# D. A, V. COLLEGE ETC v. STATE OF PUNJAB & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 688
- **Court:** Supreme Court of India
- **Decided:** 1971-05-05
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-a-v-college-etc-v-state-of-punjab-ors-5394
- **Pages:** 28

## Headnote

688
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B
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D. A, V. COLLEGE ETC.
v.
STATE OF PUNJAB & ORS.
May 5, 1971.
IS. M. Sncru, C. J., G. K. MITTER, K. s. HEGDE, A. N. GRovuR
AND P. JAGANMOHAN REDDY, JJ.]
Constitution of India, Arts 29(1), 30(1), 19 and 14.-Guru Nanak University (Amritsar) Act (21 of 1969)-Sections 4(2), (3), 5, els. 2(1) (a) 17
and 18 of Statutes-If violative of the constitutional guarantees-Religious
minority, determination-Arya Samajis, if religious minority.
Constitution of India, Art. 32-Questions of legislative comp~tcnce,
agitation of.
The Arya Samaj is a reformist movement, believes in one God and in
the Vedas as the books of true knowledge. It has a distinct organisation
the membership of which is open to all those who subscribe to its aims
and objects. It admits to membership only those Hindus who >ubscribe
to the deca/ogue and its beliefs in the cannons of Vedic interpretation laid
down by its founder, but, all outsiders who are non-Hindus must undergo
a ceremony of purification or Shudhi. Under bye-law 32 of the Constitution of the Arya Somoj the proceedings of all meetings and sub-committees
will have to be written in Arya Bhasha-in Hindi language and Devnagari
character.
The Dayanand Anglo Vedic College Trust, formed to perpetuate the
memory of the founder of the Arya Samaj runs various institutions in the
Country. The petitioners-<:olleges managed and administered by the Trust
and the Managing Society were, before the Punjab Reorganisation Act, affiliated to the Punjab University constitute<) under East Punjab Act 7 of
1947. After the reorganisation of the State of Punjab in 1969, the Punjab
Legislature passed the Guru Nanak University (Amritsar) Act (21 of 1969)
establishing a University. In exercise of the powers conferred by s. 5 the
first respondent specified the districts in the State of Punjab over which
the University was to exercise its power and notified the date on which
the colleges in the areas so specified ceased to be affiliated to the Punjab
University and were to be associated with and admitted to the privileges
of the new university. Sub-section (2) of s. 4 of the Act enacted that the
University "shall make provision for study and research on the life and
teachings of Guru Nanak and their cultu~al and religious impact in the
context of Indian and World Civilisation; and sub.s. (3) enjoined the Uni·
versity "to promote studies to provide for research in Punjabi language
and literature and to undertake measures for the development of Punjabi
language, literature and culture". By cl. 2(1) (a) of the Statutes ill Ch. V,
framed under the Act, the colleges were required to have a regularly constituted governing body consisting of not more than 20 persons approved
by the senate including, among others, two representatives of the University and the principal of the College, ex officio. Under Cl. (I} (3) if these
requirements were not complied with the affi.liation was liable to be withdrawn. By cl. 18 the staff initially appointed were to be approved by the
Vice Chancellor and subsequent changes had to be reported to the University for the Vice-Chancellor's approval.
And by cl. 18 non-government
colleges were to comply with the requirements !aid down in the ordinance
governing service and conduct of te11chers.
D. ,\, V. COLLEGE V. PUNJAB
689
In petitions filed under Art. 32 of the Constitution it was contended
A
that the main object of the Act was to propagate Sikh religion and to promote Punjabi language in Gurumukhi script and that since the petitioners
-institutions belonged to a minority based on religion and language their
compulsory affiliation violated Arts. 29(1) and 30(1) of the Constitution.
In support of this it was submitted that s. 5(3) of the Act and also els.
2(1)(a), 17 and 18 of the statutes in Ch. V. interfered with the management
of minority institutions and therefore violated the guarantee under Art. 30;
B
that tho statutory
affiliation being compulsory affected
the petitioners
freedom of associatio

## Text

_Characters 0–39,695 of 76,597. This is a partial read: ask again with offset=39695 for what follows._

688
A
B
c
D
E
F
G
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D. A, V. COLLEGE ETC.
v.
STATE OF PUNJAB & ORS.
May 5, 1971.
IS. M. Sncru, C. J., G. K. MITTER, K. s. HEGDE, A. N. GRovuR
AND P. JAGANMOHAN REDDY, JJ.]
Constitution of India, Arts 29(1), 30(1), 19 and 14.-Guru Nanak University (Amritsar) Act (21 of 1969)-Sections 4(2), (3), 5, els. 2(1) (a) 17
and 18 of Statutes-If violative of the constitutional guarantees-Religious
minority, determination-Arya Samajis, if religious minority.
Constitution of India, Art. 32-Questions of legislative comp~tcnce,
agitation of.
