# ) ALL BIHAR CHRISTIAN SCHOOLS ASSOCIATION AND ANOTHER v. STATE OF BIHAR AND OTHERS

- **Citation:** [1988] 2 S.C.R. 49
- **Court:** Supreme Court of India
- **Decided:** 1987-11-26
- **Bench:** Ranganath Misra, K.N. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/all-bihar-christian-schools-association-and-another-v-state-of-bihar-and-others-9857
- **Pages:** 32

## Headnote

Bihar Non-Government. Secondary (taking over of Management
\
and Control) Act, 1981-Constitutional validity of.
A
B
These petitions under Article 32 of the Constitution of India C
challenge the constitutional va1idity of the Bihar Non-Government
Secondary Schools (taking over of Management and Control) Act,
1981 (Bihar Act No. 33 of 1982) as violative of Article 30 of the
Constitution.
The petitioner No. 1, the All Bihar Christian Schools' Associa· D
tion, is a religious minority registered society, and the petitioner
No. 2, the Secretary-cum-Treasurer of the petitioner No. 1. The
petitioner-association had set up a number of secondary schools in
Bihar, which were managed by the Christian dioceases societies and
these institutions were recogni.sed by the Education Department
Development of the State of Bihar.
E
In Bihar, a number of private se~ondary schools were established and managed by private individuals or societies. The State
Government considered it necessary to take over the management and
Control of the Non-Government Secondary Schools for better organisation and development of the Secondary Education in the State, and F
it enacted the Bihar Non·Government Secondary Schools (Taking over
of Management and Control) Act, 1981. The Act provides for the
taking over of the management and control of the Non-Government
Secondary Schools by the State Government for improvement, better
organisation and development of the secondary education in Bihar.
The scheme of the Act shows that after the take·over of the nonG
government secondary Schools by the State Government, the management and control of such schools would be carried on in accordance
with the provisions of the Act.
While the impugned Act provides for taking over the manage ..
ment and control of the Non-Government Secondary Schools, the H
49
50
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A
management and control of the remaining categories of schools have
not been taken over. Although the Act contained provisions for the
taking over of other secondary schools, yet so far as the minority
secondary schools are concerned, the Act does not provide for any
compulsory acquisition or taking over of the management and control
of such schools.
B
The petitioners contended that (i) ·the provisions of the Act
directly interfere with the management and control 'of the Christian
minority schools, (ii) section 3(2) of the Act which provides for the
taking over of minority secondary schools by the Government interferes with the petitioners' fundamental right under Article 30(i) of the
C Constitution, (iii) the provisions of section 18(2) are violative of
Articles 30 and 14 of the Constitution of India and (iv) the clauses (a)
to (k) of section 18(3) of the Act interfere with the management of the
minority secondary schools in violation of Article 30(i) of the Constitution.
0
The respondent urged inter alia that the Government has no
intention to interfere with fundamental rights of the minority community to establish schools of its choice; the provisions of the impugned
Act are directed to ensure academic excellence and good management;
the management of the minority institutions had been given free hand
in managing their institutions, but in order to maintain education
E excellence and discipline, regulatory provisions have been made in
section 18 of the Act, the purpose of which is to ensure that the
minority schools are managed by the properly constituted managing
committees; security of the services of the staff is ensured, and in the
matter of taking disciplinary action, the managing committees should
conform to the principles of natural justice, etc.
F
Dismissing the writ petitions, the Court,
HELD: By the various decisions of this Court, it is now wensettled that the minorities based on religion or language, have fundamental freedom to establish and manage educational institutions of
G
their own choice, but the State bas the right to provide regulatory
provisions for ensuring educa

## Text

_Characters 0–39,973 of 82,626. This is a partial read: ask again with offset=39973 for what follows._

)
ALL BIHAR CHRISTIAN SCHOOLS ASSOCIATION
AND ANOTHER.
v.
STATE OF BIHAR AND OTHERS.
NOVEMBER 26, 1987
[RANGANATH MISRA AND K.N. SINGH, JJ.]
Bihar Non-Government. Secondary (taking over of Management
\
and Control) Act, 1981-Constitutional validity of.
A
B
These petitions under Article 32 of the Constitution of India C
challenge the constitutional va1idity of the Bihar Non-Government
Secondary Schools (taking over of Management and Control) Act,
1981 (Bihar Act No. 33 of 1982) as violative of Article 30 of the
Constitution.
