Full Judgement
RE: The Kerala Education Bill, 1957 [1958] INSC 20 (15 March 1958)
ACT:
President's Reference-Kerala Education Bill, 1957-Constitutional validity-Advisory jurisdiction of the Supreme Court, scope of-Cultural and educational rights of minorities Constitution of India, Arts. 143(1), 14, 29, 30 and 226.
HEADNOTE:
This was a reference under Art. 143(1) of the Constitution made by the President of India for obtaining the opinion of the 996 Court upon certain questions relating to the constitutional validity of some of the provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly but was reserved by the Governor for the consideration of the President. The Bill, as its title and preamble indicated, had for its object the better Organisation and development of the educational service throughout the State, presumably, in implementation of the provisions of Art. 45 of the Constitution and conferred wide powers of control on the State Government in respect of both aided and recognised institutions. Of the four questions referred to this Court, the first and third impugned cl.
3(5) read with cl. 36 and cl. 15 of the Bill as being discriminatory under Art. 14, the second impugned cls. 3(5), 8(3) and cls. 9 to 13 Of the Bill as being violative of minority rights guaranteed by Art. 30(1) and the fourth, cl.
33 of the Bill, as offending Art. 226 of the Constitution.
Clause 3(5) of the Bill made the recognition of new schools subject to the other provisions of the Bill and the rules framed by the Government under cl. (36), Cl. (15) authorised the Government to acquire any category of 'Schools, cl. 8(3) made it obligatory on all aided schools to hand over the fees to the Government, cls. 9 to 13 made provisions for the regulation and management of the schools, payment of salary to the teachers and the terms and conditions of their appointment and cl. (33) forbade the granting of temporary injunctions and interim orders in restraint of proceedings under the Act. This Court took the view that since cl. 3(5) attracted the other provisions of the Bill, in case anyone of them was found to be unconstitutional, cl. 3(5) itself could not escape censure.
Held (per Das C. J., Bhagwati, B. P. Sinha, Jafer Imam, S. K. Das and J. L. Kapur JJ.), that although Art. 143(1) Of the Constitution, which virtually reproduced the provisions of s. 213(1) of the Government of India Act, 1935, gave this Court the discretion, where it thought fit, to decline to express any opinion on the questions referred to it, the objection that such questions related, not to a statute brought into force but, to the validity of a Bill that was yet to be enacted, could be no ground for declining to entertain the reference.
Article 143(1) of the Constitution had for its object the removal of the doubts at the President and was in no way concerned with any doubts that a party might entertain and no reference could be incomplete or incompetent on the ground that it did not include other questions that could have been included in it and it was not for this Court to go beyond the reference and discuss them.
The Advisory jurisdiction conferred by Art. 143(1) was different from that conferred by Art. 143(2) of the Constitution in that the latter made it obligatory on this Court to answer the reference.
In re Levy of Estate Duty, [1944] F.C.R. 3.17, relied on.
997 Attorney-General for Ontario v. Hamilton Street Railway, [1903] A.C. 524, Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A. C. 153, ln re The Regulation and Control of Aeronautics In Canada, [1932] A. C. 54, In re Allocation of Lands and Buildings, [1943] F. C. R. 20 and In Ye Delhi Laws Act, 1912, [1951] S.C.R. 747, considered.
A directive principle of State policy could not override a fundamental right and must subserve it, but no Court should in determining the ambit of a fundamental right, entirely ignore a directive principle but should try to give as much effect to both as possible by adopting the principle of harmonious construction.
State of Madras v. Smt. Champakam Doraiyajan, [1951] S.C.R.
525 and Mohd. Hanif Quayeshi v. The State of Bihar, [1959] S.C.R. 629, referred to.
In answering the questions under reference, the merits or otherwise of the policy of the Government sponsoring the Bill could be no concern of this Court and its sole duty was to pronounce its opinion on the constitutional validity of such provisions of the Bill as were covered by the questions.
judged in the light of the principles laid down by a series of decisions of this Court explaining Art. 14 Of the Constitution, the clauses of the Bill that came within questions 1 and 3 could not be said to be violative of that Article.
The restriction imposed by cl. 3(5) read with cl. 26 of the Bill, which made it obligatory on the guardians to send their wards to a Government or a private school in an area of compulsion and thus made it impossible for a new school in such area, seeking neither aid nor recognition, to function, could not be said to be discriminatory since the State knew best the needs of its people, and such discrimination was quite permissible, based, as it was, on geographical classification.
Mohd. Hanif Ouareshi v. The State of Bihar, [1959] S. C. R. 629, Chiyanjit Lal Chowdhury v. The Union of India, [1950] S.C.R. 1045, Ramkrishna Dalmia v. Sri justice S. R. Tendolkar, [1959] S.C.R. 279, referred to.
No statute could be discriminatory unless its provisions discriminated, and since the provisions of the Bill did not do so, it could not be said to have violated equal protection of law by its uniform application to all educational institutions although not similarly situate.
Cumberland Coal Co. v. Board of Revision, (1931) 284 U. S. 23; 76 L. Ed. 146, held inapplicable.
The policy and purpose of a statute could be deduced from its long title and the preamble. The impugned Bill laid down its policy in the long title and the preamble and reinforced it by 998 more definite statements in the different clauses and, consequently, such discretion as it left to the Government had to be exercised in implementing that policy. The use of the word may in cl. 3(3) could make no difference, for once the purpose was established and the conditions of the exercise of the discretion were fulfilled, it was incumbent on the Government to exercise it in furtherance of that purpose. If it failed to do so, the failure, and not the Bill, must be censured.
Biswambar Singh v. The State of Orissa, [1954] S.C.R. 842 and Julius v. Lord Bishop of Oxford, (1880) 5 App. CaS. 214, referred to.
Discretionary power was not necessarily discriminatory, and abuse of power by the Government could not be lightly assumed. Apart from laying down the policy, the State Legislature provided for effective control by itself by cl. 37 and the proviso to cl. 15 of the Bill. It could not, therefore, be said that the Bill conferred unguided or uncontrolled powers on the Government.
