# [1959] 1 S.C.R. 995

- **Citation:** [1959] 1 S.C.R. 995
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. R .. DAS c. J, Bhagwati, Venkatarama Aiyar, B. P. Sinha, Jafer Imam, s. K. DhS, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1959-1-s-c-r-995-1576
- **Pages:** 90

## Headnote

President's Reference-Kerala Education Bill, r957-Constitutional validity-Advisory jurisdiction of the Supreme Court, scope of
-Cultural and educational rights of minorities-Constitution of
India, Arts. r43(I), I4, 29, 30 and 226.
•
•
This was a reference under Art. 143(1) of the Constitution
made by the Presid,ent of -India for obtaining the opinion of the
-
- .
May :n.
•
•
996
SUPREME COURT REPORTS
[1959]
r958
Court upon certain questions relating to the constitutional validity of some of the prov~ions of the Kerala Education Bill, 1957,
In re The Kera/a which had been passed by the Kerala Legislative Assembly but
Education Bill,
was reserved by the Governor for the consideration of the Presi1957
dent.
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 els. 3(5), 8(3) and els. 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, els. 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 t1view 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. zr3(r) 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 of the President and was in no way concerned with any doubts that a party might entertain .and no
reference could lo>e 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. r43(r) was
different from that conferred by Art. 143(2) of the Constitution
in that th<! latter made it obligatory on this Court to answer the
•
reference.
In re Lev:; of .Estate Duty, [1944] F.C.R. 317, relied on.
r
t
•
,.
•
•
S.C.R.
SUPREME COURT REPORTS
997
Attorney-General for Ontario v. Hamilton Street Railway, [r903]
A. C. 524, Attorney-General for British C'blumbia v. Attorney-Gene-
-
K
1
·ral for Canada, [r9r4] A. C. r53, In re The Regulation and Control In re Th.•
~ra a
of Aeronautics In Canada, [r932] A. C. 54, In re Allocation of
Education Bill.
Lands and Buildings, [1943] F. C. R. 20 and In re Delhi Laws Act,
.I957
I9I2, [r95r] 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

## Text

_Characters 0–39,992 of 205,054. This is a partial read: ask again with offset=39992 for what follows._

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S.C.R.
SUPREME COURT REPORTS
995
We ought to add that in our calq,ulations we have not
I959
taken into account the Bhupendra Factory because
The Associated,:
the relevant material for working out the figures in
Cement
regard to this factory is not adequate or satisfactory. companies Ltd.
However from such material as is available it appears
v.
that if the profits made by the said factory are
Its Workmen
included in the calculations and rehabilitation required
-
by it is worked out, it would not materially affeet the Gajendragadkar f.
figure of rehabilitation amount determined by us.
The result is that there is no available surplus from
which the respondents can claim any bonus for the
relevant year. It is true that the appellant has
already paid the respondents 20·65 lakhs as bonus for
the relevant year, and it is likely that it may continue
to do so in future; but that is a matter which is not
governed by the formula.
In view of the fact that the working of the formula
leaves no available surplus the appeal must be allowed
and the award made by the tribunal set aside. Since
the appellant had come to this Court for the decision
--o""f the larger and more important question about the
revision of the formula, we would direct that there
should be no order as to costs.
Appeal allowed.
IN RE THE KERALA EDUCATION BILL, 1957.
REFERENCE UNDER ARTICLE 143(1) OF THE
CONSTITUTION OF INDIA.
(S. R .. DAS c. J., BHAGWATI, VENKATARAMA AIYAR,
B. P. SINHA, JAFER IMAM, s. K. DhS and J. L.
KAPUR JJ.)
President's Reference-Kerala Education Bill, r957-Constitutional validity-Advisory jurisdiction of the Supreme Court, scope of
-Cultural and educational rights of minorities-Constitution of
India, Arts. r43(I), I4, 29, 30 and 226.
•
•
This was a reference under Art. 143(1) of the Constitution
made by the Presid,ent of -India for obtaining the opinion of the
-
- .
May :n.
•
•
996
SUPREME COURT REPORTS
[1959]
r958
Court upon certain questions relating to the constitutional validity of some of the prov~ions of the Kerala Education Bill, 1957,
In re The Kera/a which had been passed by the Kerala Legislative Assembly but
Education Bill,
was reserved by the Governor for the consideration of the Presi1957
dent.