The petitioner No. 1, the All Bihar Christian Schools' Associa· D
tion, is a religious minority registered society, and the petitioner
No. 2, the Secretary-cum-Treasurer of the petitioner No. 1. The
petitioner-association had set up a number of secondary schools in
Bihar, which were managed by the Christian dioceases societies and
these institutions were recogni.sed by the Education Department
Development of the State of Bihar.
E
In Bihar, a number of private se~ondary schools were established and managed by private individuals or societies. The State
Government considered it necessary to take over the management and
Control of the Non-Government Secondary Schools for better organisation and development of the Secondary Education in the State, and F
it enacted the Bihar Non·Government Secondary Schools (Taking over
of Management and Control) Act, 1981. The Act provides for the
taking over of the management and control of the Non-Government
Secondary Schools by the State Government for improvement, better
organisation and development of the secondary education in Bihar.
The scheme of the Act shows that after the take·over of the nonG
government secondary Schools by the State Government, the management and control of such schools would be carried on in accordance
with the provisions of the Act.
While the impugned Act provides for taking over the manage ..
ment and control of the Non-Government Secondary Schools, the H
49
50
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A
management and control of the remaining categories of schools have
not been taken over. Although the Act contained provisions for the
taking over of other secondary schools, yet so far as the minority
secondary schools are concerned, the Act does not provide for any
compulsory acquisition or taking over of the management and control
of such schools.
B
The petitioners contended that (i) ·the provisions of the Act
directly interfere with the management and control 'of the Christian
minority schools, (ii) section 3(2) of the Act which provides for the
taking over of minority secondary schools by the Government interferes with the petitioners' fundamental right under Article 30(i) of the
C Constitution, (iii) the provisions of section 18(2) are violative of
Articles 30 and 14 of the Constitution of India and (iv) the clauses (a)
to (k) of section 18(3) of the Act interfere with the management of the
minority secondary schools in violation of Article 30(i) of the Constitution.
0
The respondent urged inter alia that the Government has no
intention to interfere with fundamental rights of the minority community to establish schools of its choice; the provisions of the impugned
Act are directed to ensure academic excellence and good management;
the management of the minority institutions had been given free hand
in managing their institutions, but in order to maintain education
E excellence and discipline, regulatory provisions have been made in
section 18 of the Act, the purpose of which is to ensure that the
minority schools are managed by the properly constituted managing
committees; security of the services of the staff is ensured, and in the
matter of taking disciplinary action, the managing committees should
conform to the principles of natural justice, etc.
F
Dismissing the writ petitions, the Court,
HELD: By the various decisions of this Court, it is now wensettled that the minorities based on religion or language, have fundamental freedom to establish and manage educational institutions of
G
their own choice, but the State bas the right to provide regulatory
provisions for ensuring educational excellence, conditions of employment of the teachers, ensuring health, hygiene and discipline and
allied matters. Such regulatory provisions do not interfere with the
minorities' fundamental right of administering their educational insti·
tutions; instead, they seek to ensure that such institutions are
H administered efficiently and that students who come out of the
~
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I
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ALL BIHAR CHRISTIAN SCHOOLS ASSCN. v. STA 1E OF BIHAR
51
minority institutions after completion of their studies are well
A
equipped with knowledge and training so as to stand at par in their
avocation in life without any handicap. If the regulatm·y provisions
indirectly impinge upon minorities' right of administration of their
institutions, it would not amount to interference with the fundamental
freedom of the minorities as the regulatory provisions are in the
interest of the minority institutions themselves. If the minority insti· B
tution seeks affiliation or recognition from the State or the Education
Board, the State has the right to prescribe syllabi and terms and
conditions for giving such affiliation or recognition or extending the
grants-in·aid. On the one hand, the State is under an obligation to
ensure that educational standards in the recognised institutions must
be according to the need of the society and according to the standards C
which ensure the development of' personality of the students turning
out to be civilised, useful members of the society and to ensure that the
public funds disbursed to the minority institutions are properly
utilised for the given purpose. On the other hand, the State has to
respect and honour minority rights under Article 30(1) of the
Constitution in the matter of establishing and carrying the adminisD
tration of institution of their choice. In order to reconcile these two
conflicting, the State has to strike a balance; the statutory provisions
should serve both the objects and such statutory provisions have to
withstand the test of Article 30(1) of the Constitution. These principles have to be borne in mind in considering the question of the
validity of the statutory provisions relating to the minority educational
E
institutions. [630-G; 64E-G]
The petitioners challenged tbe constitutional validity of sections
3 and 18 of the Act on the ground of interfering with their fundamental rights guaranteed under Article 30(1) of the Constitution.
