A.N. Ray, C.J.@mdashThe question for consideration is whether the minorities based on religion or language have the right to establish and
administer educational institutions for imparting general secular education within the meaning, of Article 30 of the Constitution.
2. The minority institutions which are in truth and reality educational institutions where education in its various aspects is imparted claim protection
of Article 30.
3. This raises the question at the threshold whether Articles 30(1) and 29(1) of the Constitution are mutually exclusive.
4. Articles 29 and 30 of the Constitution are grouped under the heading ""Cultural and educational rights"". Article 29(1) deals with right of any
section of the citizens residing in India to preserve their language, script or culture. Article 30(1) provides that all religious and linguistic minorities
have the right to establish and administer educational institutions of their choice. Article 29(2) prohibits discrimination in matters of admission into
educational institutions of the types mentioned therein on grounds only of religion, race, caste, language or any of them. Article 30(2) prevents
States from making any discrimination against any educational institution in granting aid on the ground that it is managed by a religious or linguistic
minority.
5. Articles 29 and 30 confer four distinct rights. First is the right of any section of the resident citizens to conserve its own language script or culture
as mentioned in Article 29(1). Second is the right of all religious and linguistic minorities to establish and administer educational institutions of their
choice as mentioned in Article 30(1). Third is the right of an educational institution not to be discriminated against in the matter of State aid on the
ground that it is under the management of a religious or linguistic minority as mentioned in Article 30(2). Fourth is the right of the citizen not to be
denied admission into any State maintained or State aided educational institution on the ground of religion, caste, race or language, as mentioned in
Article 29(2).
6. It will be wrong to read Article 30(1) as restricting the right of minorities to establish and administer educational institutions of their choice only
to cases where such institutions are concerned with language, script or culture of the minorities. The reasons are these. First. Article 29 confers the
fundamental right on any section of the citizens which will include the majority section whereas Article 30(1) confers the right on all minorities.
Second, Article 29(1) is concerned with language, script or culture, whereas Article 30(1) deals with minorities of the nation based on religion or
language. Third, Article 29(1) is concerned with the right to conserve language, script or culture, whereas Article 30(1) deals with the right to
establish and administer educational institutions of the minorities of their choice. Fourth, the conservation of language, script or culture under Article
29(1) may be by means wholly unconnected with educational institutions and similarly establishment and administration of educational institutions
by a minority under Article 30(1) may be unconnected with any motive to conserve language, script or culture. A minority may administer an
institution for religious education which is wholly unconnected with any question of conserving a language, script or culture
7. If the scope of Article 30(1) is to establish and administer b2 educational institutions to conserve language, script or culture of minorities. it will
render Article 30 redundant. If rights under Articles 29(1) and 30(1) are the same then the consequence will be that any section of citizens not
necessarily linguistic or religious minorities will have the right to establish and administer educational institutions of their choice. The scope of Article
30 rests on linguistic or religious minorities and no other section of citizens of India has such a right.
8. The right to establish and administer educational institutions of their choice has been conferred on religious and linguistic minorities so that the
majority who can always have their rights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer
educational institutions of their choice. If the scope of Article 30(1) is made an extension of the right under Article 29(1) as the right to establish
and administer educational institutions for giving religious instruction or for imparting education in their religious teachings or tenets the fundamental
right of minorities to establish and administer educational institution of their choice will be taken away.
9. Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in
respect of language, script, culture as contemplated hi .Article 29. The whole object of conferring the right on minorities under Article 30 is to
ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied
equality.
10. 281270 this Court said that Article 30(1) covers institutions imparting general secular education. The object of Article 30 is to enable children
of minorities to go out in the world fully equipped. All persons whether in the majority or in the minority have the right under Article 25 freely to
profess, practise and propagate religion. Any section of citizens which includes the majority as well as the minority shall have under Article 29 the
right to conserve their distinct language, script or culture. That is why the minorities are given a specific right in respect of educational institutions
under Article 30. Article 30(1) gives the right to linguistic minorities as well where no question of- religion arises. It is, therefore, not at all possible
to exclude secular education from Article 30. Since the Kerala Education Bill case (supra) hi 1959 this Court has consistently held that general
secular education is covered by Article 30.
11. This Court in 275277 considered the question whether the protection guaranteed under Article 30(1) is a corollary to the right guaranteed
under Article 29(1). A contention was advanced that protection to minorities in Article 29(11) was only a right to conserve a distinct language,
script or culture of its own, and, therefore, the educational institutions which imparted general education did not qualify for protection of Article 30.
This Court said that the width of Article 30 could not be cut down by introducing any consideration on which Article 29(1) is based. Article 29(1)
is a general protection given to sections of citizens to conserve their language, script or culture. Article 30 is a special right to minorities to establish
educational institutions of their choice. This Court said that the two Articles create two separate rights though it is possible that the rights might
meet in a given case.
12. The real reason embodied in Article 30(1) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic,
are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general
education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve,
and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and
girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are
not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General
secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole.
13. The second question which arises for consideration is whether religious and linguistic minorities who have the right to establish and! administer
educational institutions of their choice, have a fundamental right to affiliation. It is contended on behalf of the petitioners that the right to establish
educational institutions of their choice will be without any meaning if affiliation is denied. The respondents pose the question whether educational
institutions established and administered by minorities for imparting general secular education have a fundamental right to be affiliated to a statutory
University on terms of management different from those applicable to other affiliated colleges.
14. The consistent view of this Court has been that there is no fundamental right of a minority institution to affiliation. An explanation has been put
upon that statement of law. It is that affiliation must be a real and meaningful exercise for minority institutions in the matter of imparting general
secular education. Any law which provides for affiliation tin terms which will involve abridgement of the right of linguistic and religious minorities to
administer and establish educational institutions of their choice will offend Article 30(1). The educational institutions set up by minorities will be
robbed of their utility if boys and girls cannot be trained in such institutions for University degrees. Minorities will virtually lose their right to equip
their children for ordinary careers if affiliation be on terms which would make them surrender and lose their rights to establish and administer
educational institutions of their choice under Article 30. The primary purpose of affiliation is that the students reading in the minority institutions will
have qualifications in the shape of degrees necessary for a useful career in life. The establishment of a minority institution is not only ineffective but
also unreal unless such institution is affiliated to a University for the purpose of conferment of degrees on students.
15. Affiliation to a University really consists of two parts. One part relates to syllabi, curricula, courses of instruction, the qualifications of teachers,
library, laboratories, conditions regarding health and hygiene of students. This part relates to establishment of educational institutions. The second
part consists of terms and conditions regarding management of institutions. It relates to administration of educational institutions.
16. With regard to affiliation a minority institution must follow the statutory measures regulating educational standards and efficiency, the prescribed
courses of study, courses of instruction and the principles regarding the qualification of teachers, educational qualifications for entry of students into
educational institutions etcetera.
17. When a minority institution applies to a University to be affiliated, it expresses its choice to participate in the system of general education and
courses of instruction prescribed by that University. Affiliation is regulating courses of instruction in institutions for the purpose of coordinating and
harmonising the standards of education. With regard to affiliation to a University, the minority and non-minority institutions must agree in the pattern
and standards of education. Regulatory measures of affiliation enable the minority institutions to share the same-14--131 SupCI/75 courses of
instruction and the same degrees with the non-minority institutions.
18. This Court in 280210 explained the necessity and importance of regulatory measures of system and standard of education in the interest of the
country and the people. When a minority institution applies for affiliation, it agrees to follow the uniform courses of study. Affiliation is regulating the
educational character and content of the minority institutions. These regulations are not only reasonable in the interest of general secular education
hut also conduce to the improvement in the stature and strength of the minority institutions. All institutions of general secular education whether
established by the minorities or the non-minorities must impart to the students education not only for their intellectual attainment but also for pursuit
of careers. Affiliation of minority institutions is intended to ensure the growth and excellence of their children and other students in the academic
field. Affiliation mainly pertains to the academic and educational character of the institution. Therefore, measures which will regulate the courses of
study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for
libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for
uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of . the minority institutions under Article 30.
19. The entire controversy centers round the extent of the right of the religious and linguistic minorities to administer their educational institutions.
The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the
founders of the minority institution have faith and confidence in their own committee of body consisting of persons selected by them. Second is the
right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the
institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to
admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for
the benefit of its own institution.
20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not in an absolute right. This
right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority
institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C.J. in the Kerata Education
Bill case (supra) summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-
administer.
21. On behalf of the petitioners, it is said that the right to administer means autonomy in administration. Emphasis is placed on the minority''s claim
to mould the institution as it thinks fit. It is said that the regulatory measures should not restrict the right of. administration but facilitate the same
through the instrumentality of the management of the minority institution. It is said that the management of the minority institution should not be
displaced because that will amount to violation of the right to administer.
22. The Kerala Education Bill case (supra) upheld certain regulatory provisions as to administration of minority institution not to infringe the right to
administer. The manager of an aided school was to be appointed subject to the approval of such officer as the Government might authorise. The
Government prescribed the qualifications for appointment as teachers. The Public Service Commission selected candidates for appointment as
teachers. The conditions of service were to be the same as in Government schools. No teacher was to be dismissed, removed or reduced in rank
or suspended without the previous sanction of the officer authorised by the Government in this behalf.
23. The Kerala Education Bill case (supra) did not uphold the validity of Clauses 14 and 15 in the Kerala Education Bill, 1957. These Clauses
authored the Government to take over any aided school under certain circumstances. This Court found that those Clauses amounted to
expropriation of the schools. The schools were recognised on condition that they submitted to those clauses. Such submission amounted to
surrender of the right under Article 30.
24. This Court in Rev. Father W. Proost case (supra) held that Section 48-A of the Bihar University Act which came into force from 1 March,
1962 completely took away the autonomy of the governing body of St. Xavier''s College established by the Jesuits of Ranchi. Section 48A of the
said Act provided inter alia that appointments, dismissals, removals, termination of service by the governing body of the College were to be made
on the recommendation of the University Service Commission and subject to the approval of the University. There were other provisions in that
section, viz., that the Commission would recommend to the governing body names of persons in order of preference and in no case could the
governing body appoint a person who was not recommended by the University Service Commission.
25. In 280040 , the State of Bihar requested the Church Missionary Society School, Bhagalpur to constitute a managing committee of the school
in accordance with an order of the State. This Court held that the State authorities could not require the school to constitute a managing committee
in accordance with their order.
26. In D. A. V. College v. State of Punjab [1971] Supp. S.C.R. 688. Clause 17 of the impugned statute in that case which provided that the Staff
initially appointed shall be approved by the Vice-Chancellor and subsequent changes would be reported to the University for the Vice-
Chancellor''s approval was found to interfere with the right of management.
27. This Court in State of Kerala v. Very Rev. Mother Provincial case (supra) found Sections 48 and 49 of the Kerala University Act of 1969 to
be infraction of Article 30. Those sections were found by this Court to have the effect of displacing the administration of the college and giving it to
a distinct corporate body which was in no way answerable to the institution. The minority community was found to lose the right to administer the
institution it founded. The governing body contemplated in those sections was to administer the colleges in accordance with the provisions of the
Act, statutes, ordinances, regulations, bye-laws and orders mads thereunder. The powers and functions of the governing body, the removal of the
members and the procedure to be followed by it were all to be prescribed by the statutes. These provisions amounted to vesting the management
and administration of the institution in the hands of bodies with mandates from the University.
28. These rulings of this Court indicate how and when there is taking away or abridgement of the right of administration of minority institutions in
regard to choice of the governing body, appointment of teachers and in the right to administer.
29. The decision of this Court in 267347 illustrates as to how the right of the minority institution is violated by the State order requiring the minority
institution to reserve under orders of Government 80 per cent of the seats on threat of withholding grant in aid for non-compliance with the order.
This Court in Kerala Education Bill case (supra) said that the State cannot do indirectly what it cannot do directly. Withholding aid on terms which
demand the surrender of the right of the minority to administer the institution is an infringement of the right under Article 30.
30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. ''Where there is
complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of
the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no
discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit
of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the
character of the teachers are really important. 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 eclectic in 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.
31. 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 in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving
harmony among affiliated institutions.
32. Education should be a great cohesive force in developing integrity of the nation. Education develops the ethos of the nation. Regulations are,
therefore, necessary to see that there are no divisive or disintegrating forces in administration.
33. Three sets of regulations are impeached as violative of Article 30, The first set consists of Section 40 and 41 of the Gujarat University Act,
1949 as amended, referred to, as the Act. The second set consists of Section 33A(1)(a). The third set consists of Sections 51A and 52A.
34. Section 40 of the Act enacts that teaching and training shall be conducted by the university and shall be imparted by teachers of the university.
Teachers of the university may be appointed or recognised by the university for imparting instructions on its behalf. As soon as the Court which is
one of the authorities of the university determines that the teaching and training shall be conducted by the university the provisions of Section 41 of
the Act come into force.
35. Section 41 of the Act consists of four sub-sections. The first subsection states that all colleges within the university area which are admitted to
the privileges of the university under Sub-section (3) of Section 5 of the Act and all colleges which may hereafter be affiliated to the university shall
be constituent colleges of the university. It is true that no determination has yet been made by the court of the university u/s 40 of the Act but the
power exists. The power may be used in relation to minority institution. Once that is done the minority institutions will immediately become
constituent colleges. The real implication of Section 40 of the Act is that teaching and training shall be conducted by the university. The word
conduct"" clearly indicates that the university is a teaching university. u/s 40 of the Act the university takes over teaching of under-graduate classes.
36. Section 41 of the Act is a corollary to Section 40 of the Act. Section 41 of the Act does not stand independent of Section 40 of the Act. Once
an affiliated college becomes a constituent college within the meaning of Section 41 of the Act pursuant to a declaration u/s 40 of the Act it
becomes integrated to the university. A constituent college does not retain its former individual character any longer. The minority character of the
college is lost''. Minority institutions become part and parcel of the university. The result is that Section 40 of the Act cannot have any compulsory
application to minority institutions because it will take away their fundamental right to administer the educational institutions of their be the
constituent colleges of the university. The second sub-section states that all institutions within the university area shall be the constituent institutions
of the university. The third sub-section states that no educational institution situate within the university area shall, save with the consent of the
university, and the sanction of the State Government be associated in any way with or seek admission to any privilege of any other university
established by law. The fourth sub-section states that the relations of the constituent colleges and constituent, recognised or approved institutions
within the university area shall be governed by the statutes to be made in that behalf and such statutes shall provide in particular for the exercise by
the university of the powers enumerated therein in respect of constituent degree colleges and constituent recognised institutions.
37. Section 41(4)(ii) of the Act confers power on the university to approve the appointment of the teachers made by colleges. Section 41(4)(iii) of
the Act requires colleges to contribute teachers for teaching on behalf of the university. Section 41(4)(iv) of the Act confers power on the university
to co-ordinate and regulate the facilities provided and expenditure incurred by colleges and institutions in regard to libraries, laboratories and other
equipments for teaching and research. Section 41(4)(v) confers power on the university to require colleges and institutions when necessary to
confine the enrolment of students in certain subjects. Section 41(4)(vi) confers power on the university to levy contributions from colleges and
institutions and to make grants to them.
38. In view of our conclusion that Sections 40 and 41 of the Act hang together and that Section 40 of the Act cannot have any compulsory
application to minority institutions, it follows that Section 41 of the Act cannot equally have any compulsory application to minority institutions. It is
not necessary to express any opinion on the provisions contained in Section 41 of the Act as to whether such provisions can be applied to minority
institutions affiliated to a university irrespective of the conversion of affiliated colleges into constituent colleges.
39. The provisions contained in Section 33A(1)(a) of the Act state that every college shall be under the management of a governing body which
shall include amongst its members, a representative of the university nominated by the Vice-Chancellor and representatives of teachers, non-
teaching staff and students of ""the college. These provisions are challenged on the ground that this amounts to invasion of the fundamental right of
administration. It is said that the governing body of the college is a part of its administration and therefore that administration should . not be
touched. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised through a body of persons in
whom the founders, of the institution have faith and confidence and who have full autonomy in that sphere. The right to administer is subject
permissible regulatory measures. Permissible regulatory measures are those which do not restrict the right of administration but facilitate it and
ensure better and more effective exercise of the right for the benefit of the institution and through the instrumentality of the management of the
educational institutions and without displacing the management. If the administration has to be improved it should be done through the agency or
instrumentality of the existing management and not by displacing it. Restrictions on the right of administration imposed in the interest of the general
public alone and not in the interests of and for the benefit of minority educational institutions concerned will affect the autonomy in administration.
40. Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is
between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to
day administration. The choice in the personnel of management is a part of the administration. The university will always have a right to see that
there is no mal-administration. If there is mala administration, the university will take steps to cure the same. There may be control and check on
administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or
to the requirements of the teachers and the students. In Slate of Kerala v. Very Rev. Mother Provincial etc. (supra) this Court said that if the
administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that
situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions
contained in Section 33A(i)(a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in
administration is lost. New elements in the shape of representatives of different type are brought in. The calm waters of an institution will not only
be disturbed but also mixed. These provisions in Section 33A(1)(a) cannot therefore apply to minority institutions.
41. The provisions contained in Section 33A(1)(b) of the Act were not challenged by the petitioners. The interveners challenged those provisions.
The settled practice of this Court is that an intervener is not to raise contentions which are not urged by the petitioners. In view of the fact that
notices were given to minority institutions to appear and those institutions appeared and made their submissions a special consideration arises here
for expressing the views on Section 33A(1)(b) of the Act. The provisions contained in Section 33A(1)(b) of the Act are that for the recruitment of
the Principal and the members of the teaching staff of a college there is a selection committee of the college which shall consist, in the case of the
recruitment of a Principal, of a representative of the university nominated by the Vice-Chancellor and, in the case of recruitment of a member of the
teaching staff of the college, of a representative of the university nominated by the Vice-Chancellor and the Head of the Department if any for
subjects taught by such persons. The contention of the interveners with regard to these provisions is that there is no indication and guidance in the
Act as to what types of persons could be nominated as the represent live. It was suggested that such matters should not be left to unlimited power
as to choice. The provisions contained in Section 33A(1(b) cannot therefore apply to minority institutions.
42. The third set of provisions impeached by the petitioners consists of Sections 51A and 52A, Section 51A states that no member of the
teaching, other academic and non-teaching staff of an affiliated college shall be dismissed or removed or reduced in rank except after an inquiry in
which he has been informed of the charges and given a reasonable opportunity of being heard and until (a) he has been given a reasonable
opportunity of making representation on any such penalty proposed to be inflicted on him; and (b) the penalty to be inflicted on him is approved by
the Vice-Chancellor or any other officer of the university authorised by the Vice-Chancellor in this behalf., Objection is taken by the petitioners to
the approval of penalty by the Vice-Chancellor or any other officer of the university authorised by him. First, it is said that a blanket power is given
to the Vice-Chancellor without any guidance. Second, it is said that the words ""any other officer of the university authorised by him"" also confer
power on the Vice-Chancellor to authorise any one and no guidelines are to be found there. In short, unlimited and undefined power is conferred
on the Vice-Chancellor. The approval by the Vice-Chancellor may be intended to be a check on the administration. The provision contained in
Section 51A, clause (b) of the Act cannot be said to be a permissive regulatory measure inasmuch as it confers arbitrary power on the Vice-
Chancellor to take away the right of administration of the minority institutions. Section 51A of the Act cannot, therefore, apply to minority
institutions.
43. The provisions contained in Section 52A of the Act contemplate reference of any dispute between the governing body and any member of the
teaching, other academic and non-teaching staff of an affiliated college which is connected with the conditions of service of such member to a
Tribunal of Arbitration consisting of one member nominated by the governing body of the college, one member nominated by the member
concerned and an Umpire appointed by the Vice-Chancellor. These references to arbitration will introduce an area of litigious controversy inside
the educational institution. The atmosphere of the institution will be vitiated by such proceedings. The governing body has its own disciplinary
authority. The governing body has its domestic jurisdiction. This jurisdiction will be displaced. A new jurisdiction will be created in administration.
The provisions contained in Section 52A of the Act cannot, therefore, apply to minority institutions.
44. For these reasons the provisions contained, in Sections 40, 41. 33A(1)(a), 33A(1)(b), 51A and 52A cannot be applied to minority institutions.
These provisions violate the fundamental rights of the minority institutions.
45. The ultimate goal of a minority, institution too imparting general secular education is advancement of learning. This Court has consistently held
that it is ''not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity
in standards of education.
46. 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 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.
47. The teachers and the taught form a world of their own where everybody is a votary of learning. They should not be made to know any
distinction. Their harmony rests on dedicated and disciplined pursuit of learning. The areas of administration of minorities should be adjusted to
concentrate on making learning most excellent. That is possible only when all institutions follow the motto that the institutions are places for worship
of learning by the students and the teachers together irrespective of any denomination and distinction.
P. Jaganmohan Reddy, J.
48. This larger Bench has been constituted to consider the scope of the fundamental rights under Article 30(1), the interrelationship of those rights
with the rights under Article 29(1), the scope of the regulatory powers of the State vis-a-vis the; rights under Article 30(1), and in the light of the
view taken on the several aspects aforesaid to consider the validity of certain impugned provisions of the amended Gujarat University Act, 1949--
hereinafter referred to as ''the Act''. The contentions raised before us on the scope and ambit of Articles. 29(1) and 30(1) are not new but have
been earlier urged before and decided by this Court. The attempt on behalf of the State of Gujarat has been to once again raise the same crucial
issues which go to the root of the rights conferred on the minorities to establish educational institutions of their choice and whether the State could
treat the majority and minority educational institutions equally, an issue upon which this Court has pronounced in no uncertain terms"" on earlier
occasions.
49. We agree with the judgment of Hon''ble the Chief Justice just pronounced and with his conclusions that Sections 40, 41, 33A(1)(a), 33A(1)
(b), 51A and 52A of the Act violate the fundamental rights of minorities and cannot, therefore, apply to the institutions established and
administered by them. We would not ordinarily have found it necessary to write a separate opinion when the same thing has to be said as has been
said so tersely by him, but in trying to re-state what has already been said, the impression is sometimes created that something new is being stated
or some departure from the principles already adumbrated is being made. In order to avoid giving scope to any such contention being raised, we
would merely refer to some earlier provisions already held to violate the fundamental rights of minorities guaranteed under Article 30(1) which are
analogous to the impugned provisions which, in the view this Court has already taken, can be held to be violative in their application to the minority
educational institutions. The reason for this separate opinion, however, is not so much to point out the invalidity of the impugned provisions which
Hon''ble the Chief Justice has held to be inapplicable to the minority institutions but to examine the question as to what extent the right conferred by
Article 30(1) would include within it the right of the minorities to claim affiliation for or recognition to educational institutions established by them.
50. The right of a linguistic or religious minority to administer educational institutions of their choice, though couched in absolute terms has been
held by this Court to be subject to regulatory measures which the State might impose for furthering the excellence of the standards of education.
The scope and ambit of the rights under Articles. 29(1) and 30(1) were first considered and analysed by this Court while giving its advice on the
Presidential Reference under Article 143 of the Constitution 280210 The report which was made to the President in that Reference, it is true, is not
binding on this Court in any subsequent matter wherein a concrete case the infringement of the rights under any analogous provision may be called
in question, though it is entitled to great weight. Under Article 143 this Court expresses its opinion if it so chooses and in some cases it might even
decline to express its opinion, vide In Re. Levy of Estate Duty [1971] Su. S.C.R. 688 cited with approval by Das,, C.J. in In re. The Kerala
Education Bill, 1957. In some cases the opinion may be based on certain stated contingencies or on some assumed or hypothetical situations
whereas in a concrete case coming before this Court by way of an appeal under Article 133, or by special leave under Article 136 or by a petition
under Article 32, the law declared by it by virtue of Article 143 is binding on all b2 courts within the territory of India. Nonetheless the exposition
of the various facets of the rights under Article 29(1) and Article 30(1) by Das, C.J., speaking for the majority, with the utmost clarity, great
perspicuity and wisdom has been the text from which this Court has drawn its sustenance in its subsequent decisions. To the extent that this Court
has applied these principles to concrete cases there can be no question of there being any conflict with what has been observed by Das, C.J. The
decisions rendered on analogous provisions as those that are under challenge in this case would prima jacie govern these cases, unless this larger
Bench chooses to differ from them.
