# ~atya Div Bushahri v. PadamDev .and Others

- **Citation:** [1955] 1 S.C.R. 568
- **Court:** Supreme Court of India
- **Decided:** 1954-01-06
- **Bench:** Mehr Chand Mahajan C.J, S. R. DAs, Ghulam Hasan, Bhagwati, Jagannadhadas Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/atya-div-bushahri-v-padamdev-and-others-361
- **Pages:** 21

## Headnote

Constitution of India-Articles 29, 30(1), 337 Second ProvisaGovernment Circular-Prohibiting
admission
into
Schools
main·
tained or aided by State on the ground of language of citizens-
)-.__
Such circular whether ultra vires of Articles 29(2) and 337 Second
~
Provisa-Article 29(1)
and 30(1)
of the
Constitution-Word
"Namely"-Meaning of.
The Education Society of Bombay (respondent No. I) has been
running a recognised
Anglo-Indian
School
called Barnes
High
School at
Deolali which receives aid from the
State of Bombay.
J and G are its Directors. English is used in the said school as the
medium of instruction. The mother tongue of the Anglo-Indians is
English. The State of Bombay issued a circular order on 6th
January, 1954, headed "Admission to
Schools
teaching
through
the medium of English."
The operative
portion
of the
order
·enjoined that no primary or secondary school shall from the date
·Of the order admit t~ a class where English is used as the medium
-
-
...
-
-
-
·s.c.R.
SUPREME COURT REPORTS
569
_..,f instruction any pupil other than a pupil belonging to a section
nf citizens the language of which is English namely, Anglo-Indians
and citizens of non-Asiatic descent. One P, a citizen of India and
member of Indian Christian Community alleging English to be the
mother tongue of his daughter, and one: M, a citizen of India and
,member of Gugrati Hindu Community alleging Gujrati to be the
mother tongue of his son, were refused admission to the school for
their respective wards on the basis of the aforesaid order
dated
6th January, 1954. The Society and its two Directors presented an
application under article 226 of the Comtitution in the High Court
-<Jf Bombay praying for the issue of a Writ in the nature of
Mandamus restraining
the
State of Bombay
and
its
officers
from enforcing the said order and to allow the petitioners to admit
In the school any children of non-Anglo-Indian citizens or citizens
of the Asiatic descent and to educate them through the medium of
English.
Similar applications were made by P and hii daughter
and by M and his son. All these applications
were consolidated,
beard together and accepted by the High
Court which made an
-order as prayed. The State of Bombay came in appeal before the
-Supreme Court. Held: (1) that the impugned order denying the
·right of students who are not Anglo-Indians or are of Asiatic
1iescent to be admitted to a recognised Anglo-Indian School (in this
-case the Barnes High School) which receives aid from the State and
which imparts education through the medium of English is void
and
unenforceable as
it
offends against the fundamental right
guaranteed to all
citizens
by article 29(2)
of the
Constitution,
because
(a) The language of article 29(2) pf the Constitution is wide
-and unqualified and covers all citizens whether they belong to the
:majority or minority group.
-
(b) The protection given by the said article extends against
'the State or anybody who denies the right conferred by it.
( c) The said article confers a special right on citizens for
admission into the educational institutions maintained or aided by
-the State.
(d) The marginal note referring
t:o minorities does not
control the plain meaning of the language in which article 29(2)
has been couched.
The word "namely'' imports enumeration of what is comprised
in the preceding clause.
In other words it equates
what follows
·with the clause described before.
·
(2) Barnes High School at Deolali and other Anglo-Indian
·Schools have a right
to admit
non-Anglo-Indian
students
and
~tudents of ".'-sia.tic
descent
inasmu~h as
article 337 proviso 2
imposes an obligation on the Anglo-Indian Schools to make. available
at least 40 per cent. of the annual admissions to non-Anglo-Indian
students as a condition precedent of their receiving grant from
'the Government and the impugned order is UFlconstitutional as it
1954
The Stat qf
mbay
v.
Bombay Education
Society and
Others.
1954
·The State of
Bombay '
v.
Bombay Education
Society an

## Text

_Characters 0–39,954 of 48,434. This is a partial read: ask again with offset=39954 for what follows._

1954
~atya Div
Bushahri
v.
PadamDev
.and Others.
Jl enkatarama
AJ)'ar J.
1954
May 26.
.568
SUPREME COURT REPORTS
(1955]
Act. To hold that Government servants are,
as such
and as a class, disqualified to act as polling agents
would be to engraft an exception to the statute,
which is not there.
Accordingly, we reaffirm the view taken by us that
the appointment of a Government servant as
poll~ng
agent does
not, without
more, contravene sect10n
123(8). It is scarcely necessary to repeat our observation in the original judgment that "if it is made out
that the candidate or his agent had abused the right to
appoint a Government servant as
polling · agent by
exploiting the situation for furthering
his
election
prospects, then the. matter can be dealt with as an
infringement of ·section 123(8)." In the result, this
petition is
dismissed ; but under
the
circumstances,
without costs.