Section 3 provides inter alia for the compulsory taking over of the F
management and control of the recognised non-government secondary
schools. After elaborately going through the provisions of the said two
sections, dealing with the various aspects of the management, administration and working of a minority institution; the conclusion was that
the two sections were not violative of Article 30(1) of the Constitution
and do not encroach upon the fundamental rights of a minority instituG
tion guaranteed under Article 30(i) of the Constitution. (53D; 68E; 69G 1
Guarantee of freedom to a minority institution under Article
30(1) of the Constitution does not permit the minority institution to act
contrary to law and order, law of contract, industrial laws or other
general laws enacted for the welfare of the society. If the minorities' H
52
SUPREME COURT REPORTS
[1988] 2 S.C.R.
1 A
claim for immunity from the law of the land is upheld, that would be
unreasonable and against the interest of the minority institutions
themselves. [79D-E1
B
The impugned Act does not violate the petitioners' rights guaranteed under Article 30(1) of the Constitution. [SOG]
In Re. The Kerala Education Bill, 1957 (t959) SCR 995; Rev.
Sidhajbhai Sabhai and others v. State of Bombay, [1963] 3 SCR 837;
State of Kerala v. Very Rev. Mother Provincial, [1971] 1 SCR 734;
The Ahmedabad St. Xavier's College Society & Anr. ·etc. v. State of
Gujarat & Anr., [1975] 1 SCR 173; Lilly Kurian ·v. Sr. Lewine &
C
Ors., [1979] 1 SCR 820; Frank Anthony Public School Employees'
Association case, [1986] 4 SCC 707; Mrs. Y. Theclamma's Case,
[1987] 2 SCC 516 and All Saints High School, Hyderabad v. Government of Andhra Pradesh & Ors., [1980) 2 SCR 924, referred to.
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
D Nos. 4588-89 of 1983.
(Under Article 32 of the Constitution of India).
F.S. Nariman, Jose P. Vergheese and U.S. Prasad for the
Petitioners.
-~
E
Jai Narain and Pramod Swarup for the Respondents.
The Judgment of the Court was delivered by
SINGH, J. These petitions under Article 32 of the Constitution
f
of India challenge the constitutional validity of the Bihar NonGovernment Secondary Schools (taking over of Management and
Control) Act, 1981 (Bihar Act No. 33 of 1982) on the ground that the
provisions of the Act are violative of Article 30 of the Constitution.
All Bihar Christian Schools' Association, petitioner No. 1, is a
G religious minority society registered under the Societies Registration
Act. Petitioner No. 2, Sister Marianne S.C.N. is the Secretary-cumTreasurer of petitioner No. 1. The aims and objects of the All Bihar
Christian Schools' Association are to promote education including
science, literature, fine arts and libraries according to Christian ideals
in the interest of national development; to foster moral and spiritual
H values in education; to assist and strengthen the work of Christian
ALLBIHARCHRISTIANSCHOOLSASSCN. v. STATE OF BIHAR ISINGH,J.) 53
~
schools in Bihar; to promote the welfare of teachers and other staff of
A
the member-institutions. The petitioner association has set up a
-4
number of secondary schools in the State of Bihar which are managed
and administered by the Christian dioceses/societies and these insututions are recognised by the Education Department of the State of
Bihar. The petitioners aver that they have fundamental right under
Article 30 of the Constitution to administer the institutions estabB
Iished by them, according to their choice and no interference in the
administration of the educational institution is permissible under the
Constitution. The petitioners alleged that the provisions of the Bihar
~-
Non-Government Secondary Schools (taking over of Management
and Control) Act, 1981 (hereinafter referred to as the Act) make
~ serious inroad on the petitioners' right to establish and administer c
~
educational institutions of theirchoice. They have challenged constitutional validity of the provisions of the Act and particularly the
provisions contained in Section 3 and Section 18 of the Act which
according to them interfere with their fundamental right guaranteed
by Article 30(1) of the Constitution.
