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TMI Blog1958 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied." 4. Reference may, with advantage, be also made to the following observations of Lord Sankey L. C. in In Re The Regulation and Control of Aeronautics In Canada ([1932] A.C. 54, 66) :- "......It is undesirable that the Court should be called upon to express opinions which may affect the rights of persons not represented before it or touching matters of such a nature that its answers must be wholly ineffectual with regard to parties who are not and who cannot be brought before it - for example, foreign Government." 5. Section 4 of the Judicial Committee Act, 1833 (3 and 4 William IV, Ch. 41) provides that "It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing and consideration any such other matters whatsoever as His Majesty shall think fit and such Committee shall thereupon hear and consider the same and shall advise His Majesty thereon in manner aforesaid." It is to be noted that it is made obligatory for the Judicial Committee to hear and consider the matter and advise His Majesty thereon. The Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 section 213 would furnish a good root of title such as might spring from a declaration of this Court in proceedings taken under section 204(1) of the Act by one Government against the other." 7. In In re Levy of Estate Duty ([1944] F.C.R. 317, 320, 321, 350) Spens C.J. said at p. 320 of the authorised report :- "It may be stated at the outset that when Parliament has thought fit to enact section 213 of the Constitution Act it is not in our judgment for the Court to insist on the inexpediency (according to a certain school of thought) of the advisory jurisdiction. Nor does it assist to say that the opinions expressed by the Court on the questions referred "will have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1951] S.C.R. 747). The nature and scope of the reference under Art. 143(1) was not discussed in the In Re Delhi Laws Act case, ([1951] S.C.R. 747) but, we conceive, that the principles laid down by the Judicial Committee and the Federal Court quoted above will serve as a valuable guide indicating the line of approach to be adopted by this Court in dealing with and disposing of the reference now before us. The principles established by judicial decisions clearly indicate that the complaint that the questions referred to us relate to the validity, not of a statute brought into force but, of a Bill which has yet to be passed into law by being accorded the assent of the President is not a good ground for not entertaining the reference for, as said by Spens C.J. Art. 143(1) does contemplate the reference of a question of law that is "likely to arise". It is contended that several other constitutional objections also arise out of some of the provisions of the Bill considered in the light of other provisions of the Constitution, e.g., Art. 19(1)(g) and Art. 337 and that as those objections have not been included in the reference this Court should not entertain an incomplete refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-clause (a)) and to practise any profession, or to carry on any occupation, trade or business (sub-clause (g)). These rights are, however, subject to social control permitted by cls. (2) and (6) of Art. 19. Under Art. 25 all persons are equally entitled, subject to public order, morality and health and to the other provisions of Part III, to freedom of conscience and the right freely to profess, practise and propagate religion. Article 26 confers the fundamental right to every religious denomination or any section thereof, subject to public order, morality and health, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to acquire property and to administer such property in accordance with law. The ideal being to constitute India into a secular State, no religious instruction is, under Art. 28(1), to be provided in any educational ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 13. Part XVI of our Constitution also makes certain special provisions relating to certain classes. Thus Art. 330 provides for the reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People. Article 331 provides for the representation of the Anglo-Indian community in the House of the People. Reservations are made, by Arts. 332 and 333, for the representation for the Scheduled Castes and Scheduled Tribes and the Anglo-Indians in the Legislative Assembly of every State for ten years after which, according to Art. 334, these special provisions are to cease. Special provision is also made by Art. 336 for the Anglo-Indian community in the matter of appointment to certain services. Article 337 has an important bearing on the question before us. It provides that during the first three financial years after the commencement of this Constitution, the same grants, if any, shall be made by the Union and by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 15. The long title of the said Bill describes it as "A Bill to provide for the better organisation and development of educational institutions in the State." Its preamble recites thus : "Whereas it is deemed necessary to provide for the better organisation and development educational institutions in the State providing a varied and comprehensive educational service throughout the State." We must, therefore, approach the substantive provisions of the said Bill in the light of the policy and purpose deducible from the terms of the aforesaid long title and the preamble and so construe the clauses of the said Bill as will subserve the said policy and purpose. Sub-clause (3) of clause 1 provides that the Bill shall come into force on such date as the Government may, by notification in the Gazette, appoint and different dates may be appointed for different provisions of this Bill - a fact which is said to indicate that Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows :- "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." 