The Arya Samaj is a reformist movement, believes in one God and in
the Vedas as the books of true knowledge. It has a distinct organisation
the membership of which is open to all those who subscribe to its aims
and objects. It admits to membership only those Hindus who >ubscribe
to the deca/ogue and its beliefs in the cannons of Vedic interpretation laid
down by its founder, but, all outsiders who are non-Hindus must undergo
a ceremony of purification or Shudhi. Under bye-law 32 of the Constitution of the Arya Somoj the proceedings of all meetings and sub-committees
will have to be written in Arya Bhasha-in Hindi language and Devnagari
character.
The Dayanand Anglo Vedic College Trust, formed to perpetuate the
memory of the founder of the Arya Samaj runs various institutions in the
Country. The petitioners-<:olleges managed and administered by the Trust
and the Managing Society were, before the Punjab Reorganisation Act, affiliated to the Punjab University constitute<) under East Punjab Act 7 of
1947. After the reorganisation of the State of Punjab in 1969, the Punjab
Legislature passed the Guru Nanak University (Amritsar) Act (21 of 1969)
establishing a University. In exercise of the powers conferred by s. 5 the
first respondent specified the districts in the State of Punjab over which
the University was to exercise its power and notified the date on which
the colleges in the areas so specified ceased to be affiliated to the Punjab
University and were to be associated with and admitted to the privileges
of the new university. Sub-section (2) of s. 4 of the Act enacted that the
University "shall make provision for study and research on the life and
teachings of Guru Nanak and their cultu~al and religious impact in the
context of Indian and World Civilisation; and sub.s. (3) enjoined the Uni·
versity "to promote studies to provide for research in Punjabi language
and literature and to undertake measures for the development of Punjabi
language, literature and culture". By cl. 2(1) (a) of the Statutes ill Ch. V,
framed under the Act, the colleges were required to have a regularly constituted governing body consisting of not more than 20 persons approved
by the senate including, among others, two representatives of the University and the principal of the College, ex officio. Under Cl. (I} (3) if these
requirements were not complied with the affi.liation was liable to be withdrawn. By cl. 18 the staff initially appointed were to be approved by the
Vice Chancellor and subsequent changes had to be reported to the University for the Vice-Chancellor's approval.
And by cl. 18 non-government
colleges were to comply with the requirements !aid down in the ordinance
governing service and conduct of te11chers.
D. ,\, V. COLLEGE V. PUNJAB
689
In petitions filed under Art. 32 of the Constitution it was contended
A
that the main object of the Act was to propagate Sikh religion and to promote Punjabi language in Gurumukhi script and that since the petitioners
-institutions belonged to a minority based on religion and language their
compulsory affiliation violated Arts. 29(1) and 30(1) of the Constitution.
In support of this it was submitted that s. 5(3) of the Act and also els.
2(1)(a), 17 and 18 of the statutes in Ch. V. interfered with the management
of minority institutions and therefore violated the guarantee under Art. 30;
B
that tho statutory
affiliation being compulsory affected
the petitioners
freedom of association guaranteed under Art. 19(1) (c); and that ss. 4(:)
and 4(3) contravened Arts. 29(1) & 30(1) and was discriminatory.
The
petitioners further contended that in view of s. 72 of the Reorganisation
Act the State Legislature was not competent to enact s. S which eo1powered
the State Government bf notification to compulsorily disaffiliate from the
Punjab University all colleges including the colleges of minorities and affiliate them to the new University. The respondents contended inter alia,
C
that education being a State subject, the state legislature alone w:i.s competent to legislate in respect of universities and that in any case in a petition
under Art. 32 this Court could not go into the question of legislative competence if the law that was in1pugned did not in any way affect the fundamental rights of the petitioners.
HELD: (1) Whether or not ultimately any fundamental right ;n fact is
threatened or violated so long as a prima facie case of such a threat or
violation is made out a petition under Art. 32 must be entertained. So
long as the petitioner makes out a prima facie case that his fundamental
rights are affected or threatened he cannot be prevented from challenging
that the law complained of, which affects or invades those rights, is invalid
because of \Vant of legislative competence.. But the proposition that once
the petition is entertained, irrespective of whether it is found ultimately
that the Jaw has infringed the fundamental rights of the petitioners, the
vires of the legislation or the competence of the legislature to enact the
impugned legislation must be gone into and determined, is not valid.
If
in fact, the law does not. even on the assumption that it is valid, infringe
any fundamental rights this Court will not decide that question in a pet.i.
tion under Art.
32. The reason is that no petition under Art. 32 will
be entertained if fundamental rights are not affected and if the impugned
Jaw does not affect the fundamental rights it would be contrary to this
principle to determine whether that law in fact has legislative competence
or not. In the present case none of the provisions of the Act offend any
of the fundamental rights of the petitioners. Therefore, it is not necessary to
go into the question of legislative i;ornpetence or to decide upon the validity
of s. 5.