D
""'
In the State of Bihar a number of private secondary schools
were established and managed by private individuals or societies. The
State Government considered it necessary to take over the management and control of the Non-Government Secondary Schools for
ybetter organisation and development of secondary education of the
State. It promulgated an Ordinance on 11.8.1980, as the Bihar NonE
Government Secondary Schools (Taking Over of Management and
Control) First Ordinance. This Ordinance was later on replaced by
.I another Bihar Ordinance No. 74 of 1981 on 22.4.1981. The State
\
legislature converted the Ordinance into the Bihar Non-Government
Secondary Schools (Taking Over of Management and Control) Act,
1981. The Act a~ indicated by the preamble is to provide for the F
y
taking over or managment and control of the Non-Government
Secondary Schools by the State Government, for improvement,
better organisation and development of Secondary Education in the
State of Bihar. ''Non-Government Secondary School" ·as defined by
~ Section 2 means a secondary school recognised as such by the Bihar
Secondary Education Board Act, 1976 and the Bihar Secondary G
Board (Second amendment) Ordinance, 1980. "Secondary School"
~. means a secondary school whose management and control has been
taken over- by the State Government under Section 3 of the Act.
"Minority Secondary School" as defined by Section 2 (c) means a
secondary school established by a minority community based either
on religion or language, and managed by the minority community H
54
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
A and declared and recognised as minority school by the State Government. Section 3 provides for taking over of the management and
control of recognised Non-Government secondary schools by the
State Government. Sub-section ( 1) lays down that all recognised nongovernment secondary schools other than the minority secondary
schools based on religion or language, shall be deemed to have been
_a
taken over by the State Government with effect from October 2,
1980. Sub-section (2) provides that the State Government may by
notification in the official gazette from a specified date, take over the
management and control of a recognised minority secondary school if
the managing committee of the secondary school voluntarily makes
an unconditional offer to hand over the school with all moveable or
c immovable assets and properties owned or possessed by the school.
Section 4 provides for the consequences which ensue on the taking
over of management and control of non-government secondary
schools by the Government. It provides that on the taking over of the
management and control of the non-government secondary schools
by the Government all the movable and immovable assets and
D properties owned and possessed by secondary schools including land,
building, documents, books and registeres, shall stand transferred to
the State Government and deemed to have come into its possession
and ownership. The services of every Headmaster, teacher or other
employees of the school taken over by the State Government shall be
deemed to have been transferred to the State Government with effect
E ·from the date of taking over the school and they become employees
--y
F
of the State Government. The age of superannuation of Headmasters, teachers and other employees of the schools taken over by the
State Government shall be 58 years. However, other terms and \
conditions of their services shall continue to be the same as they
)
existed prior to taking over of the management and control of the
school until alteration is made by the State Government. Section 5
provides that the management and control of the nationalised schools
shall be under the Director and his subordinate officers in the manner
as prescribed by the State Government. The management of every
secondar; school shall be under a committee constituted in accordance with the provisions of Section 6 of th.e Act. Section 7 enumeG rates powers and functions of the Managing Committee. Section 8 •
prescribed duties of the Headmaster. Section 9 provides that the
service conditions of the Headmaster, teachers and non-teaching .)
staffs of the nationalised secondary schools shall be determined by
the State Government. Section 10 provides for the establishment of a
School Service Board, a corporate body having perpetual succession
t-1 and common seal. Its Chairman and the members shall be appointed
•
ALL BIHAR CHRISTIAN SCHOOLS ASSCN. v. STATE OF BIHAR !SINGH, J.] 55
by the State Government. The Board is empowered to make recommendations for appointment or ptomotion of Headmasters and
teachers of nationalised secondary schools to the Director of
Education. Section 11 creates a District Secondary Education Fund
Section l2 provides that the fund shall be used for payment of salary
and allowances to the Headmaster, teachers and other employees of
schools including the minority secondary schools and grants for other
expenditure of schools. Section 14 provides for the constitution of a
Secondary Education Committee for making recommendation to the
State Government on the questions relating to the taking over of
management of the secondary schools, their improvement and upgradation. Section 15 confers power on the State Government to make
rules for carrying out the purposes of the Act. Every rule made under
this provision is required to be laid before both the Houses of the
State Legislature. Section 17 provides for interim arrangement before
taking over management and control of Non-Government Secondary
Schools. Section 18 provides for the recognition of minority secondary schools. Under this provision, a minority secondary school
already declared a minority school under the provisions of Bihar
Secondary Education Board Actt 1976 shall be deemed to have been
recognised under the provisions of the Act. It further provides that
the State Government inay by notification recognise a minority
secondary school, if the same has been established by a minority
community on the basis of religion or language for the purposes of
meeting the educational requirement and ·for the protection of
culture of their section, provided it fulfils conditions prescribed for
recognition. A minority secondary school shall be accorded recognition if it is managed and controlled in accordance with the provisions
set out in Clauses (a) to (k) of Section 18(3). It requires every
minority secondary school to have a managing committee and written bye laws. The managing committee is required to appoint teachers
with the concurrence of the School Service Board. The managing
committee shall prescribe rules regarding the service condition of
teachers based on natural justice and prevailing law and it shall have
powers to remove, dismiss, terminate or discharge a teacher from
service with the approval of School Service Board. The managing
committee shall charge only such fees from the students as are
prescribed by the State Government. No higher fees shall be charged
unless prior approval of the State Government is obtained.
