The Ahmadabad St. Xaviers College Society & ANR Vs. State of Gujarat & ANR [1974] INSC 106 (26 April 1974)
RAY, A.N. (CJ) RAY, A.N. (CJ) REDDY, P. JAGANMOHAN PALEKAR, D.G.
KHANNA, HANS RAJ MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH DWIVEDI, S.N.
CHANDRACHUD, Y.V.
ALAGIRISWAMI A.
CITATION: 1974 AIR 1389 1975 SCR (1) 173 1974 SCC (1) 717
CITATOR INFO:
D 1975 SC1821 (9,10,19,20,23,25,35,42,43) RF 1976 SC 490 (88) APL 1979 SC 52 (24,38,51,53) R 1979 SC 83 (5) RF 1979 SC 478 (101) R 1980 SC1042 (2,41,43,63,64,65,81,93,99,101 R 1984 SC1420 (13) R 1984 SC1757 (2,6) E&R 1987 SC 311 (11,13) RF 1987 SC1210 (9) D 1988 SC 37 (9,12,13,14,15,18) D 1988 SC 305 (8,16,17) RF 1990 SC 695 (5)
ACT:
Constitution of India 1950 Arts. 29 and 30--Whether mutually exclusive--Scope of Gujarat University Act, 1949--ss. 5, 33A (1) (a), 33A (1) (b), s. 39, s. 40(1) and (2), s. 41(1), s. 51A(1) and 52A--constitutionality.
HEADNOTE:
The first petitioner a religious denomination, runs a college to provide higher education to Christian and other students. The petitioner's college was accorded affiliation under s. 33 of the Gujarat University Act, 1949 as amended in 1972.
The Senate of the University passed a resolution that all instruction, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall, within the University area. be conducted by the University and shall be imparted by the teachers of the University.
Section 5 of the Act provides that no educational institution situated within the University shall, save with the sanction of the State Government be associated in any way with or seek admission to any privilege of any other University established by law. Section 33A(1)(a) of the Act provides that every College other than a Government College or a College maintained by the Government, shall be under the management of a governing body which includes among others. the Principal of the College and a representative of the University nominated by the Vice-Chancellor. Section 33A(1) (b) (i) provides that in the case of recruitment of the Principal, a selection committee is required to be constituted consisting of, among others, a representative of the University nominated by the Vice-Chancellor and (ii) in the case of selection of a member of the teaching staff of the College a selection committee consisting of the Principal and a representative of the University nominated by the Vice-Chancellor. Subsection (3) of the section states that the provisions of subsection (1) of s. 33A shall be deemed to be a condition of affiliation of every college referred to in that sub-section. Section 39 provides that within the University area all post-graduate instruction, teaching and training shall be conducted by the University or by such affiliated College or institution and in such subjects as may be prescribed by statutes. Section 40(1) enacts that the Court of the University may determine that all instructions, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall be conducted, by the University and shall be imparted by the teachers of the University. Subsection (2) of s. 40 states that the State, Government shall issue a notification declaring that the provisions of s. 41 shalt come into force on such date as may be specified in the notification. Section 41(1) of the Act states that all colleges within the University area which are admitted to the privilege of the University under s. 5(3) and all colleges within the said area which may hereafter be affiliated to the University shall be constituent colleges of the University. Sub-section (4) states that the relations of the constituent colleges and other institutions within the University area shall be governed by statutes to be made in that behalf.
Section 51A(1) (b) enacts that no member of the teaching other academic and non-teaching staff of an affiliated college. shall be dismissed or removed or reduced in rank except after an enquiry in accordance with the procedure Prescribed in cl. (a) and the penalty to be inflicted on him is approved by the Vice-Chancellor or any other Officer of the University authorised by the Vice174 Chancellor in this behalf. Similarly cl. (b) of subsection (2) requires that such termination should be approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in this behalf. Section 52A(1) enacts that any dispute between the governing body and any member of the teaching and other staff shall, on a request of the governing body or of the member concerned be referred to a tribunal of arbitration consisting of one member nominated by the governing body of the college, one member nominated by the member concerned and an umpire appointed by the Vice-Chancellor.
Article 29(1) of the Constitution states that any section of the citizens residing in the territory of India or any part, thereof having a distinct language script or culture of its own shall have the right to conserve the same. Article 30(1) enacts that all minorities whether based on religion Dr language-, shalt have the right to establish and administer educational institutions of their choice.
Under clause (2) in granting aid to educational institutions, the state is enjoined not to discriminate against any educational institution on the ground that it is under the management of A minority, whether based on religion or language.
In a petition under article 32 the petitioner contended that as religious and Linguistic minorities they had a fundamental right to establish and administer educational institutions of their choice as also the right to affiliation. The petitioners challenged the constitutional validity of the above sections.
The respondent on the other band contended that articles 29 and 30 are mutually exclusive, that there was no fundamental right to affiliation or recognition, that a minority educational institution seeking affiliation or recognition must conform to the conditions prescribed for recognition or affiliation, that unless a law or regulation is wholly destructive of the right of minorities under Art. 30(1) the same would not be; liable to be struck down and lastly that the court should not strike down the impugned provisions but should wait till statutes or ordinance are made in pursuance of those sections.
HELD:
By Majority : (Ray C.J.. Palekar, Khanna, Mathew, Beg and Chandrachud, JJ.) Articles, 29 and 30 are not mutually exclusive. (Jaganmohan Reddy and Alagiriswami, JJ. did not deal with this question.) Dwivedi, J. : The content of right under Article 29(1) differs from content of, the right under Article 30(1) By full Court : There, is no fundamental right to affiliation. But recognition or affiliation is necessary for a meaningful exercise of the right to establish and administer educational institutions.
By majority: (Ray, C. J., Palekar, Jaganmohan Reddy.
Khanna, Mathew, Chandrachud and Alagiriswami JJ.) Section 35 A cannot apply to minority institutions. Beg. J : Section 33A would not impinge upon the right under Article 30(1).