17. Clause 4 of the Bill provides for the constitution of a State Education Advisory Board consisting of officials and non-officials as therein mentioned, their term of office and their duties. The purpose of the setting up of such a Board is that it should advise the Government on matters pertaining to educational policy and administration of the Department of Education. Clause 5 requires the manager of every aided school on the first day of April of each year to furnish to the authorised officer of the Government a list of properties, moveable and immoveable, of the school. A default in furnishing such list entails, under sub-clause (2) of that clause, the withholding of the maintenance grant. Clause 6 imposes restrictions on the alienation of any property of an aided school, except with the previ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-clause (3), to pay to the manager a maintenance grant at such rates as may be prescribed and under sub-clause (4) to make grants-in-aid for the purchase, improvement and repairs of any land, building or equipment of an aided school. Clause 10 requires Government to prescribe the qualifications to be possessed by persons for appointment as teachers in Government schools and in private schools which, by the definition, means aided or recognised schools. The State Public Service Commission is empowered to select candidates for appointment as teachers in Government and aided schools according to the procedure laid down in clause 11. Shortly put, the procedure is that before the 31st May of each year the Public Service Commission shall select for each district separately candidates with due regard to the probable number of vacancies of teachers that may arise in the course of the year, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nager. 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 therefore. 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-clause (5) the Government is to pay such rent as may be fixed by the Collector in respect of the properties taken possession of. On taking over any school the Government is authorised to run it affording any special educational facilities which the school was doing immediately before such taking over. Right of appeal to the District Court is provided against the order of the Collector fixing the rent. Sub-clause (8) makes it lawful for the Government to acquire the school taken over under this clause if the Government is satisfied that it is necessary so to do in the public interest, in which case compensation shall be payable in accordance with the principles laid down in clause 15 for payment of compensation. Clause 15 gives power to the Government to acquire any category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees 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." 20. We may skip over a few clauses, not material for our purpose, until we come to clause 33 which is referred to in one of the questions we have to consider. That clause provides - "33. Courts not to grant injunction - Notwithstanding anything contained in the Code of Civil Procedure, 1908, or in any other law for the time being in force, no court shall grant any temporary injunction or make any interim order restraining any proceedings which is being or about to be taken under this Act." 21. Clause 36 confers power on the Government to make rules for the purposes of carrying into effect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 ?" 24. On receipt of the reference this Court issued notices to persons and institution who appeared to it to be interested in the matter calling upon them to file their respective statements of case concerning the above-mentioned questions. Three more institutions were subsequently, on their own applications, granted leave to appear at the hearing. The Union of India, the State of Kerala and all the said persons and institutions have filed their respective statements of case and have appeared before us by counsel and taken part in the debate. A body called the Crusaders' League has by post sent its views but has not appeared at the hearing. We have had the advantage of hearing very full arguments on the points arising out of the questions and we are deeply inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to all schools established after the Bill becomes an Act without the aid of clause 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 clause 3(5) attracts the other provisions of the Bill, it does not necessarily follow that the other provisions also form the subject-matter of the questions. In our judgment, neither of the two extreme positions can be seriously maintained. 26. The contentions advanced by learned counsel for the State of Kerala appear to us to be open to several criticisms. If the intention of sub-clause (5) of clause 3 was to attract only those provisions of the Bill which related only to the establishment of a new school and if sub-clause (3) of clause 3 was the only provision in that behalf, apart from the rules to be framed under clause 36(2)(a), then as a matter of intelligible drafting it would have been more appropriate to say, in sub-clause (3) of clause 3, that the establishment of new schools "shall be subject to the provisions of this clause and the rules to be made under clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The opening of new schools and the securing of aid or recognition from the Government constitute the establishment of new schools contemplated by clause 3(5) read with clause 3(3). Reading clause 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 clause 3(5) attracts only clause 3(3) will be putting a too narrow construction on sub-clause (5) not warranted by the wide language thereof or by the language of clause 3(3). We do not think that there is much force in the argument that it was not necessary to expressly provide for the application of the other provisions to new schools to be established after the Bill became law and that the other clauses of the said Bill would by their own force and without the aid of sub-clause (5) apply to such newly established schools, for having, in terms, expressly made the new schools subject to the other provisions it is not open to the State of Kerala now to say that sub-clause (5) need not have made the other provisions of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussing questions 1 and 2 and we have heard the respective contentions of learned counsel on the validity or otherwise of those clauses in so far as they have a bearing on the questions put to us which we now proceed to consider and answer. 28. Re. Questions 1 and 3. Question 1 challenges the constitutional validity of sub-clause (5) of clause 3 of the said Bill read with clause 36 thereof on the ground that the same violates the equal protection of the laws guaranteed to all persons by Art. 14 of the Constitution. Question 3 attacks clause 15 of the said Bill on the same ground, namely, that it is violative of Art. 14 of the Constitution. As the ground of attack under both the questions is the same, it will be convenient to deal with them together. 