The scheme of the Act as analysed shows that the State
Government has taken over non··Government secondary schools.
After the take over the management and control of the secondary
A
B
c
D
E
F
G
H
56
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A schools shall be carried on in accordance with the provisions of the
Act by a managing committee constituted in accordance with the
provisions of the Act. All employees including teachers working in
the non·Government secondary schools have become employees of
the State Government. Future appointment in the secondary schools
B shall be made on the recommendation made by the School Service
Board. Prior to the take over under this Act, it appears that there
were five classes of secondary schools functioning in the State of
Bihar; they were; (i) non-Government secondary schools maintained
and established and administered by private individuals and societies,
(ii) secondary schools established and managed by minorities
community and recognised as minority schools by the State GovemC ment, (iii) proprietary secondary schools established and maintained
entirely by trusts, associations or a corporate bodies declared as
proprietary schools by the State Government; (iv) centrally sponsored secondary schools established or managed by Government of
India or an undertaking owned or controlled by Government of India
D or by any department of State Government and recognised by the
Education Department of the State Government, and (v) autonomous secondary schools, residential schools recognised by the State
Government imparting education in accordance with curriculum
prescribed for secondary schools and under the Rules approved by
the State Government. All these five categories of secondary schools
had been imparting education to students in the State of Bihar. While
E the impugned Act provides for taking over the management and
control of the non-government secondary schools, the management
and control of the remaining categories of schools have not been
taken over. Although the Act contains provisions for taking over of
~
other secondary schools if and when circumstances as contemplated J
by the Act are found to exist, but so far as minority secondary
F
schools are concerned, the Act does not provide for any compulsory
acquisition or taking over of the management and control of such
schools. The management and control of non-government secondary
schools taken over by the State under Section 3 of the Act are
required to be carried on in accordance with the provisions contained
-y
in Section 5 to 17 of the Act. So far as minority secondary schools are ,.
G concerned under section 18 contained special provisions for their
recognition and management.
Learned counsel for the petitioners r.ontended that the provisions of the Act directly interfere with the management and control
H of the Christian minority schools. He urged that Section 3(2) of the
Act which provides for the taking over of minority secondary schools
A
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ALL BIHAR CHRISTIAN SCHOOLS ASSCN. v. STA 1E OF BlliAR [SINGti, J .] 57
by the Government intederes with the petitioners' fundamental right
A
under Article 30( 1) of the Constitution. The learned counsel further
submitted that provisions of Section 18(2) are violative of Articles 30
and 14 of the Constitution of India. The learned counsel further
urged that clauses (a) to (k) of Section 18(3) of the Act interfere with
the management of the minority secondary schools in violation of
Article 30 ( 1) of the Constitution. On behalf of the State of Bihar it
B
was urged that the State Government has no intention to interfere
with the fundamental rights of the minority community to establish
schools of its choice. The provisions of the impugned Act are directed
to ensure academic excellence and good management. The managements of th~ minority institutions have been given free hand in
managing their institutions but in order to maintain educational C
excellence and discipline in their institutions, regulatory provisions
have been made in Section 18 of the Act and the purpose of regulatory provisions is to ensure that the minority schools are managed by
properly constituted managing committees, that the members of the
staff of the minority institutions are pfiid proper salaries, their
security of service is ensured, and in the matter of taking disciplinary
D
action the managing committees should conform to the principles of
natural justice. It was further urged that these provisions have been
made with a view to safeguard the interest of the minority institutions
themselves.