Dwivedi, J.Section 33A(1)(a) is violative of minority rights.
By majority(Ray C.J., Palekar, Jaganmohan Reddy, Khanna, Mathew, Chandrachud andAlagiriswami. JJ.) Section 40 and 41 cannot have compulsory application to minority institutions. Beg, J. : Sections 40 and 41 would be violative of the right under Article 30(1) and, therefore, do not apply to minority institutions unless they opt for affiliation.
Dwivedi, J.No legitimate objection could be taken of Sections 40 and 41.
By majority(Ray C.J., Palekar, Jaganmohan Reddy, Khanna, Mathew, Chandrachudand Alagiriswami, JJ.) Section 51 (A) (1) and (2) and Section 52A cannot have application to minority institutions.
Beg J. did not consider it really necessary on the view he was faking to consider the validity, of Sections 51A(1) and (2) and Section 52(A) of the Act but, after assuming it was necessary to do so, held these provisions to be valid.
175 Dwivedi, J. Sections 51A and 52A are not violative of Article 30(1) of the Constitution.
Ray C.J. and Palekar, J.
It will be wrong to read Art. 30 (1) as restricting the right of minorities to establish and administer educational institutions of their choice only to cases where such institutions are concerned with language, script or culture of the minorities. If the scope of art. 30(1) is to establish and administer educational institutions to conserve language, script or culture of minorities., it will render Art. 30 redundant. If the rights under Arts. 29(1) and 30(1) are the same then the consequences will be that any section of citizens, not necessarily linguistic or religious minorities, will have the right to establish and administer educational institutions of their choice. The scope of Art. 30 rests on linguistic or religious minorities and no other section of citizens of India has such a right.
If the scope of Art. 30(1) is made an extension of the right under Art. 29(1) as the right to establish and administer educational institutions for giving religious construction or for imparting education in their religious teachings or tenets, the fundamental right of minorities to establish and administer educational institutions of their choice will be taken away. [191CG] The Kerala Education Bill 1957 [1959] S.C.R. 995 and Rev.
Father Proost v. State of Bihar [1969] 2 S.C.R. 73 referred to.
(2)The consistent view of this Court has been that there is no fundamental right of a minority institution to affiliation. The regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Art. 30. [193C; 194D] (3)The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. Ibis right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. [ 194G-H] The Kerala Education Bill 1957 [1959] S.C.R. 995 referred to.
(4)The provisions of s. 33A(1)(a) cannot apply to minority institutions. Provisions of this section have the effect of displacing the management and entrusting it to a different agency. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised through a body 'of persons in whom the founders of the institution have faith and confidence and who have full autonomy in that sphere. The right to administer is subject to permissible regulatory measures. If the administration has to be improved it should be done through the agency or instrumentality of the existing management and not by displacing it. Restrictions on the right of administration imposed in the interest of the general public alone and not in the interests of and for the benefit of minority educational institutions concerned will affect the autonomy in administration. [198G; 198H-199A; 199D-E] (5) The, provisions contained in s. 33A (1) (b) cannot apply to minority institutions. [ 199H] (6)Section 40 of the Act cannot have any compulsory application to minority institutions because it will take away their fundamental right to administer the educational institutions of their choice. As soon as the court, which is one of the authorities of the university, determines that the teaching and training shall be conducted by the University, the provisions of S. 41 of the Act come into force. It is true that no determination has yet been made by the court of the University under s. 40, but the power can be used in relation to minority institutions. Once that is done, the minority institutions will immediately become constituent college$. The real implication of s. 40 of the Act is that teaching and training shall be conducted by the university. [197C-E; G] (7) Since sections 40 and 41 hang together,s.41 of the Act cannot have any compulsory application to minority institutions. Section 41 of the Act is a corollary to s. 40 of the Act. Since an affiliated college becomes a constituent 176 college within the meaning of s. 41 of the Act, it becomes integrated to the university. A constituent college does not retain its former individual character any longer and its minority character is lost. [198E] (8)Section 51A of the Act cannot apply to minority institutions. The approval of the Vice Chancellor may be intended to be a check on the administration. The provisions contained in s. 51A (b) cannot be said to be a permissive regulatory measure inasmuch as it confers arbitrary power on the Vice-Chancellor to take away the right of administration of the minority institutions..
[200C] (9)The provisions contained in s. 52A cannot apply to minority institutions. Reference to arbitration will introduce an area of litigious controversy inside the educational institutions. The governing body has its domestic jurisdiction which will be displaced and a new jurisdiction will be created in the administration. [200D-E] Jaganmohan Reddv and Alagiriswami, JJ.
(1)The right under Art. 30 cannot-be exercised in vacuo.
Nor would it be right to refer to affiliation or recognition as privileges granted by the State. Meaningful exercise of the right under art. 30(1) would and must necessarily involve recognition of the secular education imparted by the minority institutions without which the right will be a mere husk. This Court has consistently struck down all attempts to make affiliation or recognition on terms tantamount to surrender of its rights under art. 30(1) as abridging or taking away those rights. Again, as without affiliation there can be no meaningful exercise of the right under art.
30(1) the affiliation to be given should be consistent with that right nor can it indirectly try to achieve what it cannot directly do. [211E-G] Re. The Kerala Education Bill 1957 [1959] S.C.R. 995, State of Kerala Very Rev. Mother Provincial etc. [1971] 1 S.C.R.
734 and D.A.V. College etc. v. The State of Punjab & Ors. [1971] Supp. S.C.R. 688 followed.
(2)The only purpose that the fundamental right under Art.
30(1) would serve would be that minorities might establish their institutions, lay down their own syllabi, provide instructions in the subjects of their choice, conduct examinations and award degrees or diplomas. Such institutions have the right to seek recognition to their degrees and diplomas and ask for aid where aid is given to other educational institutions giving a like education on the basis of the excellence achieved by them. The State is bound to give recognition to their qualifications and to the institutions and they cannot be discriminated except on the ground of want of excellence in their educational standards so far as recognition of degrees or educational qualifications is concerned and want of efficient management so far as aid is concerned. [212E-F] Khanna, J.