Article 30(1) Of the Constitution, which was a necessary concomitant to Art. 29(1) and gave the minorities the right to establish and administer their institutions, did not define the word 'minority', nor was it defined anywhere else by the Constitution, but it was absurd to suggest that a minority or section envisaged by Art. 30(1) and Art. 29(1) could mean only such persons as constituted a numerical minority in the particular region where the educational institution was situated or resided under a local authority.
Article 350-A of the Constitution, properly construed, could lend no support to such a proposition. As the impugned Bill extended to the entire State, minorities in the State must be determined on the basis of its entire population, and thus the Christians, the Muslims and the Anglo-Indians would be its minority communities.
Article 30(1) of the Constitution made no distinction between minority institutions existing from before the Constitution or established thereafter and protected both.
It did not require that a minority institution should be confined to the members of the community to which it belonged and a minority institution could not cease to be so by admitting a non-member to it.
Nor did Art. 30(1) in any way limit the subjects to be taught in a minority institution, and its crucial words " of their own choice ", clearly indicated that the ambit of the rights it conferred was determinable by the nature of the institutions that the minority communities chose to establish and the three categories into which such institutions could thus be classified were (1) those that sought neither aid nor recognition from the State, (2) those that sought aid, and (3) those that sought recognition but not aid. The impugned Bill was concerned only with institutions of the second and third categories.
999 The word 'aid' used by Arts. 29(2) and 30(2) included grant' under Art. 337 of the Constitution and that word occurring in the Bill must have the same meaning. Consequently, such clauses of the Bill mentioned in question No. 2 as imposed fresh and stringent conditions precedent to such grant over and above those to which it was subject under Arts. 337 and 29(2), violated not only Art. 337 but also, in substance and effect, Art. 30(1) of the Constitution and were to that extent void.
Rashid Ahmad v. Municipal Board, Kaiyana, [1950] S.C.R. 566, Mohd. Yasin v. The Town Area Committee, jalalabad, [1952] S.C.R. 572 and The State of Bombay v. Bombay Education Society, [1955] 1 S.C.R. 568, referred to.
Although there was no constitutional right to the grant of aid except for Anglo-Indian educational institutions under Art. 337 Of the Constitution, State aid was indispensable to educational institutions and Arts:, 28(2), 29(2) and 30(2) clearly contemplated the grant of such aid and Arts. 41 and 46 charged the State with the duty of aiding educational institutions and promoting such interests of the minorities.
But the right of the minorities to administer their educational institutions under Art. 30(1), was not inconsistent with the right of the State to insist on proper safeguards against maladministration by imposing reasonable regulations as conditions precedent to the grant of aid. That did not, however, mean that the State Legislature could, in the exercise of its powers of legislation under Arts. 245 and 246 of the Constitution, override the fundamental rights by employing indirect methods, for what it had no power to do directly, it could not do indirectly.
So judged, cl. 3(5) of the Bill by bringing into operation and imposing cls. 14 and 15 as conditions precedent to the grant of aid, violated Art. 30(1) of the Constitution.
Similar considerations applied to the grant of State recognition as well. No minority institution could fulfill its real object or effectively exercise its rights under Art. 30(1) without State recognition, as otherwise it would not be open to its scholars under the Education Code to avail of the opportunities for higher education in the University or enter the public services. While it was undoubtedly true that there could be no fundamental right to State recognition, denial of recognition except on such terms as virtually amounted to a surrender of the right to administer the institution, must, in substance and effect infringe Art. 30(1) of the Constitution.
Clause 3(5), read with Cl. 20 of the Bill, in forbidding the charging of tuition fees in the primary classes, deprived the minority institutions of a fruitful source of income without compensation, as was provided by cl. (9) for aided schools, and thus imposed a condition precedent to State recognition which was in 127 1000 effect violative of Art. 30(1) and was, therefore, void to that extent. No rules, when framed under the Act, could cure such invalidity.
Article 45 of the Constitution did not require the State Government to provide free and compulsory education to the detriment of minority rights guaranteed by the Constitution, if the Government so chose it could do so through the Government and aided schools, and this Court was in duty bound to uphold such fundamental rights as the Constitution had thought fit to confer on the minority communities.
The wide powers and jurisdiction conferred on the High Courts by Art. 226 of the Constitution could not be affected by a provision such as cl. (33) of the Bill, which forbade Courts to issue temporary injunctions or interim orders in restraint of any proceedings there under, and it must be read as subject to the overriding provisions of Art. 226 of the Constitution.
Venkatarama Aiyar J.-It was obvious that Art. 30(1) Of the Constitution did not in terms confer a right on the minority institutions to State recognition, nor, properly construed, could it do so by implication, for such an implication, if raised, would be contrary to the express provisions of Art.
45 Of the Constitution. Article 30(1) was primarily intended to protect such minority institutions as imparted purely religious education and to hold that the State was bound there under to recognise them would be not only to render Art. 45 wholly infructuous but also to nullify the basic concept of the Constitution itself, namely, its secular character.
There was no conflict here between a fundamental right and a directive principle of State policy that must yield, and the principle of Art. 45 must have full play. Clause (20) of the Bill was designed to enforce that principle and cl. 3(5) Of the Bill in making it a condition precedent to State recognition could not violate Art. 30(1) Of the Constitution.
Nor could a consideration of the policy behind Art. 30(1) lead to a different conclusion, assuming that the question of policy could be gone into apart from the language, since that policy was no other than that the majority community of the State should not have the power to destroy or impair the religious or linguistic rights of the minority communities.
The only two obligations, one a positive and the other a negative, that Art. 30(1) read with Arts. 25, 26, 29 and 30(2) of the Constitution imposed on the State were (1) to extend equal treatment as regards aid or recognition to all educational institutions, including those of the minorities, religious or linguistic, and (2) not to prohibit the establishment of minority institutions or to interfere with their administration.
To hold that the State Government was further bound under Art. 30(1) to accord recognition to minority institutions would be 1001 to put the minorities in a more favoured position than the majority community, which the Constitution never contemplated.