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 els. 3(5), 8(3) and els. 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, els. 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 t1view 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. zr3(r) 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 of the President and was in no way concerned with any doubts that a party might entertain .and no
reference could lo>e 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. r43(r) was
different from that conferred by Art. 143(2) of the Constitution
in that th<! latter made it obligatory on this Court to answer the
•
reference.
In re Lev:; of .Estate Duty, [1944] F.C.R. 317, relied on.
r
t
•
,.
•
•
S.C.R.
SUPREME COURT REPORTS
997
Attorney-General for Ontario v. Hamilton Street Railway, [r903]
A. C. 524, Attorney-General for British C'blumbia v. Attorney-Gene-
-
K
1
·ral for Canada, [r9r4] A. C. r53, In re The Regulation and Control In re Th.•
~ra a
of Aeronautics In Canada, [r932] A. C. 54, In re Allocation of
Education Bill.
Lands and Buildings, [1943] F. C. R. 20 and In re Delhi Laws Act,
.I957
I9I2, [r95r] 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 Dorairajan, [r951] S.C.R.
525 and Mohd. Hanif Quareshi v. The State of Bihar, [r959]
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. r4 of the Constitution,
~e
clauses of the Bill that came within questions r 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 complusion 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 Quareshi v. The State of Bihar, [1959] S. C. R.
629, . Chira.njit 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 dis-
.criminated, and since the provisions of the Bill did not do so, it
could not be said to have violated equal proteci"ion 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 ded<uced froJl!
its long· title and the preamble. The impugned Bill laid 'down
its policy in the long title and the preamble '!-nd reinforced it by •
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SUPREME COURT REPORTS
[1959]
r I958
more definite statements in the different clauses and, COilSequentJy, such discretion~s it left to the Government had to be
'ln re The Kerala exercised in implementing that policy. The use of the word 'may'
Education Bill,
in cl. 3(3) could make no difference, for once the purpose was
r957
established and the conditions of the exercise of the discretion
were fulfilled, it' \Vas 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) S 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 ur section
envisaged by Art. 30(1) and Art. 29(1) could mean only such pe........_
sons 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 tQ 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 in~titution, 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 (r) those that sought neither aid nor recognition from the
$tate, (2) those that sought aid, and (3) th.ose that sought
recognition but not aid.
The impugned Bill was concerned only
with institutions ot the second and third categories.
'
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S.C.R.
SUPREME COURT REPORTS
999
The word 'aid' used by Arts. 29(2) and 30(2) included
· r958
'grant' under Art. 337 of the Constituti& and that word occurring in the Bill must have the same meaning. Consequently, In re The Kerala
such clauses of the Bill mentioned in question No. 2 as imposed
Education Bili,
fresh and stringent conditions precedent to such grant over and
r957
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, Kairana, [1950] S.C.R.
566, Mohd. Yasin v. The Town Area Committee, J alalabad, [1952]
S.C.R. 572 and The State of Bombay v. Bombay Education Society,
[1955] l 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 edncational 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
·~edent 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 els. 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 fulfil its real object
or effectively exercise its rights under Art. 30(1) without State
recognition, iJ.S 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 elasses, deprived the
minority institutions of a fruitful source of income without compensation, as was provided by cl. (9) for aided schools, <'md thus
imposed a condition precedent to State recognition which was in
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SUPREME COURT REPORTS
[1959]
I958 .
effect violative of Art. 30(1) and was, therefore, void to that
extent. No rules, when'framed under the Act, could cure such
In re The Kerala invalidity.
Education Bill,
Article 45 of the Constitution did not require the State
I957
Government to provide free and compulsory education to the
detriment of minority rights guaranteed by the Constitution.-
if the Government so chose it could do so through the Government and aided schools, and this Court was in duty bound to uphold such fundamental rights as the Constitution had thought
fit to confer on the minority communities.
•
The wide powers and jurisdiction conferred on the High
Courts by Art. 226 of the Constitution could not be affected by a
provision such as cl. (33) of the Bill, which forbade Courts to
issue temporary injunctions or interim orders in restraint of any
proceedings thereunder, and it must be read as subject to the
overriding provisions of Art. 226 of the Constitution.