51. In respect of certain provisions of the Kerala Education Bill, namely, Clauses 9, 11(2) and 12(4), Das, C.J. stated :
These are, no doubt, serious inroads on the right of administration and appear perilously near violating that right. But considering that those
provisions are applicable to all educational institutions and that the impugned parts of Clauses 9, 11 and 12 are designed to give protection and
security to the ill-paid teachers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at
present advised, to treat these Clauses 9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition
for granting aid to their educational institutions.
It was also observed therein that Clauses. 7, 10, 11(1), 12(1), (2), (3) and (5) may easily be regarded as reasonable regulations or conditions for
the grant of aid. But some of the provisions analogous to Clauses. 11, 12 (1), (2), (3) and (5) have been held invalid by this Court when they were
challenged as offending fundamental rights of minority institutions. In 280210 Sub-sections (1) (2) and (9) of Section 53 of the Kerala University
Act, 1969, were held to be invalid. These provisions are similar in terms and effect as Clause 11 of the Kerala Education Bill, 1957. Similarly,
Sub-sections (2) and (4) of Section 56 of the Kerala University Act being similar in terms and effect to sub-Clauses (1), (2) and (3) of Clause 12
of the Kerala Education Bill, 1957, which were field; to be reasonable and sub- Clause (4) of that Clause which was considered to be perilously
near to violating the fundamental rights in that case, were held to be invalid as they fall with Sections 48 and 49 of the Kerala Education Act. A
similar provision in the Statutes of the Guru Nanak University Act, namely, Statute 17 making a provision similar to Sub-clauses(1), (2) and (3) of
Clause 1* of the Kerala Education Bill was held invalid in D. A. V. . College etc. v. State of Punjab and Ors. Sub-sections (4) and (6) of Section
63 of the Kerala University Act, 1969, which provide for similar contingencies as those provided in Section 52A of the impugned provisions of the
Act dealing with the disputes between the governing body and any member of the teaching staff or other academic and non-teaching staff of
minority institutions was held to be invalid in Mother Provincial case. The provisions of the impugned Sections 33A(1) and (b) and 51A of the Act
are similar in nature to the provisions of Sections 53, 56 48 and 49 of the Kerala University Act. Statute 2(1) (a) of the Guru Nanak University
Act also corresponds to Sections 48 and 49 of the Kerala University Act and is similar in nature to Section 33A of the Act. These have been held
to be invalid in their application to minority educational institutions in the D. A. V. College case. Needless to say, in so far as these decisions lay
down a principle slightly different from or even contrary to the opinion on the Kerala Education Bill, they are the law laid down by this Court.
52. The impugned provisions, namely, Sections 40, 41, 33A(1)(a), 33A(1)(b), 51A and 52A have already been given in the judgment of Hon''ble
the Chief Justice. These may be compared with the provisions of the Kerala Education Bill, the Kerala University Act and the Statutes of the Guru
Nanak University Act, which have been juxtaposed for an easy appreciation of the nature of the provisions which have been held void by the cases
referred to above :
53. In spite of the consistent and categorical decisions which have held invalid certain provisions of the University Acts of some of the Stales as
interfering with the fundamental rights of management of minority in-situations inherent in the right to establish educational institutions of their choice
under Article 30(1), the State of Gujarat has incorporated similar analogous provisions to those that have been declared invalid by this Court. No
doubt education is a State subject, but in the exercise of that right any transgression of the fundamental right guaranteed to the minorities will have
its impact beyond the borders of that State and the minorities in the rest of the country will feel apprehensive of their rights being invaded in a
similar manner by other States. A kind of instability in the body politic will be created by action of a State which will be construed as a deliberate
attempt to transgress the rights of the minorities where similar earlier attempts were successfully challenged and the offending provisions held
invalid.
54. The Central Government to which notice was given probably realising the sensitive nature of the issue did not put forward any contentions
contrary to those that have already been considered and decided by this Court, though we had the advantage of the personal views of the
Attorney-General on some of the aspects of those fights. Equality of treatment of minority and majority or equality before law precludes
discrimination. According to Advisory opinion of the Permanent Court of International Justice on Minority Schools in Albania (6 April 1935),
Publications of the Court, series A/B No. 64, p. 19 :
whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between
different situations.
...It is ,easy to imagine cases in which equality of treatment of the majority and of the minority whose situation and requirements are different,
would result in inequality.... The equality between members of the majority and of the minority must be effective, genuine equality....
We are of opinion that this view is a sound one and the contentions advanced on behalf of some of the respondents in support of the validity of the
impugned provisions cannot be accepted.
55. In so far as the right of affiliation or recognition is concerned, no doubt, the observations of Das, C.J., in Re. The Kerala Education Bill case
[1919] S.C.R. 995 seem to negative any such right under Article 30(1). He said at p. 1067 :
There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon
terms tantamount to the surrender of their Constitutional right of administration of the educational institutions of their choice is in truth and in effect
to deprive them of their rights under Article 30(1).
These observations appear to us to be somewhat at variance with certain other observations. But if these observations are carefully scrutised, they
can be reconciled and harmonised. Das, C.J., had observed earlier at pp. 1066-1067 that :
The minorities, quite understandably, regard it as essential that the education of their children should be in accordance with the teachings of their
religion and they hold, quite honestly, that such an education cannot be obtained in ordinary schools designed for all the members of the public but
can only be secured in schools conducted under the influence and guidance of people well versed in the tenets of their religion and in the traditions
of their culture.... They also desire that scholars of their educational institutions should go out in the world well and sufficiently equipped with the
qualifications necessary for a useful career in life. But according to the Education Code now in operation to which it is permissible to refer for
ascertaining the effect of the impugned provisions on existing state of affairs the scholars of unrecognised schools are not permitted to avail
themselves of the opportunities for higher education in the University and are not eligible for entering the public services. Without recognition,
therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and
the rights under Article 30(1) cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the
right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational
institutions.
The right under Article 30 cannot be exercised in vacua. Nor would it be right to refer to affiliation or recognition as privileges granted by the State.
In a democratic system of Government with emphasis on education and enlightenment of its citizens, there must be elements which give protection
to them. The meaningful exercise of the right under Article 30(1) would and must necessarily involve recognition of the secular education imparted
by the minority institutions without which the right will be a mere husk. This Court has so far consistently struck down all attempts to make
affiliation or recognition on terms tantamount to surrender of its rights under Article 30(1) as abridging or taking away those rights. Again as
without affiliation there can be no meaningful exercise of the right under Article 30(1), the affiliation to be given should be consistent with that right,
nor can it indirectly try to achieve what it cannot directly do. See 281270 267347 . and D.A.V. College Case [1971] Supp. S.C.R. 688
56. If the right of recognition is not a fundamental right, the logical result of this postulate would be that the State need not recognise except on
general terms open to all institutions. Bat if the recognition by a State is limited in so far as minority institutions are concerned, in that under the
guise of exercising this power, the State cannot prescribe conditions which will make an inroad and take away the right guaranteed under Article
30(1), then there is no meaning in saying that the right to recognise vis- a-vis minority institutions is not a fundamental right. This is one conclusion
that can possibly be derived from the above observations of Das, C.J. The second conclusion which is possible is that these observations will have
to be confined to the provisions of law regarding the validity of which the opinion of the Court was sought. In that case, the Bill had provided for
giving recognition to schools for preparing students for the examinations conducted by the Board, and in so providing it had imposed conditions
which the Court construed as tantamount to the minority institutions being required to surrender or denying them the right under Article 30(1). The
Court was not concerned with a law which did not deal with the question of affiliation or recognition at all or where the teaching was confined only
to State managed and maintained schools. The observations of Das, C.J. cannot therefore, strictly speaking, apply to this fact situation. When it is
so read, they cannot be held to have laid down that the State must provide for giving recognition at least to the minority institutions or accord
recognition subject in such conditions as would in truth and in effect not amount to an infringement of their right under Article 30(1). In other
words, where the law does not provide for giving recognition or affiliation to any educational institution irrespective of whether it is a majority or a
minority institution, can the minority institution claim recognition on the ground that without recognition or affiliation the educational institution
established by them cannot fulfil the real objects of their choice and the minorities cannot effectively exercise their rights under Article 30(1) ? If the
logical answer flowing from the observations is that it cannot, then the question would arise as to what is the purpose which Clause (1) of Article
30 serves ? The only purpose that the fundamental right under Article 30(1) would serve would in that case be that minorities may establish their
institutions, lay down their own syllabi, provide instructions in the subjects of their choice, conduct examinations and award degrees or diplomas.
Such institutions have the right to seek recognition to their degrees and diplomas and ask for aid where aid is given to other educational institutions
giving a like education on the basis of the excellence achieved by them. The State is bound to give recognition to their qualifications and to the
institutions and they cannot be discriminated except oh the ground of want of excellence in their educational standards so far as recognition of
degrees or educational qualifications is concerned and want of efficient management so far as aid is concerned.
57. In the D. A. V. College case [1971] Supp S. C. R. 688 the compulsory affiliation of mino-rid educational institutions to the University which
had prescribed a medium of instructions other than the language of the minority a via media was suggested, having regard to the formation of the
linguistic States throughout India, that no compulsory affiliation can be insisted upon which offends the right guaranteed under Articles. 29(1) and
30(1). If, as was held, compulsory affiliation is bad, it will leave them free to get affiliated to a University in that linguistic State which provides
facility for the language and script of the minorities. This pre-supposes that there is a right to get recognition or affiliation where it is possible in India
for minority institutions to preserve their language, script and culture.
58. We may in this connection refer to a unanimous resolution of Parliament dated September 19, 1956, on the safeguards proposed for the
linguistic minorities, Vide Part IV of the States Reorganisation Report, recommending that the concerned States should provide necessary facilities
to safeguard minority rights by amending their University Statutes. The fifth paragraph of the memorandum as approved by Parliament states :
5. Affiliation of schools and colleges using minority languages.--Connected with the proposals contained in the preceding paragraphs is the
question of the affiliation of educational institutions located in the new or reorganised States to appropriate Universities or Boards of Education. It
is of course desirable that every effort should be made to evolve arrangements whereby educational institutions like schools and colleges can be
affiliated, in respect of courses of study in the mother-tongue, to Universities and other authorities which are situated in the same State. However, it
may not always be possible to make such arrangements; and having regard to the number of institutions of this kind, it may sometimes be
convenient, both from the point of view of the Universities or the educational authorities concerned, and from the point of view of the institutions
themselves, that they should be permitted to seek affiliation to appropriate bodies located outside the State. This may be regarded in fact as a
necessary corollary to the provisions contained in Article 30 of the Constitution, which gives to the minorities the right to establish and administer
educational institutions of their choice.
But what would happen if the educational institutions of a minority find it inconvenient or impossible to secure such a recognition or affiliation even
outside the State in which they are established ? In such circumstances, education including University education being a State subject and the
legislative power of the State also being subject to Article 29(1) and Article 30(1), minorities able to establish an educational institution can insist
on recognition, where affiliation is not provided for by the University Acts to the educational qualifications awarded by them, whether degrees,
diploma or other certificates, which conform to the educational standards prescribed by the State for the recognition of such degrees, diplomas and
other certificates.
H.R. Khanna, J.
59. What is the scope and ambit of the rights of minorities, whether based on religion or language, to establish and administer educational
institutions of their choice under Clause (1) of article 30 of the Constitution is the question which arises for consideration in this writ petition filed by
the Ahmedabad St. Xavier''s College Society and another under Article 32 of the Constitution. The respondents impleaded in the petition are the
State of Gujarat and the Gujarat University.
60. The first petitioner (hereinafter referred to as the petitioner) is a Society registered under the Societies Registration Act, 1860 (Act 21 of 1860)
and a Trust under the Bombay Public Trusts Act, 1950 (Act 29 of 1950). The petitioner is running St. Xavier''s College of Arts and Commerce in
Ahmedabad. The said college was established in June 1955 by a religious denomination known as the Society of Jesus, a religious order of
Catholic priests and brothers. The petitioner society was formed with the object of taking over the above mentioned college.
61. The petitioner society and the St., Xavier''s College seek to provide higher education to Christian students. Children, however, of all classes
and creeds provided they attain the qualifying academic standards are admitted to the St. Xavier''s College.
62. Before the bifurcation of the erstwhile State of Bombay into State of Maharashtra and State of Gujarat, the Bombay State legislature passed
the Gujarat University Act, 1949 (hereinafter referred to as the principal Act). The object of the Act was to establish and incorporate a teaching
and affiliated university. St. Xavier''s College was accorded affiliation u/s 33 of the principal Act on or about June 1955. Section 2 of the principal
Act contained definitions. We may set out the relevant definitions :
(1) ''Affiliated College'' means a college affiliated u/s 5 or 33.
(2) ''College'' mean,; a degree college or an intermediate college.
(2A) ''Constituent College'' means a University college or affiliated college made constituent u/s 41.
(3) ''Degree College'' means an affiliated college which is authorised to submit its students to an examination qualifying for any degree of the
University.
(8) ''Recognized Institution'' means an institution for research or specialized studies other than an affiliated college .and recognized as recognized
institution as may be declared to be teachers by the Statutes.
(13) ''Teachers of the University'' means teacher appointed or recognized by the University for imparting instruction on its behalf.
(15A) ''University College'' means a college which the University may establish or maintain under this Act or a '' college transferred to the
University and maintained by it.
(16) University Department'' means any college, postgraduate or research institution or department maintained by the University.
Section 39 of the Principal Act provided that within the University area, all post-graduate instruction, teaching and training shall be conducted by
the University or by such affiliated colleges or institutions and in such subjects as may be prescribed by the Statutes. According to Section 40 of
the Act, within a period of three years from the date on which Section 3 (which dealt with the incorporation of the University) comes into force, the
Senate shall determine that all instructions teaching and training beyond the stage of Intermediate examinations shall, within the area of the City of
Ahmedabad and such other contiguous area as the Senate may determine, be conducted by the University and shall be imparted by the teachers of
the University. The Senate shall then communicate its decision to the State Government which Government may, after making such inquiry as it
thinks fit, by notification in the Official Gazette declare that the provisions of Section 41 would come into force on such date as may be specified in
the notification. Section 40 was amended by Bombay Act 30 of 1954, as a result of which the words ""three years"" were substituted by the words
seven years"". The effect of that amendment was that the Senate could take its decision u/s 40 of the Act within seven years from the date on
which Section 3 came into force. Section 41 of the principal Act dealt with constituent colleges and institutions. The provisions of this Section
would be dealt with at length hereafter. Suffice it to say at present that Sub-section (2) of that Section provided that all institutions within the
Ahmedabad area would be constituent institutions of the University. No educational institution situate within the Ahmedabad area, it was specified,
would save with the consent of the University and the sanction of the State Government, be associated in any way with, or seek admission to any
privileges of, any other University established by law. Sub-section (4) of Section 41 dealt with the relations of the constituent colleges and the
constituent institutions within the Ahmedabad area and provided that the same would be governed by the Statutes to be made in this behalf. The
matters in respect of which the Statutes were to make provisions in particular regarding the relations of the constituent colleges and recognized
institutions were also specified.
63. The Senate of Gujarat University did not take any decision mentioned in Section 40 within the stipulated period of seven years. The said
period expired on November 22, 1957. The colleges affiliated to the Gujarat University accordingly continued to be affiliated colleges alter that
date. On September 28, 1971 the Senate passed a resolution that all instructions, teaching and training beyond the stage of intermediate
examination in the city of Ahmedabad be conducted by the University and imparted by the teachers of the University. The Registrar of the
University was directed to communicate the decision of the Senate to the State Government. '' The petitioners and some others then filed petitions
under article 226 of the Constitution in the Gujarat High Court on the ground that the powers of the Senate and the State Government u/s 40 of the
principal Act bad got exhausted on November 22, 1957 when the period of seven years from the commencement of the principal Act had expired.
In the alternative, it was stated by the petitioners that the provisions of Sections 40 and 41 were violative of articles 14, 19, 26, 29 and 30 of the
Constitution. In view of the pendency of these petitions, the State Government did not act upon the impugned resolution passed by the Senate on
September 28, 1971.
64. The Gujarat University (Amendment) Act, 1972 (Act No. 6 of 1973) (hereinafter referred to as the amending Act) was thereafter passed by
the Gujarat legislature. The amending Act came into force off March 12, 1973. It substituted the word ""Court"" for the word ""Senate"" and the
words ""Executive Council"" for the word ""Syndicate"". The Gujarat University Act as amended by the amending Act may for the sake of
convenience be described as the amended Act. Sections 33A, 39, 40, 41, 51A and 52A of the amended Act read as under:
33A. (1) Every college (other than a Government college or a college maintained by the Government) affiliated before the commencement of the
Gujarat University (Amendment) Act, 1972 (hereinafter in this Section referred to as ''such commencement'')--
(a) shall be under the management of a governing body which shall include amongst its members the Principal of the college, a representative of the
University nominated by the Vice-Chancellor, and three representatives of the teachers of the college and at least one representative each of the
Members of the non-teaching staff, and the students of the college, to be elected respectively from amongst such teachers, members of the non-
teaching staff and students; and
(b) that for recruitment of the Principal and members of the teaching staff of a college there is a selection committee of the college which shall
include--
(1) in the case of recruitment of the Principal, a representative of the University nominated by the Vice-Chancellor, and
(2) in the case of recruitment of a member of the teaching staff of the college, a representative of the University nominated by the Vice-Chancellor
and the Head of the Department, if any, concerned with the subject to be taught by such member.
(2) Every college referred to in Sub-section (1) shall,--
(a) within a period of six months after such commencement, constitute or reconstitute its governing body in conformity with Sub-section (1), and
(b) as and when occasion first arises after such commencement; for recruitment of the Principal and teachers of the college, constitute or
reconstitute its selection committee so as to be in conformity with Sub-section (1).
(3) The provisions of Sub-section (1) shall be deemed to be a condition of affiliation of every college referred to in Sub-section (1).
39. Within the University area, all post-graduate instruction, teaching and training shall be conducted by the University or by such affiliated colleges
or institutions and in such subjects as may be prescribed by the Statutes.
40. (1) The Court may determine that all instructions, teaching and training in courses of studies in respect of which the University is competent to
hold examinations shall within the University area be conducted by the University and shall be imparted by the teachers of the University and the
Court shall communicate its decision to the State Government.
(2) On receipt of the communication under Sub-section (1), the State Government may, after making such inquiry as it thinks fit, by notification in
the Official Gazette declare that the provisions of Section 41 shall come into force on such date as may be specified in the notification.
41. (1) All colleges within the University area which are admitted to the privileges of the University under subsection (3) of Section 5 and all
colleges within the said-area which may hereafter be affiliated to the University shall be constituent colleges of the University.
(2) All institutions within the University area recognized under Sections 35 and 63 or approved u/s 35A shall be the constituent institutions of the
University.
(3) No educational institution situate within the University area shall, save with the consent of the University and the sanction of the State
Government, be associated in any way with, or seek admission to any privileges of, any other University established by law.
(4) The relations of the constituent colleges and constituent, recognized or approved institutions within the University area shall be governed by the
Statutes to be made in that behalf, and such Statutes shall provide in particular for the exercise by the University of the following powers in respect
of the constituent degree colleges and constituent recognized institutions--
(i) to lay down minimum educational qualifications for the different classes of teachers and tutorial staff employed by such colleges and institutions
and the conditions of their service;
(ii) to approve the appointments of the teachers made by such colleges and institutions;
(iii) to require each such college and institution to contribute a prescribed quota of recognized teachers in any subject for teaching on behalf of the
University;
(iv) to co-ordinate and regulate the facilities provided and expenditure incurred by such colleges and institutions in regard to libraries, laboratories
and other equipments for teaching and research;
(v) to require such colleges and institutions, when necessary, to confine the enrolment of students to certain subjects;
(vi) to levy contributions from such colleges and institutions and make grants to them; and
(vii) to require satisfactory arrangements for tutorial and similar other work in such colleges and institutions and to inspect such arrangements from
time to time;
Provided that a constituent degree college or a constituent recognized institution shall supplement such teaching by tutorial or other instruction
teaching or training in a manner to be prescribed by the Regulation to be made by the Academic Council.
(5) Subject to the provisions of the Statutes the Board of University Teaching and Research shall organize and co-ordinate the instruction, teaching
and training within the University area.
51A(1) No member of the teaching, other academic and non-teaching staff of an affiliated college and recognized or approved institution shall be
dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges and until--
(a) he has been given a reasonable opportunity of making representation on any such penalty proposed to be inflicted on him, and
(b) the penalty to be inflicted on him is approved by the Vice-Chancellor or any other officer of the University authorised by the Vice Chancellor in
this behalf.
(2) No termination of service of such member not amounting, to his dismissal or removal falling under Sub-section (1) shall be valid unless--
(a) he has been given a reasonable opportunity of showing cause against the proposed termination, and
(b) such termination is approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in this behalf :
Provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only.
52A. (1) Any dispute between the governing body and any member of the teaching, other academic and non-teaching staff of an affiliated college
or recognized or approved institution which is connected with the conditions of service of such member, shall; on a request of the governing body,
or of the member concerned be referred to a Tribunal of Arbitration consisting of one nominated by the governing body of the college or, as the
case may be, member of the recognized or approved institution, one member nominated by the member concerned and an Umpire appointed by
the Vice-Chancellor.
(2) The provisions of Section 52 shall, thereupon mutatis mutandis apply to such request and lie decision that may be given by such Tribunal.
65. A meeting of the University Senate was convened for March 27f 28 and 29, 1973 wherein resolutions were proposed to be moved as items
Nos. 144 and 145 of the agenda that all instructions, teaching and training in courses of studies in respect of which the University was competent to
hold examinations be conducted by the University and be imparted by the teachers of the University. The petitioners thereupon filed the present
petition under Article 32 of the Constitution. According to the petitioners, the St. Xavier''s College Ahmedabad is an educational institution
established by a minority and the provisions of Sections 40 and 41 of the amended Act are violative of the fundamental rights of the petitioners
guaranteed under Articles 14, 19, 26, 29, 30 and 31 of the Constitution. The petitioners have also questioned the competence of the Gujarat
legislature to pass the amending Act. The three main reliefs sought by the petitioners are :
(1) That Sections 40 and 41 of the Gujarat University Act, 1949 (Bombay Act No. L of 1949) as amended by the Gujarat University
(Amendment) Act, 1972 (Gujarat Act No. 6 of 1973) are ultra vires the legislative powers of the State Legislature and/or are violative of Articles
14, 19(1)(a),, (f) and (g), 26, 29, 30 and 31 of the Constitution of India;
(2) That Sections 51A and 52A as inserted in the Gujarat University Act, 1949 (Bombay Act No. L of 1949) as amended by the Gujarat
University (Amendment) Act, 1972 (Gujarat Act No. 6 of 1973) are ultra vires Article 14, 19(1)(a)(f) and (g), 26, 29 and 30 of the Constitution
of India, and Ordinances 120D, 120E, 120F and 120G of the Ordinances framed by the Gujarat University under the Gujarat University Act,
1949 and saved by Sub-section (4) of Section 55 of the Gujarat'' University (Amendment^ Act, 1972 are ultra vires Articles 14, 19(1)(f) and (g),
26, 29 and 30 of the Constitution of India;
(3) That Section 33A inserted in the Gujarat University Act 1949 (Bombay Act No. L of 1949) as amended by the Gujarat University
(Amendment) Act, 1972 (Gujarat Act No. 6 of 1973) read with Section 20 (Clause XXXIX) as inserted in the Gujarat University Act, 1949 by
the Gujarat University Amendment Act, 1972 are ultra vires Articles 14, 19(1)(f) and (g), 26, 29 and 30 of the Constitution of India.