City Winnipeg v. Barrett : City of Winnipeg v. Logan, [1892] A.C. 445, referred to.
ADVISORY JURISDICTION: Special Reference No. 1 of 1958.
Reference by the President of India under Article 143(1) of the Constitution of India on the Kerala Education Bill, 1957.
The circumstances which led to this Reference by the President and the questions referred appear from the full text of the Reference dated March 15, 1958, which is reproduced below: WHEREAS the Legislative Assembly of the state of Kerala has passed a Bill to provide for the better Organisation and development of educational institutions in the State of Kerala (hereinafter referred to as the Kerala Educational Bill);
AND WHEREAS the said Bill, a copy whereof is annexed hereto, has been reserved by the Governor of Kerala, under article 200 of the Constitution, for my consideration ;
AND WHEREAS sub-clause 3 of clause (3) of the said Bill enables the Government of Kerala, inter alia, to recognise any school established and maintained by any person or body of persons for the purpose of providing the facilities set out in sub-clause (2) of the said clause to wit, facilities for general education, special education and for the training of teachers ;
AND WHEREAS sub-clause (5) of clause 3 of the said Bill provides, inter alia, that any new school established or any higher class opened in any private school, after the Bill has become an Act and the Act has come into force, otherwise than in accordance with the provisions of the Act and the rules made under section 36 thereof, shall not be entitled to be recognised by the Government of Kerala;
AND WHEREAS a doubt has arisen whether the provisions of the said sub-clause (5) of clause 3 of the said Bill confer upon the Government an unguided 1002 power in regard to the recognition of new schools and the opening of higher classes in any private school which is capable of being exercised in an arbitrary and discriminatory manner;
AND WHEREAS a doubt has further arisen whether such power of recognition of new schools and of higher classes in private schools is not capable of being exercised in a manner affecting the right of the minorities guaranteed by clause (1) of article 30 of the Constitution to establish and administer educational institutions of their choice;
AND WHEREAS sub-clause (3) of clause 8 of the said Bill requires all fees and other dues, other than special fees, collected from the students in an aided school to be made over to the Government of Kerala in such manner as may be prescribed, notwithstanding anything contained in any agreement, scheme or arrangement ;
AND WHEREAS a doubt has arisen whether such requirement would not affect the right of the minorities guaranteed by clause (1) of article 30 of the Constitution to administer educational institutions established by them;
AND WHEREAS clauses 9 to 13 confer upon the Government certain powers in regard to the administration of aided schools;, AND WHEREAS a doubt has arisen whether the exercise of such powers in regard to educational institutions established by the minorities would not affect the right to administer them guaranteed by clause (1) of article 30 of the Constitution;
AND WHEREAS clause 15 of the said Bill empowers the Government of Kerala to take over, by notification in the Gazette, any category of aided schools in any specified area or areas, if they are satisfied that for standardising general education in the State of Kerala or for improving the level of literacy in any area or for more effectively managing the aided educational institutions in an area or for bringing education of any category under their direct control it is necessary to do so in the public interest, on 1003 payment of compensation on the basis of market value of the schools so taken over after deducting there from the amounts of aids or grants given by that Government for requisition, construction or improvement of the property of the schools;
AND WHEREAS a doubt has arisen whether such power is not capable of being exercised in any arbitrary and discriminatory manner;
AND WHEREAS clause 33 of the said Bill provides that, notwithstanding anything contained in the Code of Civil Procedure , 1908, or any other law for the time being in force, no courts can grant any temporary injunction or make any interim order restraining any proceedings which is being or about to be taken under the Act;
AND WHEREAS a doubt has arisen whether the provisions of the said clause 33, in so far as they relate to the jurisdiction of the High Courts, would offend article 226 of the Constitution ;
AND WHEREAS there is likelihood of the constitutional validity of the provisions of the Bill herein before referred to being questioned in courts of law, involving considerable litigation ;
AND WHEREAS, in view of what has been here in before stated, it appears to me that the questions of law hereinafter set out have arisen and are of such nature and of such importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon;
NOW, THEREFORE, in exercise of the powers conferred upon me by clause (1) of article 143 of the Constitution, 1, Rajendra Prasad, President of India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely :" (1) Does sub-clause (5) of clause 3 of the Kerala Education Bill, read with clause 36 thereof, or any of the provisions of the said sub-clause, offend article 14 of the Constitution in any particulars or to any extent ? (2) Do sub-clause (5) of clause 3, sub-clause (3) of 1004 clause 8 and clauses 9 to 13 of Kerala Education Bill or any provisions thereof, offend clause (1) of article 30 of the Constitution in any particulars or to any extent? (3) Does clause 15 of the Kerala Education Bill, or any provisions thereof, offend article 14 of the Constitution in any particulars or to any extent ? (4) Does clause 33 of the Kerala Education Bill, or any provisions thereof, offend article 226 of the Constitution in any particulars or to any extent ? " 1958. April 29, 30. May 1, 2, 5, 6, 7, 8, 9 and 12. M. 0. Setalvad, Attorney-General for India, C. K. Daphtary, Solicitor-General of India, H. N. Sanyal, Additional Solicitor--General of India, G. N. Joshi and R. H. Dhebar, for the President of India. The preamble to the Constitution of India lays emphasis on liberty of thought, expression, belief, faith and worship and assures the dignity of the individual. To give effect to these ideals the Constitution provides fundamental rights for the individuals in Arts. 19, 25 and 28 and for groups in Arts.
26, 29 and 30. The fundamental rights in Arts. 29 and 30 are absolute and no restrictions can be placed on them, though restrictions can be placed on other fundamental rights. These rights may be compared with the rights under Art. 44 (2) of the Irish Constitution and s. 93 of the British North America Act. The freedoms conferred by Arts.
26, 29 and 30 were considered by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mulutt, ( [1954] S.C.R. 1005 at 1028-1029) and The State of Bombay v. Bombay Education Society, ( [1955] 1 S.C.R. 568 at 578, 580, 586).