(1)Clause (1) of Art. 29 and clause (1) of art. 30 deal with distinct matters. it is not permissible to circumscribe or restrict the right conferred by cl. (1) of art. 30 by reading in it any limitation imported from cl. (1). of art.
29. Article 29(1) confers a right on any section of citizens having distinct language, script or culture of its own to conserve the same. For invoking this clause it is not necessary that the section of citizens should constitute a minority. As against that, the right conferred by art.
30(1) is only upon minorities which are based either on religion or language. Clause (1) of art. 30 contains the words "of their choice". These words which qualify "educational institutions" show the vast discretion and option which the minorities have in selecting the type of institutions which they want to establish. In case an educational institution is established by a minority to conserve its distinct language, script or culture, the right to establish and administer such institution would fall both under art. 29(1) as well as under art. 30(1). The right to establish and administer such an institution is guaranteed by art. 30(1) and the fact that such an institution does not conserve the distinct language, script or culture of a minority would not take it out of the ambit of art. 30(1).
[238D-H] (2) The object of articles 25 to 30 was Co preserve the rights of religious and linguistic minorities, to place them on a secure pedestal and withdraw them from the vicissitudes of political controversy. These provisions enshrined a befitting 177 pledge to the minorities in the Constitution of the country Whose greatest son had laid down his life for the protection of the minorities. As long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermeable and liable to be struck down by the courts. Although the words secular state are not expressly mentioned in the Constitution, there can be no doubt that our Constitution makers wanted establishment of such a state.
The provisions of the Constitution were designed accordingly. There is no mysticism in the secular character of the state. Secularism is neither anti-God. nor pro-God, it treats alike the devout, the agnostic and the atheist.
It eliminates God from the matters of the state and ensures that no one shall, be discriminated against on the ground of religion. [224A-C] The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicize of outlook. "Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institution and by guaranteeing to the minorities autonomy in the matter of the administration of those institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact.
The majority in a system of adult franchise hardly needs any protection'. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the-statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and Article 30, besides some other articles, is intended to afford and guarantee that protection. [224F-H] (3)It is permissible for the State to prescribe reasonable regulations and make it a condition precedent to the according of recognition or affiliation to a minority institution. It is not, however, permissible to prescribe conditions for recognition or affiliation which have the effect of impairing the right or the minority to. establish and administer their educational institutions. Affiliation and recognition are not mentioned in Art. 30(1). The position all the same remains that refusal to, recognise or affiliate minority institutions unless the minorities surrender the right to. administer those institutions would have the effect of rendering the right guaranteed by Art. 30 (1) to be wholly illusory and indeed a teasing illusion. An educational institution can hardly serve any purpose or put to any practical utility unless it is affiliated to a University or is otherwise recognised like other educational institutions. The right conferred by art. 30 is a real and meaningful right. Article 30(1) was intended to have a real significance and it is not permissible to' construe it in such a manner as would rob it of that significance. [240A-C] Re, The Kerala Education Bill 1957, [1959] S.C.R. 995 referred to.
(4)The argument that unless law is wholly destructive of the right of minorities under art.30(1) it would not be liable to be struck down is untenable and runs counter to the plain language of art.13. The law which interferes with the minorities' choice of a governing-body or management council would be violative of the right guaranteed by art.
30(1). [241B-C] Re. Kerala Education Bill, 1957, [1959] S.C.R. 995, Sidhajbhai Sarabhai v. State of Bombay [1963] 3 S.C.R. 837;
Rt. Rev Bishop S. K. Patro & Ors. v.' State of Bihar and Ors. [1970] 1 S.C.R.'172; State of Kerala v. Very Rev.
Mother Provincial [1971] 1 S.C.R. 734; D.A.Y. College v.
State of Punjab [1971] Supp. S.QR. 688 followed.
(5)Section 33A which provides for a new governing body for the management of the college and also for selection committees as well as the constitution thereof should be quashed so far as the minority educational institutions are concerned because of the contravention of Art. 30(1). [242AB] (6)The law which interferes with a minority's choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of art. 30(1). [242G] 178 Rev. Sidhaibhai. Sabhai & Ors. v. State of Bombay & Anr., 119631 3 SCR 837,Rev. Father W.Proof & Ors. v. The State of Bihar,& Ors. [1969]2 SCR 73 and Rt rev. Bishop S. K.' Patro
(7)It is permissible for the State and its educational authorities to prescribe qualifications of teachers, but once teachers possessing the requisite qualifications am selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such, right, of selection and appointments without infringing art. 30(1). (242G-H] (8)Although disciplinary control over the teachers of a minority educational institution would be with the governing council, regulations can be made for ensuring proper conditions of service of the teachers and for securing a fair procedure in the matter of disciplinary action against the teachers. Such provisions which are calculated to safeguard the interest of teachers would result in security of tenure and thus inevitably attract competent persons for the posts of teachers. Regulations made for this purpose should be considered to be in the interest of minority educational institutions and as such they would not violate art. 30(1). [243E-F] (9)Clause (a) of sub-sections ( 1) and (2) of S 51A of the Act which make provision for giving a reasonable opportunity of showing cause against the penalty to be proposed on a member of the staff of an educational institution is valid.
[243G] (10)Clause (b) of each of the sub-sections of s. 51A should be held to be violative of art. 30(1) so far as minority educational institutions are concerned. [244C] Clause (b) of those sub-section which gives a power to the Vice-Chancellor and officer of the University authorised by him to veto the action of the managing body of an educational institution in awarding punishment to a member of the staff interferes with the disciplinary control of the managing body over its teachers. Ile power conferred by this clause is a blanket power. No guidelines ire laid down for the exercise of that power and it is not provided that the approval is to be withheld only in case of dismissal, removal, reduction in rank or termination of service is mala fide or by way of victimisation or other similar cause.
