  medical studies and qualifications and thought  that his  son should be educated through the medium  of  English. He  found the Barnes High School, which teaches through  the medium  of  English, as suitable for the needs of  his  son. Accordingly on the 1st February, 1954, Dr. Gujar accompanied by  his son approached the Headmaster of Barnes High  School seeking  admission  for his son to the said School  but  the Headmaster,  in view of the Government Circular Order,  felt bound to turn down such request as the boy did not belong to the  AngloIndian  Community  and  was  not  of   non-Asiatic descent,  although he had all the  necessary  qualifications for admission to the school.  There have been similar  other applications for admission which have had to be rejected  on similar grounds, 576 Thereupon the Society and Ven’ble Archdeacon A.S.H.  Johnson and  Mrs. Glynne Howell in February, 1954, presented  before the  High Court of Bombay the Special Civil Application  No’ 259  of 1954 under article 226 of the Constitution  praying- for  the  issue  of  a  writ  in  the  nature  of   mandamus restraining the State of Bombay, its Officers, servants  and agents  from  enforcing the said order and from  taking  any steps  or  proceedings  in  ’enforcement  of  the  same  and compelling  the  respondent to withdraw or cancel  the  said purported order and to allow the petitioner to admit to  any standard in the said school any children of  nonAnglo-Indian citizens or citizens of Asiatic descent and to educate  them through  the  medium of English  language.   Likewise  Major Pinto  and  his daughter Brenda and Dr. Gujar  and  his  son Gopal  made similar applications, being Nos. 288 and 289  of 1954  respectively, praying for similar reliefs.  The  three applications  were consolidated on llth February, 1954,  and were  heard together and were disposed of by the same  Judg- ment  and Order pronounced on the 15th February, 1954.   The High  Court  accepted  the petitions and made  an  order  as prayed.   The  State  of Bombay has now come  up  in  appeal against the said Orders. On  the facts of these cases two questions arise namely  (1) as to the right of students who are not Anglo-Indians or who are of Asiatic descent to be admitted to Barnes High  School which  is  a recognized Anglo-Indian  School  which  imparts education  through the medium of English, and (2) as to  the right  of  the said Barnes High School to  admit  non-Anglo- Indian students and students of Asiatic descent.  The  ques- tions, thus confined to the particular facts of these cases, appear to us to admit of a very simple solution, as will  be presently explained. Re  (1)  :  As already indicated Barnes  High  School  is  a recognized  Anglo-Indian  School which has  all  along  been imparting  education  through  the medium  of  English.   It receives  aid  out of State funds.  The  daughter  of  Major Pinto  and  the son of Dr. Gujar are citizens of  India  and

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they  claim admission to Barnes High School in  exercise  of the fundamental right said 577 to  have  been guaranteed to them by article  29(2)  of  the Constitution.   The School has declined to admit  either  of them  in view of the circular order of the State of  Bombay. The provisions of the circular order, issued by the State of Bombay   oh  the  6th  January,  1954,  have  already   been summarised  above.  The operative portion of the order,  set forth  in clause 5 thereof, clearly forbids all  Primary  or Secondary  Schools,  where English is used as  a  medium  of instruc. tion, to admit to any class any pupil other than  a pupil  belonging to a section of citizens, the  language  of which  is English namely Anglo-Indians and citizens of  non- Asiatic descent.  The learned Attorney-Generalcontends  that this clause does not limit admission only, to  Anglo-Indians and  citizens of non-Asiatic descent, but permits  admission of  pupils  belonging to any other section of  citizens  the language  of which is English.  He points out that,  one  of the  meanings  of the word II namely " as  given  in  Oxford English Dictionary, Volume VII, p. 16 is " that id to say  " and  he then refers us to the decision of the Federal  Court in Bhola Prasad v. The King-Emperor (1), where it was stated that  the  words  "that  is to say  "  were  explanatory  or illustrative words and not words either of amplification  or limitation.   It should, however, be remembered  that  those observations  were  made  in  connection  with  one  of  the -Legislative  heads, namely entry No. 31 of  the  Provincial Legislative  List.  The fundamental -proposition  enunciated in  The  Queen  v. Burah (2) was  that  Indian  Legislatures within their own sphere had plenary powers of legislation as large and of the same nature as those of Parliament  itself. In  that view of the matter every entry in  the  legislative list  had to be given the widest connotation and it  was  in that  context that the words " that is to say," relied  upon by  the learned Attorney-General, were interpreted  in  that way  by the Federal Court.  