Petition dismissed.
THE STATE OF BOMBAY
v.
BOMBAY EDUCATION SOCIETY AND OTHERS.
(With COnnected Appeals)
[MEHR
CHAND MAHAJAN C.J., S. R. DAs, GHULAM
HASAN, BHAGWATI and JAGANNADHADAS JJ.J
Constitution of India-Articles 29, 30(1), 337 Second ProvisaGovernment Circular-Prohibiting
admission
into
Schools
main·
tained or aided by State on the ground of language of citizens-
)-.__
Such circular whether ultra vires of Articles 29(2) and 337 Second
~
Provisa-Article 29(1)
and 30(1)
of the
Constitution-Word
"Namely"-Meaning of.
The Education Society of Bombay (respondent No. I) has been
running a recognised
Anglo-Indian
School
called Barnes
High
School at
Deolali which receives aid from the
State of Bombay.
J and G are its Directors. English is used in the said school as the
medium of instruction. The mother tongue of the Anglo-Indians is
English. The State of Bombay issued a circular order on 6th
January, 1954, headed "Admission to
Schools
teaching
through
the medium of English."
The operative
portion
of the
order
·enjoined that no primary or secondary school shall from the date
·Of the order admit t~ a class where English is used as the medium
-
-
...
-
-
-
·s.c.R.
SUPREME COURT REPORTS
569
_..,f instruction any pupil other than a pupil belonging to a section
nf citizens the language of which is English namely, Anglo-Indians
and citizens of non-Asiatic descent. One P, a citizen of India and
member of Indian Christian Community alleging English to be the
mother tongue of his daughter, and one: M, a citizen of India and
,member of Gugrati Hindu Community alleging Gujrati to be the
mother tongue of his son, were refused admission to the school for
their respective wards on the basis of the aforesaid order
dated
6th January, 1954. The Society and its two Directors presented an
application under article 226 of the Comtitution in the High Court
-<Jf Bombay praying for the issue of a Writ in the nature of
Mandamus restraining
the
State of Bombay
and
its
officers
from enforcing the said order and to allow the petitioners to admit
In the school any children of non-Anglo-Indian citizens or citizens
of the Asiatic descent and to educate them through the medium of
English.
Similar applications were made by P and hii daughter
and by M and his son. All these applications
were consolidated,
beard together and accepted by the High
Court which made an
-order as prayed. The State of Bombay came in appeal before the
-Supreme Court. Held: (1) that the impugned order denying the
·right of students who are not Anglo-Indians or are of Asiatic
1iescent to be admitted to a recognised Anglo-Indian School (in this
-case the Barnes High School) which receives aid from the State and
which imparts education through the medium of English is void
and
unenforceable as
it
offends against the fundamental right
guaranteed to all
citizens
by article 29(2)
of the
Constitution,
because
(a) The language of article 29(2) pf the Constitution is wide
-and unqualified and covers all citizens whether they belong to the
:majority or minority group.
-
(b) The protection given by the said article extends against
'the State or anybody who denies the right conferred by it.
( c) The said article confers a special right on citizens for
admission into the educational institutions maintained or aided by
-the State.
(d) The marginal note referring
t:o minorities does not
control the plain meaning of the language in which article 29(2)
has been couched.
The word "namely'' imports enumeration of what is comprised
in the preceding clause.
In other words it equates
what follows
·with the clause described before.
·
(2) Barnes High School at Deolali and other Anglo-Indian
·Schools have a right
to admit
non-Anglo-Indian
students
and
~tudents of ".'-sia.tic
descent
inasmu~h as
article 337 proviso 2
imposes an obligation on the Anglo-Indian Schools to make. available
at least 40 per cent. of the annual admissions to non-Anglo-Indian
students as a condition precedent of their receiving grant from
'the Government and the impugned order is UFlconstitutional as it
1954
The Stat qf
mbay
v.
Bombay Education
Society and
Others.
1954
·The State of
Bombay '
v.
Bombay Education
Society and
Others.
570
SUPREME COURT REPORTS
[1955]
prevents the Anglo-Indian schools from perforn1ing their con.stitutional obligation and exposes them to the risk of forfeiting
their
constitutional right to the special grant.
In view of the fundamental right guaranteed
to a minority
like the Anglo-Indian community under article
29( I) to conserve
its own language, script and culture and the right to establish and
administer
educational
institutions
of its
own
choice
under
article 30( 1) there is implicit therein the right to impart
instruction in its own institutions
to the children of its O'i'Vn community
in its O\Vn language and the State by its police power cannot determine the medium of instruction in opposition to such fundamental
right.
Bhola Prasad v. The King-Emperor ([1942] F.C.R. 17, 25), The
Queen v. Burah (L.R. 1878 3 App. Cas. 859), The State of Madras
v. Srimathi Champakam Dorairajan ([1951] S.C.R. 525), Pierce v.
Society of Sisters of Holy Names (268 U.S. 508), Yusuf Abdul Aziz
v. State
(A.LR.
1951
Born.