Conferment of such blanket power on the Vice-Chancellor or other officer authorised by him for vetoing the disciplinary action of the managing body of an' educational institution makes a serious inroad on the right of the managing body to administer an educational institution. [244A-B] (11)Section 52A should be held to be violative of art.
30(1) so far as minority educational institutions are concerned. Section 52A is widely worded and as it stands it would cover within its ambit every dispute connected with the conditions, of service, of a. member of the staff of an educational institution however trivial or insignificant it may be. The effect of this section would be that the managing committee of, an educational institution would be embroiled by its employees in a series of arbitration proceedings. Provisions of this section would act as a spoke in' the wheel of effective administration of an educational institution. What is objectionable in the section is the giving of the power to the Vice-Chancellor to nominate the umpire' This would cause an inroad in the right of the governing body to administer the institution. [244EF] (12)The concept of constituent colleges which is visualised in ss. 40 and 41 of the Act contemplates that the imparting of teaching at the undergraduate level in the prescribed course of studies shall be only by the teachers of the university. The minority Colleges as such would not be entitled to impart education in course of study through their own teachers. [246G] (13)Sections 40 and 41 are void in respect of minority educational institution. [245E] A provision which makes it imperative that teaching in undergraduate courses can be conducted only by the University and can be imparted only by the teachers of the University plainly violates rights of minorities to establish and administer their educational institutions.
Such a provision must consequently he held 179 qua minority institutions to result in contravention of art.
30(1). Once s. 40 is :,held to be Unconstitutional so far as minorities are concerned, the same vice Would afflict a.
41 because s. 41 can operate only if s. 40 survives the attack-and is held to be not violative of,art. 30(1). [245CE.] (14)Abridgment of the right of the minorities to establish and administer educational institutions of their choice is writ large on the face of the impugned provisions. The fact that no statutes or ordinances have been framed in pursuance of the impugned provisions would be hardly of much significance in determining the constitutional validity of the impugned provisions. It would not be a correct approach to wait till statutes are framed violating the right under art. 30(1). [247E] Trustees of Roman Catholic Separate Schools for Ottawa v.
Ottawa Corporation and Ors. [1917] A.C. 76 referred to.
Mathew and Chandrachud. JJ.
(1)A mere look at art. 29(1) and 30(1) would be sufficient to show that art. 29(1) cannot limit the width of art.
30(1). The right guaranteed to a religious or linguistic minority under art. 30(1) is the right to establish any educational institution of its choice. Whereas art. 29(1) confers the right not only upon a minority as understood in its technical sense but also upon a section of the citizens resident in the territory of India, which may not be a minority in its technical sense, the beneficiary of the right under art. 30 is a minority, either religious or linguistic. Secondly, whereas art. 29 does not deal with education as such. art. 30 deals only with the establishment and administration of educational institutions. It might be that in a given case the two might overlap. When a linguistic minority establishes an educational institution to conserve its language, the linguistic minority can invoke the protection of both the articles. When art. 30(1) says that a linguistic minority can establish and administer educational institutions of its choice, it means that it can establish and administer any educational institution. If a linguistic minority can establish only an educational institution to conserve its language then the expression "of their choice" in art. 30(1) is practically robbed of it meaning. (251C-E; 25OF; 251A-B] In re : TheKerala Education Bill, 1957 [1959] S.C.R.
995, 1053; Rev. Father W. Proost andothers v. State of Bihar and Ors. [1969] 2 S.C.R. 73; Rev. Sidhajbhai Sabhai andOthers v. State of Bombay [1963] 3 S.C.R. 837; Rt.
Rev. Bishop S.K. Patro and Others v. State of Bihar and Others [1970] 1 S.C.R. 172 and D.A.V. College etc. v.
State of Punjab & Ors. [1971] Supp. S.C.R. 683 referred to.
Dipendra Nath v. State of Bihar A.I.R. 1962 Patna, 101 approved.
(2)(a) Over the years this Court has held that without recognition or affiliation there can be no real meaningful exercise of the right to establish and administer educational institutions under art. 30(1). [256H) In re : The Kerala Education Bill 1957, [1959] S.C.R. 995, 1053; Rev. Sidhajbhai Sabhai and others v. State of Bombay [1963] 3 S.C.R. 837, 856 and D.A.V. College, etc. v. State of Punjab and Ors. [1971] Supp. S.C.R. 688, 709 referred to.
(b)In The Kerala Education Bill this Court pointed out that "no educational institution can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights, they will, by compulsion of financial necessities. be compelled to give up their rights under art. 30(1)." The condition which involves surrender is as effective a deterrent to the exercise of the right under art. 30(1) as a direct prohibition would be.
Thus considered it is apparent that the religious minority does not voluntarily whether its right-it has been coerced because of the basic importance of the privilege involved, namely, affiliation. [261H; 262A-B] (e)It is doubtful whether the fundamental right under art.
30(1) can be bartered away or surrendered by any voluntary act or that it can be waived.
180 The, reason is that the fundamental right is vested in a plurality of persons is a, unit. that is in a community of persons necessarily fluctuating. Can the present Members of a minority community barter away or surrender the right under the article so as to bind its future members as a unit ? The fundamental right is for the living generation. By a voluntary act of affiliation of an educational institution established and administered by a religious minority the past members of. the community cannot surrender the right of the future members of that community. The future members of the community do not derive the right under art. 30(1) by succession or inheritance. [262C-D] (d)In fact everyone is not being offered the same package since the condition serves as a significant restriction on the activities only of those who have the fundamental right of the nature guaranteed by art. 30(1), namely, the religious and linguistic minorities who desire to exercise the right required to be waived as a condition to the receipt of the privilege. It is contradictory to speak of a constitutional right and yet to discriminate against a person who exercises that right. [264B-C] (e)The power to withhold recognition or affiliation altogether does not carry with it unlimited power to impose conditions which have the effect of restraining the exercise of fundamental rights. The normal desire to enjoy privileges like affiliation or recognition without which the educational institutions established by the minority for imparting secular education will not effectively serve the purpose for which they were established cannot be made an instrument of suppression of the right guaranteed.