To do otherwise would have  been to  cut down the generality of the legislative head  itself. The  same  reason cannot apply to the construc tion  of  the Government order in the present case for the  considerations that applied in the case before the (1)  [1942] F.C.R. 17 at p. 25. (2) L.R. (1878) 3 App.  Cas. 859. 74 578 Federal Court have no application here.  Ordinarily the word "  namely " imports enumeration of what is comprised in  the preceding  clause.  In other words it ordinarily serves  the purpose  of equating what follows with the clause  described before.   There  is good deal of force,  therefore,  in  the araument  that the order restricts admission only  to  Anglo Indians and citizens of nonAsiatic descent whose language is English.   This  inter.  pretation finds  support  from  the decision  mentioned in clause 4 to withdraw all special  and interim  concessions  in respect of  admissioni  to  Schools referred to in clause 4. Facilities to linguistic minorities provided  for in the circular order, therefore, may be  read as contem plating facilities to be given only to the  Anglo- Indians and citizens of non-Asiatic descent. Assuming,  however, that under the impugned order a  section of  citizens, other than Anglo-Indians and citizens  of  non Asiatic  descent,  whose language is English, may  also  get admission,  even  then  citizens,,  whose  language  is  not English, are certainly debarred by the order from  admission to  a  School  where  English  is  used  as  ’a  medium   of

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instruction in all the clases.  Article 29(2) ex facie  puts no limitation or qualification on the expression " citizen." Therefore,  the construction sought to be put upon clause  5 does  not apparently help the learned Attorney-General,  for even  on  that construction the order  will  contravene  the provisions of article 29(2). The  learned  Attorney-General  then  falls  back  upon  two contentions to avoid the applicability of article 29(2).  In the  first  place he contends that article  29(2)  does  not confer  any fundamental right on all citizens generally  but guarantees  the  rights of citizens of  minority  groups  by providing  that  they  must  not  be  denied  admission   to educational   institutions  maintained  by  the   State   or receiving  aid  out  of  State  funds  on  grounds  only  of religion, race, caste, language or any of them and he refers us to the marginal note to the article.  This is certainly a new contention put forward before us for the first time.  It does  not  appear  to have been specifically  taken  in  the affidavits  in opposition filed in the High Court and  there is no indication in the 579 Judgment  under  appeal that it was advanced  in  this  form before the High Court.  Nor was this point specifically made a  ground of appeal in the petition for leave to  appeal  to this  Court.  Apart from this, the contention appears to  us to  be devoid of merit.  Article 29(1) gives  protection  to any  section  of the citizens having  a  distinct  language, script  or culture by guaranteeing their right  to  conserve the same.  Article 30(1) secures to all minorities,  whether based  on religion or language, the right to  establish  and administer  educational institutions of their  choice.   Now suppose  the State maintains an educational  institution  to help conserving the distinct language, script or culture  of a  section  of  the citizens or makes grants in  aid  of  an educational institution established by a minority  community based  on  religion or language to conserve  their  distinct language, script or culture, who can claim the protection of article  29(2)  in  the matter of admission  into  any  such institution ? Surely the citizens of the very section  whose language, script or culture is sought to be conserved by the institution or the citizens who belong to the very  minority group  which  has  established  and  is  administering   the institution,  do not need any protection against  themselves and  therefore  article  29(2)  is  not  designed  for   the protection of this section or this minority.  Nor do we  see any reason to limit article 29(2) to citizens belonging to a minority  group  other than the section  or  the  minorities referred  to  in  article 29(1) or article  30(1),  for  the citizens,  who  do not belong# to any  minority  group,  may quite  conceivably need this protection just as much as  the citizens of such other minority groups.  If it is urged that the  citizens of the majority group are amply  protected  by article  15  and do not require the  protection  of  article 29(2),  then  there  are several  obvious  answers  to  that argument.   The  language  of  article  29(2)  is  wide  and unqualified  and  may well cover all citizens  whether  they belong  to  the  majority or  minority  group.   Article  15 protects   all  citizens  against  the  State  whereas   the protection  of  article 29(2) extends against the  State  or anybody  who  denies  the right conferred  by  it.   Further article  15  protects all  citizens  against  discrimination generally  but  article  29(2) is a  -protection  against  a particular 580 species of wrong namely denial of admission into educational