Prayer was also made by the petitioners for restraining the University from considering or passing the resolutions at items Nos. 144 and 145 of the
agenda in the meeting proposed to be held on March 27, 28 and 29, 1973. When the petition came up for preliminary hearing on March 27, 1973
this Court made an order that the University might pass the resolutions in question on March 27, 28 and 29, 1975 but should not implement the
same. The following resolution was passed by the Senate, in the meeting held on March 27 and 28, 1973 .
It is hereby resolved that all instructions, teaching and training in courses of studies in respect of which the University is competent to hold
examinations shall within the University area be conducted by the University and shall be imparted by the teachers of the University.
66. In view of the stay order of this Court, the above resolution has not been implemented.
67. The petition has been resisted by the two respondents, and the affidavits of the Under Secretary to the Government of Gujarat and the
Registrar of the University have been filed in opposition to the petition.
68. When the petition came up for hearing on November 12, 1973, the Court referred the petition to a larger Bench. It was directed that notice of
the matter be issued to the Advocates General of the States, Attorney General of India as well as the Union of India. Public notice was also issued
to the minority institutions to enter appearance, if so advised. The All India University Teachers Association was also granted permission for being
heard in the matter.
69. Lengthy arguments have thereafter been addressed before us on behalf of the petitioners, the respondents as well as others who have been
allowed to intervene. The arguments have, however, been confined to the question as to whether the impugned provisions violate Article 30 of the
Constitution. No arguments were heard on the point as to whether the impugned provisions are liable to be struck down on other grounds.
70. We may now refer to some of the relevant provisions of the Constitution to which reference has been made. According to Clause (1) of Article
25, subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and
the right freely to profess, practise and propagate religion. Article 26 gives a right, subject to public order, moral try and health, to every religious
denomination or any Section thereof (a) to establish and maintain institutions for religious and charitable, purposes; (b) to manage its own affairs in
matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. Articles
28, 29 and 30 contain provisions for educational institutions and read as under :
28. (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in Clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment
or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any
religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any
premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
29. (1) 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.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only
of religion, race, caste, language or any of them. -
30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language.
71. Article 28 forbids subject to the exception contained In Clause (2), the imparting of religious instructions in any educational institution wholly
maintained out of State funds. The Article also contains provision against compulsion for persons attending an educational institution, recognized by
the State or receiving aid out of State funds, to take part in any religious instruction that may be imparted in such institution or to attend any
religious worship that may be conducted in such institution or in any premises attached thereto.
72. Although the marginal note of Article 29 mentions protection of minority rights, the rights actually conferred by that Article are not restricted
merely to the minorities. According to Clause (1) of that article, 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. In order to invoke the benefit of this clause, all that
is essential is that a Section of the citizens residing in the territory of India or any part thereof should have a distinct language, script or culture of its
own. Once that is provided those citizens shall have the right to conserve their language, script or culture irrespective of the fact whether they are
members of the majority community or minority community. Clause (2) of Article 29 forbids the denial of admission to citizens into any educational
institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
73. Clause (1) of Article 30 gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of
their choice. Analysing that Clause it would follow that the right which has been conferred by the Clause is on two types of minorities. Those
minorities may be based either on religion or on language. The right conferred upon the said minorities is to establish and administer educational
institutions of their choice. The word ""establish"" indicates the right to bring into existence, while the right to administer an institution means the right
to effectively manage and conduct the affairs of the institution.. Administration connotes management of the affairs of the institution. 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 of how the interest of the community in general and the institution in particular will be best served. The words ""of their choice"" qualify the
educational institutions and show that the educational ''institutions established and administered by the minorities need not be of some particular
class; the minorities have the right and freedom to establish and administer such educational institutions as they choose. Clause (2) of Article 30
prevents the State from making discrimination in the matter of grant of aid to any educational institution on the around that the institution is under the
management of a minority whether based on religion or language.
74. Before we deal with the contentions advanced before us and the scope and ambit of Article 30 of the Constitution, it may be pertinent to refer
to the historical background. India is the second most populous country of the world. The people inhabiting this vast land profess different religions
and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic
innate unity. It is a mosaic of different religions languages and cultures. Each of them has made a mark on the Indian polity and India today
represents a synthesis of them all. The closing years of the British rule were marked by communal riots and dissensions. There was also a feeling of
distrust and the demand was made by a Section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country.
Those who led the fight for independence in India always laid great stress on communal amity and accord. They wanted the establishment of a
secular State wherein people belonging to the different religions should all have a feeling of equality and non-discrimination. Demand had also been
made before the partition by Sections of people belonging to the minorities for reservation of seats and separate electorates. In order to bring
about integration and fusion of the different Sections of the population, the framers of the Constitution did away with separate electorates and
introduced the system of joint electorates, so that every candidate in an election should have to look for support of all Sections of the citizens.
Special safeguards were guaranteed for the minorities and they were made a part of the fundamental rights with a view to instill a sense of
confidence and security in the minorities. Those provisions were a kind of a Charter of rights for the minorities so that none might have the feeling
that any Section of the population consisted of first-class citizens and the others of second-class citizens. The result was that minorities gave up
their claims for reservation of seats. Sardar Patel, who was the Chairman of the Advisory Committee dealing with the question of minorities, said in
the course of his speech delivered on February 27, 1947 :
This Committee forms one of the most vital parts of the Constituent Assembly and one of the most difficult tasks that has to be done by us is the
work of this committee. Often you must have heard in various debates in British Parliament that have been held on this question recently and before
when it has been claimed on behalf of the British Government that they have a special responsibility--a special obligation--for protection of the
interests of the minorities. They claim to have more special interest than we have. It is for us to prove that it is a bogus claim, a false claim, and that
nobody can be more interested than us in India in the protection of our minorities. Our mission is to satisfy every interest and safeguard the interests
of all the minorities to their satisfaction."" (The Framing of India''s Constitution B. Shiva Rao Select Documents. Vol. II p. 66).
75. It is in the context of that background that we should view the provisions of the Constitution contained in Articles 25 to 30. The object of
Articles 25 to 30 was to preserve the rights of religious and linguistic minorities, to place them on a secure pedestal and withdraw them from the
vicissitudes of political controversy. These provisions enshrined, a befitting pledge to the minorities in the Constitution of the country whose greatest
son had laid down his life for the protection, of the minorities. As long as the Constitution stands as it is today, no tampering with those rights can
be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be Constitutionally impermissible and liable to be
struck down by the courts. Although the words secular state are not expressly mentioned in the Constitution, there can be no doubt that our
Constitution-makers wanted establishment of such a state. The provisions of the Constitution were designed accordingly. There is no mysticism in
the secular character of the state. Secularism is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates
God from the matters of the state and ensures that 110 one shall be discriminated against on the ground of religion. The Constitution at the same
time expressly guarantees freedom of conscience and the right freely to profess, practise and propagate religion. The Constitution-makers were
conscious of the deep attachment the vast masses of our country had towards religion, the sway it had on their minds and the significant role it
played in their lives. To allay all apprehensions of interference by the legislature and the executive in matters of religion, the rights mentioned in
Articles 25 to 30 were made a part of the fundamental rights and religious freedom contained in those Articles was guaranteed by the Constitution.
76. As in the case of religion so in the case of language, the importance of the matter and the sensitivity of the people on this issue was taken note
of by the Constitution-makers. Language has a close relationship with culture. According to the Royal Commission on Bilingualism and
Biculturalism (1965), the vitality of the language is an essential condition for the preservation of a culture and an attempt to provide for cultural
equality is primarily an attempt to make provisions for linguistic equality (quoted on page 590 of Canadian Constitutional Law in a Modern
Perspective by J. Noel Lycn and Ronald G. Atkey).
77. The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered Section of the population but to give to
the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of
tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights fair minorities were designed not to create
inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities
autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended
to brine about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result
in true, genuine equality, an equality not merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It
can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book
because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and
Article 30, besides some other articles, is intended to afford and guarantee that protection. It may be apposite in this context to refer to the
observations made by Latham CJ. in Adelaide Co. of Jehovah''s'' Witnesses Inc. v. The Commonwealth [1943] 67 CriLR 116 while dealing with
Section 116 of the Commonwealth of Australia (Constitution) Act which provides inter alia that the Commonwealth shall not make any law for
prohibiting the free exercise of any religion. Said the learned Chief Justice : "". .. . it should not be forgotten that such a provision as Section 116, is
not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to
protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities.
78. It would in the above context be also pertinent to refer to the observations of the majority of the Permanent Court of International Justice in a
matter relating to the minority schools in Albania. On October 2, 1921 Albania, subsequent to her admission into the League of Nations, signed a
Declaration relating to the position of minorities in Albania. The first paragraph of Article 4 of that Declaration ran as follows : ""All Albanian
nationals shall be equal before the law, and shall enjoy the same civil and political rights without distinction as to race, language or religion"". Article
5 of the Declaration was in the following words :
Albanian nationals who belong to racial, religious or linguistic minorities will enjoy the same treatment and security in law and in fact as other
Albanian nationals. In particular they shall have an equal right to maintain, manage and control at their own expense or to establish in the future,
charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise
their religion freely therein"", in 1933 the Albanian National Assembly modified Articles 206 and 207 of the Albanian Constitution which permitted
the setting up of private schools. Henceforth those Articles provided as follows : ""The instruction and education of Albanian subjects are reserved
to the State and will be given in State schools. Primary education is compulsory for all Albanian nationals and will be given free of charge. Private
schools of all categories at present in operation will be closed.
79. Following upon the above change in the Articles of the Constitution, a number of petitions were presented to the Council of the League stating
that the new provisions of the Constitution were contrary to the Declaration. In January 1935 the Council o� the League adopted a Resolution
requesting the Permanent Count of International Justice to give an Opinion on the question ""whether, regard being had to the above-mentioned
Declaration of October 2, 1921, . as a whole, the Albanian Government is justified in its plea that, as the abolition of private schools in Albania
constitutes a general measure applicable to the majority as well as to the minority, it is hi conformity with the letter and the spirit of the stipulation"".
It was held by 8 votes to 3 that the plea of the Albanian Government that, as the abolition of private schools in Albania constitutes a general
measure applicable to the majority as well as to the minority, it is in conformity with the letter and spirit of the stipulations laid down in Article 5,
first paragraph, of the Declaration of October 2, 1921, is not well founded. In the above context the Court observed :
1. The Object of Minorities Treaties.--''The idea underlying the treaties for the protection of minorities is to secure for certain elements
incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that
population and co-operating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and
satisfying the ensuring special needs.
In order to attain that object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treaties.
The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect
equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial
peculiarities, their traditions and their national characteristic:.
These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were
deprived of its own institutions and were consequently compelled to renounce that which constitutes the very essence of its being a minority.
It was further observed :
There must be equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the words of the law. Equality in
law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which
establishes an equilibrium between different situations.
It is easy to imagine cases in which equality of treatment of the majority and of the minority, whose situation and requirements are different, would
result in inequality in fact; treatment of this description would run counter to the first sentence of paragraph I of Article 5. The equality between
members of the majority and of the minority must be an effective, genuine equality; that is the meaning of this provision.
The Court referred to Article 5 of the Declaration and observed
This sentence of the paragraph being linked to the first by the words ''in particular'', it is natural to conclude that it envisages a particularly important
illustration of the application of the principle of identical treatment in law and in fact that is stipulated in the first sentence of the paragraph. For the
institutions mentioned in the second sentence are indispensable to enable the minority to enjoy the same treatment as the majority, not only in law
but also in fact. The abolition of these institutions, which alone can satisfy the special requirements of the minority groups, and their re placement by
government institutions, would destroy this equality of treatment, for its effect would be to deprive the minority of the institutions appropriate to its
needs, whereas the majority would continue to have them supplied in the institutions created by the State.
80. It would be appropriate to refer at this stage to the cases wherein this Court has dealt with the impact of Article 30 on the educational
institutions established by the minorities. The first case 281270 was a reference made by the President under Article 143(1) of the Constitution for
obtaining the opinion of this Court upon certain questions relating to the Constitutional validity of the provisions of the Kerala Education Bill which
had been passed by the Kerala Legislative Assembly and had been reserved by the Governor for the consideration of the President, four questions
were referred to the Court, out of which we are at present concerned with question No. 2 which was as under :
Do sub- Clause (5) of Clause 3, Sub- clause (3) of Clause 8 and Clauses 9 to 13 of Kerala Education Bill, or any provision thereof, offend Clause
(1) of Article 30 of the Constitution in any particulars or to any extent ?
81. Clause 3(5) of the Bill made the recognition of new schools subject to other provisions of the Bill and the rules framed by the Government
under Clause 36. Clause 15 authorised the Government to acquire any category of schools. Clause 8(3) made it obligatory on all aided schools to
hand over the fees to the Government. Clauses 9 to 13 made provisions for the regulation and management of schools, payment of salary to die
teachers and the terms and conditions of their appointment. The Bench which heard the reference consisted of 7 judges. Six members of the Bench
speaking through Das CJ answered question No. 2 in the following words :
Question No. 2 : (i) Yes, so far as Anglo-Indian educational institutions entitled to grant under Article 337 are concerned, (ii) As regards other
minorities not entitled to grant as of right under any express provision of the Constitution, but are in receipt of aid or desire such aid and also as
regards Anglo-Indian educational institutions in so far as they are receiving aid in excess of what are due 10 them under Article 337, Clauses 8(3),
and 9 to 13 do not offend Article 30(1) but Clause 3(5) in so far as it makes such educational institutions subject to Clauses 14 and 15 do offend
Article 30(1)(iii) Clause 7 (except Sub-clauses. (1) and (3) which applies only to aided schools), Clause 10 in so far as they apply to recognized
schools to be established after the said Bill comes into force do not offend Article 30(1) but Clause 3(5) in so far as it makes the new schools
established after the commencement of the Bill subject to Clause 20 does offend Article 30(1).
It was held that :
Article 30(1) of the Constitution made no distinction between minority institutions existing from before the Constitution or established thereafter and
protected both. It did not require that a minority institution should be confined to the members of the community to which it belonged and a
minority institutions could not cease to be so by admitting a non-member to it.
Nor did Article 30(1) in any way limit the subject to be taught in a minority institution, and its crucial words ''of their own choice'', clearly indicated
that the ambit of the rights it conferred was determinate by the nature of the institutions that the minority communities chose to establish and the
three categories into which such institutions could thus be classified were (1) those that sought neither aid nor recognition from the State, (2) those
that sought aid, and (3) those that sought recognition but not aid. The impugned Bill was concerned only with institutions of the second and third
categories.
It was further held :
The right of the minorities to administer their educational institutions under Article 30(1), was not inconsistent with the right of the State to insist on
proper safeguards against misadministration by imposing reasonable regulations as conditions precedent to the grant of aid. That did not, however,
mean that State Legislature could, in the exercise of its powers of legislation under Articles 245 and 246 of the Constitution, override the
fundamental rights by employing indirect methods, for what it had no power to do directly, it could hot do in-directly.
Dealing with the question of State recognition of the minority institutions, the Court held :
While it was undoubtedly true that there could be no fundamental right to State recognition, denial of recognition except on such terms as virtually
amounted to a surrender of the right to administer the institution, must, in substance and effect infringe Article 30(1) of the Constitution.
Venkatarama Aiyar J. in his minority opinion held that Article 30(1) of the Constitution did not in terms confer a right cm the minority institutions to
State recognition, nor, properly construed, could ft do so by implication, for such an implication, if raised, would be contrary to the express
provisions of Article 45 of the Constitution. Article 30(1) was primarily intended to protect such minority institutions as imparted purely religious
education and to hold that the State was"" bound thereunder to recognize them would be tantamount not only to enduring Article 45 wholly in
fructuous but also to nullifying the basic concept of the Constitution itself, namely, its secular character.
82. 267347 was the next case in which this Court went into the question of the right of minorities to establish and administer educational
institutions. The petitioners in that case professed the Christian faith and belonged to the United Church of Northern India. They were members of
a society which maintained educational institutions primarily for the benefit of the Christian Community. The society conducted forty-two primary
schools and a Training College for teachers. The teachers trained in the college were absorbed in the primary schools conducted by the society
and those not so absorbed were employed by other Christian Mission Schools conducted by the United Church of Northern India. The cost of
maintaining the training college and the primary schools was met out of donations received from the Irish Presbyterian Mission, fee from scholars
and grant-in-aid from the State Government. On May 28, 1955, the Government of Bombay issued an order that from the academic year 1955-
56, 80% of the seats in the training colleges for teacher:; in non-Government training colleges should be reserved for teachers nominated by the
Government. The Principal of the Training College was thereafter asked by the Educational Inspector no to admit without specific permission of
the Education Department private students in-excess of 20% of the total strength in each sections It was also mentioned by the Educational
Inspector that the refusal to admit Government nominated teachers was irregular and against Government policy. Warning was administered to the
petitioners that disregard of the Government orders would result in the stoppage of grant. The petitioners thereupon approached this Court under
Article 32 of the Constitution on the allegation that the directions issued to them were violative of Article 30(1) and other provisions of the
Constitution. It was held by a Bench of six judges speaking through Shah J. (as he then was) that the rules for recognition of private training
institutions, in so far as they related to reservation of seats therein under orders of Government and directions given pursuant thereto regarding
reservation of 80% of the seats and the threat to- withhold grant-in-aid and recognition of the college, infringed the fundamental freedom under
Article 30(1).
83. 275277 was the next case wherein this Court dealt with the protection afforded by Article 30(1) to educational institutions established by the
minorities. The case related to the St. Xavier''s College Ranchi which had been established by the Jesuits of Ranchi and was affiliated to Patna
University. The object of founding the College, inter alia, was to give Catholic youth a full course of moral and liberal education, by imparting a
thorough religious instruction and by maintaining a Catholic atmosphere in the Institution. However, the College was open to non-Catholics and all
non-Catholic students received a course of moral science. The Bihar Legislature by an amending Act introduced Section 48-A in the Bihar
Universities Act with effect from March 1, 1962. The said Section related to the establishment of a University Service Commission for affiliated
colleges not belonging to the State Government. According to Clause 6 of that section, subject to the approval of the University, appointments,
dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government shall be
made by the governing body of the college on the recommendation of the Commission. Clause 11 of that Section inter alia provided that the
Commission shall be consulted by the governing body of a college in all disciplinary matters affecting a teacher of the college and no memorials or
petitions relating to such matters shall be disposed of nor shall any action be taken against, or any punishment imposed on, a teacher of the college
otherwise than in conformity with the finding of the Commission. The petitioners approached this Court under Article 32 of the Constitution and
contended that the St. Xavier''s College Ranchi was founded by Christian minority and they had a right to administer it. According to the
petitioners, Section 48-A deprived them of the right under Article 30 inasmuch as its provisions required inter alia that appointments, dismissals,
reduction in rank, etc., of the staff must be made- by the governing body on the recommendation of the University Service Com-mission for
affiliated colleges; in no case could the governing body Appoint person not recommended by the Commission; the Commission had to be
consulted in all disciplinary matters and any punishment imposed on a teacher could be only in accordance with the findings of the Commission.
Subsequent to the introduction of Section 48-A, in view of differences arising between the University and the college, the University withdrew the
affiliation of the college. While the petition was pending, Section 48-B was inserted into the Bihar Universities Act whereby it was provided that
the governing body of affiliated colleges established by a minority based on religion or language would be entitled to make appointments,
dismissals, termination of service or reduction in rank of teachers or take other disciplinary measure''s subject only to the approval of the
Commission and the Syndicate of the University. While allowing the petition filed by the petitioners, it was held by a Constitution Bench of this
Court speaking through Hidayatullah C.J. that the protection claimed by the petitioners clearly flowed from the Words of Article 30(1) of the
Constitution. It was further held that the width of Article 30(1) could not be cut down by introducing in it considerations on which Article 29(1)
was based.
84. 280040 was the next case wherein this Court dealt with a claim based on Article 30(1) of the Constitution. The case related to a school
founded in 1954 at Bhagalpur. The school was being managed by the National Christian Council of India. Two persons were elected as the
President and Secretary of the school and their election was approved by the President of the Board of Secondary Education. The order of the
President of the Board of Secondary Education was set aside by the Secretary to the Government, Education Department by order dated May
22, 1967. On June 21, 1967 the Regional Deputy Director of Education, Bhagalpur addressed a letter to the Secretary, Church Missionary
Society School, Bhagalpur inviting his attention to the order dated May 22, 1967 and requesting him to take steps to constitute a Managing
Committee of the School in accordance with that order. A petition was then filed in the High Court of Patna by four petitioners for restraining the
State of Bihar and its officers from interfering with the right of the petitioners to administer and manage the affairs of the school. The High Court
dismissed the petition on the ground that the school was not an educational institution established by a minority. The aforesaid petitioners then came
up in appeal to this Court. Petitions under Article 32 of the Constitution were also filed by other petitioners in this Court. This Court held mat the
school in question was an educational institution established by a religious minority. On the above finding the Court speaking through Shah J. (as he
then was) held that the order passed by the educational authorities requiring the Secretary of the School to take steps to constitute a Managing
Committee in accordance with the order dated May 22, 1967 was invalid.
85. Question of the protection of Article 30(1) next arose in the case of 280210 . This case related to the Kerala University Act, 1969. The said
Act was passed to reorganise the University of Kerala with a view to establish a teaching, residential and affiliating University for the southern
districts of the State of Kerala. Some of its provisions affected private colleges, particularly those founded by minority communities in the State.
The Constitutional validity of those provisions was challenged by members of the minority communities in writ petitions filed in the High Court.
Sections 48 and 49 or the Act dealt with governing body for private colleges not under corporate management and with managing council for
private colleges under corporate management. In either case the educational agency of a private college was required to set ap a governing body
for a private college or a managing council for private colleges under one corporate management. The Sections provided for the composition of the
two bodies so as to include Principals and Managers of the private colleges, nominees of the University and Government, as well as elected
representatives of teachers. Subsection (2) provided that the new bodies would be bodies corporate having perpetual succession and a common
seal. Sub-section (4) provided that the members would hold office for four years. Subsection (5) of each Section cast a duty on the new governing
body or the managing council to administer the private college or colleges in accordance with the provisions of the Act. Sub-section (6) of each
Section laid down that the powers and functions of the new bodies, the removal of members thereof and the procedure to be followed by them,
would be prescribed by statutes. The petitioners challenged the provisions of those two Sections as also Sub-sections (1), (2), (3) and (9) of
Section 53 which conferred on the Syndicate of the University the power to veto the decisions of the governing council and a right of appeal to any
person aggrieved by their action. Likewise, the petitioners challenged Section 56, which conferred ultimate powers on the University and the
Syndicate in disciplinary matters in respect of teachers, Section 58, which removed membership of the Legislative Assembly as a disqualification
for teachers and Section 63(1), which provided that whenever Government was satisfied that a grave situation had arisen in the working of a
private college, it could inter alia appoint the University to manage the affairs of such private college for a temporary period. The High Court on
petitions filed by the petitioners declared some of the provisions! of the Act to be invalid. On appeal this Court speaking through Hidayatullah CJ.
held that the High Court was right in holding that Sub-sections (2) and (4) of Sections 48 and 49 were ultra vires Article 30(1). Sub-section (6) of
each of those two Sections was also held to be ultra vires. The High Court, it was further held, was also right in declaring that Sub-sections (4), (2)
and (9) of Section 53, Sub-sections (2) and (4) of Section 56, were ultra vires as they fell within Sections 48 and 49; that Section 58 (in so far as
it removed disqualification which the founders might not like to agree to), and Section 63 were ultra vires Article 30(1) in respect of the minority
institutions.