Infringement of a fundamental right is nonetheless infringement because accomplished through the conditioning of a privilege. If a legislature attaches to a public benefit or privilege an addendum, which in no rational way advances the purposes of the scheme of benefits but does restrain the exercise of a fundamental right the restraint can draw no constitutional strength whatsoever from its being attached to benefit or privilege but must be measured as though it were a wholly separate enactment. [264F-C] (f)But it cannot be said that by the general laws such as the law of taxation, law relating to sanitation etc., the State in any way takes away or abridges the right guaranteed under art. 30(1). Because art. 30(1) is couched in absolute, terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgment. [265B-C] Hudson Country Water Co. v. McCarter, 209 U.S. 349, 355, 357 and Commonwealth of Australia v. Bank of New South Wales.
[1950] A.C. 23.5, 310 referred to (g)Measures which are directed at other forms of activities but which have the secondary or indirect or incidental effect upon the right do not generally abridge the right unless content of the right is regulated. (26.5G] (h)It sounds paradoxical that a right which the constitution makers wanted to be absolute can be subjected to regulations which need only satisfy the nebulous and elastic test of State necessity. The very purpose of incorporating this right in Part III of the Constitution in absolute terms in marked contrast with the other fundamental rights was to withdraw it from the reach of the majority.
To subject the right today to regulations dictated by the Protean concept of State necessity as conceived by the majority would be to subvert the very purpose for which the right was given. [266E-F] (i) Recognition or affection is a facility which the University grants to an educational institution for the purpose of enabling the students to sit for an examination to be conducted by the University in the prescribed subjects and to obtain the degree conferred by the University and, therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed. If, beside recognition or affiliation an educational institution conducted bya religious minority is granted aid, further regulations for ensuring that the and is utilised for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious Or linguistic minority can claim total immunity from regulations by the legislature or the University if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. [267B-D] 181 (3)In every case when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation namely the excellence of the institution as a vehicle for general secular education of the minority community and to other persons who resort to it. The question whether a regulation is in general interest of the public has no relevance if it does not advance the excellence of the institution as a vehicle for general secular education as ex-hypothesi the only permissible regulations are those which secure the effectiveness of the purpose of the facility namely the excellence of the educational institutions in respect of their educational standards. [267E-F] Sidhajbhai v. State of Bombay, [1963] 3 S.C.R. 837, 856-857;
In re : The Kerala Education Bill 1957 [1959] S.C.R. 995, 1953 and State of Kerala v. Mother Provincial [1971] 1 S.C.R. 734 referred to.
(4)The provisions of sub-section 1 (a) and 1 (b) of s. 33A abridge the right of the religious minority to administer educational institutions and therefore their choice. The requirement that the College should have a governing body including persons other than those who constitute the 'governing body of the society of Jesus has the effect of divesting that body of its exclusive right to manage the educational institution. Under the guise of preventing maladministration, the right of the governing body of the College constituted by the religious minority to administer the institution cannot be taken away. The effect of the provision is that the religious minority virtually loses its right to administer the institution it has founded. [269G-H; 270B] Kerala v, Mother Provincial [1971] 1 S.C.R. 734 at 740, W.
Proost v. Bihar [1969] 2. S.C.R. 73 at 77-78 and Rev., Bishop S. K. Patro v. Bihar [1970] 1 S.C.R172.
(5)It is upon the principal and teachers of a college that the tone and temperof an educational institution depend.
On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose a principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important fact of the right to administer an educational institution. There is no reason why a representative of the University nominated by the Vice Chancellor should be on the Selection Committee for recruiting the principal or for the insistence of the head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. [270G-R] (6)On the plain wording of s. 40 it is clear that the governing body of the religious minority will be deprived of the most vital function which appertains to its right to administer the college, namely, the teaching, training and instructions in the course of studies in respect of which the University is competent to hold examinations. The fundamental right of a minority to administer educational institutions of its choice comprises with it the elementary right to conduct teaching, the training and instruction in courses of studies in the institutions so established by teachers appointed by the minority. If this essential component of the right of administration is taken away from the minority and vested in the university there can be no doubt that its right to administer the educational institution guaranteed under art. 30(1) is taken away.
(271G-H] (7)If s. 40 is ultra vires art. 30(1) s. 41 which, in the present scheme of legislation is dependent upon s. 40 cannot survive. [272D] (8)The provisions contained in sub-clause (1)(b) and (2)(b) of s. 51A are violative of the right under art. 30.
The relationship between the management and a teacher is that of an employer and employee, and it passes one's understanding that the management cannot terminate the services of a teacher 182 on the basis' of. the contract of employment. To require that for terminating the services of a teacher after an enquiry has been conducted the management should have the approval of an outside agency like the Vice-Chancellor or of his nominee would be an abridgement of its right to administer the educational institution. There is no obligation under sub-sections 1(b) and 2(b) that the Vice-Chancellor or his nominee should give any reasons for disapproval. A blanket power without any guidelines to disapprove the action of the management would certainly encroach upon the right of the management to dismiss or terminate the services of a teacher after an enquiry. [273F;
273C-E] (9)Section 52A is bad in its application to minorities.