470),
Sm. Anjali Roy v. State of
West Bengal (A.l.R. 1952 Cal. 825), The State of Bombay v. Narasu
Appal
Mali
(A.LR.
1952
Born. 84), Srinivasa Aiyar v. Sarastvathi Ammal (A.LR. 1952 Mad. 193), Dattatraya Motiram More v.
State of Bombay (A.LR. 1953 Born. 311), Punjab Province v. Daulat
Singh (1946 L.R. 73 I.A. 59), Robert T. Meyei· v. State of Nebraska
(262 U.S. 390), August Bartels v. State of Iowa (262 U.S. 404) and
Ottawa Separate Schools Trustees v. Mackell (L.R. 1917 A.C. 62)
referred to.
C1v1L
APPELLATE
JuR1so1cT10N :
Civil
Appeals
Nos. 64 to 66 of 1954.
Appeals
under article 132(1) of the
Constitution
of India from the Judgment and Order dated the 13th
February, 1954, of the High Court of Judicature at
Bombay in Special Applications Nos. 259, 288 and 289
of 1954 respectively.
M.
C. Setalvad, Attorney-General for India, and
C. K. Daphtary, Solicitor-General for India ( G. N. Joshi,
_ M. M. Desai, Porus A. Mehta and P. G. Gokhale, with
them) for the appellant in all the appeals.
N. A. Palkhivala, /. B. Dadachanji, /. K. Munshi
and Rajinder Narain for respondents Nos. 1 and 2 in
C. A. No. 64.
Frank Anthony, /. B. Dadachanji, /. K. Munshi
and Rajinder Narain for respondent No. 3.
N. A. Palkhivala, /. B. Dadachanji, /. K. Munshi
and Rajinder Narain for the respondent No. 1 in C. A.
No. 65.
...
•
.,.
'
• ..
-
S.C.R.
SUPREME COURT REPORTS
571
Frank Anthony and Rajinder Narain for respondent ·No. 2.
N. A. Palkhivala, Frank Anthony, /. B. Dadachanji,
]. K.
Munshi and Rajinder Narain
for respondent
No. l in C. A. No. 66.
Frank Anthony, /. B. Dadachanji, /. K. Munshi
and Rajinder Narain for respondent No. 2.
1954.
May
26. The Judgment of the Court was
delivered by
DAs J.-These three appeals, filed by the State of
Bombay,
with a certificate granted by the Bombay
High Court, are
directed against the Judgment and
,.. · • • Order pronounced by that High Court on the 15th February,
1954, on three Civil Applications under article
226. By that Judgment and Order the High Court
held that the circular order No. SSN 2054(a) issued by
the State of Bomb~y, Education Department, on
the
6th January, 1954, was bad in that it contravened the
provisions of article 29(2)
and article 337 and directed
the issue of a writ prohibiting the State from enforcing the order against the authorities of Barnes High
School established and run by
the Education Society
of Bombay (hereinafter referred as the Society).
-
The Society,
~hich is the first respondent in Appeal
No. 64 of· 1954, is a Joint Stock Company incorporated
under the Indian Companies Act, 1913. The other two
respondents
in
that
appeal-Ven'ble
Archdeacon
A. S. H. Johnson and Mrs. Glynne Howell are members
;. .. and Directors of the Society. The Ven'ble Archdeacon
A. S. H. Johnson is also the Secretary of the Society.
Both of them are citizens of India and are members of
the Anglo-Indian Community. The mother tongue of
these respondents as of other members of the Anglo-
- Indian Community is English.
In the State of Bombay there are in all 1403
Secondary Schools.
1285 of these Schools import education through the medium of some language other than
At
English.
Th.::
remaining ll8 Schools have adopted
English as the medium of instruction. Thirty out of
these ll8 Schools are Anglo-Indian Schools. In these
thirty Schools there are three thousand Anglo-Indian
18-87 s. C. India/59
1954
The State of
Bombay
v.
Bombay Eduration
Society and
Others •
1954
The State of
Bombay
v.
Bombay Education
Society and
Others.
DasJ.
572
SUPREME COURT REPORTS
[1955] .1
students forming 37 per cent. of the total number of
students recemng instruction
in
those
Anglo-Indian
Schools. The rest 63 per cent. consist of non-AngloIndian students.
In furtherance of its object the Society in 1925
established and since then has been conducting and
running a School known as Barnes High School at
Deolali in Nasik District in the State of Bombay. The
School
is a recognized Anglo-Indian School having
Primary, Secondary and High School classes. The School
receives
considerable aid from
the State. The total
number of students in the School in December, 1953,
was 415, out of which 212 were Anglo-Indians and the
remaining 203 belonged to other Indian Communities.
In all the classes in the said School English is used as the ... •
medium of instruction and has been so used since the
inception of the School. The entire staff of the School
consist of 17 teachers who, with the exception of one,
are trained and qualified to teach o!ily in English, the
exception being the teacher who teaches Hindi which
is the second language taught in that School.