Article 30 (1) gives absolute right to the minorities to establish and administer educational institutions of their choice. The Constitution having ensured religious freedom under Art. 26 and cultural freedom in Art. 29, left the means to promote and conserve these freedoms to the minorities themselves to work out under Art. 30 (1).
Clause 3 (5) of the Kerala Education Bill which provides that the establishment of new schools and opening of higher classes shall be according to the Rules to 1005 be framed under cl. 36 to entitle them to be recognised by the Government, confers upon the executive unguided and uncontrolled powers and offends Art. 14. The' legislature does not lay down any policy, but leaves it to the executive tinder the rule-making powers. A. Thangal Kunju Musaliar v. M. Venkitachalam Potti, ([1955] 2 S.C.R. 1196 at 1239, 1241); The State of West Bengal v. Anwar Ali Sarkar, ([1952] S.C.R. 284 at 345, 346).
It is incorrect to say that Christians and Muslims are not minorities in Kerala. When the Constitution speaks of minorities it speaks on an all India basis. The fact that a certain community formed a very high percentage of the population in a particular State did not detract from its status as a minority. The provisions of the Bill make illusory the rights granted by Art. 30 (1) to minorities.
By using the instrument of Government aid the Bill seeks to deprive the minorities of their right to administer their own schools. Shirur Mutt Case, ( [1954] S.C.R. 1005 at 1028, 1029). The right of the minorities under Art. 30(1) to establish and administer their institutions is an absolute and unfettered right and is consistent with their getting aid from the Government. Article 337 makes special provision for educational grants for the benefit of the AngloIndian community. Article 30 (1) is infringed whether the schools go in for aid or not. Clause 8 (3) of the Bill under which in all aided schools all fees, etc., collected from the students will have to be made over to the Government deprives the management of the right of administration. Pierce v. Society of Holy Sisters Names, (69 L. Ed. 1070 at 1077); Maher v. Nebraska, (67 L. Ed. 1042 at 1044).
Clause 15 of the Bill empowers the Government to acquire any category of aided schools in any specified area. This clause is wholly subversive of Art. 30 (1). It also offends Art. 14 as it empowers the Government to pick and choose any schools, by suitably selecting the category and area, for acquisition, no criteria having been laid down for making the choice.
Clause 33 of the Bill prohibits all Courts from 1006 granting any temporary injunction or interim order regarding any proceedings taken under the Act. To the extent that this clause infringes Art. 226 or Art. 32, it is void.
Interim orders are also passed under Arts. 226 and 32 as ancillary to the main relief. The State of Orissa v. Madan Gopal Rungta, ( [1952] S.C.R. 28 at 34). Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 110, para. 204.
Kaslival, Advocate-General of Rajasthan, R.H. Dhebar and T. M. Sen, for the State of Rajasthan adopted the arguments of the Attorney-General for India.
G. S. Pathak, with M. R. Krishna Pillai for the Kerala Christian Education Action Committee, with J. B. Dadachanji for the Kerala School Managers Association and with V. O. Abraham and J. B. Dadachanji for the Aided School Managers' Association in Badogara and Quilandy, Catholic Union of India and Catholic Association of Bombay. The preamble to the Constitution speaks of securing to the citizens of India fraternity assuring the dignity of the individual and the unity of the Nation. Articles 25 to 30 have been framed to secure this unity. Art. 30 is in absolute terms and does not permit regulation or restriction of the rights conferred by it. " Their choice " in Art. 30 cannot be controlled by the State. It has been the normal method of running the minority institutions with aid and recognition. Implict in Art. 30(1) is the right of a parent or guardian to impart such education this children as he likes. Bombay Education Society v. The State of Bombay, (56 Bom. L. R. 643 at 653).
It is the right of every person of the minority community to educate his children in school administered by that community. The State of Bombay v. Bombay Education Society, [1955] 1 S. C. R. 568 at 586). The word " administer should be interpreted as in 69 L. Ed. 1070 at 1076, 67 L. Ed.
1042 at 1045 and 71 L. Ed. 646 at 647. The ordinary dictionary meaning of administer is ' to manage' or 'carry on'. The legislature cannot even indirectly infringe the fundamental rights. Dwarkadas Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd., ( [1954] S.C.R. 674 at 683);
1007 Punjab Province v. Daulat Singh, ( 73 1. A. 59) ; The State of Bombay v. Bombay Education Society, ( [1955] 1 S. C. R.
568 at 583). American Jurisprudence, Vol. 11, p. 724, See.
95. The whole scheme of the Bill is to secularise education and, thus it infringes the fundamental rights guaranteed under Art. 30. Clause 3 of the Bill which requires permission to be obtained to establish a school, cl. 10 which empowers the Government to prescribe qualifications of teachers in minority community schools and cl. 26 which makes it obligatory on parents to send their children to Government or aided schools where compulsory education is in force, all offend Art. 30. Similarly cls. 6, 7, 8, 11, 12, 14, 15 and 28 are destructive of this fundamental right.
Frank Anthony and P. C. Aggarwala, for the All India AngloIndian Association and for the Apostolic Carmel Education Society and Roman Catholic Diocese. Under Art. 143 this Court has the discretion to refuse to answer the reference.
In Re Allocation of Lands and Buildings, ( [1943] F. C. R. 20 at 22). The present reference is most incomplete and wholly unsatisfactory and the Court should, following Zafrullah Khan J. in re Levy of Estate Duty, ( [1944] F.C.R. 317 at 334, 335), decline to answer it. The reference is incomplete as this Court has been asked to examine whether certain provisions of the Bill offend certain specified fundamental rights though actually those provisions offend other fundamental rights also. There are several important provisions in the Bill, which have not specifically been referred, which also offend fundamental rights. Such a reference is unfair to the Court and deadly to my clients. If this Court is in favour of giving its opinion on the reference, the scope thereof should be extended to include all objections to the validity of the provisions of the Bill, and this Court has inherent jurisdiction to do so.