The Provision contained in this section sub-serves no propose and there is no doubt that it will needlessly interfere with the day to day management of the institution. Every petty dispute raised by a member of the teaching or non-teaching staff will be referred 'to arbitration if it seems to touch the service conditions. Arbitrations, not imparting education. will become the business of the educational institutions. [274-B] BEG, J. (1) Although articles, 29 and 30 may supplement each other' so far as certain rights of minorities are concerned yet, article 29 of the Constitution does not, in any way, impose a limit on the kind or character of education which a minority may chose to impart through its institution to the children of its own members or to others who may choose to send their children to its schools. [274E-F] (2)Even if article 30(1) of the Constitution is held to confer absolute and unfettered rights of management upon minority institutions, subject only to :absolutely minimal and negative controls in the interests of health and law and order, it could not be meant to exclude a greater degree of regulation and control when a minority institution enters the wider sphere of general secular and non-denominational education, largely employs teachers who are not members of the particular minority concerned and when it derives large parts of its income from fees paid by those who are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interest of those who are affected by the management of the minority institution and the education it imparts but Who are not members of the minority in management. Where a minority institution has, of its own free will, opted for affiliation under the terms of a statute. it must be deemed to have chosen to give up, as a price for the benefits resulting from affiliation, the exercise of certain rights which may in another context, appear to be unwarranted impairments of its fundamental rights. If the object of an enactment is to compel a minority institution, even indirectly, to give up the exercise of its fundamental rights the provisions which have this effect will be void or inoperative against a minority institution. The price of affiliation cannot be a total abandonment of the right to establish and administer a minority institution conferred by article 30(1) of the Constitution. [291H; 275D-E] (3)Affiliation being only a statutory and not a fundamental right of the minority under article 30(1) of the Constitution the right under this article cannot be said to be violated unless and until it is shown that application of the College for autonomy has been or is bound to be rejected. Compelling the college to become a constituent part of the University amounts to taking away of its separate. identity by the force of law. But if the College has really attained such standards of organisation and excellence as it claims to have done, it can have an autonomous status under s. 38B of the Act with all its advantages and freedoms practically for the asking. [277H] (4) In as much as s. 5 of the Act has a compelling effect by denying to the petitioning college the option to keep out of the statute altogether, the section would be inoperative against it. Section 5(i) has the effect of compelling a college to abandon its fundamental rights guaranteed by article 30(1) of the (Constitution as a price for affiliation by the Gujarat University because it is not permitted to affiliate with any other, University without the sanction of the Government. [277A: 276G] (5)The only provisions-which could have a compulsive effect petitioning college could be s. 5 and then sections 40 and 41 which would magically convert affiliated colleges into constituent colleges of the University, 183 without the interposition of an option, and, therefore, could be said to deprive, the petitioning college of the opportunity to become an autonomous college. Provisions of s. 40 and the remaining provisions of sec. 41 of the Act are all parts of the same compulsive scheme or mechanism which is struck by article 30(1) Section 41(1) operates even more directly upon the petitioning college. which had been "admitted to the privileges. of the University" under S.5 ( 3) by, affiliation. This provision would have the compelling effect of making it automatically a constituent unit of the, University. and must, therefore., be held to be inoperative against the petitioning college as it cannot affect the fundamental rights guaranteed by article 30(1) of the Constitution. [278 D-E; 277B] (6)Section 41 of the Act, as it stands, could have the effect of negativating the right conferred by s.38B of the Act by transforming, mechanically and by operation of the statute affiliated colleges into constituent colleges so that no question of autonomy could practically arise after that. [278E] (7)On the claims put forward by the petitioning college it appears very likely that the college will get the benefit of s.38B of the Act and therefore will escape from the consequences of affiliation found, in the impugned sections.
It is true that section 38B of the Act imposes certain conditions which, the college will have, no difficulty in satisfying. In any case until its application for autonomous status is rejected, it could not reasonably complain that the other provisions of the Act, apart from section 5, 40 and 41, will be used against it. [288D-E] (8)The essence of the right guaranteed by article 30(1) of the constitution is a free exercise of their choice by minority institutions of the pattern of education as well as of the administration of their educational institutions' Both these taken together. determine the kind or character of an educational institution 'which a minority has the right to choose. Where these patterns are accepted voluntarily by a minority institution itself, the requirement to observe these patterns would not a real violation of rights protected by article 30(1). In a case in which the pattern is accepted voluntarily by a minority institution with, a view to taking advantage of the benefits conferred by a statute. it cannot insist upon an absolutely free exercise of the right of administration. No doubt, the rights protected by article 30(1) are laid down in "absolute" terms without the kind of express restrictions found in articles 19, 25 and 26 of the Constitution. But, if a minority institution has the option open to it of avoiding the statutory restrictions altogether, if it abandons with it. benefits of a statutory right, there is no reason why the absoluteness of the right under article 30(1) of the Constitution is taken away or abridged. [280B-F] (9)It is only when the terms of the statute necessarily compel a minority institution to abandon the core of. its rights under article 30(1) that it could amount to taking away or abridgement of a fundamental right within the meaning of article 13(2) of the Constitution. [280-H] (10)The mere presence of the representatives of the Vice-Chancellor the teachers members of the non-teaching staff and the students of the College required by s. 33A, would not impinge upon the right to administer. Such a spelling, is more likely to help to make that administration more effective and acceptable to everyone affected by it. A minority institution can still have its majority on the governing body. [281D-E] (11)The provisions of s. 51A do not constitute an unreasonable encroachment on the essence of rights of a minority institution protected by art. 30(1) of the Constitution which consists of freedom of choice. Section 52A does not constitute an infringement of the special minority rights under article 30(1) of the Constitution.
[281-H] Re. Kerala Education Bill, 1957, [1959] S.C.R. 995; Rev.
Sidhrjbhai Sabhai & Ors. v. State of Bombay & Anr.. [1963] 3 S.C.R. 837: Rev. Father W. Proost & Ors. v. The state of Bihar &. Ors, [1969] 2.S.C.R. 73; Rt. Rev. Bishop S. K.Patro & Ors. V. State of Bihar & Ors. [1970] 1 S.C.R. 172 and State of 184 Kerala etc. v. Very Rev. Mother Provincial etc., [1971] 1 S.C.R. 734 referred to DWIVEDI J. (1) The content of the right under art. 29(1) differs from the content of the right under Art. 30(1).