On the 16th December, 1953, the Inspector of AngloIndian
Schools,
Bombay
State,
and Educational
Inspector, Greater Bombay, sent a circular letter to the
Headmaster of Barnes High School intimating that the
Government had
under
consideration
the
issue
of
orders regulating admissions to Schools in which the
medium of instruction was
English. The orders under
consideration were stated to be on the following lines,
namely, (1) that from the next School year admissions
to English medium School should only be confined to• •
children belonging to the Anglo-Indian and European
Communities, and (2) that those pupils who, prior to '
the issue of the orders, were studying in recognized
Primary or Secondary English medium Schools, could
continue to do so. The letter in conclusion advised_
the Headmaster not to make any admission for the
academic year beginning from January, 1954, of pupils
other than Anglo-Indians
or
Europeans
pending
y.
further orders which, it was said, would issue shortly.
The contemplated order came on the 6th January,
1954, in the shape of circular No. SSN 2054(a) headed
'
•
-
-
, ..
-
S.C.R.
SUPREME COURT REPORTS
573
"Admi.5sions to Schools teaching through the medium
of English". In paragraphs 1, 2 and 3 of this
circular
- reference was made to the development of the policy
of the Government regarding the medium of instruction
at the Primary and Secondary stages
of education. It
was pointed out that since
1926--27 the University of
Bombay
permitted
pupils
to
answer
questions
in
modern Indian languages at the Matriculation examination in all subjects except English and other foreign
languages and that this had resulted in 1285 out of
1403 schools in the State ceasing· to use English as the
medium of instruction.
It was
then
stated
that in
1948 instructions were issued to all English teaching
schools
that
admissions
to
such
Schools
should
_.., 4ordinarily be restricted to pupils who did not speak any
of the regional languages of the State or whose mother
tongue was English. It was said that in 1951, after a
review of the position, a general policy had been laid
down to the effect that admission to such schools
should be restricted only to four categories of children
therein mentioned. Reference
was
then made to the
recommendations of the Secondary Education Commis-
• sion
that
the mother
tongue
or the
regional
~ language should generally be the medium of instruction throughout the Secondary
school stage,
subject
to the provision for special facilities for linguistic
minorities. In paragraph 4 of the Circular order it
was
stated that the Government felt that the stage
had then been reached for
the discontinuance
of
English as a medium of instruction and that the
Government had c;lecided that
subject to the facilities
.·~
~to be given to linguistic minorities all special and
interim concessions in respect of admission to Schools
(including Anglo-Indian Schools) using English as the
medium of instruction, should thereafter be withdrawn.
Then came the operative part of the order, the relevant
portion of which is set out below :
"5.
Government
has
accordingly
decided
as
follows:
~ ""'-
Subject to the exceptions
hereinafter
provided,
no
primary or secondary school · shall from the date of
these orders admit to a class where English is used as
•
1954
The Stat• of
Bombay
v.
Bombay Education
Society and
Others.
Das].
1954
The Stat' of
Bombay
v.
Bombay Education
Socfrty and
Others.
Das].
574
SUPREME COURT REPORTS
[1955J
a medium of instruction any pupil other than. a. pupil
belonging to a section of citizens the language of which
is English namely, Anglo-Indians and citizens of nonAsiatic descent."
There were three exceptions made to this general
order in favour of three categories of students who,
prior to the date of the order, were studying through
the medium of English. Provision was
made for
admission of foreign pupils, other than those of Asiatic
descent, belonging to foreign
possessions in India, to
Schools using English as a medium of instruction or to
any other School of their choice. The concluding paragraph of the Order was in the following terms :-
"?. All Schools
(including Anglo-Indian Schools)
. '
using, English as a medium of
instruction
should • '
<cgulate admissions according to this circular. With a
view
to facilitating the admission of pupils who under
these orders are not intended to be educated through
the medium of English, these
schools are advised
to
open progressively divisions
of Standards using Hindi
or an Indian language
as
the
medium of instruction,
starting from Standard I in 1954. Government will
be prepared to consider the payment of additional
grant on merits for this purpose."
The above order was followed by another Circular
No. SSN 2054(b) issued on the same date drawing the
attention of the heads of all Anglo-Indians Schools to
the Circular No. SSN 2054( a) of the same date, and
requesting them to regulate thereafter admissions to
their Schools in accordance with that circular. It was
stated
that the
orders in that
circular
were not
,i
intended to affect the total grant available for distribu- '
tion to Anglo-Indian
Schools
under
the Constitution
but that the Government
would
be
prepared
to
consider,
in cor\sultation
with
the
State
Board
of
Anglo-Indian Education, whether in consequence of
this order, any change was necessary in the existing ·
procedure for the equitable distribution. of the total
grant among individual Anglo-Indian
Schools.
In
conclusion the . attention of the Headmasters was parti-
."4
cularly invited to the concluding sentence of paragraph
7 of that circular order, and it was pointed out that
•
-
..
•
•
-
A • S.C.R.