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institutions  of  the  specified kind.  In  the  next  place article  15  is  quite general and wide  in  its  terms  and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against  discrimination  by the State  on  certain  specific grounds.  Article 29(2) confers a special right on  citizens for  admission into educational institutions  maintained  or -aided  by the State.  To limit this right only to  citizens belonging  to  minority groups will be to provide  a  double protection  for such citizens and to hold that the  citizens of the majority group have no special educational rights  in the  nature  of a right to be admitted into  an  educational institution   for  the  maintenance  of  which   they   make contributions by way of taxes.  We see no cogent reason  for such  discrimination.  The heading under which  articles  29 and 30 are ground together-namely "’Cultural and Educational Rights " is quite general and does not in terms  contemplate such  differentiation.  If the fact that the institution  is maintained or aided out of State funds is the basis of  this guaranteed right then all citizens, irrespective -of whether they  belong to the majority or minority groups,  are  alike entitled  to the protection of this fundamental  right.   In view of all these considerations the marginal note alone, on which   the  AttorneyGeneral  relies,  cannot  be  read   as controlling  the  plain  meaning of the  language  in  which article  29(2)  has been couched.  Indeed in  The  State  of Madras v. Srimathi Champakam Dorairajan (1), this Court  has already held as follows: "  It  will be noticed that while clause  (1)  protects  the language,  script or culture of a section of  the  citizens, clause (2) guarantees the fundamental right of an individual citizen.   The right to. get admission into any  educational institution  of the kind mentioned in clause (2) is a  right which  an individual citizen has as a citizen and not  as  a member of any community or class of citizens." In  our judgment this part of the contention of the  learned Attorney-General cannot be sustained. (1)  [1951] S.C.R. 525 at P. 530. 581 The  second part of the arguments of the  learned  Attorney- General  hinges  upon  the word "I only "  to  be  found  in article  29(2).  His contention is that the  impugned  order does not deny admission to any citizen on the ground only of religion,  race,  caste,  language  or  any  of  them.    He maintains  with considerable emphasis. that it is  incumbent on  the  State to secure the advancement of Hindi  which  is ultimately  to be our National language and he stresses  the desirability   of   or   even   the   necessity,   generally acknowledged  by  educationists,  for  imparting   education through  the medium of the pupil’s mother tongue.   We  have had   equally  emphatic  rejoinder  from   learned   counsel appearing for the different respondents.  Characterising the impugned circular as an unwarranted and wanton  encroachment on  the liberty of the parents and guardians to  direct  the education  and  upbringing  of  their  children  and   wards reliance  has been placed on the following  observations  of McReynolds  J.  in  Pierce v. Society  of  Sisters  of  Holy Names(1) :- "   The  fundamental  theory  of  liberty  upon  which   all Governments in this Union repose excludes any general  power of the state to standardize its children by forcing them  to accept instruction from public teachers only.  The child  is not  the mere creature of the state; those who  nurture  him and direct his destiny have the right, coupled with the high duty,   to   recognize  and  prepare  him   for   additional

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obligations." It  is also urged that the main, if not the sole, object  of the  impugned  order  is to  discriminate  against,  and  if possible   to  stifle  the  language  of  the   Anglo-Indian Community   in   utter  disregard  of   the   constitutional inhibition.   It  is pointed out that to compel  the  Anglo- Indian  Schools  to  open parallel  classes  in  any  Indian language will not necessarily facilitate the advancement  of the  Hindi  language  for  the  language  adopted  for  such parallel  classes may not be Hindi.  Further the opening  of parallel classes in the same School with an Indian  language as  the medium of instruction while the pupils in the  other classes  are  taught  in  English  will  certainly  not   be conducive  to  or promote the conservation of  the  distinct language, script or culture which (1)  268 U.S. 508; 69 L. Ed. 1070 at p. 1078. 582 is guaranteed by article 29(1) to the Anglo-Indian Community as  a section of the citizens.  