Article 29(1) secures the right of a..section of citizens having distinct script, language, or culture to conserve the same. Article 30(1) on the other hand guarantees the right of a religious or linguistic minority to establish and administer educational institutions. Article 29(1) gives security to an interest : article 30(1) gives security to an activity. [293 D-E] (2)Article 30(1) does not. in express or implied terms, limit the right of the. minorities to establish an educational institution of a particular type. The fight to establish an educational institution impliedly grants two kinds of choices. The minorities have a right to establish or not to establish any particular type of educational institution. This is the negative choice. The minorities, may establish any type of educational institution. This is the positive choice. Choice is inherent in every freedom.
Freedom without choice is no freedom. So the words "of their choice" merely make patent what is latent in art.
30(1). Those words are not intended to enlarge the area of choice already implied in the right conferred by art. 30(1).
[293 H, 294 A-B] (3) Right affiliation : There is not express grant of the right of affiliation in art. 30). It is also not necessarily implied in art. 30(1). if the constitution framers intended to elevate the right of affiliation to the status of a fundamental right they could have easily expressed their intention in clear words in art. 30. As our State is secular in character, affiliation of an institution imparting religious instruction or teaching only theology of a particular religious minority may not comport with the secular character of the State. As Art. 30(1) does not grant right of affiliation to such an institution it cannot confer that right on an institution imparting secular general education. The content of the right under art.
30(i) must be the same-for both kinds of institutions. [294 E-H] In re. The Kerala Education Bill [1959] S.C.R.995 at pp. 1076-1077.
(4) Affiliating University : Since art. 30(1)does not grant the right of affiliation the State is not under an obligation to have an affiliating university. It is open to a State to establish only a teaching university. [296A] (5) A glance at the context and scheme of Part III of the constitution would show that the constitution makers did not intend to confer absolute rights on a religious or linguistic minority to establish and administer educational institutions. It is true that art 30(1) is expressed in spacious and unqualified language. And so is art. 14.
However, this Court has read the limitation to classification in the general and unrestricted language of art. 14. The liberty recognised in the First Amendment to the U.S.A. Constitution and the freedom of trade, commerce and intercourse expressed in s. 92 of the Australian Constitution, both of which are expressed in-absolute terms, are held to be subject to regulation. These instances should be sufficient to explode the argument of absolute or nearabsolute right to establish and administer an educational institution by a religious or linguistic minority from the absolute words of art. 30(1). Absolute words do not confer absolute rights, for the generality of the words may have been cut down by the context and the scheme of the statute or the constitution as the case may be. [298 E; 296D; 298C] State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 at P. 295, Charanjit Lal v. Union of India [1950] S.C.R. 869 at p. 890, Kathi Raning Rawat 'V. State of Saurashtra [1952] S.C.R. 435 at p. 442, Cantwell v. Connecticut (310) U.S. 296 at pp. 303-304 ' 95 Law Edn. 1137 at p. 1160, W.S.A. Waynes : Legislative Executive and Judicial Powers in Australia. 2nd Edn : p. 339 and Commonwealth of Australia and others v. Bank of New South Wales and others [1950] Appeal cases 235.
(6) Articles 29(2), 15(4) and 28(3) place certain express limitations on the right in art. 30(1). There are also certain implied limitations on this right. The right should be read subject to those implied limitations. [299C] 185 (7) Part III of the Constitution confers certain rights on individuals, on groups and on certain minority groups.
Those rights constitute a single indivisible 'balancing system of liberty in our Constitution. The system implies order and harmony among the various rights constituting our liberty according to the necessities of each case.
Obviously, the right's could never have been intended by the constitution makers to be in collision with one another.
Accordingly, the right in, art. 30(1) cannot be so exercised as to violate a citizens legal or constitutional rights. It is impossible for the, liberty of a civilised community to have absolute rights. Some regulation of rights is necessary for due enjoyment by every member of the society of his own rights. [299D; 300B ; DE] (8) Extent of regulatory power : The extent of regulatory power of the State would vary according to various types of educational institutions established by religious and linguistic minorities. It may vary from class to class as well as within a class. No minority educational institution can be singled out for treatment different from one meted out to the majority educational institution. A regulation meeting out such a discriminatory treatment will be obnoxious to art. 30(1). [301 H; 302 D] (9) The test of a valid regulation is its necessity. Any regulation which does not go beyond what is necessary for protecting the interests of the society (which includes the minorities also) or the rights of the individual members of the society should be constitutionally valid. It cannot be said that such a regulation takes away or abridges the rights conferred by art. 30(1). [302 E-F] (10) No, hard and fast rule can be prescribed for determining what is necessary. The question should be examined ill the light of the impugned provisions and the facts and circumstances of each case. What is required is that the impugned law should seek to establish a reasonable balance between the right regulated and the social interest or the individual right protected. The court should balance in the scale the value of the right regulated and the value ,of the social interest or the individual right protected.
While balancing these competing interests, the Court should give due weight to the legislative judgment. Like the Court, the Legislature has also taken the oath to uphold the Constitution. It is as much the protector of the liberty and welfare of the people as the Court. it is more informed than the Court about the pressing necessities of the Government and the needs of the community. [302 G-H] State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 at p. 303 per Das j.
(11) It is difficult to accept the argument that a regulation. in order to be constitutional, must always be shown to be calculated to improve the excellence ,of the minority educational institutions. The State prescribes the curriculum and syllabus as much from the point of view of excellence of instruction as from the. point of view of having a uniform standard of instruction. [303 B-C] Nor should the regulatory power be hamstrung by such concepts as real and effective exercise of the right", should not be touched by the regulation or that regulation should not "directly and immediately" impinge on the right conferred by art. 30(1). What is a real and effective exercise of the right will depend on how far the impugned regulation is necessary in the context of time, place and circumstances for safeguarding any competing social interest or any 'competing constitutional or legal right of an individual. [303 G-H] Rev. Suthalbhai Sabhai and others v. State of Bombay [1963] 3 S.C.R. 837 at p. 850 referred to.