Before we advert to the submissions raised by the parties we
E
think it necessary to consider the ambit and scope of Article 30 of the
Constitution. It reads as under:
"30. Right of minorities t{) establish and administer
educational institutions-(1), All minorities, whether
based on religion or language, shall have the right to
F
establish and administer educational institutions of their
choice.
( lA) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a min~rity, referG
red to in clause ( 1), the State shall ensure that the amount
fixed by or determined under such law for the acquisition
of such property is such as would not restrict or abrogate
the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational
H
58
SUPREME COURT REPORTS
f 1988] 2 S.C.R. A
A
institutions, discriminate against any educational institution on the ground that it is under the management of a ..
minority, whether based on religion or language."
In plain terms Article 30( 1) protect the right of the minorities
whether based on religion or language to establish and administer
B educational institutions of their choice. The Article confers a fundamental right on the minorities to protect their interest. Clause ( lA) -rprovides that the Legislature while making law for compulsory acquisition of property of any minority educational institution shall ensure
~
that the amount of compensation paid for the acquisition of property
is such as would not restrict or abrogate the right guaranteed under
c Clause ( 1) of Article 30. Clause (2) of Article 30 enjoins the State not
,..
to discriminate a minority institution in granting aid to educational
I
institutions on the ground of it being a minority institution whether
/.-A..
based on religion or language. The content and scope of Article 30( 1)
of the Constitution has been considered by this Court in detail in a
number of cases. In Re. The Kerala Education, Bill, 1957, [ 1959]
D SCR 995 this Court construed Article 30( 1) of the Constitution of
India and held as under:-
r
"The first point to note is that the Article gives certai.u
rights not only to religious minorities but also to linguistic
minorities. In the next place, the right conferred on such
....,. '
minorities is to establish educational institutions of their
E
choice. It does not say that minorities based on religion
should establish educational institutions for teaching religion only, or that linguistic minorities should have the
_)·
right to establish educational institutions for teaching their
language only. What the Article says and means is that the
F
religious and the linguistic minorities should have the right
to establish educational institutions of their choice. (Pages
-r
1052-1053) .............. The next thing to note is that
the Article, in terms, gives all minorities, whether based
on religion or language, two rights, namely, the right to
establish and the right to administer educational institutJ
tions of their choice.
G
(page 1053) ......... "
Considering the extent of State's power to regulate educational
standards, service conditions and discipline in the minority institutions the Court observed:
•
H
"We have already observed that Article 30(1) gives two
..,-
ALL BIHAR CHRISTIAN SCHOOLS ASSCN. v. STATE OF BlHAR [SINGH, J.] 59
rights to the minorities, (i) to establish and (ii) to administer, educational institutions of their choice. The right to
administer cannot obviously include the right to maladministration. The minority cannot surely ask for aid or
recognition for an educational institution run by them in
unhealthy surroundings, without any competent teachers,
possessing any semblance of qualification, and which does
not maintain even a fair standard of teaching or which
teaches matters sub-versive of the welfare of the scholars.
It stands to reason, then, that the constitutional right to
administer an educational institution of their choice does
not necessarily militate against the claim of the State to
insist that in order to grant aid the State may prescribe
reasonable regulations to ensure the excellence of the
institutions to be aided ............ "
In Rev. Sidhajbhai Sabhai and others v. State of Bombay, [1963] 3
SCR 837 a Constitution Bench of this Court observed:
"All minorities, linguistic or religious have by Article
30( 1) an absolute right to establish and administer educational institutions of their choice; and any law' or execuA
B
c
D
tive direction which seeks to infringe the substance o,f
that right under Article 30( 1) would to that extent be
vpid. This, however, is not to say that it is not open to . E
the State to impose regulations upon the exercise of this
right. The fundamental freedom is to establish and to
administer educational i~1stitutions: it is a right to establish and administer what are in truth educational institutions, institutions which cater to the educational needs of
the citizens, or sections thereof. Regulation made in the
P
true interests of efficiency of instruction, discipline, health,
sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed:
they secure the proper functioning of the institution, zn
matters educational. ''
G
(Underlining by us)
In State of Kerala v. Very Rev. Mother Provincial, [1971] 1 SCR 734 a
Constitution Bench of this Court again considered the extent of the
minorities' right with regard to the management of the affairs of the
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60
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A institution. The Bench held that the management must be free of
control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas as to how
the interests of the community in general and the institution in
particular will be best served. The right of management cannot be
taken away and vested in another body as that would be encroacha ment upon the guaranteed right. This right is, however, not an
absolute right. It is open to the State to regulate the syllabus of the
examination and discipline in the institution and allied matters.