86. The last two cases wherein this Court considered the impact of Article 30 on minority institutions were D.A.V. College Bathinda, etc. v. State
of Punjab and Ors. [1971] S. C. R. 677 and D. A. V. College etc. v. State of Punjab and Ors. [1971] 1 S. C. R 688 Judgments in both these
cases were pronounced on May 5, 1971. Jaganmohan Reddy J. spoke for the Court in these two cases. The petitioners in the case of D. A. V.
College Bathinda were educational institutions founded by the D.A.V. College, Trust and Society. It was an association of Arya Samajis. The
institutions were before the reorganization of the State of Punjab affiliated to the Punjab University. The Punjabi University was constituted in
1961. After the reorganization of Punjab, the Punjab Government u/s 5 of the Act specified the areas in which the Punjabi University exercised its
power and notified the date for the purpose of the section. The effect of the notification was that the petitioners were deemed to be associated with
and admitted to the privileges of the Punjabi University and ceased to be associated in any way with the Punjab University. Thereafter by circular
dated June 15, 1970 the University declared that Punjabi would be the sole medium of instruction and examination for the pre-University even for
science groups, with effect from the academic year 1970-71. On October 7, 1970 a modification was made allowing English as an alternative
medium of examination. It was, however, mentioned that qualifying in the elementary Punjabi papers would be obligatory for the students offering
English medium. Petitions were thereafter filed in this Court under Article 32 of the Constitution on the ground that the University bad no power to
make Punjabi as the sole medium of instruction. It was held by this Court that the circular of June 15, 1970 as amended by the circulars of July 2,
1970 and October 7, 1970 was invalid and ultra vires the powers vested in the University. The Court further held that the petitioners were
institutions maintained by a religious minority and as such the directive for the exclusive use of the Punjabi language in the Gurmukhi script as the
medium for instruction and for examination in all colleges directly infringed the petitioners'' right to conserve their script and administer their
institutions. The relaxation made subsequently in the earlier directive of the University, it was observed, made little difference because the
concession did not benefit students with Hindi as the medium and Devnagri as the script. The right of the minorities to establish and administer
educational institutions of their choice, it was further held, included the right to have a choice of the medium of instruction also. That would be the
result of reading Article 30(1) with Article 29(1). No inconvenience or difficulties, administrative or financial, could justify the infringement of
guaranteed rights.
87. The other case, D.A.V. College v. State of Punjab (supra) arose out of writ petitions filed by the various colleges managed and administered
by the D.A.V. College Trust and Managing .Society. These colleges were before the Punjab Reorganization Act affiliated to the Punjab University.
As a result of notification issued u/s 5 of the Guru Nanak University (Amritsar) Act (Act 21 of 1969) those colleges, which were in the specified
areas ceased to be affiliated to the Punjab University and were to be associated and admitted to the privileges of the Guru Nanak University. By
Clause 2(1)(a) of the statutes 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. It was also provided that the governing body would include two representatives of the University
and the Principal of the College. Under Clause (1)(3) if these requirements were not complied with, the affiliation was liable to be withdrawn.
Under Clause 17 the staff initially appointed had to be approved by the Vice-Chancellor and all subsequent changes were also to be reported to
the University for Vice-Chancellor''s approval. Clause 18 required non-Government colleges to comply with the requirements laid down in the
ordinance governing service and conduct of teachers in non-Government colleges as might be framed by the University. This Court held that Arya
Samaj was a part of the Hindu religious minority in the State of Punjab and that Arya Samajis had a distinct script of their own, namely, Devnagri.
Arya Samajis were held entitled to invoke the right guaranteed by Article 29(1) because they were a Section of citizens having a distinct script;
they were also entitled to invoke Article 30(1) because they were a religious minority. Clauses 2(1)(a) and 17 of Chapter V of the statutes were
struck down by the Court as offending Article 30(1) because they interfered with the right of the religious minority to administer their educational
institutions. Clause 18 was held not to suffer from the same vice as Clause 17.
88. I have given above the gist of the different decisions of this Court dealing with Articles 29 and 30. Having done that, we should now consider
the principle which should be adopted in construing those articles.
89. A liberal, generous and sympathetic approach is reflected in the Constitution in the matter of the preservation of the right of minorities so far as
their educational institutions are concerned. Although attempts have been made in the past to whittle down the rights of the minorities in this
respect, the vigilant Sections of the minorities have resisted such attempts. Disputes have consequently arisen and come up -before this Court for
determining whether the impugned measures violate the provisions of the Constitution embodied in Articles 29 and 30. This Court has consistently
upheld the rights of the minorities embodied in those Articles and has ensured that the ambit and scope of the minority rights is not narrowed down.
The broad approach has been to see that nothing is done to impair the rights of the minorities in the matter of their educational institutions and that
the width and scope of the provisions of the Constitution dealing with those rights are not circumscribed. The principle which can be discerned in
the various decisions of this Court is that the catholic approach which led to the drafting of the provisions relating to minority rights should not be
set at naught by narrow judicial interpretation. The minorities are as much children of the soil as the majority and the approach has been to ensure
that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the
awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental
right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing Articles 29 and
30 as marked the deliberations of the Constitution-makers in drafting those Articles and making them part of the fundamental rights. The
safeguarding of the interest of the minorities amongst Sections of population is as important as the protection of the interest amongst individuals of
persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized
nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilization
and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.
90. We may now deal with the scope and ambit of the right guaranteed by Clause (1) of Article 30. The Clause confers a right on all minorities,
whether they are based on religion or language, to establish and administer educational institutions of their choice. The right conferred by the
Clause is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article 19 of the Constitution. The right of the
minorities to administer educational institutions does not. however, prevent the making of reasonable regulations in respect of those institutions. The
regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make
it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister.
Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or
continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution.
Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations
made in the 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, in
matters educational (fee observations of Shah J. in Rev. Sidhajbhai Sabhai, supra, p. 850). Further, as observed by Hidayatullah CJ. in the case of
Very Rev. Mother Provincial (supra) the 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 teachers 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.
91. It is, in my opinion, permissible to make regulations for ensuring the regular payment of salaries before a particular date of the month.
Regulations may well provide that the funds of the institution should be spent for the purposes of education or for the betterment of the institution
and not for extraneous purposes. Regulations may also contain provisions to prevent the diversion of funds of institutions to the pockets of those
incharge of management or their embezzlement in any other manner. Provisions for audit of the accounts of the institution would be permissible
regulation. Likewise, regulations may provide that no anti-national activity would be permitted in the educational institutions and that those
employed as members of the staff should not have been guilty of any activities against the national interest. Minorities are as much part of the nation
as the majority, and anything that impinges upon national interest must necessarily in its ultimate operation affect the interests of all those who inhibit
this vast land irrespective of the fact whether they belong to the majority or minority Sections of the population. It is, therefore, as much in the
interest of minorities as that of the majority to ensure that the protection afforded to minority institutions is not used as a cloak for doing something
which is subversive of national interests. Regulations to prevent anti-national activities in educational institutions can, therefore,, be considered to be
reasonable.
92. A regulation which is designed to prevent maladministration of an educational institution cannot be said to offend Clause (1) of Article 30. At
the same time it has to be ensured that under the power of making regulations nothing is done as would detract from the character of the institution
as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of
their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of
reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation. As observed
by this Court in the case of Rev. Sidhajbhai Sabhai (supra), regulations which may lawfully be imposed either by legislative or executive action as a
condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority institution effective as
an educational institution. Such regulation must satisfy a dual test--the test of reasonableness, and the test that it is regulative of the educational
character of the institution and. is conducive to making the institution an effective vehicle of education for the minority community or other persons
who resort to it.
93. It has been said in the context of the American Constitution and the Canadian Bill of Rights that the Constitutional protection of religious
freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom :from conformity
to religious dogma, not freedom from conformity to law because of religious dogma (see dissenting opinion of Frankfurter J. in West Virginia State
Board of Education v. Barnette 319 U. S. 624 as well as the judgment of Ritchie .J. speaking for the majority of Canadian Supreme Court in
Robertson and Rosetanni v. Queen [1963] S. C. R. 651 : (1964) D. L. R. 2d 485 As a broad proposition not much exception can be taken to the
above dictum and it may provide a workable yardstick in a large number of cases. Difficulty, however, arises in cases which are in the twilight
region. Provisions for prevention of disabilities do not, no doubt, create positive privileges, the two aspects are sometimes so intermixed that the
danger is that one may not while denying what appears to be a privilege impinge upon a provision which is designed to prevent a disability and thus
set at naught the guarantee of the Constitution. Apart from that whatever might be the position in USA and Canada, so far as our Constitution is
concerned it contains Articles which are designed not only to prevent disabilities of the minorities but also create positive rights for them. Article
30(1) belongs to that category.
94. If a request is made for the affiliation or recognition of an educational institution, it is implicit in the request that the educational institution would
abide by the regulations which are made by the authority granting affiliation or recognition. The said authority can always prescribe regulations and
insist that they should be complied with before it would grant affiliation or recognition to an educational institution. To deny the power of making
regulations to the authority concerned would result in robbing the concept of affiliation or recognition until it conforms to a certain standard. The
fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for
the authority concerned to prescribe regulations which must be complied with before an institution can seek and retain affiliation and recognition.
Question then arises whether there is any limitation on. the prescription of regulations for minority educational institutions. So far as this aspect is
concerned, the authority prescribing the regulations must bear in mind that the Constitution has guaranteed a fundamental right to the minorities for
establishing and administering their educational institutions. Regulations made by the authority concerned should not impinge upon that right.
Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving
the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can
be considered to be reasonable.
95. It has not been disputed on behalf of the petitioners that if the State or other statutory authorities make reasonable regulations for educational
institutions, those regulations would not violate the right of a minority to administer educational institutions. We agree with the stand taken by the
petitioners in this respect. It would be wrong to assume that an unrestricted right as in Article 30 postulates absence of regulations. Regulations can
be prescribed in spite of the unrestricted nature of the right. The unrestricted nature of the right connotes freedom in the exercise of the right. Even
the words freedom"" and ""free"" have certain limitations. In James v. The Commonwealth [1936] A.C.578 the Privy Council dealt with the meaning
of the words ""absolutely free"" in Section 92 of the Constitution of Australia. It was said : ""Free"" in itself is vague and indeterminate. It must take its
colour from the context. Compare for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free
speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law,...."" The
First Amendment of the American Constitution provides inter alia that the Congress shall make no law respecting establishment of religion or
prohibiting the free exercise thereof. Dealing with that Amendment, the US Supreme Court held in the case of Reynolds v. United States 98 U. S.
145 (1878) that that Amendment did not deprive the Congress of the power to punish actions which were in violation of social duties or subversive
of good order. The contention advanced on behalf of the appellant in that case that polygamy was a part of his religious belief and the Act of the
Congress prohibiting polygamy violated his free exercise of religion was repelled. In the case of Cantwell v. Connacticnt 310 U. S. 296 (1940)
Roberts J. speaking for the US Supreme Court observed in respect of the First Amendment :
Thus the Amendment embraces two concepts--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second
cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the
enforcement of that protection.
Similar view was expressed by Latham CJ. in the case of Adelaide Company of Jehovah''s Witnesses Inc. (supra; while dealing with Section 116
of the Australian Constitution when he said that ""obligation to obey the laws which apply generally to the community is not regarded as inconsistent
with freedom"". It would, therefore, follow that the unrestricted nature of a right does not prevent the-making of regulations relating to the
enforcement of the right.
96. Question has been posed during the course of arguments whether the educational institutions referred to in Clause (1) of Article 30 must only
be those institutions which have been established with a view to conserve language, script or culture of a minority. To put it in other words, the
question is whether Clause (1) of Article 30 is subject to the provisions of Clause (1) of Article 29. In this respect I am of the view that Clause (1)
of Article 29 and Clause (1) of Article 30 deal with distinct matters, and it is not permissible to circumscribe or restrict the right conferred by
Clause (1) of Article 30 by reading in it any limitation imported from Clause (1) of Article 29. Article 29(1) confers a right on any Section of
citizens having a distinct language, script or culture of its own to conserve the same. It is not necessary, as mentioned earlier, for invoking this
Clause that the Section of citizens should constitute a minority. As against that, the right conferred by Article 30(1) is only upon minorities which
are based either on religion or language. The right conferred by Article 29(1) is for the conservation of language, script or culture, while that
guaranteed by Article 30(1) is for the establishment and administration of educational institutions of the choice of minorities. Had it been the
intention of the Constitution-makers that the educational institutions which can be established and administered by minorities should be only those
for conservation of their language, script or culture, they would not have failed to use words to that effect in Article 30(1). In the absence of those
words, it is difficult to subscribe to the view that educational institutions mentioned in Article 30(1) are only those which are intended to conserve
language, script or culture of the minority. Clause (1) of Article 30 also contains the words ""of their choice"". These words which qualify
educational institutions"" show the vast discretion and option which the minorities have in selecting the type of institutions which they want to
establish. In case an educational institution is established by a minority to conserve its distinct language, script or culture, the right to establish and
administer such institution would fall both under Article 29(1) as well as under Article 30(1). The minorities can, however, choose to establish an
educational institution which is purely of a general secular character and is not designed to conserve their distinct language, script or culture. The
right to establish and administer such an institution is guaranteed by Article 30(1) and the fact that such an institution does not conserve the distinct
language, script or culture of a minority would not take it out of the ambit of Article 30(1).
97. I am fortified in the above conclusion by the observations of Das CJ. in Re Kerala Education Bill (supra) and Hidayatullah CJ. in the case of
Rev. Father Proost (supra). Das CJ. observed :
The right conferred on such minorities is to establish educational institutions of their 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 religious and the linguistic minorities should have the right to establish
educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities
will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the
world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice
will necessarily include institutions imparting general secular education also.
Hidayatullah CJ. expressed somewhat similar view in the following words :
In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 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 establish educational
institutions of their choice. This choice is not limited to institutions seeking to conserve language, script or culture and the choice is not taken away if
the minority community having established an educational institution of its choice also admits 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.
98. It has been argued on behalf of the respondents that there is no fundamental right to affiliation or recognition and that a minority educational
institution seeking affiliation or recognition must conform to the conditions which are prescribed for recognition or affiliation. So far as this aspect is
concerned, I am of the view that it is permissible for the State to prescribe reasonable regulations like the one to which I have referred earlier and
make it a condition precedent [to the according of recognition or affiliation to a minority institution. It is not, however, permissible to prescribe
conditions for recognition or affiliation which have the effect of impairing the right of the minority to establish and administer their educational
institutions. Affiliation and recognition are, no doubt, not mentioned in Article 30(1), the position all the same remains that refusal to recognize or
affiliate minority institutions unless they (the minorities) surrender the right to administer those institutions would have the effect of rendering the right
guaranteed by Article 30(1) to be wholly illusory and indeed a teasing illusion. It is, in our opinion, not permissible to exact from the minorities in
lieu of the recognition or affiliation of their institutions a price which would entail the abridgement or extinguishment of the right under Article 30(1).
An educational institution can hardly serve any purpose or be of any practical utility unless it is affiliated to a University or is otherwise recognized
like other educational institutions. The right conferred by Article 30. is a real and meaningful right. It is neither an abstract right nor is it to be
exercised in vacuum. Article 30(1) was intended to have a real significance and it is not permissible to construe it in such a manner as would rob it
of that significance. It may be appropriate in this context to refer to the observations of Das CJ. in the case of Re Kerala Education Rill (supra) on
pages 1067-68 :
Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects
of their choice and the rights under Article 30(1) cannot be effectively exercised. The right to establish educational institutions of their choice must,
therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their
educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational
institutions except upon terms tantamount to the surrender of their Constitutional right of administration of the educational institutions of their
choice-is in truth and in effect to deprive them of their rights under Article 30(1). We repeat that the legislative power is subject to the fundamental
rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if
the said Bill containing any offending Clause becomes law.
Similar view was expressed in the case of Rev. Sidhajbhai Sabhai (supra) wherein it was observed :
The Government also holds examinations for granting certificates to successful candidates as trained primary teachers, and scholars receiving
training in recognized institutions alone are entitled to appear at the examination. Manifestly, in the absence or recognition by the Government
training in the College will have little practical utility. The College is a non-profit making institution and depends primarily upon donations and
Government grant for meeting its expenses. Without such grant, it would be extremely difficult if not impossible for the institution to function.
99. What is said above with regard to aid or recognition applies equally to affiliation of a college to the University because but for such affiliation
the student will not be able to obtain a University degree which is recognized as a passport to several professions and future employment in Public
Service.
100. Argument has been advanced on behalf of the respondents that unless a law or regulation is wholly destructive of the right of minorities under
Article 30(1), the same would not be liable to be struck down. This argument is untenable and runs counter to the plain language of Article 13.
According to that article, a law would be void even if it merely abridges a fundamental right guaranteed by Part III and does not wholly take away
that right. The argument that a law or regulation could not be deemed to be unreasonable unless it was totally destructive of the right of the minority
to administer educational institutions -was expressly negatived by this Court in the case of Rev. Sidhajbhai Sabhai (supra). After referring to the
case of Re. Kerala Education Bill (supra) this Court observed in the case of Rev. Sidhjbhai Sabhai:
The Court did not, however, lay down any test of reasonableness of the regulation. The Court did not decide that public or national interest was
the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive
of the right of the minority to administer educational institution. No general principle on which reasonableness'' or otherwise of a regulation may be
tested was sought to be laid down by the Court. The Kerala Education Bill case, therefore, is not an authority for the proposition submitted by the
Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the
minority, provided the regulations are in the national interest or public interest, are valid.
101. It is, no doubt, true that on page 1065 of the case Re Kerala Education Bill Das CJ. while dealing with Clauses 14 and 15 of the Bill
observed that the provisions of those Clauses might be totally destructive of the rights under Article 30(1). These observations were intended to
describe the effect of those clauses. There is, however, nothing in those observations to indicate that this Court would have upheld those Clauses if
those Clauses had abridged or partially destroyed the right under Article 30(1) and not totally destroyed that right.
102. In the light of the above principles, it can be stated that a law which interferes with the minorities choice of a governing body or management
council would be violative of the light guaranteed by Article 30(1). This view has been consistently taken by this Court in the cases of Rt. Rev.
Bishop: S. K. Patro, Mother Provincial and D.A.V. College affiliated to the Guru Nanak University (Supra).
103. Section 33-A which provides for a new governing body for the management of the college and also for selection committees as well as the
Constitution thereof would consequently have, to be quashed so far as the minority educational institutions are concerned because of the
contravention of Article 30(1). The provisions of this Section have been reproduced earlier and are similar to those of Section 48 of the Kerala
University Act. Sub-section (2), (4), (5) and (6) of which were held by this Court in the case of Mother Provincial (supra) to be violative of Article
30(1). In the case of Rt. Rev. Bishop S. K. Patro, this Court declared invalid the order passed by the educational authorities requiring the
Secretary of the Church Missionary Society Higher Secondary School to take steps to constitute a managing committee in accordance with the
order of the educational authorities. Section 33-A is also similar to statute 2(1)(a) which was framed under the Guru Nanak University (Amritsar)
Act. Statute 2(1) (a) was as under :
2(1) (a) A College applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the
Senate :--
(a) that the College shall have a regularly constituted governing body consisting of not more than 20 persons approved by the Senate and including,
among others, 2 representatives of the University and the Principal of the College Ex-officio.
Provided that the said condition shall not apply, in the case of College maintained by Government which shall however have an advisory
Committee consisting of among others the principal of the College (Ex-officio) and two representatives of the University.
The above statute was struck down by this Court in the second D.A.V-College case.
104. Another conclusion which follows from what has been discussed above is that a law which interferes with a minority''s choice of qualified
teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of
course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the
requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those
teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an
educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). In the
case of Rev. Father W. Proost (supra), this Court while dealing with Section 48-A of the Bihar Universities Act observed that the said provision
completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service
Commission. The petitioners in that case were, therefore, held entitled to the protection of Article 30(1) of the Constitution. The provisions of that
b2 Section have been referred to earlier. According to the section, subject to the approval of University appointments, dismissals, removals,
termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the
governing body of the college on the recommendation of the University Service Commission. The Section further provided that the said
Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would
be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission.
105. In the case of D-A.V. College which was affiliated to the Guru Nanak University, statute 17 framed under the Guru Nanak University
(Amritsar) Act inter alia provided that the Staff initially appointed shall be approved by the Vice-Chancellor and that all subsequent changes shall
be reported to the University for Vice-chancellor''s approval. This Court held that statute 1.7 interfered with the right of management of the
petitioner colleges and, as such, offended Article 30(1).
106. Although disciplinary control over the teachers of a minority educational institution would be with the governing-council, regulations, in my
opinion, can be made for ensuring proper conditions of service of the teachers and for securing a fair procedure in the matter of disciplinary action
against the teachers. Such provisions which are calculated to safeguard the interest of teachers would result in security of tenure and thus inevitably
attract competent persons for the posts of teachers. Such a provision would also eliminate a potential cause of frustration amongst the teachers.
Regulations made for this purpose should be considered to be in the interest of minority educational institutions and as such they would not violate
Article 30(1).
107. Clause (a) of Sub-sections (1) and (2) of Section 51A of the impugned Act which make provision for giving a reasonable opportunity of
showing cause against a penalty to be proposed on a member of the staff of an educational institution would consequently be held to be valid.
Clause (b) of those sub-Sections which gives a power to the Vice-Chancellor and officer of the University authorised by him to veto the action of
the managing body of an educational institution in awarding punishment to a member of the staff, in my opinion, interferes with the disciplinary
control of the managing body over its teachers. It is significant that the power of approval conferred by Clause (b) in each of the two sub-Sections
of Section 51A on the Vice-Chancellor or other officer authorised by him is a blanket power. No guidelines are laid down for the exercise of that
power and it is not provided that the approval is to be withheld only in case the dismissal, removal, reduction in rank or termination of service is
mala fide or by way of victimisation, or other similar cause. The conferment of such blanket power on the Vice-Chancellor or other officer
authorised by him for vetoing the disciplinary action of the managing body of an educational institution makes a serious inroad on the right of the
managing body to administer an educational institution. Clause (b) of each of the two sub-Sections of Section 51A should, therefore, be held to be
violative of Article 30(1) so far as minority educational institutions are concerned.
108. Section 52A of the Act relates to the reference of disputes between a governing body and any member of the teaching, other academic and
non-teaching staff of an affiliated college or recognized or approved institution connected with the conditions of service of such member to a
Tribunal of Arbitration, consisting of one nominated by the governing body of the college or, as the case may be, of the recognised or approved
institution, one member nominated by the member of the staff involved in the dispute and an Umpire appointed by the Vice-Chancellor. Section
52A is widely worded, and as it stands it would cover within its ambit every dispute connected with the conditions of service of a member of the
staff of an educational institution, however trivial or insignificant it may be, which may arise between the governing body of a college and a member
of the staff. The effect of this Section would be that the managing committee of an educational institution would be embroiled by its employees in a
series of arbitration proceedings. The provisions of Section 52A would thus act as a spoke in the wheel of effective administration of an
educational institution. It may also be stated that there is nothing objectionable to selecting the method of arbitration for settling major disputes
connected with conditions of service of staff of educational institutions. It may indeed be a desideratum. What is objectionable, apart from what
has been mentioned above, is the giving of the power to the Vice-Chancellor .to nominate the Umpire.. Normally in such disputes there would be
hardly any agreement between the arbitrator nominated by the governing body of the institution and the one nominated by the concerned member
of the staff. The result would be that the power would vest for all intents and purposes in the. nominee of the Vice-Chancellor to decide all disputes
between the governing body and the member of the staff connected with the tatter''s conditions of service. The governing body would thus be
hardly in a position to take any effective disciplinary action against a member of the staff. This must cause an inroad in the right of the governing
body to administer the institution. Section 52A should, therefore, be held to be violative of Article 30(1) so far as minority educational institutions
are concerned.