SUPREME COURT REPORTS
575
the
grants
contemplated
to be
in addition to
the
article 337 .
therein
were intended
grants
available
under
Major Pinto, who is a citizen of India, belongs to
the Indian Christian Community. He claims that his
mother tongue,
as that of a section of the Indian
Christian Community, is English and that his entire
family speak and use English at home. Two of his
sons were then studying in the Barnes High School and
were being educated through the medium of English.
On 2nd February, 1954, Major Pinto accompanied by
his daughter Brenda approached the Headmaster of
Barnes High School seeking admission for her to the
said
School. He was
informed by
the Headmaster
Y •about the order issued by the State of Bombay on the
6th January, 1954, and was told that, in view of the
said order, the Headmaster was compelled i:o refuse
admission to her since she did not belong to the AngloIndian Community nor was she of non-Asiatic descent,
although she had
all the necessary
qualifications for
admission to the said School.
~
Dr. Mahadeo Eknath Gujar is also a citizen of India
and is a member of the Guzrati Hindu Community.
His mother tongue is
Guzrati. He desires that his
son Gopal Mahadeo Gujar should become a medical
practitioner
and
go abroad for higher medical studies
and qualifications and thought that his
son should be
educated through the medium of English. He found
the
Barnes High School, which teaches through the
~ medium of English, as suitable for the needs of his son.
'Accordingly on the lst February,
1954, Dr. Gujar
accompanied by his
son approached
the
Headmaster
of Barnes High School seeking admission for his son to
the said School but the Headmaster, in view of the
Government Circular Order, felt bound to turn down
such request as the boy did not belong to the AngloIndian Community and was not of non-Asiatic descent,
although he had all the necessary qualifications for
"'< ,admission to the school. There have been similar
other applications for admission which have had
to be
rejected on similar grounds.
1954
The State of
Bombay
v.
Bombay Education
Society and
Others.
Das].
'
1954
The State of
Bombay
v.
Bombay Education
Society and
Others.
Das].
576
SUPREME COURT REPORTS
[1955]
Thereupon
the Society
and Ven'ble
Archdeacon
A.S.H. Johnson and Mrs. Glynne Howell in February,
1954, presented before the High Court of Bombay the
Special Civil Application No. 259 of 1954 under article
226 of the Constitution praying for the issue of a writ
. )..
in the nature of mandamus restraining the State of
Bombay, its Officers, servants and agents from enforc- >·
ing the said order and from taking any steps or
proceedings in enforcement of the same and compelling
the respondent to withdraw or cancel
the said
purported order and to allow the petitioner to admit to
any standard in the said school any children of nonAnglo-Indian citizens or citizens of Asiatic descent and
to educate them through the medium of English
language.
Likewise Major Pinto and
his
daughter '-
Brenda and Dr. Gujar and his son Gopal made similar
applications,
being Nos. 288 and 289 of 1954 respective-
! y,
praying for similar reliefs. The three applications
were consolidated on 11th February, 1954, and were
heard together and were disposed of by the same Judgment and Order pronounced on the 15th February,
1954. The High Court accepted
the petitions and
made an order as prayed. The State of Bombay has
now come up in appeal against the said Orders.
~
On the facts of these cases two questions arise
namely (1) as to the right of students who are not
Anglo-Indians or who are -of Asiatic descent to be
admitted to Barnes High School which is a recognized
Anglo-Indian School which imparts education tprough
the medium of English, and (2) as to the right of the
said Barnes High School to admit non-Anglo-Indiai; ;
students and students of Asiatic descent. The questions, thus . confined to the particular facts of these
.cases, appear to us to admit of a very simple solution,
as will be presently explained.
Re (1) : As already indicated Barnes High School is
a recognized Anglo-Indian School which has all along
been imparting education
through the
medium of
English. It receives aid out of State funds.
The
<laughter of Major Pinto and the son of Dr. Gujar are, .,,,.
citizens
of India and they claim admission to Barnes
High School in exercise of the fundamental right said
•
,
-
•
S.C.R.
SUPREME COURT REPORTS
577
to have been guaranteed to them by article 29(2) of
the
Constitution. The School has declined to admit
either of them in view of the circular order of the
State of Bombay. The provisions of the circular order,
issued by the State of Bombay on the 6th January,
1954,
have already
been
summarised
above.
The
operative portion of the order, set forth in clause 5
thereof, dearly
forbids
all Primary or
Secondary
Schools, where English is used as a medium of instruction, to admit to any class any pupil other than a
pupil belonging to a section of citizens, the language
of which is English namely Anglo-Indians and citizens
of non-Asiatic descent. The
learned Attorney-General
contends that this clause does not limit admission
only to
Anglo-Indians
and citizens of
non-Asiatic
descent, but permits admission of pupils belonging to
any other section of citizens the language of which is
English. He points out that one of the meanings of the
word "namely" as given in Oxford English Dictionary,
Volume VII, p. 16 is "that is to say" and he then
refers us to the decision of the Federal Court in Bhola
Prasad v. The King-Emperor(1), where it was stated
that the words "that is to say" were explanatory or
illustrative words and not words. either of amplification
or limitation. It should, however, be remembered that
those
observations were made in connection with one
of the Legislative heads, namely entry No. 31 of the
Provincial Legislative List. The fundamental proposition . enunciated in The Qu~en v. Burah(2)
was that
Indian Legislatures within their
own
sphere had
plenary powers of legislation as large and of the same
nature as those of Parliament itself.