Hidayatullah, C.J. speaking for the Court observed:
c
D
E
F
G
"There is, however, an exception to this and it is that the
standards of education are not a part of management as
such. These standards concern the body politic and are
dictated by considerations of the advancement of the
country and its people. Therefore, if universities establish
syllabi for examinations they must be followed, subject
however to special subjects which the institutions may seek
to teach, and to a certain extent the State may also regulate
the conditions of employment of teac;hers and the health
and hygiene of students. Such regulations do not bear
directly upon management as such although they may
indirectly affect it. Yet the right of the State to regulate
education, educational standards and allied matters cannot
be denied. The minority institutions cannot be allowed to
fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of
management, to decline to follow the general pattern. While
the management must be left to them, they may be compelled to keep in step with others. These propositions have
been firmly established in State of Bombay v. Bombay
Education Society,
The State of Madras
v.
S.C.
Dorairajan, In re the Kerala Education a Bill, 1957,
Sidharajbahi v. State of Gujarat; Katra Education Society
v. State of U.P. & Ors., Gujarat University, Ahmedabad v.
Krishna Ranganath Mudholkar & Ors. and Rev. Father W.
Proost & Ors. v. State of Bihar. In the last case it was said
that the right need not be enlarged· nor whittled down.
The Constitution speaks of administration and that must
fairly be left to the minority institutions and no more."
(Underlining by us)
The scope of Article 30{1) of the Constitution of India was
L
).
..... '
'
ALL BIHAR CHRISTIAN SCHOOLS ASSCN. v. STATE OF BIHAR (SINGH, J.] 61
again considered by a nine Judges Constitution Bench of this Court in
A
the Ahmedabad St. Xavier's College Society & Anr. etc. v. State of
Gujarat & Anr., [ 1975] 1 SCR 173. Ray, C.J. observed thus:-
"The minority institutions have the right to administer institutions. This right implies the obligation and duty
of the minority institutions to render the very best to the
students. In the right of administration, checks and
balances in the shape of regulatory measures are required
to ensure the appointment of good teachers and their
conditions of service. The right to administer is to be
tempered with regulatory measures to facilitate smooth
administration. The best administration will reveal no
trace or colour of minority. A minority institution should
shine in exemplary eclecticism the administration of the
institution. The best compliment that can be paid to a
minority institution is that it does not rest on or proclaim
its minority character.
_.,
B
c
D
Regulations which will serve the interest of the
students, regulations which will serve the interests of the
teachers are of paramount importance in good administration. Regulations m the interest of efficiency of
teachers, discipline and fairness in administration are
necessary for preserving harmony among affiliated instiE
tutions (Pages 196-197)
In the field of administration it is not reasonable to
claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in
F
order to ensure that the administration is efficient and
sound and will serve the academic needs of the institution.
The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good
administration. (Page 200)"
·
(Underlining by us)
G
Mathew, J. discussing what type of action by the State would amount
to the abridgement of the right guaranteed under Article 30( 1) of the
Constitution of India observed at pages 265-266 thus:-
"The application of the term 'abridge' may not be
H
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B
c
D
E
F
G
62
SUPREME COURT REPORTS
[ 1988) 2 S.C.R.
difficult in many cases but the problem arises acutely in
certain types of situations. The important ones are where
a law is not a direct restriction of the right but is designed
to accomplish another objective and the impact upon the
right is secondary or indirect. Measures which are directed
at other forms of activ.ities but which have a secondary or
direct or incidental effect upon the right do not generally
abridge a right unless the content of the right is regulated.