29. The true meaning, scope and effect of Art. 14 of our Constitution have been the subject-matter of discussion and decision by this Court in a number of cases beginning with the case of Chiranjit Lal Chowdhuri v. The Union of India and others ([1950] S.C.R. 869). In Budhan Choudhry v. The State of Bihar a Constitution Bench of seven Judges of this Court explained the true meaning and scope of that Article. Recently in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 30. In the judgment of this Court in Ram Krishna Dalmia's case ([1959] S.C.R. 279) the statutes that came up for consideration before this Court were classified into five several categories as enumerated therein. No useful purpose will be served by re-opening the discussion and, indeed, no attempt has been made in, that behalf by learned counsel. We, therefore, proceed to examine the impugned provisions in the light of the aforesaid principles enunciated by this Court. 31. Coming now to the main argument founded on Art. 14, the Bill, it is said, represents a deliberate attempt on the part of the party now in power in Kerala to strike at the Christian Church and especially that of the Catholic persuasion, to eliminate religion, to expropriate the minority communities of the properties of their schools established for the purpose of conserving their distinct language, script and culture, and in short, to eliminate all educati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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;". 33. Likewise the doubts concerning clause 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 aided educational institutions in any area or for bringing education of any category under their direct control it is necessary to do so in the public interest, on payment of compensation on the basis of market value of the schools so taken over after deducting therefrom the amounts of aids or grants given by that Government for requisition, construction or improvement of the property of the schools; AND WHEREAS a doubt has arisen whether such power is not capable of being ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t scholars but a new school similarly established in an area of compulsion will be hit directly by clause 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 remembered, knows the needs of its people and is entitled to confine its restriction to those places where the needs are deemed to be the clearest and, therefore, the restrictions imposed in areas of compulsion are quite permissible on the ground of classification on geographical basis. Whatever other provisions of the Constitution, such restriction may or may not violate, which will be discussed later, it certainly does not infringe Art. 14. 35. A further possibility of discrimination is said to arise as a result of the application of the same provisions of the Bill to all schools which are not similarly situate. The argument is thus developed : The Constitution, it is pointed out, deals with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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. 36. Reference has already been made to the long title and the preamble of the Bill. That the policy and purpose of a given measure may be deduced from the long title and the preamble thereof has been recognised in many decisions of this Court and as and by way of ready reference we may mention our decision in Biswambar Singh v. The State of Orissa ([1954] S.C.R. 842, 855) as an instance in point. The general policy of the Bill as laid down in its title and elaborated in the preamble is "to provide for the better organisation and development of educational institutions providing a varied and comprehensive educational service throughout the State." Each and every one of the clauses in the Bill has to be interpreted and rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discriminatory act of the Government. Passing on to clause 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 clause 15(1) can be exercised only if the Government is satisfied that it is necessary to exercise it for "standardising general education in the State or for improving the level of literacy in any area or for more effectively managing the aided educational institutions in any area or for bringing the education of any category under their direct control" and above all the exercise of the power is necessary "in the public interest". Whether the purposes are good or bad is a question of State policy with the merit of which we are not concerned in the present discussion. All that we are now endeavouring to point out is that the clause under consideration does lay down a policy for the guidance of the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred on it under the different provisions of the Bill including clause 36, the Kerala Legislature has, by clause 15 and clause 37 provided further safeguards. In this 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 when we consider the question of the validity of clause 15(1) for, apart from the policy and principle deducible from the long title and the preamble of the Bill and from that sub-clause itself, the proviso thereto clearly indicates that the Legislature has not abdicated its function and that while it has conferred on the Government a very wide power for the acquisition of categories of schools it has not only provided that such power can only be exercised for the specific purposes mentioned in the clause itself but has also kept a further and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity 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 per cent. 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). The argument that they do, if pushed to its logical conclusion, would mean that any section of the people forming under fifty per cent. of the population should be classified as a minority and be dealt with as such. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 less 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 Bengalis residing in a particular ward in a town in Bihar where they may form the majority will not be entitled to conserve their language, script or culture by imparting education in Bengali. These are, no doubt, extreme illustrations, but they serve to bring out the fallacy inherent in the argument on this part of the case advanced by learned counsel for the State of Kerala. Reference has been made to Art. 350A in support of the argument that a local authority may be taken as a unit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 State of Kerala. We do not think that the protection and privilege of Art. 30(1) extend only to the educational institutions established after the date our Constitution came into operation or which may hereafter be established. On this hypothesis the educational institutions established by one or more members of any of these communities prior to the commencement of the Constitution would not be entitled to the benefits of Art. 30(1). The fallacy of this argument becomes discernible as soon as we direct our attention to Art. 19(1)(g) which, clearly enough, applies alike to a business, occupation or profession already started and carried on as to those that may be started and carried on after the commencement of the Constitution. There is no reason why t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By 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. 41. Having disposed of the minor point referred to above, we now take up the main argument advanced before us as to the content of Art. 30(1). The first point to note is that the Article gives certain rights not only to religious minorities but also to linguistic minorities. In the next place, the right conferred on such minorities is to establish educational institutions of their choice. It does not say that minorities based on religion should establish educationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 clause 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 clause 26, enjoined, on pain of penalty provided by clause 28, to send their wards only to Government schools or private schools which, according to the definition, means aided or recognised schools. Clause 26, it is urged, abridges and indeed takes away the fundamental right conferred on the minorities by Art. 30(1) and is, therefore, unconstitutional. The educational institutions coming within the first category, not being aided or recognised are, by clause 38, prima facie outside the purview of the Bill. None of the provisions of the Bill including tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. Indeed 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 this Bill the State of Kerala is now seeking to impose, besides the constitutional limitations mentioned in the second proviso to Art. 337 and Art. 29(2), further and more onerous conditions on this grant to the Anglo-Indian educational institutions although their constitutional right to such grant still subsists. The State is expressly applying to them the stringent provisions of cls. 8(3), and 9 to 13 besides other clauses attracted by clause 3(5) of the Bill curtailing and, according to them, completely taking away, their constitutional right to manage their own affairs as a price for the grant to which, under Art. 337, they are entitled unconditionall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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. In 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 Bill 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 the learned counsel for the State of Kerala that this Court should decline to answer this question until rules are framed but if the provisions of the Bill are obnoxious on the face of them, no rule can cure that defect. Nor do we think that there is any substance in the argument advanced by learned counsel for Kerala that this Bill has not introduced anything new and the Anglo-Indian schools are not being subjected to anything beyond what they have been submitting to under the Education Acts and Codes of Travancore or Cochin or Madras. In 1945 or 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 948 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 Bill, however, imposes stringent terms as conditions precedent to the grant of aid to educational institutions. The provisions of the Bill have already been summarised in detail in an earlier part of this opinion and need not be recapitulated. Suffice it to say th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s do offend the fundamental rights conferred on them by Art. 30(1). 45. 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 will have to pay 15 naye paise if he wants to buy a stamp for an inland letter. Learned counsel appearing for the two Anglo-Indian schools as well as learned counsel appearing for the Jamait-ul-ulema-i-Hind, on the other hand, insist in their turn, on an equally extreme proposition, namely, that their clients' fundamental rights under Art. 30(1) are, in terms, absolute and not only can it not be taken away but cannot even be abridged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he obligation of the State under Art. 45 to endeavour to introduce free and compulsory education. We have to reconcile between these two conflicting interests and 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 administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or override those provisions merely by employing indirect methods of achieving exactly the 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 teachers and other staff the Government is in reality confiscating the school fund and taking away the prestige of the school, for none will care for the school authority. Likewise clause 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all except out of the panel to be prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 13 being merely regulatory do not offend Art. 30(1), but the provisions of sub-clause (5) of clause 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. 47. 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 respectively by them on the question as to granting of aid, namely, that the State of Kerala maintains that the minority communities may exercise their fundamental right under Art. 30(1) by establishing educational institutions of their choice wherever they like and administer the same in their own way and need not seek recognition from the Government, but that if the minority communities desire to have State recognition they must submit to the terms imposed, as conditions precedent to recognition, on every educ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... norities 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 to 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 impugned provisions on existing state of affairs, the scholars of unrecognised schools are not permitted to avail themselves of the opportunities for higher education in the University and are not eligible for entering the public services. Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the rights under Art. 30(1) cannot be effectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 11 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 attending primary classes is quite considerable and forms an appreciable part of the total income of the school. If this Bill becomes law, all these schools will have to forego this fruitful source of income. There is, however, no provision for counterbalancing the loss of fees which will be brought about by clause 20 when it comes into force. There is no provision, such as there is in clause 9 which applied to aided schools only, that the State should make good that loss. Therefore, the imposition of such restriction against the collection of fees from any pupil in the primary classes as a condition for recognition will in effect make it impossibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt, 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 Mughals - have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body. India's tradition has thus been epitomised in the following noble lines : "None shall be turned away From the shore of this vast sea of humanity That is India" (Poems by Rabindranath Tagore). 50. Indeed India has sent out to the world her message of goodwill enshrined and proclaimed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question is whether clause 33 does so. The doubts which have arisen with regard to clause 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 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;". 53. The State of Kerala in their statement of case disowns in the following words all intentions in that behalf :- "52. Kerala State asks this Honourable Court to answer the fourth question in the negative, on the ground that the power given to High Courts by Art. 226 remains unaffected by the said clause 33. 53. Kerala State contends that the argument that clause 33 affects Art. 226 is without foundation. 54. The Constitution is the paramount law of the land, and nothing short of a constitutional amendment as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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), clause 10 in 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 clause 3(5) in so far as it makes the new schools established after the commencement of the Bill subject to clause 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. 56. I agree that the answer to Questions Nos. 1, 3 and 4 should be as stated in the judgment of My Lord, the Chief Justice. But as regards Question No. 2, I am unable to concur in the view expressed therein that Clause (20) of the Bill is, in its application to educational institutions of minorities, religious or linguistic, repugnant to Art. 30(1) of the Constitution, and is, in consequence, to that extent void. Clause (20) provides that : "No fee shall be payable by any pupil for any tuition in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inorities 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 recognised by the State, then the question whether Clause (20) is an 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 Clause (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 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right in the minorities to have their educational institutions recognised by the State. 60. The matter does not rest there. There is in the Constitution a provision which seems clearly to negative the 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." 61. It is precisely this obligation laid on the State by the Constitution that is sought to be carried out in clause (20) of the Bill. Now, it should be clear that if the right of the minorities to establish and maintain educational institutions under Art. 30(1) carries with it an implied right to be recognised by the State, then no law of the State can compel them to admit students free and therefore Art. 45 can never become operative, since what it provides is free education for all children and not merely for children other than those who attend institutions falling within Art. 30(1). It is contended that the directive principles laid down in Part IV cannot override the fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 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 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, 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 Clause (20). The right which the minorities now claim is something more. They want not merely freedom to manage th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... religion or language. In my opinion, there is no justification for putting on Art. 30(1) a construction which would put the minorities in a more favoured position than the majority communities. 63. 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 ([1892] A.C. 445, 457) would appear to support the contention of the State of Kerala that Clause (20) does not offend Art. 30(1). That was a decision on section 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." 64. Now, the facts are that there were in Manitoba denominational schools run by Roman Catholics which were maintained with fees paid by students and donations from the Church. In 1890, the Provincia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose 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 clause (20) as that was inapplicable to unrecognised institutions by virtue of clause (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 clause (20). But it is unnecessary to pursue this aspect further, as I consider that even otherwise, the vires of Clause (20) is not open to question. In my view, that Clause does not offend Art. 30(1) and is intra vires. 67. I agree that Cls. (14) and (15) must be held to be bad, and the ground of my decision is this : It may be taken - and indeed it is not disputed - that if the State grants aid to an educational institution, it must have the power to see th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires of the provisions of the Bill. It is limited to the validity of 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 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 the 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. 69. In the result, my answer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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