In that view of
the matter every entry in the legislative list had to be
given the widest connotation and it was in that context
that the worods "that is to say," relied upon by the
learned Attorney-General,. were interpreted in that way
by the Federal Court. To do otherwise would have
been to cut down the generality of the legislative head
itself. The same reason cannot apply to the cop.struction of the Government order in the present case for the
considerations
that applied in
the
case
before the
(1) [1942] F.C.R. 17 at p. 25.
(2) L.R. (1878) 3 App. Cas. 859.
1954
The State of
Bombay •
v.
Bombvy Eduction
Society and
Others.
Das].
r'
1954
llJi ·-
The State of
• Bombay
v.
Bombay Education
Society and
Othtrs.
Das].
•
578
SUPREME COURT REPORTS
[1955]
Federal
Court
have no application
here.
Ordinarily
the word "namely" imports enumeration of what is
comprised in the preceding clause. In other words it
ordinarily serves
the purpose of equating what follows
with the clause described before. There is good deal of
force, therefore, in the argument that the order restricts
admission only to Anglo-Indians
and citizens of
nonAsiatic descent whose language is English. This interpretation finds support from the decision mentioned
in clause 4 to withdraw all special and interim concessions in respect of admission to Schools referred to in
clause 4. Facilities to linguistic minorities provided for
in the circular order, therefore, may be read as contemplating facilities to be given only to the Anglo-Indians
and citizens of non-Asiatic descent.
Assuming, however, that under the impugned order
a section of
citizens,
other than
Anglo-Indians
and
citizens
of
non-Asiatic
descent,
whose
language
is
English,
may also get
admission,
even then citizens,
whose language is not English, are certainly debarred
by the order from admission to a School where English
is used as a medium of instruction in all the classes.
Article 29(2) ex facie puts no limitation or qualification
on the expression "citizen". Therefore, the construction sought to be put upon clause 5 does not apparently
help the learned Attorney-General, for even on· that
construction the order will contravene the provisions
of article 29(2).
The learned Attorney-General then falls back upon
two
contentions
to
avoid
the
applicability of
article 29(2). In the first place he contends that article 29(2)
does not confer any fundamental right on all citizens
generally but guarantees the rights of citizens of minority groups by providing that they must not be denied
admission to
educational
institutions maintained by
the State or receiving aid out 9£ State funds on grounds
only of religion, race, caste, language or any of them
and he refers us to the marginal note to
the article.
This is certainly' a new contention put forward before
us for the first time. It does not appear to have been
specifically taken in the affidavits in opposition filed in
the High Court and there is no indication in the
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•
•
' )
•
•
S.C.R.
SUPREME COURT REPORTS
579
Ju<lgment under appeal that it was advanced in this
form before the High Court. Nor was this point specifically made a ground of appeal in the petition for leave to
appeal to this Court. Apart from this, the contention
appears to us to be devoid of merit. Article 29(1) gives
protection to any section of
the
citizens having a
distinct language, script or culture by guaranteeing
their right to conserve the same. Article 30(1) secures
to all minorities, whether based on religion or language,
the right to establish and
administer
educational
institutions of their
choice.
Now suppose
the
State
maintains an educational institution to help conserving
the distinct language, script or culture of a section of
the citizens or makes grants in aid of an educational
institution established by a minority community based
on religion or language to
conserve their distinct
language, script or culture, who can claim the protection of article 29(2) in the matter of admission into any
such institution ? Surely the citizens of the very section whose language, script or culture is sought to be
conserved by the institution or the citizens who belong
to the very minority group which has established and
is administering the institution, do not need any protection against themselves and therefore article 29(2)
is
not designed for the protection of this section or this
minority. Nor do we see any reason to limit article 29(2)
to citizens belonging to a minority group
other than
the section or the minorities referred to in article 29(1)
or article 30(1), for the citizens, who do not belong to
any minority group, may quite conceivably need
this
protection just as much as the citizens of such other
minority groups. If it is urged that the citizens of the
majority group are amply protected by article 15 and
do not require the protection of article 29(2), then there
are several obvious answers
to
that
argument.
The
language of artice 29(2) is wide and unqualified and
may well cover all citizens whether they belong to the
majority or minority
group. Article 15
protects
all
citizens against the State whereas the protection of
article 29(2) extends against the State or any body who
denies
the right
conferred by it. Further article
15
protects all
citizens
against discrimination generally
but article 29(2) is a protection against . a particular
1954
The Stale of
Bombay
v.
Bombay Education
Society and
Others.
Dasj .
1954
The Siok of
Bombay
••
Bombay Eclucation
Society and
Others.
Das].