[713A-B; 714H]
Moham1nad Yasin v .. The Town Area Committee, Jala/abad ,(:
Anr.
[1952] S.C.R. 572, Charanjitlal Chowdhury v. The Union of Indio &: Or» ..
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[1970] S.C.R. 869, Kyerbari Tea Co. Ltd. &: Anr. v. State of Assam, [1964]
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5 S.C.R. 975 and Saghir Ahmad v. State of U.P., [1955] S.C.R. 707, refetred to.
(2) ·A reading of Arts. 29(1) and 30(1) would lead to the conclusion
that a religious or linguistic minority has a right to establish and administe1:
educationar institutions of its choice for effectively conserving its distinctive
language script or culture subject to the regulatory power of ~he State
and cl. (2) of Art. 29. While this is so, these two articles are not interlinked nor does it permit of their being always read together. [695F]
H
Rev. Father W. ProQst &: Ors. v. State of Bihar &: Ors., [1969] 2 S.C.R.
73, referred to.
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[1971] SUPP. s.c.R.
(3) Religious or linguistic minorities are to be determined only in relation to the particular legislation which is sought to be impugned; if it ii
State Legislature these minorities have to be determined in relation to the
population of the State.
A linguistic minority for the purpose of _.\rt
30(1) is one which must at least have a separate spoken language; it is not
necessary that the language should also have distinct script. [697BJ
Re: Kera/a Education Bill, 1957, [1959) S.C.R. 995, referred to.
(4) (a) The Arya Samaj,' by "rejecting the manifold absurdities found
in Smriti and in tradition and in seeking a basis in the early literature for
a purer and more rational faith" can be considered to be a religious n1inority, at any rate, as part of the Hindu religious minority in the State of
Punjab. [7000)
(b) The Arya Samajis have a distinct script of their own, namelJ
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Devnagri. [701B]
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(5} The Arya Samajis are entitled to invoke the right guaranteed bJ
Art 29(1), because, they are a section of citizens having a distinct script;
they are entitled to invoke Art. 30(1), because they are a religious minority.
[701BJ
[In view of the holding that Arya Samajis are a religious minority the
Court did not find it necessary to consider whether they are a linguistic
minority or whether they are a religious denomination.] [698G)
(6) Clauses 2(1) (a) and 17 of Ch."V of the Statutes interfere with the
right of the religious minority to adminlster their educational institutions.
These provisions cannot be made as conditions of affiliation non compli·
ance with which would involve disaffiliation; consequently, they have to be
struck down as offending Art. 30(1).
[709B]
Kera/a Education Bill, 1957, (1959] S.C.R. 995, and Rev. Sidhaibhai
Sabhm v. State of Bombay, [1963] 3 S.C.R. 837 referred to.
Rev. Father W. Proost v. State of Blhar, [1969] 2 S.C.R. 73, held inapplicable.
Clause 18 does not suffer from the same vice as cl. 17, because, that
provision empowers the University to make ordinances prescribing regula ..
tions governing the conditions of service and conduct of teachers and these
are enacted in the larger interest of the institution to ensure their efficiency
and excellence. While the power to make ordinances in respect of the
matters referred to is unexceptional the ntaure of the infringement of tho
right, if any, under Art. 30(1) will depend on the actual purpose and import of the ordinance \vhen made, and the manner in which it is likely
to affect the administration of the educational institution. [709C]
(7) Assuming that the Punjab Legislature has the competence to enact
the Act, sub-ss. (2) and (3) of s. 4 do not offend, by themselves, any of the
rights under Arts. 29(1) & 30(1). [702A)
(a) Sub-section (2) merely indicates that the University can institute
courses of study or provide research facilities for any student of the Uni ..
versity whether be belongs to the majority or the minority community
to engage himself in such study or research; but, this study and research
on the life and teachings of Guru Nanak must be a study in relation to
their culture and religious impact in tho context of Indian and World cMlizations.
To provide for academic study of life and teachina or tho
D. A. y. COLLEGE v. PUNJAB
philosophy or culture of any great saint of lndia in relation to or the impact on the Indian and World civilizations cannot be considered as making
provision for religious instructions. [703G]
(b) While the State or the University has every right to provide for
,the education of the majority in the regional medium, it is subject to the
restrictions contained in Arts. 25 to 30.
Neither the University nor the
State can provide for imparting education in a medium of instruction in a
language and script which stifles the language and script of any section
of the citizens.
But sub-s. (3) does not lend itself to the interpretation
that the medium of instruction of all affiliated colleges has to be_ Punjabi.
The provision is for the promotion of Punjabi language, literature and culture. Therefore, sub-section (3) does not transgress the guarantee under
Art. 29(1).