Anglo-Indian schools occupy a special position. Article 30(1) gives to the Anglo-Indian community the fundamental right to establish educational institutions of their choice.
These fundamental rights were not subject to any social control. The object of the 128 1008 Kerala Education Bill was to strike at the Christian Church, especially the Catholics, to eliminate their religion, to take away their property, to eliminate all education agencies other than those of the State so that the State may regiment education and indoctrinate children.
The Bill which sought to implement directive principles of State policy in Art. 45 by providing for free and compulsory education infringed Art. 30(1). Directive principles must yield to fundamental rights. The State of Madras v. Sm.
Champakam Dorairajan, ([1951] S. C. R. 521 at 531). The State cannot compel minority educational institutions not to charge fees for primary classes. This compulsion coupled with the embargo imposed by the Bill on children going to schools not recognised by the Government would extinguish the choice of the minorities guaranteed by Art. 30.
Recognition was part of the right of the minorities under Art. 30. Article 337 provides for special grants or aids to educational institutions run by Anglo-Indians and the State cannot take that away or place conditions or restrictions on it.
Clause 3(5) of the Bill infringes both Art. 30(1) and Art.
14. It discriminates between existing schools which could continue to charge fees and primary classes and new schools which cannot charge such fees if they want to be recognised.
The conditions imposed on the opening of new schools by the minorities are such that they deprive them of the right under Art. 30(1).
Nur-ud-Din Ahmed, S. S. Shukla and P. C. Aggarwala, for the All -India Jamiat-ul-ulema-e-Hind. The Bill seeks to achieve nationalisation of educational institutions and thus to deprive the minorities of their right to establish and administer schools of their own choice under Art. 30. This right includes the right of the minorities to receive aid and also get Government recognition of their schools without any restrictions. The provisions of the Bill gives powers to the State without laying down the basis and standards for the exercise of that power.
1009 G. C. Mathur and C. P. Lal for the state of U. P. adopted the arguments of the Attorney-General for India.
B. K. B. Naidu, for the Kerala State Muslim League adopted the arguments of G. S. Pathak and Frank Anthony.
D.N. Pritt, Sardar Bahadur and C. M. Kuruvilla, for the State of Kerala. The questions referred to the Court by the President arose out of certain doubts entertained by the President in respect of certain provisions of the Bill. If the President did not entertain certain other doubts, the parties cannot insist that the President must have had those other doubts also. The Court has no power to go beyond those questions which are raised in the reference. The State of Kerala wants the Court to reply to all the four questions referred and it would abide by the view which the Court will express on these questions.
The Kerala Education Bill is a progressive piece of legislation which seeks to provide a better organisation and development of educational institutions in the State, and a varied and comprehensive educational service throughout the State. It seeks to provide employment to about 70,000 teachers and to give security to the teachers. The Bill also seeks to implement the directive principles of State policy in Art. 45 by providing for free and compulsory primary education for all.
The Bill lays down a clear principle and policy, as stated in its objects, to provide for the better organisation and development of education. This is further made clear by the preamble which seeks to provide for a varied and comprehensive educational service throughout the State.
Nationalisation which could have been easily and lawfully achieved was not the policy adopted by the State. Its policy was to maintain the three different categories of schools, the Government run schools, the private aided schools and the private schools recognised by the Government. The Court could not get a complete picture until the rules were framed. The framing of the 1010 rules had necessarily to be left to the Government. 'a Such I delegated legislation' is an integral and inevitable part of a modern State power. Clause 3(5) of the Bill read with cl. 36 does not violate Art. 14. Jadunandan Yadav v. R. P. Singh (A. I. R. 1958 Pat. 43 at 47); Biswambhar Singh v. The State of Orissa ([1954] S. C. R. 842); Pannalal Binjraj v. Union of India, ( [1957] S. C. R. 233 at 248, 256, 262);
Sardar Inder Singh v. The State of Rajasthan ( [1957] S. C. R. 605). The rules to be framed by the Government would go for scrutiny before the same legislature which passed the Bill and when passed by the legislature the rules will become part of the Act. This was not really delegated legislation but legislation in two stages.
In order to protect certain privileges of minorities the State cannot discard the glorious principles of free and compulsory education. The rights of minorities cannot destroy the rights of citizens to universal free education.
If the minorities want Government aid and recognition for their schools, they could be granted on the general terms and conditions applicable to others. The words I of their choice' cannot be interpreted to mean the establishment of schools with the aid of the tax payer's money and also with the assurance of enough pupils to attend those schools.
Christians and Muslims are not minorities in Kerala.
Christians, forming the second largest community, constituted one fourth of the population, while Muslims, forming the third largest community, constituted one seventh of the total population. Minorities in the context of the educational rights guaranteed under the Constitution mean only those sections of the population in particular areas of a State who are in a minority, and not those who can be regarded as minorities in the country as a whole. The only minority community in Kerala which can claim the benefit of Art. 30(1) are the Jews, who do not choose to have their own educational institutions.
Schools run by minorities in Kerala were not strictly minority schools as envisaged by Art. 30(1) as they were not run mainly for the children of the 1011 minority community. In most of these schools at least 75 per cent. of the students were from non-minorities. Article 30(1) contemplates schools for the education of members of the minority communities only. Right of the minority communities to establish and administer institutions of their choice does not include the right to receive aid and recognition on their own terms. Article 30(2) only prohibited the State from discriminating against any educational institution on the ground of religion or language.
In order to attract the operation of Art. 30(1) it should be established that there is a minority community, that it has established an educational institution and that the educational institution is run for the education of the members of that community. Ramani Kanta Bose v. The Gauhati University (I. L. R. [1951] Ass. 348 at 352). Not one of these conditions is fulfilled in any of the educational institutions in the State. The choice in Art. 30(1) lies in the establishment of a school and not in its management.
The provisions of the Bill relating to the establishment and recognition of schools, restrictions on alienation of school property, appointment of managers, selection of teachers by the State Public Service Commission and the taking over the management of the schools in public interest are all reasonable conditions imposed to ensure better Organisation of education and security of service conditions to the teachers.