It is equally difficult,  it is  said,  to  appreciate  why  the  salutory  principle  of imparting education through the medium of the pupil’s mother tongue  should require that a pupil whose mother  tongue  is not  English but is, say, Guzrati, should be  debarred  from getting admission only into an Anglo-Indian School where the medium of instruction is English but not from being admitted into a School where the medium of instruction is a  regional language, say Konkani, which is not the mother tongue of the pupil.   The rival arguments thus formulated on  both  sides involve  questions of State policy on education  with  which the Court has no concern.  The American decisions founded on the  14th amendment which refers to due process of  law  may not  be quite helpful in interpretation of our  article  29. We  must,  therefore, evaluate the argument of  the  learned Attorney -General on purely legal considerations bearing. on the question of construction of article 29(2). The learned Attorney-General submits that the impugned order does  not  deny  to  pupils who  are  not  Anglo-Indians  or citizens  of non-Asiatic descent, admission into  an  Anglo- Indian  School only on the ground of religion, race,  caste, language  or any of them but on the ground that such  denial will  promote the advancement of the national  language  and facilitate the imparting of education through the medium  of the  pupil’s  mother  tongue.   He relies  on  a  number  of decisions  of  the High Courts, e.g., Yusuf  Abdul  Aziz  v. State  (1), Sm.  Anjali Roy v. State of West Bengal (),  The State of Bombay v. Narasu AppaMali (3), Srinivasa      Ayyar v.Saraswathi Ammaland Dattatraraya      Motiram   More    v. State of BombayThese decisions,    it should, be noted, were concernedwith discrimination prohibited by article 15  which deals with discrimina. tion generally and not with denial of admission  into  educational institutions of  certain  kinds prohibited by article 29(2).  It may also be mentioned  that this (1)  A.I.R 1951 Bom, 470. (2)  A.I.R 1952 Cal. 825. (3)  A.I.R. 1952 Bom. 84. (4)  A.I.R. 1952 Mad.  193. (5)  A.I.R. 1953 Bom. 311. 583 Court  upheld  the actual decision in  the  first  mentioned Bombay  case not on clause (1) but on clause(3)  of  article 15.   These  cases,  therefore, have no  direct  bearing  on article  29(2).   The  arguments  advanced  by  the  learned Attorney-General overlook the distinction between the object or  motive underlying the impugned -order and the  mode  and

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manner  adopted  therein  for achieving  that  object.   The object or motive attributed by the learned  Attorney-General to the impugned order is. undoubtedly a laudable one but its validity has to be judged by the method of Its operation and its  effect on the fundamental right guaranteed  by  article 29(2).  A similar question of construction arose in the case of  Punjab Province v. Daulat Singh (1).  One of  the  ques- tions  in  that case was whether the provision  of  the  new section 13-A of the Punjab Alienation of Land Act was  ultra vires the Provincial Legislature as contravening sub-section (1) of section 298 of the Government of India Act, 1935,  in that  in  some  cases  that  section  would  operate  as   a prohibition on the ground of descent alone.  Beaumont J.  in his dissenting judgment took the view that it was  necessary for  the Court to consider the scope and object of  the  Act which  was impugned so as to determine the ground  on  which such  Act was based, and that if the only basis for the  Act was  discrimination on one or more of the grounds  specified in section 298 sub-section (1) then the Act was bad but that if the true basis of the Act was something different the Act was  not invalidated because one of its effects might be  to invoke such discrimination In delivering the Judgment of the Board  Lord Thankerton at page 74 rejected this view in  the words following: "  Their Lordships are unable to accept this as the  correct test.   In their view, it is not a question of  whether  the impugned  Act  is based only on one or more of  the  grounds specified  in section 298 sub-section (1), ,but whether  its operation may result in a prohibition only on these grounds. The  proper test as to whether there is a  contravention  of the sub-section is to ascertain the reaction of the impugned Act on the personal right conferred by the subsection,  and, while the scope (1)  (1916) L.R. 73 I.A. 59, 584 and object of the Act may be of assistance in deter.  mining the  effect  of  the  operation  of  the  Act  on  a  proper construction of its provisions, if the effect of the Act  so determined involves an infringement of such personal  right, the  object of the Act, however laudable, will  not  obviate the prohibition of sub-section (1)." Granting that the object of the impugned order before us was what is claimed for it by the learned Attorney-General,  the question still remains as to how that object has been sought to  be  achieved.  