[704A·D]
(c) The facts of the case do not attract Art. 14. The State of Punjab
is created as a unilingual state with Punjabi as its language and if provision
js made for study of punjabi language that does not furnish a ground
for discrimination nor can the provisiob for the study of the life and teaching of Guru Nanak afford any cause for complaint, since; in neither case
there is any compulsion on any person to undertake such studies; nor is
.any of the communities prohibited from pursuing studies in respect of
either Hindi or the life and teachings of any Hindu saint. [704F]
(8) The notificatioo under s. 5(3) compulsorily affiliating the colleges
to the University does not contravene the right of freedom of Association
guaranteed under Art. 19(1) (c).
Section 5 does not interfere ·.vith the
D.A.V. College Trust and Management Society by any attempt to form an
Association with the University. [706B]
All India Bank Employees Association v. National Industrial Tribunal,
[1962] 2 S.C.R. 269 and Raghubar Dayal Jai Prakash, v. Union of India,
{1963] 2 S.C.R. 547, referred to.
Smt. Damayanti Narang v. Union of India, W.P. No. 91 of 1964,
<lated 23·2-1971, distinguished.
OiuoINAL JURISDICTION : Writ Petitions Nos. 256 to 268 and
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271 of 1970.
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Petition under Article 32 of the Constitution of India for the
~nforcement of fundamental rights.
A. K. Sen, B. Datta, S.
Swarup, J. B. Dadachanji, 0. C.
Mathur and Ravinder Narain, for the petitioner (in W. P. No. 256
G
·Of 1970).
.
Frank Anthony, B. Datta, S. Swarup, J. B. Dadachanji, O. C.
Mathur and Ravinder Narain, for the petitioner in (W. P. No. 257
-Of 1970).
B. Datta, S. Swarup, J. B. Dadachanji, 0. C. Mathur and
Ravinder Narain. for petitioners (in W. P. Nos. 258 to 265, 267
;and 268 of 1970).
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SUPREME COURT RBPORTS
[1971] SUPP. s.c.R.
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Naunit Lal, B. Datta, J. R. Dadachanji, 0. C. Mathur and
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Ravinder Narain, for the petitioners (in W. P. Nos. 266 and 271
of 1970).
M. C. Chagla, R. N. Sachthey and Harbans Singh, for respondent No. I (in W. P. No. 256 of 1970).
H. L. Sibbal, Advocate-General, Punjab, R. N.
Sachthey and Harbans Singh, for respondent No. 1 (in W. P. No. 257
of 1970).
R. N. Sachthey and Harbans Singh, respondent No. I (in W. P.
No. 258 to 268 and 271 of 1970).
M. C. Setalvad, Hardev Singh and Hira Lal Kapur, for respondent No. 2 (in W. P. No. 256 of 1970).
Hardev Singh and Hiralal Kapur, for respondent No. 2 (iu
W. P. Nos. 257 to 268 and 271 of 1970).
D
M. N. Goswami and S. N. Mukherjee, for respondent No. 3
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(iu W. P. No. 256 of 1970).
The Judgment of the Court was delivered by
P. Jaganmoban Reddy, J.-These are fourteen Writ Petitions
by various Colleges managed and administered by Dayanand Anglo
Vedic College (D. A. V. College) Trust and the Managing Society.
against the Respondents challenging the Constitutional validity of
certain provisiqns of Guru Nanak University, Amritsar, Act 21 of
1969 (hereinafter called the 'University' or the 'Act', as the context
may permit) and in particular Sections 4, 4(2), 4(3) and 5 of the
Act as being violative of Articles 14, 19 (!) (c) and (f), 26, 29 ([)
and 30(1) of the Constitution of India.
There was also a prayer
for quashing the Notification No. 2201-4-RDI-7017147 dated 16th
March 1970 issued under sub-section (!) of Section 5. by the first
Respondent, the State of Punjab as being illegal, unconstitutional
and void.
As all these petitions raised a common question as to
the validity of the provisions of the Act the Notification issued by
the Government pursuant to that Act and certain provisions of
the statutes made thereunder it would be sufficient if facts in Writ
Petition No. 256 are set out.
The Managing Committee of the D. A. V. College is composed of 24 members and manages a score of other D. A. V. Institutions established in the Country.
The D. A. V. College Trust
and the Managing Society was formed to perpetuate the memory
of Swami Dayanand Saraswati who was the founder of an organisation known as Arya Samaj, which organisation it is claimed
has a fixed religious programme and its constitution is designed
D. A. v. COLLEGE v. PUNJAB (Jagan mohan Reddy, J.)
to perpetuate the religious teaching and philosophy of its founder.
The Arya Samaj it is stated has its own philosophy conception of
God worship, religious tenets, rituals, social work, educational
work etc., as would appear from the Constitution of the Arya
Samaj.
It is therefore claimed that it being a religious sect and
denomination, is a minority within the meaning of Article 30(1)
of the Constitution.