Venkatarama Aiyar J.-It was obvious that Art. 30(1) of the
Constitution did not in terms confer a right on the minority
institutions to State recognition, nor, properly construed, could
it do so by implication, for such an implication, if raised, would
be contrary to the express provisions of Art. 45 of the Constitution. Article 30(1) was primarily intended to protect such
minority institutions as imparted purely religious education
and to hold that the State was bound thereunder to recog~.
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 tG interfere with their administration.
To hold that the State Government was further bound under
Art. 30(1) to accm;d recognition to minority institutions would be
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S.O.R.
SUPREME COURT REPORTS
1001
to put the minorities in a more favoured position than the
r 95s
majority community, which the Constitution never contemplated.
In te The Kerala·
City Winnipeg v. Barrett: City of Winnipeg v. Logan, [1892]
Education Bill,
A.C. 445, referred to.
r957
AnvrsoRY 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 ofKerala, 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 8.nd 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
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1002
SUPREME COURT REPORTS
[1959]
I95B
power in regard to the recognition of new schools and
In re The H"ala the. ope.ning of higher .classes i~ any. private s.chool
Education Bill
which is capable of bemg exercised m an arbitrary
, 957
' 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 W'HEREAS 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 minw;i....
ties 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 education al
institutions established by the minorities would not
affect the right to administer them guai:anteed 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
. educati<mal institutions in any area or for bringing
•
education of any category under their direct control
it is necessary. to do so in the public interest, on
.
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S.C.R.
SUPREME COURT REPORTS
1003
payment of compensation on th~ basis of market value
z95B
of the schools so .taken over aft~r deducting therefrom In re The Kerala
the amounts of aids or grants given by that GovernEducation Bill
ment for requisition, construction or improvement of
i 957
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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 hereinbefore 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;
NO'V, THEREFORE, in exercise of the powers
conferred upon me by clause (1) of article 143 of the
Constitution, I, 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
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SUPREME COURT REPORTS
[1959)
'958
clause 8 and clauses 9 to 13 of Kerala Education Bill,
In ., The [(era/a or any provisi?ns ~her~of, offend cla;use (1) of article 30
Education Bill, of the Const1tut10n m any partrnulars or to any
I957
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. Ma.v 1, 2, 5, 6, 7, 8, 9 and 12.
M. C. 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 worshipand assures the dignity of the individual. To give
effect to these ideals the Constitution provides fnnda.
mental rights for the individuals in Arts. 19, 25 an<L-.
28 and for groups in Arts. 26, 29 and 30.
The fundamental rights in Arts. 29 and 30 (tre absolute and no
restrictions can· be placed on them, though rE'strictions
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
Comrnissioner, Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur 11£ utt,
( [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 pro-
•
'vides that the establishment of new schools and opening of higher 'Classes shall be according to the Rules to
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S.C.R.
SUPREME COURT REPORTS
1005
be framed under cl. 36 to entitle them to be recognised
r958
by the Government, confers upon the executive unguidd
ff d A
Th In re The Kera/a
ed and uncontrolled powers an
o en s
rt. 14.
.e
Education Bill,
legislature does not lay down any policy, but leaves it
r957
.
to the executive under the rule-making powers.
A.
Thangal Ku11ju Musaliar v. M. Venkitachalam Patti,
( [1955] 2 S.C.R. 1196 at 1239, 1241); The State of West
Bengal v. Anwar Ali Sarkar, ( [1952] S.O.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.O.R. 1005 at 1028, 1029).
· --'fhe right of the minorities under Art. 30( l) 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
Anglo-Indian community. Article 30 (1) is infringed
whether the schools go in for aid or not.
Clause 8 (3)
of the Bill under which in all aided schools all fees, etc.,
collected from the students will have to be made over
to the Government deprives the management of the
right of• administration. Pierce v. Society of Holy
Sisters Names, (69 L. Ed. 1070 at 1077); Maher v.
Nebraska, (67 L. Ed. 1042 at 1044).
Clause 15 of the Bill empowers the Government to
acquire any category of aided schools in any specified
area. This clause is wholly subversive of Art. 30 (1).
It also offends Art. 14 as it empowers the Government
to pick and choose any schools, by suitably selecting
the category and area, for acquisition, no criteria
having been laid down for making the choice.
·
< Clause 33 of the Bill prohibits {Lll Courts from •
•
1006
SUPREME COURT REPORTS
[1959]
z958
granting any temporary injunction or interim order
regarding any proceedings taken under the Act. To the
In re The Kerala
h
h"
l
. f .