109. In view of what has been mentioned above, Sections 40 and 41 of the Act would also have to be struck down so far as the minority colleges
are concerned as being violative of Article 30(1). The effect of Sections 40 and 41 is that in case the University so determines and the State
Government issues the necessary notification under subsection (2) of Section 40, all instructions, teaching and training in under-graduate courses
shall within the University area be conducted by the University and shall be imparted by the teachers of the University. The result would be that
except in matters mentioned in the proviso to Sub-section (4) of Section 41 no instructions, teaching and training in undergraduate courses of
study, which has hitherto fore been conducted by the affiliated colleges, would be conducted by these colleges, because the same would have to
be conducted by the University and would have to be imparted by the teachers of the University. The affiliated colleges would also as a result of
the above become constituent colleges. A provision which makes it imperative that teaching in under-graduate courses can be conducted only by
the University and can be imparted only by the teachers of the University plainly violates the rights of minorities to establish and administer their
educational institutions. Such a provision must consequently be held qua minority institutions to result in contravention of Article 30(1). I would,
therefore, strike down Section 40 so far as minority educational institutions are concerned as being violative of Article 30(1) Further, once Section
40 is held to be unConstitutional so far as minority educational institutions are concerned, the same vice would afflict Section 41 because Section
41 can operate only if Section 40 survives the attack and is held to be not violative of Article 30(1). I would therefore, hold Section 40 and 41 to
be void in respect of minority educational institutions.
110. It has been argued on behalf of the respondents that in the case of Re Kerala Education Bill (supra) this Court upheld Clauses 11 and 12.
Clause 11 made it obligatory for all aided schools to select teachers from a panel of candidates selected for each district by the Public Service
Commission. Clause 12 related to the conditions of service of aided teachers. According to sub- Clause (4) of Clause 12, no teacher of an aided
school could be dismissed, removed or reduced in rank or suspended by the manager without the previous sanction of the authorized officer. Das
CJ. observed that the above provisions were serious inroads'' on the right of administration and appeared perilously near violating that right. All the
same, he observed that this Court ""as at present advised"" was prepared to treat those regulations as permissible regulations. I have already
mentioned above that in subsequent cases this Court held similar provisions to be violative of Article 30(1) in the case of minority institutions. The
opinion expressed by this Court in Re Kerala Education Bill (supra) was of an advisory character and though, great weight should be attached to it
because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases: It is the law
declared by this Court in the subsequent contested cases which would have a binding effect. The words ""as at present advised"" as well as the
preceding sentence indicate that the view expressed by this Court in Re Kerala Education Bill in this respect was hesitant and tentative and not a
final view in the matter. It has been pointed out that in Re Levy of Estate Duty [1944] F. C. R. 317 Spens CJ. referred to an observation made in
the case of Attorney-General for Ontario v. Attorney-General for Canada [1912] A. C. 571 that the advisory opinion of the Court would have no
more effect than the opinion of the law officers. I need not dilate upon this aspect of the matter because I am of the opinion that the view expressed
by this Court in subsequent cases referred to above by applying the general principles laid down in the Re Kerala Education Bill is correct and calls
for and interference.
111. Reference has been made on behalf of the respondents to the recommendation of Dr. Radhakrishnan Commission made in 1948-49 wherein
preference was shown for constituent colleges. So far as this aspect is concerned, I may observe that if any statutory provision is found to be
violative of Article 30(1) of the Constitution, the fact that it has been enacted in pursuance of the recommendation of an expert body would not
prevent the Court from striking down that provision. It may also be mentioned that in the case of Mother Provincial (supra) reliance was placed
upon the report of the Education Commission. This Court in that context remarked that that fact as well as the fact that the provisions were salutary
could not stand in the face of. the Constitutional guarantee. Reference to the said report was, therefore, considered to be not necessary. I may
further mention that subsequent to the report of Dr. Radhakrishnan Commission, three other bodies submitted their reports. One of the reports was
given by Kothari Committee in 1965. The other was the report of the Education Commission presided over by Dr. Kothari in 1966. The third was
the report of Dongerkery Commission submitted in 1972. There was no reference to the conversion of affiliated colleges into constituent colleges in
any of these three reports. No observation was also made in any of the reports that the provisions of Article 30(1) and the construction placed
upon that had in any way stood in the way of raising the standards of education or improving the excellence of educational institutions. It may also
be mentioned that the concept of constituent colleges is not a rigid concept and can vary from university to university. The concept of constituent
colleges which is visualized in the impugned provisions of Sections 40 and 41 of the Act contemplates that the imparting of teaching at the under-
graduate level in the prescribed course of studies shall be only by the teachers of the University. The minority colleges as such would not be entitled
to impart education in courses of study through their own teachers. Sections 40 and 41 would, therefore, be as already mentioned violative of
Article 30(1).
112. In a matter like this, one may perhaps have also to take into account the accepted norms for the imparting of education. So far as post-
graduate teaching is concerned, the general pattern which prevails and has been accepted so far is that the education is imparted by the University.
As against that, the mode for under-graduate teaching has been that it is imparted by the individual colleges. A very large number of colleges,
including minority colleges,, have been established and are in existence for the purpose of imparting under-graduate education. The impugned
provisions are calculated to do away with the present system and in the process they impinge upon the rights of minorities under Article 30(1). It
would not be a correct approach to the problem to hold that because the imparting of post-graduate teaching by the Universities has been
accepted without objection, the same rule should also hold good for the undergraduate teaching and the same should hot be impermissible. Such a
process of extension, in my opinion, is not very helpful. If It is permissible for the State to prevent the imparting of education by colleges at under-
graduate level because such a course has been accepted at post-graduate level, there would be no reason why this principle be not extended
further to the school education. The process of extension can thus totally annihilate the right guaranteed by Article 30(1).
113. It has also been argued on behalf of the respondents that we Should not strike down the impugned Sections but should wait till statutes or
ordinances are made in pursuance of those sections. In this respect I am of the view that since the impugned Sections confer the power to frame
statutes or regulations violative of the fundamental right under Article 30(1), the very provisions of the Act conferring such power are void so far as
minority institutions are concerned. The abridgement of the right of the minorities to establish and administer educational institutions of their choice
is writ large on the face of the impinged provisions. The fact that no statutes or ordinances have been framed in pursuance of the impugned
provisions would consequently be hardly of much significance in determining the Constitutional validity of the impugned provisions. It would not,
therefore, be a correct approach to wait till statutes are framed violating the right under Article 30(1). No rules or statutes or ordinances framed
under the provisions of the Act can take away the Constitutional infirmity of those provisions. It is, as observed by the Judicial Committee in the
case Trustees of the Roman Catholic Separate Schools for Ottawa v. Ottawa Corporation and Ors. [1917] A. C. 76 the creation of the power
and not its exercise that is subject to objection and the objection would not be removed even though the powers conferred were never exercised
at all. Similar view was expressed hi the case of Re Kerala Education Bill (supra) wherein Das CJ. while dealing with Clause 3(5) read with Clause
20 observed:
It is true that Clause 36(2) (c) empowers the Government to make rules providing for the grant of recognition to private schools and we are asked
to suspend our opinion until the said Bill comes into force and rules are actually made. But no rule to be framed under Clause 36(2) (c) can nullify
the Constitutional infirmity of Clause 3(5) read with Clause 20 which is calculated to infringe the fundamental rights of minority communities in
respect of recognized schools to be established after the commencement of the said Bill.
114. Reference has also been made on behalf of the respondents to the provision of Chapter VIA containing Sections 38B to 38E which has been
inserted by the amending Act. These provisions relate to autonomous colleges, autonomous institutions and autonomous University departments.
According to Section 38B, the University authorities may allow an affiliated college, a University college, a recognized institution or a University
department to enjoy autonomy in the matter of admissions of students, prescribing the courses of studies, imparting instructions and training,
holding of examinations and the powers to make necessary rules for the purpose in case the University authorities are satisfied that the standard of
education in such college, institution or department is so developed that it would be in the interest of education to allow the college, institution or
department to enjoy autonomy. It is urged that the provision for the conversion of affiliated colleges into constituent colleges is part of a scheme
which covers within its ambit autonomous colleges on the one end and constituent colleges on the other. This circumstance, in my opinion, is hardly
of any significance. If the conversion of affiliated colleges of the minorities into constituent colleges contravenes Article 30(1), the fact that such
conversion is in pursuance of a scheme which permits the grant of autonomy to an individual college would not prevent the striking down of the
impugned provision.
115. As a result of the above, I hold that Sections 33A, Section 40, Section 41 and Section 52A of the Gujarat University Act, 1949 as amended
by the Gujarat University (Amendment) Act, 1972 are violative of Article 30(1) and as such are void in respect of minority educational institutions.
As regards Section 51A of the Act, I uphold the validity of Clause (a) of Sub-sections (1) and (2) of that section. Clause (b) of each of those two
sub-section is violative of Article 30(1) and as such is void so-far as minority educational institutions are concerned.
116. MATHEW, J. (on behalf of himself and Chandrachud, J.) We agree respectfully with the conclusions of the learned Chief Justice, but we
propose to state our reasons separately.
117. The first question that arises for consideration in writ petition No. 232/1973 is whether Article 30(1) of the Constitution confers on the
religious and linguistic minorities, only the right to establish and administer educational institutions for conserving their language, script or culture, or,
whether the scope of the guarantee under that Article is wide enough to enable them to establish and administer any other educational institutions of
their choice.
118. Article 30(1) reads :--
All minorities, whether based on religion or language, shall have the right to establish and administer, educational institutions of their choice.
119. The respondents submitted that Article 29(1) which provides that ""any Section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have the right to conserve the same"" should determine the scope of Article
30(1). They say that when Article 30(1) talks of the right of religious or linguistic minorities to establish and administer educational institutions of
their choice, that can only mean educational institutions for conserving their language, script or culture, or, at the most, educational institutions for
imparting general secular education in order to conserve their language, script or culture and not institutions for imparting general secular education
divorced from the above purposes.
120. In 281270 Das, C.J. speaking for the majority of 6 to said in a Presidential reference under Article 143(1) that the key to the understanding
of the true meaning and implication of Article 30(1) is the words ""of their own choice"" in the Article and that the Article leaves it to the choice of
those minorities to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or
culture, and the purpose of giving a thorough, good general education to their children.
121. The inter-relation of Articles 29(1) and 30(1) was examined by a bench of five judges of this Court presided over by Hidaytullah, CJ. in
275277 The learned Chief Justice, speaking for the Court, said that the width of Article 30(1) cannot be cut down by introducing in it
considerations on which Article 29(1) is based; that whereas 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 and that this choice is not
limited to institutions seeking to conserve language, script or culture. He further said that this choice is not taken away if the minority community,
having established an educational institution of its choice, also admits members of other communities, and, that the two Articles create two separate
rights, although it is possible that they may meet in a given case.
122. In 267347 the Court overruled the contention that Article 30(1) is limited to conserve only the language, script or culture of religious and
linguistic minorities.
123. The question was examined again by this Court in 270358 where, Shah, J., speaking for a bench of five judges quoted with approval the
observations of Hidayatullah, C.J. in Rev. Father W. Proost''s case and held that Articles 29(1) and 30(1) confer separate rights, though in a given
case, these rights may overlap.
124. In D.A.V. College, etc. v. State of Punjab and Ors. [1971] Supp. 2 S. C. R. 688, Reddy, J., speaking on behalf of the Court, 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 right guaranteed under Article 30(1) is only available to the minorities based on religion or language. He then went on to say that
a reading of these two Articles together would lead to the conclusion that a religious or linguistic minority has the right to establish 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 and that while this is so, these two Articles are not inter-
linked nor do they permit of their being always read together. He quoted with approval the observations of Hidayatullah, CJ. in 275277 to the
effect that the width of Article 30(1) cannot be cut down by introducing into it considerations on which Article 29(1) is based, and that, the
expression ""educational institutions of their choice"" in Article 30(1) is not limited to institutions seeking to conserve language, script or culture.
125. Ramaswami, C.J. said in 909527 that the crucial phrase in Article 30(1) is ""of their choice"", that the ambit of the freedom of choice conferred
by the Article is therefore as wide as the choice of the particular community may make it and that it is open to a religious minority to establish
educational institutions for the purpose of conserving its religion, language or culture, and also for the purpose of giving a thorough good secular
education to their children as the Article applies to both these classes of institutions.
126. Article 29(1) confers on any Section of citizens resident in the territory of India, the right to conserve its language, script or culture. It does
not speak of any minority, religious or otherwise. Whereas Article 29(1) confers the right not only upon a minority as understood in its technical
sense but also upon a Section of the citizens resident in the territory of India which may not be a minority in its technical sense, the beneficiary of
the right under Article 30 is a minority, either religious or linguistic. That is one distinction between Article 29(1) and Article 30(1).
127. The second distinction to be noted is that whereas Article 29(1) confers in respect of three subjects viz., language, script or culture, Article
30(1) deals only with the right to establish and administer educational institutions. It is true that under Article 29(1) a Section of the citizens having a
distinct language, script or culture, might establish an educational institution for conserving the same. But, under Article 30(1), the right conferred
on the religious or linguistic minority is not only the right to establish an educational institution for the purpose of conserving its language, script or
culture, but any educational institution of its choice. Whereas Article 29 does not deal with education as such, Article 30 deals only with the
establishment and administration of educational institutions. It might be that in a given case, the two Articles might overlap. When a linguistic
minority establishes an educational institution to conserve its language, the linguistic minority can invoke the protection of both the articles. When
Article 30(1) says that a linguistic minority can establish and administer educational institutions of its choice, it means that it can establish and
administer any educational institution. If a linguistic minority can establish only an educational institution to conserve its language, then the
expression of their choice in Article 30(1) is practically robbed of its meaning,
128. A mere look at the two Articles would be sufficient to show that Article 29(1) cannot limit the width of Article 30(1). There are religious
minorities in this country which have no distinct language, script or culture, as envisaged in Article 29(1). For these religious minorities, Article
29(1) guarantees no right. Yet, Article 30(1) gives them the right to establish and administer educational institutions of their choice. That Article
does not say that only religious minorities having a distinct language, script or culture can establish educational institutions of their choice. What then
are the educational institutions which they are entitled to establish and administer under the Article ? Ex-hypothesi, these religious minorities have
no distinct language, script or culture. So, the educational institutions which they are entitled to establish and administer cannot be those to
conserve their language, script or culture. Therefore, it is clear that the right guaranteed to a religious or linguistic minority under Article 30(1) is the
right to establish any educational institution of its choice.
129. The question whether such educational institutions can include a military academy or a police training school need not be considered in the
context of the facts of this writ petition, for, here, we are only concerned with an institution imparting general secular education as ordinarily
understood.
130. The learned Additional Solicitor General appearing on behalf of the State of Gujarat submitted that although religious and linguistic minorities
have the fundamental right to establish and administer educational institutions of their choice, they have no right, fundamental or otherwise, to get
recognition or affiliation as the case may be, for the educational institutions established by them, unless they submit to the regulations made by the
appropriate authority and applicable alike to educational insistences established and administered by the majority as well as to those established
and administered by religious and linguistic minorities. The argument was that Article 30(1) does not offer any right to recognition or affiliation, that
recognition or affiliation is a privilege which might be granted or withheld as the legislature might think fit.
131. We think that die point raised by the Additional Solicitor General is of far reaching Constitutional importance not only in the sphere of the
right of the religious and linguistic minorities to impart general secular education but also in other areas and merits an examination of its juristic basis.
And, we also think, that the question has to be disposed of within the strict confines of legal reasoning which laymen might too often deem to be
invidiously technical. As judges, we are neither Jew nor Gentile, neither Cathtolic nor agnostic and we would not be justified in writing our private
opinions no matter how deeply we might cherish them. And what is said in support of the decision should insulate us as far as rationally possible
from the political or religious conflict beneath the issues. We owe equal allegiance to the Constitution and are equally bound by judicial obligation
to support it. (See the observations of Justice frankfurter in West Virginia State Board of Educations. Bernette, 319 U. S. 624. )
132. It is necessary in the interest of clarity of thought to begin with an understanding of the real reason for protection of minorities in a democratic
polity.
Protection of minorities is the protection of non-dominant groups, which, while wishing in general for equality of treatment with the majority, wish
for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish them from the majority of
the population. The protection applies equally to individuals belonging to such groups and wishing the same protection. It follows that differential
treatment of such groups or of individuals belonging to such groups is justified when it is exercised in the interest of their contentment and the
welfare of the community as a whole(The recommendation by the Sub-Commission in its report to the Commission on Human Rights--quoted at
page 27 of ""Minority protection and international Bill of Human Rights"" by Urmila Haksar ).
The problem of the minorities is not really a problem of the establishment of equality because if taken literally, such equality would mean absolute
identical treatment of both the minorities and the majorities. This would result only in equality in law but inequality in fact. The distinction need not
be elaborated for it is obvious that ""equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of
differential treatment in order to attain a result which establishes an equilibrium between different situations (The Advisory opinion on Minority
Schools in Albania 6th April, 1935 publications of the Court series A/B No. 64 p. 19 )
133. It may sound paradoxical but it is nevertheless true that minorities can be protected not only if they have equality but also, in certain
circumstances, differential treatment.
134. Over one and a half decades ago, Chief Justice Das led this Court in holding that without recognition, the educational institutions established
or to be established by the minority communities cannot fulfil the real objects of their choice and that the right under Article 30(1) cannot be
effectively exercised. He said that the right to establish educational institutions of their choice means the right to establish real institutions which will
effectively serve the needs of their community and the scholars who resort to their educational institutions and that though there is no such thing as a
fundamental right to recognition by the State yet to deny recognition to the educational institutions except, upon terms tantamount to the surrender
of their Constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under
Article 30(1) [see In re: The Kerala Education Bill, 1957 (supra)].
135. The reason why the Constitution-makers were at pains to grant religious minorities the fundamental right to establish and administer
educational institutions of their choice is to give the parents in those communities an opportunity to educate their children in institutions having an
atmosphere which is congenial to their religion. Whatever be one''s own predilection those who think that man does not live by bread alone but
also by the word that comes from God cannot remain indifferent to the problem of religion in relation to and as part qt education.
136. As a matter of fact, according to several religious minorities, the State maintains a system of schools and colleges which is not completely
satisfactory to them, inasmuch as no place is given to religion and morality. The sheer omission of religion from curriculum is itself a pressure against
religion. Since they realize that the teaching of religion and instruction in the secular branches cannot rightfully or successfully be separated one from
the other, they are compelled to maintain their own system of schools and colleges for general education as well as for religious instruction.
It is important to examine the reason detre of educational institutions administered by religious groups. Clearly, their establishment does not come
about because of a deep conviction that such institutions will be able to reach the facts of literature, geography or mathematics better than state
schools. Rather, such schools are started with a primarily religious objective--to secure the opportunity for direct religious instruction and to
develop a religious atmosphere and viewpoint even for the study of literature, geography and mathematics. In other words, a religious body
establishes and maintains schools in order to create a total environment which will be favourable to the promotion of its particular religious values
(See ""India as a Secular State"" by Donald Eugene Smith, p.361 ).
137. It is perhaps, possible to secularize subjects such as mathematics, physics or chemistry, but as Justice Jackson said:
Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even
from a secular point of view. Yet the inspirational appeal of religion in these guises is often stronger than in forthright sermon. Even such a ''science''
as biology raises the issue between evolution and creation as an explanation of our presence on this planet. But how one can teach, with
satisfaction or even with justice to all faiths, such subjects as the story of the Reformation, the Inquisition is more than one can understand. It is too
much to expect that mortals will teach subjects about which their contemporaries have passionate controversies with the detachment they may
summon to teaching about remote sub-jets such as Confucius or Mohamet See the opinion of Justice Jackson in Mc Couum v. Board o Education,
333, US: 303"".
138. The State cannot insist that the children belonging to the religious minority community should be educated in State-maintained educational
institutions or in educational institutions conducted by the majority. The State''s interest in education, so far as religious minorities are concerned,
would be served sufficiently by reliance on secular education accompanied by optional religious training in minority schools and colleges, if the
secular education is conducted there according to the prescribed curriculum and standard. Article 28(3) implies that a religious minority
administering an educational institution imparting general secular education has the liberty to provide for religious education in the institution. The
continued willingness to rely on colleges conducted by religious or linguistic minorities for imparting secular education strongly suggests that a wide
segment of informed opinion has found that these colleges do an acceptable job of providing secular education. The State, concededly, has power
to regulate and control the education of its children, but it cannot, by a general law compelling attendance at public school or college, preclude
attendance at the school or college established by the religious minority, when the parents seek to secure the benefit of religious instruction not
provided in public schools. The parents have the right to determine to which school or college their children should be sent for education.
139. We fail to see how affiliation of an education institution imparting religious instruction in addition to secular education to pupils as visualized in
Article 28(3) would derogate from the secular character of the state. Our Constitution has not erected a rigid wall of separation between church
and state. We have grave doubts whether the expression ""secular state"" as it denotes a definite pattern of church and state relationship can with
propriety be applied to India. It is only in a qualified sense that India can be said to be a secular state. There are provisions in the Constitution
which make one hesitate to characterize our state as secular. Dr. Radhakrishnan has said :--
The religious impartiality of the Indian State is not to be confused with secularism or atheism. Secularism as here defined is in accordance with the
ancient religious tradition of India. It tries to build up a fellowship of believers, not by subordinating individual qualities to the group mind but by
bringing them into harmony with each other. This dynamic fellowship is based on the principle of diversity in unity which alone has the quality of
creativeness(Recovery of Faith p. 202 ). Secularism here does not mean irreligion or atheism or even stress on material comforts. It proclaims that
it lays stress on the universality of spiritual values which may be attained by a variety of ways (Dr. Radhakrishnan''s Foreword to Dr. S. Abid
Hussain''s, National Culture of India, p. vii. )-
140. In short secularism in the context of war Constitution means only ""an attitude of live and let live developing into the attitude of live and help
live.(Hoarace M. Kallen, Secularism is the Will of God. pp. 11,12 and 13 )
141. The fundamental postulate of personal liberty excludes any power of the State to standardize and socialize its children by forcing them to
attend public schools only. A child is not a mere creature of the State. Those who nurture him and direct his destiny have the right coupled with
high duty to recognize and prepare him for additional obligations See Pierce v. Society of Sisters of Holy Names, 268 US 510, 555.
142. The parental right in education is the very pivotal point of a democratic system It is the touchstone of difference between democratic
education and monolithic system of cultural totalitarianism. When the modern State with its immense power embarks upon the mission of educating
its children, the whole tendency is towards state monopoly. The fundamental right of the religious and linguistic minorities to establish and
administer educational institutions of their choice is the only legal barrier to confine the bursting expansionism of the new Educational Leviathan.
Great diversity of opinion exists among the people of this country concerning the best way to train children for their place in society. Because of
these differences and because of reluctance to permit a single iron cast system of education to be imposed upon a nation compounded of several
strains, the Constitution has provided this right to religious and linguistic minorities.
143. Today, education is an important function of State and local governments. Compulsory school attendance laws and the mounting expenditure
for education both demonstrate a recognition of the importance of education to our democratic society. It is required in the performance of our
most basic public responsibilities. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural
values, in preparing him for later professional training and in helping him to adjust normally to his environment [see Brown v. Board of Education
349 U.S. 294].
144. If there is a symbol of democracy in education, it is not the public school as the single democratic school. Rather it is the co-existence of
several types of schools and colleges including affiliated colleges on a looting of juridical equality with a consequent proportionately equal measure
of State encouragement and support. And, juridical equality postulates that the religious minority should have a guaranteed right to establish and
administer its own educational institutions where it can impart secular education in a religious atmosphere.