As we have already said, such measures would include
various types of taxes, economic regulations, laws regulating the wages, measures to promote heahh and to preserve hygiene and other laws of general application. By
hypothesis, the law, taken by itself, is a legitimate one,
aimed directly at the control of some other activity. The
question is about its secondary impact upon the admitted
area of administration of educational institutions. This is
especially a problem of determining when the regulation
in issue has an effect which constitutes an abridgement of
the constitutional right within the meaning of Article
13(2). In other words, in every case the court must
undertake to define and give content to the word 'abridge'
in Article 13(2)( 1). The question to be asked and answered is whether the particular measure is regulatory or
whether it crosses the zone of permissible regulation and
enters the forbidden territory of restrictions or abridgement. So, even if an educational institution established by
a religious or linguistic minority does not seek recognition, affiliation or aid, its activity can be regulated in
various ways provided the regulations do not take away or
abridge the guaranteed right. Regular tax measures,
economic regulations, social welfare legislation, wage and
hour legislation and similar measures may, of course have
some effect upon the right under Article 30(1). BJt where
the burden is the same as that borne by others engaged in
different forms of activity, the similar impact on the right
seems clearly insufficient to constitute an abridgement. If
an educational institution established by a religious
minority seeks no recognition, affiliation or aid, the state
may have no right to prescribe the curriculum, syllabi or
the qualification of the teachers."
In Lilly Kurian v. Sr. Lewine & Qrs., [1979] 1 SCR 820 another
H Constitution Bench of this Court considered the scope, ambit and the
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4
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AIL BJHAR CHRISTIAN SCHOOLS ASSCN. v. STA1E OF BlliAR [SINGH, J.] 63
nature of right of linguistic and religious minorities under Article
A
30(1) of the Constitution. A.P. Sen, J. speaking for the Court held
thus:
"Protection of the minorities is an article of faith in the
Constitution of India. The right to the administration of
institutions of minority's choice enshrined in Article 30(1) B
means~ 'management of affairs' of the- institution. This
right is, however, subject to the regulatory power of the
State. Article 30( 1) is not a charter for maladministration;
regulation, so that the right to administer may be better
exercised for the benefit of the -institution is permissible;
but the moment one goes beyond that and imposes, what c
is in truth, not a mere regulation but an impairment of the
right to administer, the Article comes into play and in the
interference cannot be justified by pleading the interest of
the general public; the interests justifying interference can
only be the interest of the minority concerned."
D
In view of these decisions it is now well-settled that minorities
based on religion or language, have fundamental freedom to establish
and manage educational institutions of their own choice, but the
State has right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers, ensuring
health, hygiene and discipline and allied matters. Such regulatory E
provisions do not interfere with the minorities' fundamental right of
administering their educational institutions; instead they seek to
ensure that such institution is administered efficiently, and that
students who come out of minority institution after completion of
their studies are well equipped with knowledge and training so as to
stand at par in their avocation in life without any handicap. If F
regulatory provisions indirectly impinge upon minorities' right of
administration of their institution, it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions
themselves. If the minority institution seeks affiliation or recognition
from the State or Education Board the State has the right to presG
cribe syllabi and terms and conditions for giving such affiliation or
recognition or extending grants in aid. Minority institutions may be
categorised in three classes, (i) educational institutions which neither
seek aid nor recognition from the State, (ii) institutions that seek aid
from the State, and (iii) educational institutions which seek recogniH
tion but not aid.· Minority institutions which fall in the first category
64
SUPREME COURT REPORTS
[ !988] 2 S.C.R.
A
are free to administer their institution in the manner they like, the
State has no power under the Constitution to place any restriction on
their right of administration. This does not mean that an unaided
minority institution is immune from operation of general laws of the
land. A minority institution cannot claim immunity from contract law
tax measures, economic regulations, social welfare legislation, labour
and industrial laws and similar other measures which are intended to
meet the need of the society. But institutions falling within the
second and third categories are subject to regulatory provisions which
the State may impose. It is open to the State to prescribe conditions
for granting recognition or disbursing aid. These conditions may
require a minority institution to follow prescribed syllabus for examination. courses of study, they may further regulate conditions of
C employment of teachers, discipline of students and allied matters. The
object and purpose of prescribing regulations is to ensure that
minority institutions do not fall below the standard of excellence
expected of an educational institution and that they do not fall
outside the main stream of the nation. A minority institution must
D a]so be fully equipped with educational excellence to keep in step
with others in the State; otherwise the students coming out of such
institutions will not be fully equipped to serve the society of the
nation. While the State has every right to prescribe conditions for
granting recognition or disbursing aidJ it cannot under the guise of
that power prescribe onerous conditions compelling the minority
E institution to surrender their rights of administration to the Government. On the one hand the State is under an obligation to ensure that
educational standards in the recognised institutions must be according to the need of the society and according to standards which
ensure the development of personality of the students in turning out
to be civilizedJ useful members of the society, and to ensure that the
'
F public funds disbursed to the minority institutions are properly utilised for the given purpose.