Educ tion Bill
extent t at t is c a use m nnges Art. 226 or Art. 32,
: 957
' it is void. Interim orders are also passed under Arts.
226 and 32 as ancillary to the main relief. The State
of Orissa v .. 111.adan Gopal Rungta, ( [1952] S.C.R. 28 at
34).
Halsbury's Laws of England, 3rd Edn., Vol. 11,
p. llO, para. 204.
Kaslival, Advocate-Genera.! 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. 0. 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 individuaJ.._.
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
to his children as he likes. Bombay Education Society
v. The State of Bombay, (56 Born. L. R. 64~ 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] l 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 ma.nage ' or 'carry on'. The legislature canrnit even indirectly infringe the fundamental
rights. Dwarkadas Shrinivas v. The Sholapur Spin-
• ning and Weavin~ Go. Ltd., ( [Hl54] S.C.:.R. 674 at 683);
•
•
•
-
S.C.R.
SUPREME COURT REPORTS
1007
Punjab Province v. Daulat Singh, ( 73 I. A. 59) ; The
r958
State of Bombay v. Bombay Education Society, ( [1955]
-
.
1 S C R
A
.
J
.
d
V l In re The [(erala
. . .. 568 at 583).
merican urISpru ence,
o. Ed
1·
8 .11
.
.
uca ion
t
,
11, p. 724, Sec. 95.
The whole scheme of the B1ll 1s to
z957
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 els. 6, 7; 8, 11, 12,
14, 15 and 28 are destructive of this fundamental right.
Frank Anthony and P. C. Aggarwala, for the All
India Anglo-Indian ,Association and for the Apostolic
Carmel Education Society and Roman Catholic Diocese .. Under Att.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
· p1'esent reference is most incomplete and wholly un"
satisfactory and the Court should, following Zafrullah
Khan J. in In re Levy of Estate Duty, ( [1944] ]'.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
th{)reof 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 positfon.
Article 30(1) gives to the Anglo-Indian community
the fundamental right to establish educational institu-.
tions.of their choice. These fundamental rights were.
not subject to any social control. The object of tp.er
•
128
•
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SUPREME COURT REPORTS
[1959]
z9s~
Kerala Education Bill was to strike at the Christian
Church, especially the Catholics, to eliminate their
In re The Kemla
l" ·
t t k
th ·
t
l"
• t
11
Ednrntion Bill, re ig10n, o a e away
eir property, o e 1mma e a
, 957
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 riw..
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. Shuk/,a 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 ~hat.power.
•
I
S.C.R.
SUPREME COURT REPORTS
1009
G. 0. Mathur and 0. P. Lal for the state of U. P.
r958
adopted the arguments of the ·Attorney-General for
.
In re The Kerala
India.
Education Bill.
B. K. B. Naidu, for the Kerala State Muslim League
r951
adopted the arguments of G. S. Pathak and Frank
Anthony.
D. N. Pritt, Sardar Bahadur and 0. M. KuruviUa,
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
~11.
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 educationa.f 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 •
.
I
1010
SUPREME COURT REPORTS
[1959]
i958
rules had necessaril~ to be left to the Government.
I
Th
K
I Such 'delegated legislation' is an integral and inevitn re
e
era a
.
Education Bill. able part ot a modern State power.
Clause 3(5) of the
,957
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. 60!5).
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 legialation but legislation in two stages.
In order to protect certain privileges of minorities
the State cannot discard the glorious principles of free
aud 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 a ppli.Cable to others. The words '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 Keral:J. which can claim the benefit of Art. 30(1)
are the Jews, who do not choose to have their own
educational institutions.
School& run by minorities in Kerala were not
~trictly minority schools as envisaged by Art. 30(1) as
' they were not fUll mainly for the children of the
•
•
S.C.R.
SUPREME-COURT REPORTS
101'1
minority•community. In most of these schools at least
r95S
75 per cent. of the students were from non-mino:ities. In re The Kerala
Article 30(1) contemplates schools for the educat10n of Educ~tion Bifl,
members of the minority communities only. Right of
z9s1
the mino#ty communities to establish and administer
institutions of their choice does not include the right
to receive aid an:d 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 commu~
nity, 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 condi-
. tions 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 '1-cquisition 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 ?peration of Art.