145. The State''s interest in secular education may be defined broadly as an interest in ensuring that children within its boundaries acquire a
minimum level of appetency in skills, as well as a Minimum amount of information and knowledge in certain subjects. Without such skill and
knowledge, an individual will be at a severe disadvantage both in participating in democratic self-government and in earning a living. No one can
question the Constitutional right of parents to satisfy their State-implied obligation to educate their children by sending them to schools or colleges
established and administered by their own religious minority so long as these schools and colleges meet the standards established for secular
education.
146. The concept of the common pattern of secular education needs to be brought down to the earth of reality and divested of its fuzzy
mystification. The concept has nothing to do with an. artificial government-promoted levelling of all differences. The public school is not. a temple in
which all children are to be baptized into unisty of secular democratic faith, while those who stand without are faintly heretical.
In democratic countries therefore the freedom of offering education of different types with different values within the framework of the Constitution
should not be needlessly circumscribed. This is intimately connected with the freedom of thought. The control over colleges suggested above
should be such as to secure ultimately observance of these high principles by colleges of their own accord and not through fear of action by the
university(See Report of the Committee on ''Model Act for Universities'', Chapter V: Colleges and Students'' Welfare, p 28 )
147. Whatever spiritual mission of promoting unity the government may have, it is conditioned by its primal duty of promoting justice, respecting
guaranteed rights and ensuring equality of differences.
148. The framers of the Constitution were not unaware that under the system which they created, most of the legislative or governmental
curtailments of the guaranteed fundamental rights will have the support of legislative judgment that public interest will be served by its curtailment
than by its Constitutional protection. There can be no surrender of Constitutional protection of the right of minorities to popular will masquerading
as the common pattern of education. This is the reason why this Court has, time and again pointed to the importance of a searching judicial enquiry
into legislative judgment in situations where prejudice against discrete and insular minorities : may tend to curtail rights intended to protect them.
That the minorities might be unable to find protection in political process and, therefore, the Court might appropriately regard their interest with
special solicitude was suggested by Stone, J. in his famous foot-note to United States v. Carolene Prod., Co. 304, U.S. 144
149. Over the years, this Court has held that without recognition or affiliation, there can be no real or meaningful exercise of the right to establish
and administer educational institutions under Article 30(1) (see 281270 267347 and D.A.V- College, etc. v. State of Punjab and Ors. [1971] Su,
S. C. K. 688.
Let us now examine the validity of the argument that as there is no right, fundamental or otherwise, to recognition or affiliation, the government may
withhold recognition or affiliation for any reason or impose any condition for the same, and consequently, it may withhold or revoke it even though
the reason for doing so may be the minority''s refusal to surrender its Constitutional rights to administer the institution. This argument is phrased in
syllogistic terms : Article 30(1) does not confer a fundamental right upon a religious or linguistic minority to obtain recognition or affiliation: a State
Legislature has no duty or obligation to set up or establish a university with facilities for affiliation of educational institutions, let alone those
established and administered by the religious or linguistic minorities; in fact, there are many universities which are only teaching universities and
which do not provide for any facility for affiliation;. if the legislature is competent to establish universities without providing any facility for affiliation
or recognition and thereby withhold affiliation, it may grant it in a limited form since the greater power of withholding absolutely must necessarily
include the lesser ''power of granting it with restrictions and conditions and, therefore, the legislature has power to impose conditions on affiliated
colleges established and administered by the religious or linguistic minorities which result in their becoming constituent colleges, And, as a corollary
to this argument, it is submitted that the recipient of the benefit or facility, namely, the religious or linguistic minority, is not deprived of its
fundamental right since it may retain its fundamental right simply by rejecting the preferred benefit or facility.
150. We think that dangerous consequences will follow if the logic of the argument is accepted in all cases. The rapid rise in the number of
government regulatory and welfare programmes, coupled with the multiplication of government contracts resulting from expanded budge''s, has
greatly increased the total number of benefits or privileges which can be conferred by government, thus affording the government countless new
opportunities to bargain for the surrender of Constitutional rights. With the growth of spending power of the State--a necessary accompaniment of
the modern welfare State--the potentiality of control through the power of purse has grown apace. (See ""The New Property''- by Charles A
Reich, 73 yrde Law at 733 )
151. Though the courts have recognized that Article 14 applies to public benefits and public employment as fully as to other acts of State, they are
less quick to demand Constitutional justification when a benefit or privilege like recognition, affiliation or aid is so conditioned that, to get it, one
must surrender some part of one''s basic freedoms.
152. The story begins with the judgment of Justice Holmes in McAuliffe v. New Bedford 155 Mass 216 where he dispatched the petition of a
policeman who had been discharged from his service for voting a regulation which restricted his political activities by saying that ""the petitioner may
have a Constitutional right to talk politics: but he has no Constitutional right to be a policeman.. . The servant cannot complain as he takes the
employment on terms which are offered to him.
153. The notion that ""the petitioner has no Constitutional right to be a policeman although he has a Constitutional right to talk politics'' is a specific
application of the larger view that no one has a Constitutional right to government largess or privilege and is much the same as the argument here
that a religious or linguistic minority administering an educational institution has no right to recognition or affiliation, though it has a fundamental right
to establish or administer it. This aohorisnt of Mr. Justice Holmes has had a seductive influence in the development of this branch of the law.
154. IN Davis v. Massachusetts 167 U.S. 43 the appellant had been convicted of making a speech on the Boston Common, in violation of a city
ordinance forbidding, inter alia, the making of any public address upon public grounds without a permit from the mayor. The conviction had been
affirmed by the Supreme Court of Massachusetts in, an opinion by Justice Holmes, in which he said :--
The argument that the ordinance was unConstitutional involves the same kind of fallacy that was dealt with in McAuliffe v. New Bfdford 155 Mass
216. It assumes that the ordinance is directed against free speech generally... whereas in fact it is directed toward the modes in which Boston
Common may be used.
155. He continued, in language quoted by the United States Supreme Court in affirming the judgment:
For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a
member of the public than for the owner of a private house to forbid it in the house. When no proprietary right interferes, the legislature may end
the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of liming the
public use to certain purposes.
156. The Supreme Court then said:
The right to absolutely exclude all right to use, necessarily includes the authority to determine under what circumstances such use may be availed of,
as the greater power contains the lesser (at 48).
157. When he took his scat in the United States Supreme Court in 1902, Justice Holmes still adhered to the views about conditional privileges b2
which he bad expressed in McAuliffe v. New Bedford(supra) and Davis v. Massachusetts, (supra) Writing for the court in Pullman Co. v. Adams
189 U.S. 420 he disposed summarily of a contention that a tax of local business was so heavy as to burden the inter-state operations of the
Pullman Company saying:
The Company cannot complain of being taxed for the privilege of doing a local business which it is free to renounce.
And, when in 1910, the majority of the Court swung to the opposite position in Western Union Co. v. Kansas 216 U.S. 1 he dissented saying
Even in the law the whole generally includes its parts. If the State may prohibit, it may prohibit with the privilege of avoiding the prohibition in a
certain way.
A very perceptive critic has written : (Thomas Read Powell: 16 Columbia Law Rev. 99, at 110-111 )
The pith of his (Holmes'') argument was expressed in the aphorism: ''Even in the law the whole generally includes its parts''. He thus implies that the
power of total exclusion is a ''whole'', of which the power to impose any burdens what-so-ever on these admitted is a ''part''"".
He went on to say :
Logically a thing which may be absolutely excluded is not the same as a thing which may be subjected to burdens of a different kind, even though
such burdens would be regarded by all as less onerous than the burden of absolute exclusion. The ''power of absolute exclusion'' is a term not
identical with the power of relative exclusion'' or the ''power to impose any burdens whatsoever"".
When Justice Holmes was out-voted in the case referred to above and its companion cases, he accepted the result. Eight years later we find him
saving for a unanimous court in Western Union Tel. Co. V. Foster 247 U. S. 105 which struck down an interference with inter-state commerce :
It is suggested that the State gets the power from its power over the streets which it is necessary for the telegraph their present characters could be
excluded from the streets, the consequence would not follow. Acts generally lawful may become unlawful when done to accomplish an unlawful
end,... and a Constitutional power cannot be used by way of condition to attain an unConstitutional result"" (at 114).
(emphasis added)
158. The orthodox American doctrine was that the right of a foreign corporation to transact business within the boundaries of a state depends
entirely upon the state''s permission. That seemed to offer a means of accomplishing the desired result. If the states had power to refuse admittance
to foreign corporations entirely, with or without cause, surely they might exact in return for admission whatever they wished. If so, a promise, prior
to admission, not to resort to the federal courts, or a liability to expulsion in case of such a resort, required as the price of admission, would seem
to be a legitimate and effective means of attaining the desired end. In the case of Insurance Co. v. Morse the Supreme Court of the United States
held void a statute requiring an agreement not to remove suits to the federal courts as a condition -precedent to admission. This decision was
based upon the ground, supported by dicta expressed in the two earlier cases, that the exaction of the agreement was an attempt to interfere with
the exercise of a right derived from the Constitution and the laws of the United States. While the term ""unConstitutional condition"" was not
specifically employed in the opinion, the case seems clearly to be the fountainhead of the doctrine which now goes by that name(UnConstitutional
Conditions"" by Maurice H. Merrill, 77 University of Pennsylvania Law Rev., 879, 880 ).
159. The doctrine of ""unConstitutional condition"" means any stipulation imposed upon the grant of a governmental privilege which in effect requires
the recipient of the privilege to relinquish some Constitutional right. This doctrine takes for granted that the petitioner has no right to be a
policeman'' but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right ""to talk
politics"". The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is un-reasonable in the
special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution (see William W. Van
Alstyne : ""The Demise of the"" Right-Privilege Distinction in Constitution Law""). 81 Harv. Law Rev. 1439.
160. In Frost and Frost Trucking Co. v. Railroad Comm. 271 U.S. 583 the Supreme Court of United States was concerned with the question of
the validity of a statute of California requiring a certificate of public convenience and necessity to be secured by carriers, whether common or
private, as a prerequisite to carrying on their business over the public highways of the state. The Act was interpreted by the Supreme Court as
imposing upon the applicant the obligation to assume the duties and liabilities of a common carrier as a condition precedent to the issuance of the
certificate It held the statute, so construed, unConstitutional, primarily on the ground that to force the status of a common carrier upon a private
carrier against his will amounts to deprivation of property without due process of law. To the suggestion that, as the state might deny the use of its
highways altogether as carriers, it might make its permission conditional upon assumption of the public utility status, the Court responded that to do
so would be using the power of refusal to reach a forbidden result, and hence would itself be unConstitutional. Mr. Justice Sutherland, speaking for
the majority observed :
It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny as a privilege altogether, may grant it upon
such conditions as it sees fit to impose; but the power of the state in that respect is not unlimited, and one of the limitations is that it may not impose
conditions which require the relinquishment of Constitutional rights. If the state may compel the surrender of one Constitutional right as a condition
of its favour, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution of the United States
may thus be manipulated out of existence."" (at p. 593).
This decision clearly declares that, though the state may have privileges within its control which it may withhold, it cannot use a grant of those
privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its Constitutional power.
161. The argument of Mr. Justice Sutherland was, that there was involved in cases like this, not a single power, but two distinct powers and one of
these, the power to prohibit the use of the public highways in proper cases, the state possesses; and the other, the power to compel a private
carrier to assume against his will the duties and burdens of a commoa carrier, the state does not posseSections According to him, it is clear that
any attempt to exert the latter, separately and substantively must fall before the paramount authority of the Constitution. Then the question is, could
it stand in the conditional form in which it is made ? The learned judge-said that if this could be done, Constitutional guarantees, so carefully
safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in
form voluntary, in fact lacks none of the elements of compulsion. In reality, the carrier is given no choice, except a choice between the rock and the
whirlpool--an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable
burden.
162. This is much the sane as what Das, C.J. said in In re : The Kerala Education Bill [1959] S.C.R. 99 :
No educational institutions can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights,
they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1).
In this situation, the condition which involves surrender is as effective a deterrent to the exercise of the right under Article 30(1) as a direct
prohibition would be. Thus considered, it is apparent that the religious minority does not voluntarily waive its right--it has been coerced because of
the basic importance of the privilege involved, namely, affiliation.
163. It is doubtful whether the fundamental right under Article 30(1) can be bartered away or surrendered by any voluntary act or that it can be
waived. The reason is that the fundamental right is vested in a plurality of persons as a unit or if we may say so in a community of persons
necessarily fluctuating. Can the present members of a minority community barter away or surrender the right under the Article so as to bind its
future members as a unit? The fundamental right is for the living generation. By a voluntary act of affiliation of an educational institution established
and administered by a religious minority the past members of the community cannot surrender the right of the future members of that community.
The future members of the community do not derive the right under Article 30(1) by succession or inheritance.
164. The demise of the unConstitutional condition in the corporation field,, however, did not result in terminating the use of the same reasoning in
other areas. The courts, faced with laws requiring the surrender of Constitutional rights in connection with other activities, have borrowed phrases
and reasoning from the cases dealing with state control of corporations and have transplanted them to contemporary decisions involving numerous
and diversified subjects (See 28 Indian Law Journal, Notes: ""Judicial Acquiescence in the Forfeiture of Constitutional Rights through Expansion of
the Conditioned Privilege Doctrine"", 520, 525. ).
Congress may withhold all sorts of facilities for a better life"" wrote Mr. Justice Frankfurter in the Douds case ""but if it affords them it cannot make
them available in an obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of the facilities"".
165. Professor Hale said that a state may not, by attaching a condition to a privilege, bring about undue interference with the workings of the
federal system; and also, that it may not in this fashion require the surrender of Constitutional rights unless the surrender reserves a purpose
germane to that for which the power can normally be exerted without conditions(See ''''UnConstitutional Conditions and Constitutional Rights"", 35
Columbia Law Rev., 321 357 ). The latter limitation, it will be noted, is essentially the same as that voiced by Justice Frankfurter in the Douds
Case American Communications Assoc. v. Douds. 339 U. S. 382 that Congress may not ''exact surrender of freedoms unrelated to the purpose
of the facilities''.
166. The most significant characteristic of the power to impose a condition in this area is the relevancy of the condition to the attainment of the
objective involved in the grant of the privilege or benefit.
167. A condition may be invalidated on the ground that denying a benefit or privilege because of the exercise of a right in effect penalizes its
exercise (see Steinberg v. United States 163 F. Su. 590) . In Sherbert v. Verner 374 US 398 the doctrine of ""UnConstitutional condition"" has
been applied by the Uniced States Supreme Court to forbid a state to discontinue unemployment benefits to a Seventh Day Adventist refusing
Saturday employment on account of the day being the Sabbath day of her faith. The Court said :
Nor may the South Carolina Court''s construction of the statute be saved from Constitutional infirmity on the ground that unemployment
compensation benefits are not appellant''s. ''right'' but merely a ''privilege''. It is too late in the day to doubt that the liberties of religion and
expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. American Communications Asso v. Doitds (supra)
Wiemait v. Undegraff 344 US 183 Hannegan v. Esquire, Inc 327 US 146, 155, 156.
168. A state refused to grant subsidies in the form of tax exemptions to veterans of Church groups who declined to sign loyalty oaths. That was
held unConstitutional because it implied the use of subsidies as a means to curtail non-criminal speech (see Speiser v. Randall 357 U. S. 513. In
that case the Court said :
To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the
same as if the State were to fine them for their speech. The appeallants are plainly mistaken in their argument that because a tax exemption is a
''privilege'' or ''bounty'', its denial may not infringe speech. This contention did not prevail before the California Courts, which recognized that
conditions imposed upon the granting of privileges or gratuities must be ''reasonable'' ....
So here, the denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the
prescribed speech.
169. A condition may be invalidated on yet another ground : precluding from participation in the enjoyment of a privilege or benefit those who wish
to retain their rights would seem an unreasonable classification violative of Article 14. The discriminatory nature of the imposition of the conditions
has been alluded to by Mr. Justice Frankfurter in his concurring opinion in American Communications Association v. Douds (supra). The
Additional Solicitor General argued that the State is not denying equality before the law because the burden of the condition applies to all
recipients, namely, all who establish and administer educational institutions imparting secular education and seek recognition or affiliation whether
they be religious or linguistic minorities or not. The argument is that a benefit-burden package viz., the privilege of affiliation with all the conditions,
is being offered without discrimination; that the State or university does not withhold the privilege from any persons or entities, but that the person
or entity himself or itself decides whether to accept or reject it. We are of the opinion that, in fact, everyone is not being offered the same package
since the condition serves as a significant restriction on the activities only of those who have the fundamental right of the nature guaranteed by
Article 30(1), namely, the religious and linguistic minorities, and who desire to exercise the right required to be waived as a condition to the receipt
of the privilege. It is contradictory to speak of a Constitutional right and yet to discriminate against a person who exercises that right.
170. To avoid invalidation of a condition on any of these grounds, it would seem necessary to show that the granting of the benefit or privilege
places the recipient in a position which gives the State or the university a legitimate interest in regulating his rights. It appears that there are two
legitimate interests which may justify such regulation. First is the interest in ensuring that the benefit or facility given or granted, namely, recognition
or affiliation is maintained for the purposes intended, in order to protect the effectiveness of the benefit or the facility itself. Second, social interests
must be protected against thaw whose capacity for inflicting harm is increased by possession of the benefit or facility(UnConstitutional Conditions"".
74 Hary. Law Rev. 1395 ).
171. An examination of the traditional bases of the power to impose conditions upon governmental benefits or privileges would reveal that the
power to impose conditions is not a lesser part of the greater power to withhold, but instead is a distinct exercise of power which must find its own
justification, and that the power to withhold recognition or affiliation altogether does not carry with it unlimited power to impose conditions which
have the effect of restraining the exercise of fundamental rights. The normal desire to enjoy privileges like affiliation or recognition without which the
educational institutions established by the minority for imparting secular education will not effectively serve the purpose for which they were
established, cannot be made an instrument of suppression of the right guaranteed. Infringement of a fundamental right is nonetheless infringement
because accomplished through the conditioning of a privilege. If a legislature attaches to a public benefit or privilege an addendum, which in no
rational way advances the purposes of the scheme of benefits but does restrain the exercise of a fundamental right, the restraint can draw no
Constitutional strength whatsoever from its being attached to benefit or privilege, bat must be measured as though it were a wholly separate
enactment.
172. In considering the question whether a regulation imposing a condition subserves the purpose for which recognition or affiliation is granted, it is
necessary to have regard to what regulation the appropriate authe rity may make and impose in respect of an educational institution established and
administered by a religious minority and receiving no recognition or aid. Such an institution will, or course, be subject to the general laws of the land
like the law of taxation, law relating to sanitation, transfer of property, or registration of documents, etc., because they are laws affecting not only
educational institutions established by religious minorities but also all other persons and institutions. It cannot be said that by these general laws, the
State in any way takes away or abridges the right guaranteed under Article 30(1). Because article 30(1) is couched in absolute terms, it docs not
follow that the right guaranteed is not subject to regulatory laws which would not amount to is abasement. It is a total misconception to say that
because the right is couched in absolute terms, the exercise of the right cannot be regulated or that every regulation of that right would be an
abridgement of the right Justice Holmes said in Hudson Country Water Co., v. McCarter 209 U. S. 349 :
All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighbourhood of principles of policy which
are other than those on which the particular right is funded, and which become strong enough to hold their own when a certain point is reached
No right, however absolute, can be free from regulation. The Privy Council said in Commonwealth of Australia v. Bank of New South wales
[1950] A. C. 235 that regulation of freedom of trade and commerce is compatible with their absolute freedom; that Section 92 of the Australian
Commonwealth Act is violated only when an Act restricts commerce directly and immediately as distinct from creating some indirect or
consequential impediment which may fairly be regarded as remote. Likewise, the fact that trade and commerce are absolutely free under Article
301 of the Constitution is compatible with their regulation which will not amount to restriction 280214
173. The application of the term ''abridge'' may not be 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 activities but which have a secondary or indirect 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 health 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 ''bridge'' in Article 13(2) See generally the judgment of one of us
(Mathew, J.) in 282606 . 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). But 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.
174. We find it impossible to subscribe to the proposition that State necessity is the criterion for deciding whether a regulation imposed on an
educational institution takes away or abridges the right under Article 30(1). If a legislature can impose any regulation which it thinks necessary to
protect what in its view is in the interest of the state or society, the right under Article 30(1) will cease to be a fundamental right. It sounds
paradoxical that a right which the Constitution makers wanted to be absolute can be subjected to regulations which need only satisfy the nebulous
and elastic test of state necessity. The very purpose of incorporating this right in Part III of the Constitution in absolute terms in marked contrast
with the other fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean
concept of state necessity as conceived by the majority would be to subvert the very purpose for which the right was given.
175. What then are the additional regulations which can legitimately be imposed upon an educational institution established and administered by a
religious or linguistic minority which imparts general secular education and seeks recognition or affiliation ?
176. Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational
standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an
examination to be conducted by the university and to obtain a degree conferred by the university. For that purpose, the students should have to be
coached in such a manner so as to attain the standard of education prescribed by the university. Recognition or affiliation creates an interest in the
university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that
purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or
affiliation without submitting to hose regulations. That is the price of recognition or affiliation; but this does not mean that it should submit to a
regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or
affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling
the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the
university, and therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed. If, besides recognition or
affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the
purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic
minority can claim total immunity from regulations by the legislature or the university if it wants affiliation or recognition; but the character of the
permissible regulations must depend upon their purpose. As we said, such regulations will be permissible if they arc relevant to the purpose of
securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a regulation really
subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a
regulation comes up for consideration before the court, the question to be asked and answered is whether the regulation is calculated to subserve
or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education
to the minority community and to other persons who resort to it. The question whether a regulation is in the general interest of the public has no
relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, ex-hypotliesi, the only permissible
regulations are those which secure the effectiveness of the purpose of the facility, namely the excellence of the educational institutions in respect of
their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated
''o advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and those persons who
resort to it.
177. In 267347 , 856-857 the Court said that no general principle on which reasonableness or otherwise of a regulation may be tested was sough
to be laid down by the court in In re : The Kerala Education Bill, [1959] S.C.R. 935 and therefore, the case is not an au ''hority for the proposition
that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority can be imposed if
the regulations are in the national or public interest. The Court further said that unlike the fundamental freedoms guaranteed by Article 19, the right
guaranteed under Article 30(1) is not subject to reasonable restriction;, and the right is intended to be encetive and is not to be whittled down by
so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. It was
the view of the Court that regulations which may lawfully be imposed either by legislate or executive action as a condition of receiving grant or of
recognition must be directed to making the institution, while retaining its character as a minority institution effective as an educational institution and
that suck regulation must satisfy a dual thes the test of reasonableness, namely the test that it is regulative of the educational character of the
institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort it.