The category of schools in respect of which the power of acquisition can be exercised under cl. 15 of the Bill comes under a classification which differentiates it from those other categories which are excluded from classification being such as is calculated to further the purposes and the policy underlying the legislation. Clause 15 does not infringe Art. 14 at all.
In enacting cl. 33 of the Bill the State Legislature did not intend, and must be presumed not to have intended, to affect the operation of Art. 226 in any way.
S. Easwara Iyer and K. R. Chaudhury, for the Kerala Private Secondary School Office Staff 1012 Association and Kerala Private Teachers' Federation, adopted the arguments of D. N. Pritt. Cur. adv. vult.
1958. May 22. The opinion of Das C. J., Bhagwati, B. P. Sinha, Jafer Imam, S. K. Das and J. L. Kapur, JJ. was delivered by Das C. J. Venkatarama Aiyar J. delivered a separate opinion.
DAS C. J.-This reference has been made by the President under Art. 143 (1) of the Constitution of India for the opinion of this Court on certain questions of law of considerable public importance that have arisen out of or touching certain provisions of the Kerala Education Bill, 1957, hereinafter referred to as "the said Bill", which was passed by the Legislative Assembly of the State of Kerala on September 2, 1957, and was, under Art. 200, reserved by the Governor of Kerala for the consideration of the President.
After reciting the fact of the passing of the said Bill by the Legislative Assembly of Kerala and of the reservation thereof by its Governor for the consideration of the President and after setting out some of the clauses of the said Bill and specifying the doubts that may be said to have arisen out of or touching the said clauses, the President has referred to this Court certain questions hereinafter mentioned for consideration and report. It is to be noted that the said Bill not having yet received the assent of the President the doubts, leading up to this reference, cannot obviously be said to have arisen out of the actual application of any specified section of an Act on the facts of any particular case and accordingly the questions that have been referred to this Court for its consideration are necessarily of an abstract or hypothetical nature and are not like specific issues raised in a particular case brought before a court by a party aggrieved by the operation of a particular law which he impugns. Further, this reference has been characterised as incomplete and unsatisfactory in that, according to learned counsel appearing for some of the institutions it does not clearly bring out all the constitutional 1013 defects attaching to the provisions of the Bill and serious apprehension has been expressed by learned counsel before us that our opinion on these isolated' abstract or hypothetical questions may very positively prejudice the interests, if not completely destroy the very existence, of the institutions they represent and, in the circumstances, we have been asked not to entertain this reference or give any advisory opinion on the questions put to us.
It may be of advantage to advert, at the outset, to the ambit and, scope of the jurisdiction to be exercised by this Court under Art. 143 of the Constitution. There is no provision similar to this in the Constitution of the United States of America or in the Commonwealth of Australia Constitution Act, 1900 (63 and 64 Vic. Ch. 12) and, accordingly, the American Supreme Court as well as the High Court of Australia, holding that the jurisdiction and powers of the court extend only to the decision of concrete cases coming before it, have declined to give advisory opinions to the executive or legislative branches of the State. Under s. 60 of the Canadian Supreme Court Act, 1906, the Governor General-in-Council may refer important questions of law concerning certain matters to the Supreme Court and the Supreme Court appears to have been held bound to entertain the reference and answer the questions put to it.
Nevertheless, the Privy Council has pointed out the dangers of such advisory opinion and has, upon general principles deprecated such references. Said the Earl of Halsbury L. C. in Attorney General for Ontario v. Hamilton Street Railway (1):" They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given up on such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial Tribunal to attempt beforehand to exhaust all possible cases and facts (1) [1903] A. C. 524, 529.
1014 which might occur to qualify, cut down, and override the operation of the particular words when the concrete case is not before it." To the like effect are the observations of Lord Haldane in Attorney General for British Columbia v. Attorney General for Canada (1) :"........Under this procedure questions may be put of a kind which it is impossible to answer satisfactorily. Not only may the question of future litigants be prejudiced by the court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied." Reference may, with advantage, be also made to the following observations of Lord Sankey I,. C. in Re The Regulation and Control of Aeronautics In Canada (2) :"...... It is undesirable that the Court should be called upon to express opinions which may affect the rights of persons not represented before it or touching matters of such a nature that its answers must be wholly ineffectual with regard to parties who are not and who cannot be brought before it-for example, foreign Government." Section 4 of the Judicial Committee Act, 1833 (3 and 4 William IV, Ch. 41) provides that " It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing and consideration any such other matters whatsoever as His Majesty shall think fit and such Committee shall thereupon hear and consider the same and shall advise His Majesty thereon in manner aforesaid." It is to be noted that it is made obligatory for the Judicial Committee to hear and consider the matter and advise His Majesty thereon. The Government of India Act, 1935, by s. 213(1), authorised the Governor-General to consult the Federal Court, if at any time it appeared to the Governor-General that there had arisen or was likely to arise a question of (1) [1914] A. C. 153, 162.
(2) [1932] A. C. 54, 66.
1015 law which was of such a nature and of such public importance that it was expedient to obtain the opinion of the Federal Court upon it and empowered that court, after such hearing as they thought fit, to report to the Governor-General thereon. This provision has since been reproduced word for word, except as to the name of the court, in cl. (1) of Art 143 of our Constitution. That Article has a new clause, being cl. (2) which empowers the President, notwithstanding anything in the proviso to Art. 131, to refer a dispute of the kind mentioned in the said clause to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon. It is worthy of note that, while under cl. (2) it is obligatory on this Court to entertain a reference and to report to the President its opinion thereon, this Court has, under cl. (1), a discretion in the matter and may in a proper case and for good reasons decline to express any opinion on the questions submitted to it. In view of the language used in s. 213(1), on which Art. 143(1) of our Constitution is based, and having regard to the difference in the language employed in cls. (1) and (2) of our Art. 143 just alluded to, the scope of a reference made under Art.
143(1) is obviously different from that of a reference under s. 4 of the Judicial Committee Act, 1833 and s. 60 of the Canadian Supreme Court Act, 1906, and this Court, under Art.