These Schools and Colleges were established
'on the lines teachings and principles of Arya Samaj' in which
'the imparting of the vedic culture and religious instructions and
worship based on the concept of Vedas, was and has its essential
ingredient'.
The Institutions which have filed the Writ Petitions were
before the Punjab Reorganisation Act (hereinafter called the 'Reorganisation Act') affiliated to the Punjab University constituted under
the East Punjab Act 7 of 1947 (hereinafter called the 'Punjab Unieroity' or the 'Punjab University Act' as the context admits). Before
the partition of India some of these Institutions were affiliated to
the Punjab University, Lahore. After the partition 0th.er Universities were set up in Punjab State like the Punjabi University, the
Kurukshetra University, the Agricultural University etc., each of
which ltad its own territorial jurisdiction.
There being a strong movement in the State of Punjab by the
Sikhs to have a State of their own and others who did not want
it, the Government of India being faced with this problem ultimately decided to reorganise the State of Punjab on linguistic basis.
A Boundry Commission was appointed under the Chairmanship of
Shah, J., as he then was, and on the basis of that report Parliament
ultimately passed the Reorganisation Act by and under which the
State of Punjab and the State of Haryana were formed and certain
other territories were added to Himachal Pradesh.
Chandigarh,
the erstwhile Capital was to be a Union territory and was to serve
as Capital of both these States.
A provision was made in this
Act for the continuance of certain Corporations and Institutions
which had served the needs of the people of both areas to continue
as heretofore subject to the special provisions enacted in the Act.
Three of such institutions were the Punjab University, the Punjab
Agricultural University and the Board constituted under the provisions of Part III of Sikh Gurdwaras Act 1925. The continuance
of the aforementioned two Universities was dealt along with other
statutory Corporations under the general provisions contained in
Section 72 of the Reorganisation Act.
As already pointed out at
the time of the reorganisation of the State other Universities other
than the University of Punjab were in existence namely the Punjabi
University in Punjab, and Kurukshetra University in Haryana.
After the reorganisation the various Colleges which were in the
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SUPREME COURT REPORTS
[19711 SUPP. ~.C.lt.
State of Punjab other than those over which the Punjabi University had jurisdiction were continued to be affiliated to the Punjab
University.
While this was the position till 1969 the Punjab Legislature in order to mark the 500th Birth anniversary of Shri Guru
Nanak Devji established a University to perpetuate his name. The
Act received the assent of the Governor on 28th November 1969.
On the 16th March 1970 the first Respondent in exercise of the
powers conferred on it by sub-section (!) of Section 5 of the Act
specified the Districts of Amritsar, Gurdaspur, Julhmdur and
Kapurthala in the State of Punjab as the area in which the University shall exercise its power and perform its duties.
It further
notified on 16th March 1970 in exercise of the powers under subsection (3) of Section 5, 30th June 1970 as the date for the purpose
of the said sub-section in respect of the educational institutions
situated within the limits of the aforesaid area, which meant that
as and from that date the Colleges in the areas specified above
which were affiliated to the Punjab University ceased to be affiliated to that University and were deemed to be associated with and
admitted to the privileges of the University.
The contentions urged before us are that the main purpose and
object of the University as constituted by the University Act is to
propagate Sikh religion and promote Punjabi language in Gurmukhi script, that since the Petitioners institutions belong to a minority based on religion and language in that they being adherents
of Arya Samaj Sect and denomination their compulsory affiliation
to the University violates Article 29(1) and 30(1) of the Constitution of India.
In support of this main contention it is submitted
that Section 5(3) of the Act and also clauses 2(1) (a), 17 and 18
of the statutes in Chapter V which inter-alia interfere with the
management of the minority institutions are ultra-vires being violative of the guarantee under Article 30(1).
It is also contended
that the minority educational institutions have the freedom !o
choose to which University they will be affiliated and that the legislature cannot compel affiliation to any particular University.
In
any case in view of Section 72 of the Reorganisation Act it is
the Central Government which must determine whether Colleges
affiliated to the Punjab University can be disaffiliated before any
Notification under the Act can be issued specifying the areas in
which educational institutions are to be affiliated and admitted to
the privileges of the University as from the date notified. On this
view it is submitted that the notification of the 16th March '70 is
bad and must be struck down. It is also submitted that this statutory affiliation being compulsory affects the Petitioners right of Association guaranteed under Art. 19(1) (c) and that Article 14 is
contravened because Section 4(2) and 4(3) discriminate against the
Hindus, for while providing for the study of the teachings of Guru
D. A. v. COLLEGB v. PUNJAB (Jagan mohan Reddy, J.)
Nanak and the encouragement of the Punjabi language no provision is made for the study of the religion or teachings of the
Hindus or of their language-the Hindi.