580
SUPREME COURT REPORTS
[1955]
species of wrong namely denial of admission into educational institutions of the specified
kind. In the
next
place article 15 is quite general and wide in its terms
and applies to all citizens, whether they belong to the
majority or minority groups, and gives protection to
all the citizens against discrimination by the State on
certain specific grounds. Article 29(2) confers a special
right on citizens
for admission into educational institutions maintained or aided by the State. To limit this
right only to citizens belonging to minority groups will
be to provide a double protection for such citizens and
to hold that the citizens of the majority group have no
special educational rights in the nature of a right to be
admitted into an educational institution for the maintenance of which they make contributions by way of
taxes. We· see no cogent reason for such discrimination. The heading under which articles 29 and 30 are
grouped together-namely "Cultural
and
Educational
Rights"-is quite general and does
not
in terms
contemplate such differentiation. If the fact that the
·institution is maintained or aided out of State funds is
the basis
of this guaranteed right then all citizens,
irrespective of whether they belong to the majority or
minority groups, are alike entitled to the protection of
this fundamental right. In view of all these considerations the marginal note alone, on which the AttorneyGeneral relies, cannot be read as controlling the plain
meaning of the language in which article 29(2) has been
couched. Indeed in The State of Madras v. Srimathi
Champakam Dorairajan( 1 ), this Court has already held
as follows :
"It will be noticed that while clause (1) protects
the language, script or culture of a section of the
citizens, clause (2) guarantees the fundamental right
of an individual citizen. The right to get admission
into any educational institution of the kind mentioned
in clause (2) is a right which an individual citizen has
as a citizen and not as a member of any community or
class of citizens."
In our judgment this part of the contention of the
learned Attorney-General cannot be sustained.
(1) [1951) S.C.R. 525 at p. 530.
' .....
•
' )
•
S.C.R.
SUPREME COURT REPORTS
581
The second
part of the arguments
of the learned
Attorney-General hinges upon the word "only" to be
found in article 29(2). His contention
is
that the
impugned order does not deny admission to any citizen
on the ground only of religion, race, caste, language or
any of them. He maintains with considerable emphasis
that it is incumbent on the State to secure the advancement of Hindu which is ultimately to be our National
language and he stresses the desirability of or even the
necessity, generally
ac~nowiedged by educationalists, for
imparting education through the medium of the pupil's
mother tongue. We have had equally emphatic rejoinder
from learned counsel appearing for the different respondents. Characterising the impugned
circular
as an
unwarranted and wanton encroachment on the liberty
of the parents and guardians to direct the education and
upbringing of their children and wards reliance has been
placed on the following observations of McReynolds J.
in Pierce v. Society of Sisters of Holy Names(
1
) :-
''The
fundamental
theory of liberty upon which
all Governments in this Union repose excludes any
general power of the state to standardize its children
by forcing them · to accept instruction
frot11
public
teachers only. The child is not the mere creature of the
state ; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize
and prepare him for additional obligations."
It is also urged that the main, if not the sole, object
of the impugned order is to discriminate
against, and
if possible
to stifle the language of the Anglo-Indian
Community in utter
disregard of
the constitutional
inhibition. It is pointed out that to compel the AngloIndian Schools to open parallel classes in any
Indian
language will
not necessarily
facilitate
the advancement of the Hindi language for the language adopted
for such parallel classes may not be Hindi. Further the
opening of parallel classes in the same School with an
Indian language as the medium of instruction while the
pupils iii the other classes are taught in English will
certainly not be conducive to or promote the conservation of the distinct language, script or culture which
(1) 268 U.S. 508; 69 L. Ed. w70 at p. 1078.
1954
The State of
Bombay
,..
Bombay Education
Society and
Others.
Das].
1954
T/te State of
Bombay
,y.
Bombay Education
Society and
Others.
Das :J.
582
SUPREME COURT REPORTS
[1955]
1s guaranteed by article 29( 1) to the Anglo-Indian
Community as a section of the ouzens. It is equally
difficult, it is
said, to appreciate why the salutory
principle of imparting education through the medium
of the pupil's mother tongue should require that a pupil
whose mother tongue is not English but is, say, Guzrati,
should be debarred from getting admission only into
an Anglo-Indian School where the medium of instruction 1s English but not from being admitted into a
School where the, medium of i.nstruction 1s a regional
language, say Konkani, which is not the mother tongue
of the pupil. The rival arguments thus formulated on
both sides involve questions of State policy 011 education with which the Court has no concern. The
American decisions founded on the 14th amendment
which refers to due process of law may not be quite
helpful in interpretation of our article 29. We must,
therefore,
evaluate
the
argument
of
the
learned
Attorney-General on purely legal considerations bearing
on the question of constructioq of article 29(2).
The
learned
Attorney-General
submits
that the
impugned.. order does not deny to pupils who are not
Anglo-Indians
or
citizens
of non Asiatic
descent,
admission into an Anglo-Indian School only on the
ground of religion, race, caste, language or any of them
but on the ground that such denial will promote the
advancement of tbe national language and facilitate
the imparting of education through the medium of the
pupil's mother tongue.
He relies
on
a number of
decisions of the High Courts, e.g., Yusuf Abdul Aziz v.