143(1), has a discretion in the matter and consequently the observations of their Lordships of the Privy Council quoted above are quite apposite and have to be borne in mind.
There have been all told four references by the Governor-general under s. 213(1) of the Government of India Act, 1935, and in two of them some of the Judges of the Federal Court have made observations on the ambit and scope of such a reference. Thus in re Allocation of Lands and Buildings (1), Gwyer C. J. said :" On considering the papers submitted with the case we felt some doubt whether any useful purpose (I) [1943] F. C. R. 20, 22, 129 1016 would be served by the giving of an opinion under s. 213 of the Act. The terms of that section do not 'impose an obligation on the Court, though we should always be unwilling to decline to accept a Reference, except for good reason; and two difficulties presented themselves. First, it seemed that questions of title might sooner or later be involved, if the Government whose contentions found favour with the Court desired, as the papers show might be the case, to dispose of some of the lands in question to private individuals, and plainly no advisory Opinion under s. 213 would furnish a good root of title such as might spring from a declaration of this Court in proceedings taken under s.
204(1) of the Act by one Government against the other." In In re Levy of Estate Duty (1) Spens C. J. said at p.320 of the authorised report :" It may be stated at the outset that when Parliament has thought fit to enact s. 213 of the Constitution Act it is not in our judgment for the Court to insist on the inexpediency (according to a certain school of thought) of the advisory jurisdiction. Nor does it assist to say that the opinions expressed by the Court on the questions referred " will have no more effect than the opinions of the law officers ": Attorney-General for Ontario v. Attorney General for Canada (2). That is the necessary result of the jurisdiction being advisory." Referring to the objection that the questions related to contemplated legislation and not to the validity or operation of a measure already passed, the learned Chief Justice observed at p. 321 :" The fact that the questions referred relate to future legislation cannot by itself be regarded as a valid objection. Section 213 empowers the Governor-General to make a reference when questions of law are " likely to arise................................................... In this class of cases, the reference should, in the very nature of things, be made before the legislation has been (1) [1944] F. C. R. 3I7, 320, 321, 350).
(2) [1912] A. C. 57I, 589.
1017 introduced and the objection based upon the hypothetical character of the questions can have no force. We. may, however, add that instances were brought to our' notice in which references had been made under the corresponding provision in the Canadian Supreme Court Act when the matter was at the stage of a Bill." Zafrulla Khan J. declined to entertain the reference and to answer the questions on high authority quoted and discussed elaborately in his separate opinion. The learned Judge, after pointing out in the earlier part of his opinion that it was " a jurisdiction the exercise of which on all occasions must be a matter of delicacy and caution ", concluded his opinion with the following observations at page 350:" In the state of the material made available to us I do not think any useful purpose would be served by my attempting to frame answers to the questions referred. Indeed, I apprehend, that any such attempt might result in the opinion delivered being made the foundation of endless litigation hereafter, apart altogether from any question relating to the vires of the proposed law, and operating to the serious prejudice of persons whom it might be attempted to bring within the mischief of that law. It is bound to raise ghosts far more troublesome than any that it might serve to lay. For these reasons I am compelled respectfully to decline to express any opinion on the questions referred." The present reference is the second of its kind under Art.
143(1) of the Constitution, the first one being concerned with the In Re Delhi Laws Act, 1912 (1). The nature and scope of the reference under Art. 143(1) was not discussed in the In Re Delhi Laws Act case (1), but, we conceive, that the principles laid down by the Judicial Committee and the Federal Court quoted above will serve as a valuable guide indicating the line of approach to be adopted by this Court in dealing with and disposing of the reference now before us. The principles established by judicial (1) [1951] S.C.R. 747.
1018 decisions clearly indicate that the complaint that the questions referred to us relate to the validity, not of a statute brought into force but, of a Bill which has yet to be passed into law by being accorded the assent of the President is not a good ground for not entertaining the reference for, as said by Spens C. J. Art. 143(1) does contemplate the reference of a question of law that is " likely to arise ". It is contended that several other constitutional objections also arise out of some of the provisions of the Bill considered in the light of other provisions of the Constitution, e.g., Art. 19(1)(g) and Art.
337 and that as those objections have not been included in the reference this Court should not entertain an incomplete reference, for answers given to the questions put may be misleading in the absence of answers to other questions that arise. In the first place it is for the President to determine what questions should be referred and if he does not entertain any serious doubt on the other provisions it is not for any party to say that doubts arise also out of them and we cannot go beyond the reference and discuss those problems. The circumstance that the President has not thought fit to refer other questions as to the constitutional validity of some of the clauses of the said Bill on the ground that they infringe other provisions of the Constitution cannot be a good or cogent reason for declining to entertain this reference and answer the questions touching matters over or in respect of which the President does entertain some doubt.
In order to appreciate the true meaning, import and implications of the provisions of the Bill which are said to have given rise to doubts, it will be necessary to refer first to certain provisions of the Constitution which may have a bearing upon the questions under consideration and then to the actual provisions of the Bill. The inspiring and nobly expressed preamble to our Constitution records the solemn resolve of the people of India to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and, amongst other things, to secure to all its citizens JUSTICE, LIBERTY, and EQUALITY and to promote among 1019 them all FRATERNIT Y assuring the dignity of the individual and the unity of the Nation. One of the most cherished objects of our Constitution is, thus, to' secure to all its citizens the liberty of thought, expression, belief, faith and worship. Nothing provokes and stimulates thought and expression in people more than education. It is education that clarifies our belief and faith and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights.
Article 14, which is one of the articles referred to in two of the questions, guarantees to every person, citizen or otherwise, equal protection of the laws within the territory of India. Article 16 ensures equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. In order to avail themselves of the benefit of this Article all citizens will presumably have to have equal opportunity for acquiring the qualifications, educational or otherwise, necessary for such employment or appointment. Article 19(1) guarantees to citizens the right, amongst others, to freedom of speech and expression (sub-cl. (a)) and to practise any profession, or to carry on any occupation, trade or business (sub-cl. (g)).