Now the question is, have the Petitioners been established and
administered by a religious or linguistic minority, having a distinct
script or culture of its own within the meaning of Articles 29(1)
and 30(1) of the Constitution and do the provisions of the Act or
any statute or ordinance or Notification made thereunder offend
any of the rights guaranteed to them.
This in turn leads to an
enquiry whether the Arya Samaj Sect is a religious or linguistic
minority.
Article 29(1) and 30(1) are as follows : -
290)-Any Section of the citizens residing in the
territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right
to conserve the same.
30(1)-All minorities, whether based on religion or
language, shall have the right to establish and administer educational institutions of their choice.
lt will be observed that Article 29(1) is wider than Article 30(1),
in that, while any Section of the citizens including the minorities,
can invoke the rights guaranteed under Article 29(1), the rights
guaranteed under Article 30(1) are only available to the minorities
based on religion or language. It is not necessary for Article 30
(I) that the minority should be both a religious minority as well as
a linguistic minority.
It is sufficient if it is one or the other or
both.
A reading of these two Articles together would lead us to
conclude that a religious or linguistic minority has a right to estal:r
lish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which
right however is subject to the regulatory power of the State for
maintaining and facilitating the excellence of its standards. This
right is further subject to clause (2) of Article 29 which provides
that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State
funds, on grounds only of religion, race, caste, fanguage or any
of them.
While this is so these two articles are not inter-linked
nor does it permit of their being alW!lys read together.
In Rev. Father W. Proost & Ors. v. State of Bihar & Ors. (')
where while conceding that the Jesuits of Ranchi who were a religious minority established the petitioner Institution the St. Xaviers
College which was admitting students of other communities also,
the Attorney General had contended that as the protection to
(I) [1969) 2 S. C.R. 7J.
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SUPREME COURT REPORTS
(1971) SlPP. S.C.R.
minorities in Article 29(1) is only a right to conserve a di;tinct
language, script or culture of its own the College did not qualify
for the protection of Article 30(1) because (i) it was not founded
to conserve them, and (ii) it was open to all sections of people.
An attempt was made to read into the protection granted by Article
30(1) a corollary taken from Article 29(1). While conceding that
the Jesuit community is a minority community based on religion
and therefore it has a right to establish and administer educational
institutions of its choice, it was contended that as the protection
to minorities in Article 29(1) is only a right to conserve the distinct
language, script or culture of its own, the College does not qualify
for the protection of Article 30(1) because it is not founded to
conserve them.
Hidayatullah, C. J ., rejected the interpretation
sought to be placed on Article 29(1) and 30(1) as if they have to
be read together. At page 80 he said :
"In our opinion, the width of Article 30(1) cannot be
cut down by introducing in it considerations on whiclt
Art. 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to
minorities to establish educational institutions of their
choice. This choice is not limited to institution, seekin~
to conserve language, script or culture and the choice i~
not taken away if the minority community having established< an educational institution of its choice also aJmi~
members of other communities.
That is a circumstance
irrelevant for the application of Article 30(1) since no such
limitation is expressed and none can be implied. The two
articles create two separate rights, although it is possible
that they may meet in a given case."
The next question is what constitutes a rel'igious or linguistic minority and how is it to be determined ? It was submitted
that in Re. Kera/a Education Bill 1957 (') this Court dJd not in
fact lay down any test for ascertaining what is meant by minority
community or how it is to be ascertained because in that case it
had assumed that question (2) itself proceeded on the footing that
there were minorities in Kerala who are entitled to the rights conferred under Article 30(1). ·No doubt to some extent this is true.
Das, C. J., had observed at page 1050 that "strictly speaking for
answering question (2) we need not enquire as to what a minority
community means or how is it to be ascertained".
Nonetheless
earlier he did consider these matters (vide pages 1047-1050) and
laid down the principles which govern it, including an examination of the figures relating to the total population of the Kerala
(1) [1959) S. c. R. 995.
I
o. A. v. COLLEGE v. PUNJAB (Jagan mohan Reddy, J.)
State and the population of the minorities, the Christians, the
Muslim and the Anglo Indians.
Though there was a faint attempt to canvas the position that
religious or linguistic minorities should be minorities in relation to
the entire population of the country, in our view they are to be
determined only in relation to the particular legislation which is
sought to be impugned, namely that if it is the State legislature these
minorities have to be determined in relation to the population of
the State.
On this aspect Das, C. J., in Kera/a Education Bill
case speaking for the majority thought that there was a fallacy in
the suggestion that a minority or Section envisaged Article 30(1)
and Article 29(1) could mean only such persons as constitute
numerically, minority in the particular region where the educational institution was situated or resided under local authority. He
however, thought, it was not necessary to express a final opinion
as to whether education being the snbject matter of item 11 of the
State list, subject only to the provisions of entry 62, 63, 64 and
66 of List I and entry 25 of List III, the existence of a minority
community should in all circumstances and for purposes of all
laws of that State be determined on the basis of the population of
the whole State or whether it should be determined on the said
basis only when the validity of a law extending to the whole State
is in question or whether it should be determined on the basis of
a population of a locality when the law under that Act applie•
only to that locality, because in that case the Bill before the Court
extended to the whole of the State of Kerala and consequently
the minority must be determined by reference to the entire population of that State.