Obviously that is sought to  be  done  by denying  to all pupils, whose mother tongue is not  English, admission into any School were the medium of instruction  is English.   Whatever  the object, the  immediate  ground  and direct  cause for the denial is that the. mother  tongue  of the  pupil  is not English.  Adapting the language  of  Lord Thankerton,  it may be said that the laudable object of  the impugned  order does not obviate the prohibition of  article 29(2)   because  the  effect  of  the  order   involves   an infringement  of this fundamental right, and that effect  is brought  about  by denying admission only on the  ground  of language.  The same principle is implicit in the decision of this  Court  in The State, of Madras v.  Srimathi  Champakam Dorairajan  (1).   There  also the object  of  the  impugned communal  G.O. was to advance the interest of  educationally backward    classes   of   citizens   but,    that    object notwithstanding,  this  Court  struck  down  the  order   as unconstitutional because the modus operandi to achieve  that object  was  directly  based only on one  of  the  forbidden grounds  specified  in  the article.   In  our  opinion  the impugned   order  offends  against  the  fundamental   right

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guaranteed to all citizens by article 29(2). Re.  2:-Coming  to  the second question as  to  whether  the impugned order infringes any constitutional right of  Barnes High  School,  the  learned  AttorneyGeneral  contends  that although  any  section  of  the  citizens  having   distinct language,  script  or culture of its own,has  under  article 29(1)  the  right  to conserve the  same  and  although  all minorities,  whether  based on religion or  language,  have, under article 30(1), the right (1)  [1951] S.C.R. 525 at p. 530. 585 to  establish  and administer  educational  institutions  of their  choice,  nevertheless such  sections.  or  minorities cannot  question the power of the State to  make  reasonable regulations  for  all Schools including a  requirement  that they should give instruction in a particular language  which is  regarded  as  the national language or  to  prescribe  a curriculum for institutions which it supports.   Undoubtedly the  powers  of the State in this behalf cannot  be  lightly questioned and certainly not in so far as their exercise  is not inconsistent with or contrary to the fundamental  rights guaranteed  to the citizens.  Indeed in the cases of  Robert T.  Meyer  v. State of Nebraska (1) and  August  Bartels  V. State  of  Iowa (2) the Supreme Court of the  United  States definitely  held that the State’s police power in regard  to education  could  not be permitted to override  the  liberty protected by the 14th amendment to the Federal Constitution. That  is how those cases have been understood by writers  on American  Constitutional Law. [See  Cooley’s  Constitutional Limitations, Volume 11, page 1345, and Willis, page 64.] The statutes impugned in these cases provided: (1)That no person -should teach any subject to any person in any language other than the English language, and (2)That  languages  other than English may  be  taught  only after the pupil had passed the 8th grade. A  contravention of those two sections was made  punishable. In  the  first  mentioned case only the first  part  of  the prohibition was challenged and struck down and in the second case both the provisions were declared invalid.  The learned Attorney-General  informed  us that in 29 States  in  U.S.A. legislation had made compulsory provision for English as the medium of instruction.  Those statutes do not appear to have been  tested  in  Court  and  the  Attorney-General  cannot, therefore, derive much comfort from the fact that 29  States have  by  legislation  adopted  English  as  the  medium  of instruction.  The learned Attorney-General (1)  262 U.S. 390; 67 Law.  Ed. 1042. (2)  262 U.S. 404; 67 Law.  Ed. 1047, 75 586 also relies on the case of Ottawa Separate Schools  Trustees v. Mackell(1).  That case does not help him either,  because in  that case the schools were classified as  denominational purely on the ground of religion.  They were not  classified according  to race or language.  It was contended  that  the kind of school that the trustees were authorised to  provide was  the  school  where education was to be  given  in  such language  as the trustees thought fit.  Their  Lordships  of the  Judicial  Committee rejected this contention  with  the following observations:- "  Their Lordships are unable to agree with this view.   The ’kind’  of  school referred to in sub-s. 8 of s. 79  is,  in their  opinion,  the  grade  or  character  of  school,  for example,  ’a  girls’  School,’  ’a  boys’  school,’  or  ’an infants’  school,’  and  a I kind’  of  school,  within  the