These rights are, however, subject to social control permitted by cls. (2) and (6) of Art. 19. Under Art. 25 all persons are equally entitled, subject to public order, morality and health and to the other provisions of Part III, to freedom of conscience and the right freely to profess, practise and propagate religion. Article 26 confers the fundamental right to every religious denomination or any section thereof, subject to public order, morality and health, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to acquire property and to administer such property in accordance with law. The ideal being to constitute India, into a secular State, no religious instruction is, under Art. 28(1), to be provided in any educational institution wholly maintained out of State funds and under cl. (3) of the 1020 same Article no person attending any educational institution recognised by the State or receiving aid out of State funds is to be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Article 29(1) confers on any section of the citizens having a distinct language, script or culture of its own to have the right of conserving the same. Clause (2) of that Article provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30, cl. (1) of which is the subject-matter of question 2 of this reference, runs as follows:" 30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. " While our fundamental rights are guaranteed by Part III of the Constitution, Part IV of it, on the other hand, lays down certain directive principles of State policy. The provisions contained in that Part are not enforceable by any court, but the principles therein laid down are, nevertheless, fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Article 39 enjoins the State to direct its policy towards securing, amongst other things, that the citizens, men and women, equally, have the right to an adequate means of livelihood. Article 41 requires the State, within the limits of its economic capacity and development, to make effective provision for securing the right, inter alia, to education. Under Art. 45 the State 1021 must endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years. Article 46 requires the State to promote with special care the education and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.
Part XVI of our Constitution also makes certain special provisions relating to certain classes. Thus Art. 330 provides for the reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People. Article 331 provides for the representation of the Anglo-Indian community in the House of the People. Reservations are made, by Arts. 332 and 333, for the representation for the Scheduled Castes and Scheduled Tribes and the Anglo-Indians in the Legislative Assembly of every State for ten years after which, according to Art. 334, these special provisions are to cease. Special provision is also made by Art. 336 for the Anglo-Indian community in the matter of appointment to certain services. Article 337 has an important bearing on the question before us. It provides that during the first three financial years after the commencement of this Constitution, the same grants, if any, shall be made by the Union and by each State for the benefit of the Anglo-Indian community in respect of education as were made in the, financial year ending on the thirty first day of March, 1948 and that during every succeeding period of three years this grant may be less by ten per cent. than those for the immediately preceding period of three years, provided that at the end of ten years from the commencement of the Constitution such grants, to the extent to which they are a special concessions shall cease. The second proviso to that Article, however, provides that no educational institution shall be entitled to receive any grant under this Article unless at least forty per cent. of the annual admissions therein are made available to members of communities other than the Anglo-Indian community. This is 1022 clearly a condition imposed by the Constitution itself on the right of the Anglo-Indian community to receive the grant provided under this Article. Article 366(2) defines an " Anglo-Indian ".
Presumably to implement the directive principles alluded to above the Kerala Legislative Assembly has passed the said Bill in exercise of the legislative power conferred upon it by Arts. 245 and 246 of the Constitution read with entry II of List 11 in the Seventh Schedule to the Constitution.
This legislative power is, however, to be exercised under Art. 245 " subject to the provisons of this Constitution ". Therefore, although this legislation may have been undertaken by the State of Kerala in discharge of the obligation imposed on it by the directive principles enshrined in Part IV of the Constitution, it must, nevertheless, subserve and not over-ride the fundamental rights conferred by the provisions of the Articles contained in Part III of the Constitution and referred to above. As explained by this Court in the State of Madras v. Smt. Champakam Dorairajan (1) and reiterated recently in Mohd. Hanif Quareshi v. The State of Bihar (2) " The directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights ". Nevertheless, in determining the scope and ambit of the fundamental rights relied on by or on behalf of any person or body the court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible.
Keeping in view the principles of construction above referred to we now proceed to examine the provisions of the said Bill in order to get a clear conspectus of it.
The long title of the said Bill describes it as " A Bill to provide for the better Organisation and 'development of educational institutions in the State." Its preamble recites thus: " Whereas it is deemed necessary to pro(1) [1951] S.C.R. 525, 53I.
(2) [1959] S.C.R. 629.
1023 vide for the better Organisation and development of educational institutions in the State providing a varied and comprehensive educational service throughout the State." We must, therefore, approach the substantive provisions of the said Bill in the light of the policy and purpose deducible from the terms of the aforesaid long title and the preamble and so construe the clauses of the said Bill as will subserve the said policy and purpose. Sub-clause (3) of cl.
I provides that the Bill shall come into force on such date as the Government may, by notification in the Gazette, appoint and different dates may be appointed for different provisions of this Bill-a fact which is said to indicate that Government will study the situation and bring into force such of the provisions of the said Bill which will best subserve the real needs of its people. Clause 2 contains definitions of certain terms used in the said Bill of which the following sub-clauses may be noted:" (1) " aided school " means a private school which is recognised by and is receiving aid from the Government;
(3) " existing school " means any aided, recognised or Government school established before the commencement of this Act and continuing as such at such commencement;
(6) " private school " means an aided or recognised school;
(7) " recognised " means a private school recognised by the Government under this Act Clause 3 deals with " Establishment and recognition of schools. " Sub-clause (1) empowers the Government to " regulate the primary and other stages of education and courses of instructions in Government and private schools.
" Sub-clause (2) requires the Government to " take, from time to time, such steps as they may consider necessary or expedient, for the purpose of providing facilities for general education, special education 130 1024 and for the training of teachers." Sub-clause (3) provides that "the Government may, for the purpose of providing such facilities:-(a) establish and maintain schools; or (b) permit any person or body of persons to establish and maintain aided schools; or (c) to recognise any school established and maintained by any person or body of persons." All existing schools, which by the definition mean any aided, recognised or Government schools established before and continuing at the commencement of the Bill are, by sub-cl. (4) to be deemed to have been established in accordance with this Bill. The proviso to sub-clause (4) gives an option to the educational agency of an aide