It is undisputed, and it was also conceded by the State of
Punjab, that the Hindus of Punjab are a religious minority in the
State though they may not be so in relation to the entire country.
The claim of Arya Samaj to be a linguistic minority was however
contested.
A linguistic minority for the purpose of Article 30(1)
is one which must at least have a separate spoken language.
It
is not necessary that that language should also have a distinct script
for those who speak it to be a linguistic minority.
There are in
this country some languages which have no script of their own,
but nonetheless those sections of the people who speak that language will be a linguistic minority entitled
to the protection of
Article 30(1).
The Punjab Boundry Commission Report under the Chairmanship of Shah, J. as he then was dealt not only with the several
scripts in use but also the language of the dominant sections residing in Punjab. Earlier the States Reorganisation Report also went
into the question ani:I noted the controversies between Akali Dal
~ponsoring Punjabi with Gurmukhi script and Hindus who while
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at home they speak Punjabi asserted that in their religious ceremonies and festivals, in their Schools and Colleges they use Hindi.
In any case they never accepted Gurmukhi script.
At page 143
it was observed "The problem of language in the Punjab is therefore primarily one of scripts ; and in this battle of scripts ; sentiment is arrayed against sentiment".
This matter was dealt with.
in somewhat great detail in Shah's report at page 2 and 3 :
"History of the language controversy in the Punjab
is over fifty years old.
In the Punjab of pre-British days,
the Court language was Persian, and Punjabi was almost
invariably written in the Persian script. Under the British
rule, Urdu was the language of the Courts and of district
administratioa in addition to English. During the last decades of the 19th Century two important social reform
movements gained strong foothold in the Punjab. The
Arya Samaj movement took hold among the urban Hindu
population and use of Hindi in the Devnagri script was
propagated. After Swami Dayanand, founder of the Arya
Samaj movement, published his 'Satyarath Prakash' in the
eyes of a sectioa of the Hindus the Hindi language and the
Devnagri script acquired religious, significance.
During the same period, the cause of Punjabi was espoused by
the Chief Khalsa Dewan.
They published a large number of books and pamphlets dealing with the lives of
Gurus and diverse facets of the Sikh religion. These books
were written in Punjabi and in Gurmukhi script which
had been given its present form by the second Guru of the
Sikhs, and in which the holy Granth is written.
The language issue in course of time got linked up with the politics of the province.
Demands for giving better status
in the administrative scheme to Punjabi in Gurmukhi
script and Hindi in Devnagri script gained strength, and
the Government of the day agreed to accede to those
demands and recognised the status of both Pl\njabi and
Hindi in the educational curricula".
In our view it is unnecessary to consider whether Arya Samajis are
a linguistic minority, because if they can be considered to be a
religious minority they will be entitled to invoke the protection
under Article 30(1).
For the purposes of Article 29(1) even though it may not
be necessary to enquire whether all the Hindus of Punjab as also
the Arya Samajis speak Hindi as a spoken language, nonetheless
there can be no doubt that the script of the Arya Samajis is distinct
from that of the Sikhs who form the majority.
It is claimed that
while the Sikhs have Gurmukhi as their script the Arya Samajis
have their own script which is the Devnagri script.
Their claim
o. A. v. COLLEoE v. PUNJAB (Jagan mohan Reddy, J.)
to be a religious minority with distinct script of their own seems
to us to be justified as would appear from the following :
The Arya Samaj is a reformist movement. believes in one God
and in the Vedas as the books of true knowledge.
It holds that
it is the duty of every Arya Samaj to read the Vedas and have
them read, to teach or preach them to others.
It has a distinct
organisation, the members!iip of which is open to all those who
subscribe to its aims and objects..
The Arya Samajis worship
before the vedic fire and it begins with the burning of incence (the
homa 'sacrifice') accompanied by the· chanting of the Vedic verses.
Encyclopaedia Britannica-(Vol. II-1968) has this to say
about Arya Samaj at page 558 :
"Arya Samaj, a vigorously reforming Sect of modern
Hinduism, founded in 1875 by Swami Dayanand Saraswati (1824-83) at Bombay ....... The Vedas as interpreted
by the method laid down by Dayanand may be said to be
the theology of the Arya Samaj and are held to contain
all truth and all knowledge. including the basis for
modern science. The Arya Samaj is completely opposed to
idolatry, is sternly monothistic and denies the efficacy of
priestly intervention.