State( 1),
Sm. Anjali Roy v. State of West Bengal(•),
Tlze Stute of Bombay v. Narasu Appa Mali ("), Srinivasa
Ayyar
v.
Saraswatlii
Ammal('),
and
Dattatraya
Motiram More v. State of Bombay('). These decisions,
it should be noted, were concerned with discrimination
prohibited by article 15 which deals witb discrimination generally and not with denial of admission into
educational institutions of certain kinds prohibited by
article 29(2). It may
also be mentioned
that this
(1) A.I.R. 1951 Bon1. 470.
(4) A.LR. 1952 Mad. 193.
(2) A.I.R. 1952 Cal. 825.
(5) A.LR. 1953 Bom. 311.
(3) A.LR. 1952 Hom. 84.
•
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•
•
-
S.C.R.
SUPREME COURT REPORTS
583
Court upheld the actual decision in the first mentioned
Bombay case not on clause (1) but on clause (3) of
article 15. These cases, therefore, have no direct bearing on article 29(2). The arguments advanced by the
learned
Attorney-General
overlook
the
distinction
between the object or motive underlying the impugned
order. and the mode and manner adopted therein for
achieving that object. The object or motive attributed
by the learned Attorney-General to the impugned order
is undoubtedly a laudable one but its validity has to
be judged by the method of its operation and its effect
on the fundamental right guaranteed by article 29~2).
A similar question of construction arose in the case of
Punjab Province v. Daulat Singh(1 ). One of the questions in that case was whether the provision of the new
section 13-A of the Punjab Alienation of Land Act was
ultra vires the Provincial Legislature as contravening
sub-section (I) of section 298 of the Government of
In<lia Act, 1935, in that in some cases that section
would operate as a prohibition on the ground of descent
alone. Beaumont J. in his dissenting judgment took
the view that it was necessary for the Court to consider
the scope and object of the Act which was impugned
so ::is to determine the ground on which such Act was
based, and that if the only basis for the Act was
discrimination on one or more of the grounds specified
in section 298 sub-section ( 1) then the Act was bad but
that if the true basis of the Act was something different
the Act was not invalidated because one of its effects
might be to invoke such discrimination. In delivering
the Judgment of the Board Lord Thankerton at page
74 rejected this view in the words following :
"Their Lordships are unable to accept this
as the
correct test. In their view, it is not a question of
whether the impugned Act is based only on one or more
of the grounds specified in section 298 sub-section (I),
but whether its operation may result in a prohibition
only on these grounds.
The proper test as to whether
there is a contravention of the sub-section is to ascertain the reaction of the impugned Act on the personal
right conferred by the sub-section, and, while
the scope
(1) [1946] LR. 73 I. A. 59•
•
1954
The State of
Bombay
y.
Bombay Education
Society and
Others.
Das].
1954
The Slate of
.Bombay
••
Bombay Education
Socie!Y and
Others.
Das].
584
SUPREME COURT REPORTS
[1955]
and object of ·the Act may be of assistance in determining the effect of the operation of the Act on a
proper" construction of its provisions, if the effect of the
Act so determined involves an infringement of such
personal right, the object of the Act, however laudable,
will not obvite the prohibition of sub-section ( 1) ."
Granting that
the object
of the
impugned
order
before us was
what is claimed for it by the learned
Attorney-General, the question still remains as to how
that object has been sought to be achieved. Obviously
that is sought to be done by denying to al\ pupils,
whose mother tongue is not English, admission into
any School were the medium of instruction is English.
Whatever the object, the immediate ground and direct
cause for the denial is that the mother tongue of the
pupil is not English. Adapting the language of Lord
Thankerton, it may be said that the laudable object of
the impugned order does not obviate the prohibition of
article 29(2) because the effect of the order involves an
infringement of this fundamental right, and 'that effect
is brought about by denying admission only on the
ground of language. The same principle is implicit in
the . decision of this Court in The State of Madras v.
Srimathi
Clzampakam
Dorairajan (').
There
also
the object of the impugned communal G. 0. was to
advance the interest of educationally backward classes
of citizens but, that object notwithstanding, this Court
~truck down the order as un-constitutional because the
modus operandi to achieve that object was directly
based only on one of the forbidden grounds specified
in the article. In our opinion the impugned order
offends
against the fundamental right guaranteed
to
all citizens by article 29(2).
Re 2 :-Coming to the second question as to whether the impugned order infringes
any
constitutional
right of Barnes High School, the learned AttorneyGeneral contends that although any section of the
citizens having distinct language,
script or culture of
its own, has under article 29(1)
the right to conserve
the same and although all minorities, whether based on
religion or language, have, under article 30(1), the right
(1) 1951] S.C.R. 525 at p. 530.
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•
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)I
•
., ..
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-
'
S.C.R.
SUPREME COURT REPORTS
to establish and administer educational institutions of
their choice, nevertheless such sections or minorities
cannot question the power of the State to make
reasonable
regulations
for
all
Schools
including a
requirement that they should give instruction in a
particular language which is regarded as the national
language or to prescribe a curriculum for institutions
which it supports.