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meaning  of  that  sub-section, is not a  school  where  any special language is in common use." Where, however, a minority like the Anglo-Indian  Community, which  is based, inter alia, on religion and  language,  has the  fundamental right to conserve its language, script  and culture  under article 29(1) and has the right to  establish and  administer  educational institutions  of  their  choice under  article 30(1), surely then there must be implicit  in such  fundamental right the right to impart  instruction  in their  own  institutions  to  the  children  of  their   own Community in their own language.  To hold otherwise will  be to  deprive article 29(1) and article 30(1) of  the  greater part  of their contents.  Such being the fundamental  right, the  police  power of the State to determine the  medium  of instruction  must  yield to this fundamental  right  to  the extent  it is necessary to give effect to it and  cannot  be permitted to run counter to it. We now pass on to article 337 which is in Part XVI under the heading  " Special Provisions relating to certain  classes." Article  337 secures to the Anglo-Indian  Community  certain special  grants  made  by the Union and  by  each  State  in respect of education.  The second paragraph of that  article provides for progressive diminution of such grant until such special grant (1)  L.R. [1917] A.C. 62, 587 ceases at the end of ten years from the commencement of  the Constitution  as  mentioned  in the first  proviso  to  that article.  The second proviso runs as follows:- " Provided further 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." It  is clear, therefore, that the Constitution  has  imposed upon  the  educational institution run by  the  Anglo-Indian Community,  as a condition of such special grant,  the  duty that at least 40 per cent. of the annual admissions  therein must be made available to members of communities other  than the   Anglo-Indian   Community.   This  is   undoubtedly   a constitutional  obligation.   In so far as clause 5  of  the impugned  order enjoins that no Primary or Secondary  school shall  from  the date of this order admit to a  class  where English is used as the medium of instruction any pupil other than  the  children of Anglo-Indians or of citizens  of  non -Asiatic descent, it quite clearly prevents the Anglo-Indian Schools  including Barnes High School from performing  their constitutional  obligations and exposes them to the risk  of losing  the  special grant.   The  learned  Attorney-General refers  to clause 7 of the impugned order and suggests  that the authorities of Anglo-Indian Schools may still  discharge their  constitutional  obligations by following  the  advice given  to  them in that concluding clause.  The  proviso  to article  337  does not impose any obligation on  the  Anglo- Indian  Community as a condition for receipt of the  special grant  other than that at least 40 per cent. of  the  annual admissions  should  be made  available  to  non-Anglo-Indian pupils.   The  advice, tendered by the State to  the  Anglo- Indian  Schools by clause 7 of the impugned order, will,  if the  same  be  followed, necessarily  impose  an  additional burden  on the, Anglo-Indian Schools to which they  are  not subjected by the Constitution itself.  The covering circular No.  SSN 2054(b), which was issued on the same  day,  throws out  the covert hint of the possibility, in  consequence  of the impugned order, of some change becoming necessary in the

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existing procedure for the 588 equitable distribution of the total grant among  AngloIndian Schools,  although  the impugned order was not  intended  to affect the total grant available for distribution to  Anglo- Indian Schools under the Constitution.  If, in the light  of the  covering  circular,  clause  7 is  to  ,be  treated  as operative,  in the sense that a noncompliance with  it  will entail  loss of the whole or part of this grant as a  result of  the change’ in the existing procedure for the  equitable distribution, then it undoubtedly adds to article 337 of the Constitution  a further condition for the receipt by  Anglo- Indian Schools, of the special grant secured to them by that article.   On  the other hand if clause 7 is to  be  treated merely as advice, which may or may not be accepted or  acted upon,then  clause 5 will amount to An  absolute  prohibition against the admission of pupils who are not AngloIndians  or citizens of non-Asiatic descent into AngloIndian Schools and will  compel  the authorities of such Schools  to  commit  a breach of their Constitutional obligation under article  337 and  thereby  forfeit  their  constitutional  right  to  the special  grants.  In either view of the matter the  impugned order  cannot but be regarded as unconstitutional.   In  our opinion  the  second question raised in these  appeals  must also, in view of article 337, be answered against the State.      The  result of the foregoing discussion is  that  these appeals  must  be dismissed and we order  accordingly.   The State must pay the costs of the respondents.                                      Appeals dismissed.