Its organization and services are
strongly reminiscant of Protestantism ...... The Arya Samaj
opposes the caste system based upon birth, as un-vedic and
insists that caste should reflect merit......... The Arya
Samaj has sought to revitalize Hindu life and to instill
self-confidence and national pride among Hindus. It has
established a network of excellent Schools and Colleges,
including the Dayanand Anglo-Vedi~ College in Lahore,
which teach rigorously in the Vedas and in modern
sciences ............... "
To show the affinity between Arya Samaj and protestantism a
comparison is made in the Encyclopaedia of Religion and
Ethics between Dayanand Saraswati and Martin Luther.
In Volume 2 at page 58-59, it is said :
"As Luther the German monk was a child of the European Renaissance, so Dayanand the Gujrati monk was a
child of the Indian Renaissance. Luther attacked indulgences, while Dayanand attacked idolatry. Luther appealed from the Roman church and the authority of tradition
to the scriptures of the Old and New Testaments. Swami
Dayanand appealed from the Brahmanical Church and
the authority of Smrti to the earliest and most sacred of
Indian Scriptures.
The watchword of Luther was 'Back
to the Bible'; the watchword of Dayanan1l was 'back to
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the Vedas' ................ but be it noted to the Vedas as
interpreted, not by the traditional scholarship of Indian
orthodoxy or by the critical scholarship of the West, but
by the scholarship of the Arya Samaj alone ............ The
scripture basis of the Arya Samaj then, while formally the
Vedas, is in reality a certain interpretation of the Vedas,
which is not recognized as legitimate by a single Sanskrit
scholar, either Indian or European, outside of the Arya
Samaj".
Shri :vlotilal Setalvad
learned
advocate for
the respondents contends that there is nothing to indicate that the Arya
Samajis should be Hindus.
This argument however overlooks the
basic tenets of the Sect in that it admits to membership only those
Hindus who subscribe to the decalogue and its beliefs in the cannons of vedic interpretation laid down by Swami Dayanand hut
all outsiders who are non-Hindus such as Muslim and Christians
must undergo a ceremony of purification or Shudhi.
The passages read above show beyond doubt that the Arya
Samaj by "rejecting the manifold absurdities found in Smrti and
in tradition and in seeking a basis in the early literature for a
purer and more rational faith" can be considered to be a religious
minority, at any rate as part of the Hindu religious minority in
the State of Punjab.
It was also sought to be contended by the petitioners advocate that they are a religious denomination for the purposes of
protection under Article 26 (a).
It is true that Mukherjea, J., as
he then was in, The Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur
Mutt (') after referring to the Oxford Dictionary for the meaning of religious denomination as "a collection of individuals classed together under the same name : -
a religious sect or body
having a common faith and organisation and designated by a distinctive name" held that different sects or sub-castes can certainly
be called a religious denomination as it is designated by a distinctive name-has a common faith and common spiritual organization.
This may be so but in the view we have taken that the
Arya Samaj is a religious minority, we find it unnecessary to determine whether it is also a religious denomination, as it does not
arise for consideration under Article 30 (]).
Now coming to the question whether the Arya Samajis have
a distinct script of their own bye-law 32 of their Constitution shows
that the proceedings of all meetings and sub-committees will have
(1) [1954] S. C.R. IOOS.
o. A. v. COLLEGE v. PUNJAB (Jagan mohan Reddy, J.)
to ile written in Arya Bhasha- in Hindi languages and Devnagri
cha~acter. All Aryas and Arya
Sabhasads should know Arya
Bhasha, Hindi or Sanskrit.
The belief is that the name of the
script Devnagri is derived from Deva and therefore has divine
origin.
From what has been stated it is clear that the Arya
Samajis have a distinct script of their own, namely Devnagri.
They are therefore entitled to invoke ..he right guaranteed under.
Article 29 (!) because they are a section of citizens having a
distinct script and under Article 30 (!) because of their being a
religious minority.
It is now to be ascertained whether any of the. provisions of
the Act, statutes or Ordinances offend t11e guaranteed rights of the
petitioners. The petitioners contend that sub-sections (2) and (3.l
of Section 4 directly infringe the fundamental rights guaranteed
under Article 29 (!) and 30 (!) of the Constitution.
Under these
provisions the Arya Samaj through its educational institutions have
the right to conserve its script, culture and its language.
Sub-section (2) of the Act, it is submitted enacts a provision
for making it imperative to study and conduct research on the life
and teachings of Guru Nanak and their cultural and religious im·
pact on Indian and World civilizations while sub-section (3) contemplates the adopting of measures for the study of Punjabi language literature and culture which provisions according to the
petitioners directly aim at strangulating the growth of Hindi while
encouraging the growth of Punjabi.
Their apprehension is that
Punjabi with Gurmukhi script will be made the sole medium of
instruction in the University and that all Colleges affiliated to this
University may be forced to impart education through that
medium.
The State of Punjab in its counter denied that the provisions
of sub-sections (2) and (3) of Section 4 seek to strangulate the
development and growth of Hindi language.