178. In 280210 the Court said--we think in relation to an educational institution which seeks recognition or aid --that the standards of education
are not a part of management as such, that the standards of education concern the body politic and arc dictated by considerations of the
advancement of the country and its people and, 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
teachers and the heal and hygiene of students and that these regulations do not bear directly upon management as such although they may indirectly
affect it. The Court said further that the right of the state to regulate education, educational standards and allied maters cannot be denied since the
minority institutions cannot be allowed to fall below the standards, or under the guise of exclusive right of management, to decline to follow the
general pattern and that while the management must be left to them, they may be compelled to keep in step with others. What the Court said in
answer to the contention of Mr. Mohan Kumaramangt-lam that the provisions in the Kerala University Act which were struck down were
conceived in the interest of general education is instructive in this context:
Mr. Mohan Kumaramangalam brought to our notice passages from the Report of the Education Commission in which the Commission had made
suggestions regarding the conditions of service of the teaching staff in the universities and the colleges and standards of teaching. He also referred
to the Report of the Education Commission on the status of teachers, suggestions for improving the teaching methods and standards. He argued
that what has been done by the Kerala University Act is to implement these suggestions in Chapters VIII and IX and particularly the impugned
sections. We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the
administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary,
cannot stand in the face of the Constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports.
179. In the light of the above discussion let us examine the validity of the impugned provisions of the Gujarat University Act, 1949, as subsequently
amended.
180. Section 33A(1)(a) provides:
33A(1) Every College (other than a Government college of a college maintained by the Government.) affiliated before the commencement of the
Gujarat University (Amendment) Act, 1972 (hereinafter in this Section referred to as ""such commencement"")--
(a) shall be under the management of a governing body which shall include amongst its members the Principal of the College, a representative of
the University nominated by the Vice Chancellor, and three representatives of the teachers of the college and at least one representative each of the
members of the non-teaching staff and the students of the college, to be elected respectively from amongst such, teachers, members of the non-
teaching staff and students; and
(b) that for recruitment of the Principal and members of the teaching staff of a college there is a selection committee of the college which shall
include--
(1) in the case of recruitment of the Principal, a representative of the University nominated by the Vice-Chancel for, and
(2) in the case of recruitment of a member of the teaching staff of the college, a representative of the University nominated by the Vice Chancellor
and the Head of the Department if any, concerted with the subject to be taught by such member.
181. We think that the provisions of Sub-sections (1)(a) and (1)(b) of Section 33A abridge the right of the religious minority to administer
educational institutions of their choice. The requirement that the college should have a governing body which shall include persons other than those
who arc members of the government body of the Society of Jesus would take away the management of the college from the governing body
constituted by the Society of Jesus and vast it in a different body. The right to administer the educational institution established by a religious
minority is vested in it. It is in the governing body of the Society of Jesus that he religious minority which established the college has vested the right
to administer the institution and that body alone has the right to administer the same. The requirement that the college should have a governing body
including persons other than those who constitute the governing body of the Society of Jesus has the effect of divesting that body of its exclusive
right to manage the educational institution. That it is desirable in the opinion of the legislature to associate the Principal of the college or the other
persons referred to in Section 33A(1)(a) in the management of the college is not a relevant consideration. The question is whether the provision has
the effect of divesting the governing body as constituted by the religious minority of its exclusive right to administer the institution. Under the guise of
preventing maladlministration, the right of the governing body of the college constituted by the religious minority to administer the institution cannot
be taken away. The effect of the provision is that the religious minority virtually loses its right to administer the institution it has founded.
Administration means ''management of the affairs'' of the institution. This management must be free of control so that the founders or their
nominees can mould the institution according to their way of thinking and in accordance with their ideas of how the interests of the community in
general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an
encroachment upon the guaranteed right See 280210 ''''. Sections 48 and 49 of the Kerala University Act, 1969, which came up for consideration
in that case respectively dealt with the governing body for private colleges not under corporate management and the managing council for private
colleges under corporate management. Under the provisions of these sections, the educational agency or the corporate management was to
establish a governing body or a managing council respectively. The Sections provided for the composition of the two bodies. It was held that the
Sections had the effect of abridging the right to administer the educational institution of the religious minority in question there. One of the grounds
given in the judgment for upholding the decision of the High Court striking down the Sections is that these bodies had a legal personality distinct
from governing bodies set up by the educational agency or the corporate management and that they were not answerable to the founders in the
matter of administration of the educational institution. The Court said that a law which interferes with the composition of the governing body or the
managing council as constituted by the religious or linguistic minority is an abridgement of the right of the religious minorities to administer the
educational institution established by it (see also 275277 and Rev. Bishop S. K. Parto v. Bihar [197] 1 S.C.R. 172.
182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its
reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by
teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right
to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice Chancellor
should be on the Selection Committee for recruiting the Principal or for the insistence of head of the department besides the representative of the
University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications
prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the
educational institution established by them.
183. Section 40(1) provides that the Court (senate) may determine that all instructions, teaching and training in courses of studies i"" respect of
which the university is competent to hold examination shall, within the university area be conducted by the university and shall be imparted by the
teachers of the university and the Court shall communicate its decision to the State Government. Sub-section (2) of Section 40 says that on receipt
of the communication under Sub-section (1), the Government may, after making such inquiry as it thinks fit, by notification in the Official Gazette
declare that the provisions of Section 41 shall come into force on such date as may be specified.
184. The petitioner contends that this Section virtually takes away the very essence of the right of the religious minority to administer the college in
question.
185. To decide this question, it is necessary to read some of the other provisions.
186. Section 2(2) defines a ''college'' as a degree college or an intermediate college. Section 2(2A) states that a ''constituent college'' means a
university college or an affiliated college made constituent u/s 41. A ''degree college'' has been defined by Section 2(3) as an affiliated college
which is authorized to submit its students to an examination qualifying for any degree of the university. Section 2(13) provides :
Teachers of the University"" means teacher appointed by the University for imparting instruction on its behalf
187. Section 2(15A) states that a ""University college"" means a college which the University may establish or maintain under the Act or a college
transferred to the University and maintained by it.
188. On the plain wording of Section 40 it is clear that the governing body of the religious minority will be deprived of the most vital function which
appertains to its right to administer the college, namely, the teaching, training and instructions in the courses of studies, in respect of which the
university is competent to hold examination. The fundamental right of a minority to administer educational institutions of its choice comprises within
it the elementary right to conduct teaching, training and instruction in courses of studies in the institutions so established by teachers appointed by
the minority. If this essential component of the right of administration is taken away from the minority and vested in the university, there can be no
doubt that its right to administer the educational institution guaranteed under Article 30(1) is taken away.
189. Section 39 provides that the university shall conduct post-graduate instructions. That means that teaching, training and instruction in post-
graduate courses will be conducted by the university. The word conduct occurring in Section 40 cannot have a meaning different from what it has
in Section 39. If in Section 39 it means that the university is the exclusive teaching and training agency in post-graduate instruction, there is no
reason to think that any vestige of the right to teach, train or instruct will be left to the minority after these matters are taken over by the university.
The teaching and training in the college will thereafter be done by the teachers of the university for and on behalf of the university. The definition of
the term ''teachers of the university given in Section 2(13) would indicate ,that they are teachers appointed by the university for imparting instruction
on its behalf.
190. If this Section is ultra vires Article 30(1), we do not think that Section 41 which in the present schema of legislation is dependent upon
Section 40 can survive and therefore it is unnecessary to express any view upon the Constitutionality of its provisions.
191. Sub-Sections (1) and (2) of Section. 51A read :
51A(1) No member of the teaching, other academic and non-teaching staff of an affiliated college and recognized or approved institution shall be
dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable
opportunity or being heard in respect of those charges and until--
(a) he has been given a reasonable opportunity of making representation on any such penalty proposed to be inflicted on him, and
(b) the penalty to be inflicted on him is approved by the Vice Chancellor or any other officer of the university authorised by the Vice Chancellor in
this behalf.
(2) No termination of service of such member not amounting to his dismissal or removal falling under Sub-section (1) shall be valid unless--
(a) he has been given a reasonable opportunity of showing caus against the proposed termination, and
(b) such termination is approved by the Vice Chancellor or any officer of the University authorised by the Vice Chancellor in this behalf:
Provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only.
192. It was argued for the petitioners that Clause (1)(b) of Section 51A has the effect of vesting in the Vice Chancellor a general power of veto on
the right of the management to dismiss a teacher. The exact scope of the power of the Vice-Chancellor or of the officer of the University
authorized by him in this sub-section is not clear. If the purpose of the approval is to see that the provisions of Sub-section 51A(1)(a) are complied
with, there can possibly be no objection in lodging the power of approval even in a nominee of the Vice-Chancellor. But an uncanalised power
without any guideline to withhold approval would be a direct abridgement of the right of the management to dismiss or remove a teacher or inflict
any other penalty after conducting an enquiry.
193. The relationship between the management and a teacher is that of an employer and employee and it passes one''s understanding why the
management cannot terminate the services of a teacher on the basis of the contract of employment. Of course, it is open to the State in the exercise
of its regulatory power to require that before the services of a teacher are terminated, he should be given an opportunity of being heard in his
defence. But to require that for terminating the services of a teacher after an inquiry has been conducted, the management should have the approval
of an outside agency like the Vice-Chancellor or of his nominee would be an abridgement of its right to administer the educational institution. No
guidelines are provided by the legislature to the Vice-Chancellor for the exercise of his power"". The fact that the power can be delegated by the
Vice-Chancellor to any officer of the university means that any petty officer to whom the power is delegated can exercise a general power of veto.
There is no obligation under the Sub-sections (1)(b) and (2)(b) that the Vice Chancellor or his nominee should give any reason for disapproval. As
we said a blanket power without any guideline to disapprove the action of the management would certainly encroach upon the right of the
management to dismiss or terminate the services of a teacher after an enquiry. While we uphold the provisions of sub-Clauses (1)(a) and (2) (a) of
Section 51A we think that Sub-clauses (1)(b) and (2)(b) of Section 51A are violative of the right under Article 30 of the religious minority in
question here. In In re : The Kerala Education Bill 1957, this Court no doubt, upheld provisions similar to those in Section 51A(1)(b) and 51A(2)
(b). But the subsequent decisions of this Court leave no doubt that the requirement of subsequent approval for dismissing or terminating the
services of a teacher would be bad as offending Article 30(1). -In D.A.V. College v. State of Punjab, Clause 17 of the impugned'' statute related
to the requirement of subsequent approval for termination of the services of teachers. This Court struck down the provision as an abridgement of
the right to administer the educational institution established by the minority in question there.
194. Section 52A states that any dispute between the governing body and any: member of the teaching, other academic and non-teaching staff of
an affiliated college or recognized or approved institution, which is connected with the conditions of service of such member, shall, on a request of
the governing body, or of the member concerned be referred to a Tribunal of Arbitration consisting of one member nominated by the governing
body of the college, or, as the case may be, the recognized or approved institution, one member nominated by the member concerned and an
umpire appointed by the Vice-Chancellor and that the provisions of the Arbitration Act would apply to such arbitration proceeding.
195. This provision sub-serves no purpose and we feel no doubt that it will needlessly interfere with the day-to-day management of the institution.
Any and every petty dispute raised by a member of the teaching or non-teaching staff will have to be referred to arbitration if it seems to touch the
service conditions. Arbitrations, not imparting education, will become the business of educational institutions. This Section is in our opinion bad in
its application to minorities.
196. In the result, we hold that the provisions of Section 33A, Section 40, sub-Clauses (1)(b) and (2)(b) of Section 51A and Section 52A are
violative of Article 30(1) of the Constitution and, therefore, they can have no application to educational institutions established and administered by
religious or linguistic minorities.
M.H. Beg, J.
197. The two questions to be answered by us are :
(1) Whether the impact of Article 30(1) of the Constitution upon any of the provisions of the Act before us, or, to put it conversely, whether the
effect of any of the provisions of the Act upon the fundamental rights guaranteed to minorities by Article 30(1) is such as to invalidate these
provisions ?
(2) Whether the rights guaranteed by Article 30 are in any way circumscribed by Article 29 ?
198. On the second question, I have nothing significant to add to what has fallen from My Lord the Chief Justice- I am in entire agreement with the
view that, although, Articles 29 and 30 may supplement each other so far as certain rights of minorities are concerned, yet, Article 29 of the
Constitution does not, in any way, impose a limit on the kind or character of education which a minority may choose to impart through its Institution
to the children of its own members or to those of others who may choose to send their children to its schools. In other words, it has a right to
impart a general secular education. I would, however, like to point out that, as rights and duties are correlative, it follows, from the extent of this
wider right of a minority under Article 30(1) to impart even general or non-denominational secular education to those who may not follow its
culture or subscribe to its beliefs, that, when a minority Institution decides to enter this wider educational sphere of national education, it, by reason
of this free choice itself, could be deemed to opt to adhere to the needs of the general pattern of such education in the country, at least whenever
that choice is made in accordance with statutory provisions. Its choice to impart an education intended to give a secular orientation or character to
its education necessarily entails its assent to the imperative needs of the choice made by the State about the kind of ""secular"" education which
promotes national integration or the elevating objectives set out in the preamble to our Constitution, and the best way of giving it. If it is part of a
minority''s rights to make such a choice it should also be part of its obligations, which necessarily follow from the choice, to adhere to the general
pattern. The logical basis of such a choice is that the particular minority Institution, which chooses to impart such, general secular education, prefers
that higher range of freedom where, according to the poet Rabindranath Tagore, ""the narrow domestic walls"" which constitute barriers between
various Sections of the nation will crumble and fall. It may refuse to accept the choice made by the State of the kind of secular education the State
wants or of the way in which it should be given. But, in that event, should it not be prepared to forego the benefits of recognition by the State ? The
State is bound to permit and protect the choice of the minority Institution whatever that might be. But, can it be compelled to give it a treatment
different from that given to other Institutions making such a choice ?
199. Turning to the first and the more complex question, I think it is difficult to answer the argument of the Additional Solicitor General, appearing
on behalf of the State of Gujarat, that, where a minority Institution has, of its own free will, opted for affiliation under the terns of a statute, it must
be deemed to have chosen to give up, as a price for the benefits resulting from affiliation, the exercise of certain rights which may, in another
context, appear to be unwarranted impairments of its fundamental rights.
200. It is true that, if the object of an enactment is to compel a minority Institution, even indirectly, to give up the exercise of its fundamental rights,
the provisions which have this effect will be void or inoperative against the minority Institution. The price of affiliation cannot be a total
abandonment of the right to establish and administer a minority Institution conferred by Article 30(1) of the Constitution. This aspect of the matter,
therefore, raises the question whether any of the provisions of the Act are intended to have that effect upon a minority Institution. Even if that
intention is not manifest from the express terms of statutory provisions, the provisions may be vitiated if that is their necessary consequence or
effect. I shall end eavour to show that the view which this Court has taken whenever questions of this kind have arisen before it on the effect of the
provisions of a statute, though theoretically and logically perhaps not quite consistent always on propositions accepted, has the virtue of leaving the
result to the balancing of conflicting considerations to be carried out on the particular provisions and facts involved in each case.
201. When we examine either the Act as a whole or the impugned provisions of the Act before us, we find no mention whatsoever of anything
which is directed against a minority or its educational Institutions. The impugned provisions of the Gujarat University Act, 1949 (hereinafter
referred to as ''the Act'') are : Section 20 (Clause XXXIX) inserted in the Gujarat University Act, 1949, as amended by the Gujarat University
(Amendment) Act, 1972; Section 33A inserted in the Gujarat University Act, 1949, as amended by the Gujarat University (Amendment) Act,
1972, (Gujarat Act No. 6 of 1973); Sections 40 and 41 of the Gujarat University Act 1949, as amended by the Gujarat University (Amendment)
Act, 1972 (Gujarat Act No. 6 of 1973); Sections 51A and 52A inserted in the Gujarat University Act, 1949, as amended by the Gujarat
University (Amendment) Act, 1972, (Gujarat Act No. 6 of 1973). If we accept the argument that, before enacting the amendments which are
assailed, the State Legislature must be deemed to be aware of the fact that the petitioning minority Institution before us, the Ahmedabad St.
Xaviers College, is an affiliated College of the University, it may be possible to say that the amendments must be deemed to be directed against it
also. When the minority Institution exercised its choice, by applying for affiliation under the provisions of the Act, there were no amendments
before it. On the other hand, it may be contended that, where a statutory right-is availed of by any party, it must be deemed to have chosen it
subject to the condition that the Legislature may change its terms at any tune. But, can it be deemed to have opted to submit to any and every
future amendment ? Perhaps it will be carrying the doctrine of imputed knowledge and consent too far to say that a minority Institution opting for a
statutory right must be deemed to have signed a blank cheque to assent to any and every conceivable amendment of any kind whatsoever in future
as the price to be paid by it of its choice. No one could be deemed to assent to what is not before him at all. Moreover, can a minority, even by its
assent, be barred from the exercise of a fundamental right ? It may be that the bar may be only a conditional one so that it could be removed by the
institution concerned whenever it is prepared to pay the price of its removal by giving up certain advantages which are not parts of its fundamental
right. Such a conditional bar may be construed only as a permissible regulatory restriction.
202. The first provision which has a compulsive effect on Ahmedabad St. Xaviers College Society is Section 5(1) of the Act which says :
5(1). No educational Institution situate within the University area shall, save with the sanction of the State Government be associated in any way
with, or seek admission to any privileges of, any other University established by law.
203. As St. Xavier''s College is apparently situated within the University area, it is prevented from seeking affiliation to any other University
established by law. This would, in my opinion, have the effect of compelling it to abandon its fundamental rights guaranteed by Article 30(1) of the
Constitution as a price for affiliation by the Gujarat University because it is not permitted to affiliate with any other University without the sanction
of the Govt. The petitioner has not, however, in the reliefs prayed for by the petition, asked for a declaration that Section 5 is invalid. But, the
compulsive effect of Section 5 was one of the arguments advanced by Mr. Nanavati for the petitioner. The Additional Solicitor General, arguing
for the State, had .practically conceded that Section 5 of the Act will be invalid against the petitioner. He, however, hoped to save it in case we
could so interpret it as to impose an obligation upon the State Govt. to give its sanction in every case where a minority Institution applies for
affiliation with another University. Inasmuch as Section 5 of the Act has a compulsive effect by denying to the petitioning college the option to keep
out of the statute altogether, it would, in my opinion, be inoperative against it.
204. Section 41(1), however, operates even more directly upon the petitioning College, which had been ""admitted to the privileges of the
University"" u/s 5(3) by affiliation. This provision would have the compelling effect of making it automatically a constituent unit of the University, and
must, therefore, be held to be inoperative against the petitioning College as it cannot affect the fundamental rights guaranteed by Article 30(1) of
the Constitution. Provisions of Section 40 and the remaining provisions of Section 41 of the Act are all parts of the same compulsive scheme or
mechanism which is struck by Article 30(1).
205. If we hold, as I think we must, having regard to the provisions of Article 30(1) of the Constitution, that the words ""shall be constituent college
of the University"", used in Section 41(1) of the Act only mean that, so far as the petitioning college is concerned, it ""may"" become a constituent
college of the University, even after a notification u/s 40(2) of the Act, the statute, read as a whole, places before the petitioning college the
following four alternatives :
(1) To become a constituent unit of the University.
(2) To continue as an affiliated college on new terms embodied in amended provisions contained in Sections 20, 33A, 51A and 52A of the Act.
(3) To face the consequence of withdrawal of affiliation u/s 37 of the Act and the resulting disadvantages of disaffiliation by failing to comply with
the conditions of its affiliation, or, in other words, to step outside the statute altogether.
(4) To get the status of an ""autonomous"" college u/s 38B of the Act for which the petitioning college has already applied.
The range of choices open is thus wide, A minority is left absolutely free to make any choice it likes. It has necessarily to pay the price of each
choice it makes knowing what it entails.
206. If the combined effect of provisions of the statute is that four alternative courses are open to the College due to its initial option to apply for
affiliation"" which is"" strictly speaking, only a statutory and not a fundamental right, can its rights under Article 30(1) of the Constitution be said to
be violated unless and until it is shown that its application for autonomy has been or is bound to be rejected ? Compelling the College to become a
constituent part of the University amounts to taking away of its separate identity by the force of law. ""But, if the College has really attained such
standards of organisation and excellence as it claims to have done, it can have an autonomous status u/s 38B of the Act with all its advantages and
freedoms practically for the asking. Could it, in these circumstances, be said that loss of the identity of the College is a necessary consequence of
the provisions of the statute before us? No other statute with identically similar provisions and effect was interpreted in any case which has so far
come to this Court.
207. If the petitioning College, which has applied for the status of an autonomous College u/s 38B of the Act as amended in 1972, is provided with
an avenue of escape by the amended provisions themselves, it seems quite unnecessary to consider the impact of Section 20, Section 33A and
Section 51A and 52A of the Act, which have been introduced by the Act of 1972, on fundamental rights protected by Article 30. Section 20 does
not lay down any function of the Executive Council of the University with regard to an autonomous College governed by the provisions of Chap.
VIA of the Act. Section 33A also applies only to a ""College"" which is not covered by the provisions of Chap. VIA. Autonomous Colleges have
their own standing Committees u/s 38C of the Act instead of the Governing Bodies mentioned in Section 33A of the Act. Again, Section 51A and
52A apply only to an ""affiliated College or recognised or approved Institution"" so that an autonomous College, functioning under the provisions of
Chap. VIA, is outside their purview. The only provisions which could have a compulsive effect, in their present form, against the petitioning College
could be Section 5 and then Sections 40 and 41 of the Act which would automatically convert affiliated. Colleges into constituent Colleges of the
University, without the interposition of an option, and, therefore, could be said to deprive the petitioning college of the opportunity to become an
autonomous college. In fact, Section 41 of the Act, as it stands, could have the effect of negativing the rights conferred by Section 38B of the Act
by transforming, mechanically and by operation of the statute, affiliated Colleges into constituent colleges so that no question of autonomy could
practically arise after that. Hence, if we confine the operation of Sections 5, 40 and 41 of the Act, as we can, to Institutions other than minority
Institutions protected by Article 30(1) of the Constitution because they would compel the petitioning college to lose its identity, it may not be
necessary, in the instant case, to consider the impact of any other provision upon the fundamental rights of the petitioning college. It is only if the
petitioning college fails in its attempt to become an autonomous college that the question of the impact of Sections 20, 33A, 51A and 52A could
arise. The only Sections which could stand in the way of its becoming an autonomous institution could be Sections 5, 40 and 41 of the Act.
Therefore, it seems unnecessary in the case before us, to consider the impact of provisions other than Sections 5, 40 and 41 of the Act upon the
rights of the petitioning college at present. These questions could be considered premature here.
208. Assuming, however, that we must consider the impact of Sections 20, 33A, 51A, 52A apart the fundamental rights of the petitioning collage
as it would, lit least until it gets an autonomous status, be affected and governed by them if they are valid, questions arise as to the source or basis
and extent of permissible regulation or restriction upon the rights conferred upon the petitioning college by Article 30(1) of the Constitution. Each
and every learned Counsel appearing for a minority institution has conceded that, despite the ""absoluteness"" of the terms in which rights under
Article 30(1) may be expressed, there is a power in the State to regulate their exercise. This Court has also repeatedly recognised the validity of
the regulation of the rights under Article 30 on various grounds without explicitly stating the actual basis of such power to regulate. I venture to
think that if we are able to formulate the exact basis or source of the power of regulation or restriction upon the fundamental rights contained in
Article 30(1) of the Constitution we will be able to lay down with less indefiniteness and more precision and certitude the extent to which the State
can regulate or restrict fundamental rights protected by Article 30(1) of the Constitution.
209. Provision for and regulation by the State of the very conditions which secure to minority institutions the freedom to establish and administer its
educational institutions is, obviously, inevitable and undeniable. Thus, unless the State could punish lawlessness within an institution or
misappropriation of funds by its trustees or prevent abuse of its powers over teachers or other employees by a managing body of an Educational
Institution, whether the institution is a minority or a majority institution, neither the attainment of the purposes of education nor proper and effective
administration of the institution would be possible. In other words, existence of some power to lay down necessary conditions or pre-requisites for
maintaining the right to establish and administer an institution itself in a sound state is inherent in the very existence of organised society which the
State represents.