(13) The right under art. 30(1) forms part of a complex and interdependent group of diverse social interests. There cannot be a perpetually fixed adjustment of, the right and those social interests. They would need adjustment ,and.
readjustment from time to time and in varying circumstances.
[305 H] Section 33A (1) (a) is obnoxious to art. 30(1). [307 E] 186 (14) Since the right of affiliation' is not a fundamental right guaranteed by art. 30(1) there is no difficulty in the University taking over the teaching in tinder-graduate classes. No legitimate objection can be taken to sub-s.(1) of s.41.; The mere.. circumstance that an affiliated college is made a constituent college of the university would not necessarily offend art. 30(1). The definition of the expression 'constituent college' by itself is innocuous.
The concept of a constituent college is fluid. If-is the degree of external control over the administration of a minority college and not its statutory name that is relevant for the purposes of art. 30(1). [308 A-C] (15) Sub-section (3) of s. 41 cannot also be objected to.
It permits an affiliated college which does not want to be a constituent college to get affiliated to another university with the permission of the State and the Gujarat University.
[308, E] (16) Even assuming for the sake of argument that clauses (ii) to (vi) of sub-s. 4 of s. 41 are violative of art.
30(1) the petitioners stand to gain nothing thereby for no legitimate objection can be advanced against the first part of sub-section (4). Unless statutes are actually made the constitutional attack is premature. [309 A] (17) No legitimate objection can be taken to the first part of sub-sections (1) and (2) of s. 51A. As the power of approval is confined to checking the abuse of the right to fire employees, it does not offend art. 30(1). The power of approval by the Vice-Chancellor is necessary in the interest of the security of service of the teaching arid non-teaching staff. Security of service is necessary to promote efficiency and honest discharge of duty. It is calculated to improve the institution in the long run. Section 51A provides a cheaper and expeditious remedy to the staff for the redress of their grievances. [310 F] (18) It is difficult to discover any legitimate objection to s. 52A on the basis of art. 30(1). This provision is intended to check the abuse of power of administration by the managing body and to provide a cheap and expeditious remedy to the small pursed teaching and non-teaching staff.
It is. necessary in the interest of security of service.
[311 C] Arguments for the petitioners (1) The law' declared by the Supreme Court has been the law of the land since India became a Republic. Minorities and educational institutions have. adapted themselves on the basis of the law so declared. The various High Courts in India have also laid down the law on the same basis. The question of minority rights is a very sensitive and delicate one and there are no compelling or coercive considerations which would justify this Court in over-ruling its previous decisions and reducing the content of the right given to the minorities.
(2) In the objectives resolutions passed unanimously by the constituent assembly it was declared that adequate safeguards should be provided for minorities in the Constitution. The minority communities gave up their demand for political rights and were satisfied with the right to profess and practice there. religion and to establish and administer educational institutions of their choice.
Articles 26, 29 and 30 were, therefore, embodied in the Constitution for guaranteeing these rights to minorities.
(Re Kerala Education Bill 1959 SCR 995). The historical genesis and constitutional background must' at all times, 'be remembered in construing article 30.
(3)Articles 29 and 30 of the Constitution confer separate and distinct rights. viz. (1) the right of any section of the resident citizens to conserve its down language, script or culture [article 29(1)1 (2) the right of all religious and linguistic minorities to establish and administer educational institutions of their choice [Article 30(1)]];
(3) the right of an educational institution not to be discriminated against in the matter of State aid On the ground that it is tinder the management of a religious or, linguistic minority [Article 30(2)]; and (4) the right of the citizen not to be denied admission 18 7 into an' state-maintained or state-aided educational institution on the ground of religion, caste, race or language [Article 29(2)].
Article, 30(1) cannot be whittled down by reading it along with, article 29(1).The differences between article 30(1) and 29(1) are unmistakable : while article 29 confers the fundamental right to "any section. of the citizens" which would include the majority section. Article 30(1) confers the right only on minorities. While article 29(1) is concerned with "Language, script or culture", article 30(1) deals with divisions of the nation based on "religion or.
language"; while article 29(1) is concerned with. The right to conserve language, script or culture article 30(1) deals with the right to establish and administer "educational institutions" of the minorities' own choice. The word "administer" is a word of very wide import. The other key word& are "of their choice". The minorities, right to administer must necessarily include (i) the right to choose its managing or governing body; (ii) the right not to be compelled to refuse admission to students; (iii) the right to choose its teachers; and (4) the right to use its properties and assets for the benefit of its own institution, Although the minority institutions can claim the protection under Article 30 there are certain activities which cannot possibly be considered educational as for example a school of pickpockets or where subversive or criminal activities are taught. Such institutions cannot invoke the protection of Article' 30 because they are not imparting education at all. Though the freedom under Article 30 is Unqualified in terms, it is not free from regulations, There can be no absolutes in a community governed by law. Accordingly an educational institution must comply with the laws like municipal laws regarding construction and maintenance of buildings. labour laws, tax laws and so on. Under article 30 the permissible regulatory measures are those which do not restrict the right of. administration to facilitate it and ensure better and more effective exercise of the right for the benefit of the institution and through the instrumentality of the management of the educational institutions, but without displacing the management. If the administration has to be improved it must be through the agency or instrumentality of the existing management and not by displacing it. Restrictions on the right of administration imposed in the interest of the general public alone and not in the interest of and for the benefit of minority educational institutions are permissible.
There is a fundamental distinction between restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration means the right to effectively manage and conduct the affairs of the institutions. It postulates autonomy in administration.
The right' of administration means the right to conduct and manage the affairs of the institution through a Committee or body of persons in whom the management have faith and confidence and who have full autonomy in that sphere subject to permissible regulato