210. Laws made for sustaining the very conditions of organised society and civilised existence, so that the rights of all, including fundamental rights
of the minorities, may be maintained and enforced do not rest on mere implication. The specific provisions of Article 245 to 254 read with the
three Legislative lists in the Seventh Schedule of the Constitution confer a host of legislative powers upon State Legislatures and the Parliament to
regulate various kinds of activities including those of minority institutions. No doubt Article 30(1), like other fundamental Constitutional rights, is
meant to limit the scope of ordinary legislative power. But, it was submitted, on behalf of the State, that it is only a ""law which takes away or
abridges the rights conferred"" by Part III of the Constitution, containing the fundamental rights of citizens, which is ""void"" and that too only ""to the
extent of the contravention"". Thus, a mere incidental regulation of or restriction upon the exercise of a fundamental right intended to secure and
actually ensuring its more effective enjoyment could not be said to be really directed at an abridgement or taking away of the fundamental right at
all or to have that effect. Such a law, when analysed, will be found to aim at something quite different from the abridgement of a minority''s
fundamental rights under Article 30(1) of the Constitution. It would not really take away or abridge the fundamental rights even though it regulates
their exercise. If, on the other hand, a law necessarily has the compelling effect of a substantial abridgement or taking away of the fundamental right
from a minority institution, it would not be saved simply because it does not say so but produces that effect indirectly. For the purposes of applying
Article 13(2) of the Constitution we have to look at the total effect of statutory provisions and not merely intention behind them. This is how I
understand the majority view 281270
211. The essence of the right guaranteed by Article 30(1) of the Constitution is a free exercise of their choice by minority institutions of the pattern
of education as well as of the administration of their educational institutions. Both these, taken together, determine the kind or character of an
educational institution which a minority has the right to choose. Where these patterns are accepted voluntarily by a minority institution itself, even
though the object may be to secure certain advantages for itself from their acceptance, the requirement to observe these patterns would not be a
real violation of rights protected by Article 30(1). Indeed, the acceptance could be more properly viewed as an assertion of the right to choose
which may be described as the ""core"" of the right protected by Article 30(1). In a case in which the pattern is accepted voluntarily by a minority
institution, with a view to taking advantage of the benefits conferred by a statute, it seems to me that it cannot insist upon an absolutely free exercise
of the right of administration. Here, the incidental fetters on the right to manage the institution, which is only a part of the fundamental right, would
be consequences of an exercise of the substance or essence of the right which, as I see it, is freedom of choice. No doubt, the rights protected by
Article 30(1) are laid down in ""absolute"" terms without the kind of express restrictions found in Articles 19, 25 and 26 of the Constitution. But, if a
minority institution has the option open to it of avoiding the statutory restrictions altogether, if it abandons, with it, the benefits of a statutory right, I
fail to see how the absoluteness of the right under Article 30(1) of the Constitution is taken away or abridged. All that happens is that the statute
exacts a price in general interest for conferring its benefits. It is open to the minority institution concerned to free itself from any statutory control or
fetters if freedom from them is considered by it to be essential for the full exercise of its fundamental rights under Article 30(1) of the Constitution.
This article, meant to serve as a shield of minority educational institutions against the invasion of certain rights protected by it and declared
fundamental so that they are not discriminated against, cannot be converted by them into a weapon to exact unjustifiable preferential or
discriminatory treatment for minority institutions so as to obtain the benefits but to reject the obligations of statutory rights. It is only when the terms
of the statute necessarily compel a minority institution to abandon the core of its fundamental rights under Article 30(1) that it could amount to
taking away or abridgement of a fundamental right within the meaning of Article 13(2) of the Constitution. It is only then that the principle could
apply that what cannot be done directly cannot be achieved by indirect means. Having stated my approach to the interpretation of Article 30(1) of
the Constitution, I proceed now to consider the effect of this Article on the impugned provisions.
212. It appears to me that Section 20 of the. Act, which deals with the powers of the Executive Council of the Gujarat University, does not
directly or indirectly touch a minority institution''s rights under Article 30(1)'' of the Constitution merely because the Executive Council many take
decisions which may have that effect. Indeed, if Article 30(1) operates as a fetter on the powers of the Executive Council as well, the Council is
powerless to take such decisions u/s 20 of the Act which take away or abridge fundamental rights so as to be struck by Article 13. In any case, it
is only when specific decisions and actions said to have that effect are brought before the Courts that their validity, in purported exercise of powers
conferred by Section 20 of the Act, could be determined because the Section itself gives a general power not specifically directed against minority
institutions.''
213. Section 33A of the Act requires the observance of a general pattern with regard to the Constitution of the governing body of an affiliated
college irrespective of whether it is a minority or a majority institution. The mere presence of the representatives of the Vice-Chancellor, the
Teachers, the Members of the Non-teaching staff, and the students of the College would not impinge upon the right to administer. In my opinion,
such a ""sprinkling"" is more likely to help to make that administration more effective and acceptable to everyone affected by it. A minority institution
can still have its majority on the governing body. And, we are not concerned here with the wisdom or acceptability to us of this kind of provision.
We have only to decide, I presume, how it affects the substance of the right conferred by Article 30(1) of the Constitution.
214. Section 51A of the Act appears to me to lay down general conditions for the dismissal, removal, reduction in rank and termination of services
of members of the staff of all colleges to which it applies. Again, we have not to consider here either the wisdom or unwisdom of such a provision
or the validity of any part of Section 51A of the Act on the ground that it violates any fundamental right other than the ones conferred by Article
30(1) of the Constitution. If, as I have indicated above, a greater degree of interference with the right to administer or manage an institution can be
held to be permissible as a logical consequence of the exercise of an option of a minority for an institution governed by a statute, with all its benefits
as well as disadvantages, it seems to me that provisions of Section 51A do not constitute an unreasonable encroachment on the essence of rights of
a minority institution protected by Article 30(1) of the Constitution which consists of freedom of choice. For similar reasons, I do not think that
Section 52A of the Act constitutes an infringement of the special minority rights under Article 30(1) of the Constitution when the institution opts for
a statutory right which necessarily involves statutory restrictions. Of course, if these provisions, could be held to be invalid on any grounds as
against all affiliated colleges, whether they are administered by minorities or majorities in a State, they could be held to be invalid against the
petitioning college too on those grounds. But, as I have already said, we are not concerned here with such grounds or questions at all.
215. In Re. The Kerala Education Bill, 1957 (supra), this Court rejected the argument that minority institutions have an absolute right to be free
from all control in managing their institutions. The majority of the learned Judges held (at p. 1062):
The right to administer cannot obviously include the right to maladminister. 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 subversive 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. Learned Attorney-General
concedes that reasonable regulations may certainly be imposed by the State as a condition for aid or even for recognition"".
216. The function of education was set out there as'' follows (at page 1019) :
One of the most cherished objects of our Constitution is, thus, to secure to all its citizens the liberty of thought, expression, belief, faith, and b2
worship. Nothing provokes and stimulates thought and expression in people more than education. It is education that clarifies our belief and faith
and helps to strengthen our spirit of worship.
217. A person of secular outlook may consider good works or performance of one''s moral obligations and duties as the best form of worship.
People may differ in their opinions about what is worthy of worship. But, there is little room for differences of opinion when it is assented that the
spirit which the State is bound to foster is that of pursuit and worship of the ideals set -out in the preamble to our Constitution.
218. Explaining Article 30 of the Constitution, Das, C.J., said (ibid--at p. 1053) :
The key to the understanding of the true meaning and implication of the Article under consideration are the words ''of their .own choice''. It is said
that the dominant word is ''choice'' and the content of that Article -is as wide as the choice of the particular minority community may make it. The
ambit of the rights conferred by Article 30(1) has. therefore, to be determined on a consideration of the matter from the points of view of the
educational institutions themselves"".
He also said (ibid at p. 1052) :
The real import of Article 29(2) and Article 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders
admitted into it. By admitting a port-member into it the minority institution does not shed its character and cease to be a minority institution"".
219. To my mind, the majority opinion in the Kerala Education Bill case (supra) only lays down certain general principles. It does net declare
anything more to be unConstitutional and invalid than that which has a compelling effect so as to practically leave no choice open before a minority
institution except to submit to statutory regulations as the price to be paid for its existence at all as an educational institution. It did not deal with the
case in which a minority institution had the option of choosing more or less autonomy, udder the terms of a statute, depending upon the state of
efficiency and excellence achieved by it, as is the position in the statute before us. Both the majority and minority view expressed there was that the
recognition by the State was not part of the guaranteed fundamental right under Article 30(1) of the Constitution, and also that such recognition by
the State could entail payment of a price for it. The majority and the minority views differed only with regard to the reasonably permissible amount
of statutory compression as a price for aid and recognition. If the price to be paid is a fetter upon the exercise of a fundamental right, the very
essence or core of the fundamental right being an exercise of choice, what is reasonable or not must, necessarily, depend upon the total effect of all
the provisions considered! together and not of particular provisions viewed in isolation from the rest. And, we should, I venture to think, remind
ourselves that we cannot lightly substitute our own opinions for the legislative verdict on such a question.
220. It seems to me, with great respect, that, in Rev. Sidhrajbhal Sabhai and Ors. v. State of Bombay and Anr. 1966 3 S.C.R. 837 this Court
went somewhat beyond the majority view in Re. Kerala Education Bill case (supra) after pointing out that no ""general principle on which
reasonableness, or otherwise of a regulation may be tested was sought to be laid down by the Court"" in that case. It was held there that it was not
necessary that a regulation should be deemed to be unreasonable ""only if it was totally destructive of the right"" under Article 30(1). Here, the
question really considered was whether threats of withdrawal of recognition and of the grant to the college could be used to compel a nunorhy
educational institution to admit nominees of the Govt. into it The use of such coercive methods was held to be unConstitutional, A test of validity of
a regulatory measure was propounded as follows (at p. 857):
Such regulation must satisfy a dual test--the test of reasonableness, and the test that it is regulative of the educational character of the institution and
is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.
It was, however, pointed out, after observing that the fundamental freedom under Clause (1) of Article 30 is expressed in absolute terms (at p.
850):
This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to
establish and to administer educational institutions : 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 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, in matters educational
Thus, here also a distinction was made between impairment of the substance of the fundamental right and an incidental encroachment upon the right
to administer for the purpose of ensuring essential conditions of good education and the health and well being of those connected with imparting of
education at an institution.
221. In 275277 the right of St. Xavier''s College at Ranchi to impart general education, not circumscribed by the requirements of Article 29(1) of
the Constitution, was recognised in view of the width of Article 30(1). No doubt it was held here that a provision for subjecting the managerial
functions of the governing body of the college to the supervision of a statutory University Service Commission was unConstitutional. This, however,
was not a decision in the context of a provision, such as Section 38B of the Act before us, which offers the right to the petitioning college to
become quite independent and free from the administrative control of the University beyond a ""general supervision"". The effect of that decision
must, in my opinion, be confined to the situation which emerged from a consideration of the terms of the statute before this Court for interpretation
on that occasion,
222. In 280040 an order passed by the Education Secretary to the Govt. of Bihar, setting aside the elections of the President and Secretary of the
Church Missionary Society Higher Secondary School and directing the institution to take steps to constitute a managing Committee in accordance
with the terms of the orders sent to it was challenged. The legal sanction for such an order itself was not clear. It was, therefore, after references to
the provisions of Article 30(1) of the Constitution and the earlier cases decided by this Court, set side. Apart from the question that it was a case
on the ambit of the right under Article 30(1) of the Constitution, it does not appear to me to be helpful in resolving the difficulties of the case before
us.
223 In 280210 this Court had occasion to consider again the ambit of Article 30(1) of the Constitution and its impact upon the provisions of the
Kerala University Act 9 of 1969. It was pointed out that Article 30(1) has two distinct spheres of protection separated in point of time from each
other : the first relating to the initial right of establishment, and the second embracing the right of administration of the institution which has been
established. Administration was equated with management of affairs of the institution and it was observed (at page 740) :
This 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 of how the interests of the community in general and the institution in particular will be best served. No part of this management can be
taken away and vested in another body without an encroachment upon the guaranteed right
Immediately after that, however, followed a paragraph which, with great respect, I find some difficulty in completely reconciling with any ""absolute
freedom of the management of the institution from control :
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 teachers 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.
224. Evidently, what was meant was that the right to exclusive management of the institution is separable from the right to determine the character
of education and its standards. This may explain why ""standards""'' of education were spoken of as ""not part of management"" at all. It meant that the
right to manage, having been conferred in absolute terms, could not be interfered with at all although the object of that management could be
determined by a general pattern to be laid down by the State which could prescribe the syllabi and standards of education. Speaking for myself, I
find it very difficult to separate the objects and standards of teaching from a right to determine who should teach and what their qualifications
should be. Moreover, if the ""standards of education"" are not part of management, it is difficult to see how they are exceptions to the principle of
freedom of management from control. Again, if what is aimed at directly is to be distinguished from an indirect effect of it, the security of tenure 08
teachers and provisions intended to ensure fair and equitable treatment for them by the management of an institution would also not be directly
aimed at interference with its management. They could more properly be viewed as designed to improve and ensure the excellence of teachers
available at the institution, and, therefore, to raise the general standard of education. I think that it is enough for us to distinguish this case on the
ground that the provisions to be interpreted by us are different, although, speaking for myself, I feel bound to say, with great respect, that I am
unable to accept every proposition found stated there as correct. In that case, the provisions of the Kerala University Act 9 of 1969, considered
there were inescapable for the minority institutions which claimed the right to be free from their operation. As I have already observed, in the case
before us, Section 38B of the Act provides the petitioning College before us with a practically certain mode of escape from the compulsiveness of
provisions other than Sections 5, 40 and 41 of the Act if claims made on its behalf are correct.
225. In D.A.V. College, Bathinda, etc. v. State of Punjab and Ors. [1971] Su. S.C.R. 677 this Court considered the effect of a notification of the
Punjab Govt. and the Constitutionality of Sections 4(2) and 5 of the Punjabi University Act 35 of 1961, the result of which was that the petitioning
college there ceased to be affiliated to the University constituted under the Punjab University Act of 1947 and was compelled to become affiliated
to another University, the Punjabi University under the Act of 1961. The consequence was that, if this compulsory affiliation was valid, a
notification of the Punjabi University, declaring that Punjabi ""will be the sole medium of instructions and examinations for the pre-university even for
science group from the year 1970-71"", became applicable to it. Apparently, there was no reasonable means of escape from these provisions so
that the affected institution was compelled to change its character and medium of instruction in order to comply with the provisions of the Act. In
such a situation, its rights protected both by Articles. 29(1) and 30(1) were held to be infringed by the offending provisions.
226. In D.A.V. College etc. v. State of Punjab and Ors. [1971] Su. S.C.R. 688 the validity of certain Sections of Guru Nanak University
(Amritsar) Act 21 of 1969, and of some statutes of the University made under it, was considered by this Court in the light of fundamental rights
guaranteed by Articles 29(1) ft 30(1) as well as Article 19(1)(c) of the Constitution. The attacks on Sections 4 and 5 of the Guru Nanak
University Act as well as on Clause 18 under Chap. V of the University statutes failed but Clauses 2(1) (a) and 17 were struck down for conflict
with the rights guaranteed by Article 30(1) of the Constitution since their effect was to compel compliance with their provisions as ""conditions of
affiliation"". It was held there (at p. 709 ):
Clause 18 however in our view does not suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority
institutions empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the larger
interests of the institutions to ensure their efficiency and excellence. It may for instance issue an ordinance in respect of age of superannuation or
prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular subjects. Uniformity in the
conditions of service and conduct of teachers in all non-Government Colleges would make for harmony and avoid frustration. Of course while the
power to make ordinances in respect of the matters referred to is unexceptional the nature of the infringement of the right, if any, under Article
30(1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of
the educational institution, about which it is not possible now to predicate"".
227. It was urged on behalf of the petitioning college that if it could get the advantages of affiliation or recognition by the University only under the
terms of an enactment which requires it to adhere to a pattern or scheme under which substantial powers relating to management of the institution
have to be surrendered, it really amounts to compelling it to abandon the exercise of its fundamental right of management guaranteed by Article
30(1) of the Constitution be cause, without recognition, the guarantee would be illusory. It is submitted that the situation which emerges is that there
is, practically speaking, no alternative left before the college other than compliance with the terms of affiliation or recognition without which its
students could not get degrees. The result of non-compliance would be, it is submitted, that education by it will not help those to whom it is
imparted to get on in life and thus will have little practical value. This means, the argument runs, that the minority institutions would be discriminated
against and denied equality before the law which Article 30(1) of the Constitution is meant to confer upon it.
228. The answer given is that such arguments could be advanced only to urge that there must be some alternative provision for minority colleges,
which do not want to pay the price of the same statutory controls as majority managed colleges for affiliation and recognition, but provisions which
apply uniformly to minority as well as majority managed colleges could not be invalidated on such a ground. In other words, it may be that Article
30(1) of the Constitution enables a mmority to contend that, in order to secure an equal protection of laws, the State should make some statutory
provision so that minority institutions may obtain recognition or teach for degrees recognised by the State without sacrificing any part of it rights of
management guaranteed by Article 30(1) of the Constitution. No claim for an order directing the State to make such alternative provision for the
petitioning minority institution is made before us.
229. What is really claimed is that the minority institutions must get affiliation on terms other than those prescribed for majority managed institutions
when the statute before us has no provisions for affiliation on any such special alternative terms for minority colleges. The impugned provisions
applicable to affiliated colleges, whether majority or minority managed, apart from Sections 5,40 and 41 which are separable, are contained in
Sections 20, 33A, 51A and 52A of the Act. If we were to hold that affiliation is open to a minority institution on some other terms not found in the
statutory provisions at all, it would, it seems to me, really amount to nothing short of legislation which is really not our function. Moreover, in the
case before us, on the claims put forward on behalf of the petitioning college, it appears very likely that the college will get the benefit of Section
38B of the Act, and, therefore, will escape from the consequences of affiliation found in the impugned sections.
230. It is true that Section 38B of the Act imposes certain conditions which, if the claims made on behalf of the petitioning college are correct, the
college will have no difficulty in satisfying. In any case, until its application for an autonomous status is rejected, it could not reasonably complain
that the other provisions of the Act, apart from Sections 5, 40 and 41 of the Act, will- be used against it. For this reason also, it appears to me to
be unnecessary, at least at this stage, to make a declaration about the effect of Sections 20 and 33A and 51A and 52A upon the fundamental
rights of the petitioner protected by-Article 30(1) of the Constitution.
231. Section 38B, to which I attach considerable importance for the put poses of this case, reads as follows :
38B. (1) Any affiliated college or University college or a recognised institution or a University Department may, by a letter addressed to the
Registrar, apply to the Executive Council to allow the college, institution or, as the case may be, Department to enjoy autonomy in the matters of
admission of students, prescribing the courses of studies, imparting instructions and training, holding of examinations and the powers to make
necessary rules for the purpose (hereinafter referred to as ""the specified matters"").
(2) Either on receipt of a letter or application under Sub-section (1) or where it appears to the Executive Council that the standards of education in
any affiliated college or University college or recognised institution or University Department are so developed that it would be in the interest of
education to allow the college, institution or Department to enjoy autonomy in the specified matters, on its own motion, the Executive Council,
shall--
(a) for the purpose of satisfying itself whether the standards of education in such college, institution or Department are so developed that it would
be in the interest of education to allow the college, institution or
(ii) make such further inquiry as may appear to it to be necessary:
(b) after consulting the Academic Council on the question whether the college, institution, or Department should be allowed to enjoy autonomy in
the specified matters and stating the result of the inquiry under Clause (a) record its opinion on that question; and
(c) make a report to the Court on that question embodying in such report the result of the inquiries, the opinion of the Academic Council and the
opinion recorded by it.
(3) On receipt of the report under Sub-section (2), the Court shall, after such further inquiry, if any, as may appear to it to be necessary record its
opinion on the question whether the college, institution or Department should be allowed autonomy in the specified matters.
(4) The Registrar shall thereupon submit the proposals for conferring such autonomy on such college, institution or Department and all proceedings,
if any, of the Academic Council, the Executive Council and the Court relating thereto, to the State Government.
(5) On receipt of the proposals and proceedings under Sub-section (4), the State Government, after such inquiry as may appear to it to be
necessary, may sanction the proposals or reject the proposals.
(6) Where the State Government sanctions the proposals it shall by an order published in the Official Gazette confer on the college, institution or
Department specified in the proposals, power to regulate the admission of students to the college, institution or, as the case may be, the
Department, prescribing the course of studies in the college, institution or Department, the imparting of instructions, teaching and training in the
course of studies, the holding of examinations and powers to make the necessary rules for the purpose after consulting the Executive Council and
such other powers as may have been specified in the proposals. 20--131 SttpCr/75
(7) A college, recognised institution or University Department exercising the powers under Sub-section (6) shall be called an ''autonomous college,
autonomous recognized institution or, as the case may be, autonomous University Department-
(8) In the case of an autonomous college, autonomous recognized institution or autonomous University Department, the University shall continue to
exercise general supervision over such college, institution or Department and to confer degrees on the students of the college, institution or
Department passing any examination qualifying for any degree of the University.
232. The effect of an enactment upon the fundamental rights of a minority educational institution, as have already tried to indicate above, depends
upon the totality of actual provisions, and, indeed, also upon the actual facts relating to a particular institution. Is it possible for us to gauge the total
effect without taking all these factors into consideration ? I venture to think, with great respect, that we cannot determine the effect of each
provision in the abstract or in isolation from other provisions and the facts relating to the particular petitioning college put forward before us.
233. It may be that Article 30(1) of the Constitution is a natural result of the feeling of insecurity entertained by the minorities which had to be
dispelled by a guarantee which could not be reduced to a ""teasing illusion"". But, is it anything more than an illusion to view the choice of a minority
as to what it does with its educational institution as a matter of unconcern and indifference to the whole organised society which the State
represents ?
234. The Nineteenth Century ""liberal"" view of freedom as absence of constraint"", which was largely negative, was voiced by J.S. Mill in his ""Essay
on Liberty"" (American State Papers--Federalist--J.S. Mill, p. 267@271 and 305 ). In the introduction, the learned author set out the purpose of
his essay as follows (See: ""Great Books of the Western World"", J. S. Mill at page 271) :
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way
of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That
principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their
number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his
will, is to prevent harm- to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or
forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or
even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling
him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to
produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the
part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
235. Is Article 30 of the Constitution meant to reflect a philosophy such as that of Herbert Spencer in ""Man versus State"", as extended to minority
groups assumed to be pitted against the State, or, is the philosophy underlying it not the more generous one animating the whole of our Constitution
and found stated in the preamble which, according to Chief Justice Das, in the Kerala Education Bill case (supra), embraces also the purpose of
education? Indeed, the difficulty of separating the good of the individual, or, by an extension, the good of a group constituting a minority from the
good of the whole society, was thus expressed by J.S. Mill himself (at p. -305):
No person is an entirely isolated being; it is impossible for a person to do anything seriously, or permanently hurtful to himself, without mischief
reaching at least to his near connections, and often far beyond them. If he injures his property, he does harm to those who directly or indirectly
derived support from it, and usually diminishes, by a greater or less amount, the general resources of the community. If he deteriorates his bodily or
mental faculties, he not only brings evil upon all who depended on him for any portion of their happiness, but disqualifies himself for tendering the
services which he owes to his fellow creatures generally; perhaps becomes a burthen on their affection or benevolence; and if such conduct were
very frequent, hardly any offence that is committed would detract more from the general sum of good. Finally, if by his vices or follies a person
does no direct harm to others, he is nevertheless (it may be said) injurious by his example; and ought to be compelled to control himself for the
sake of those whom the sight or knowledge of his conduct might corrupt or mislead.
236. Even if Article 30(1) of the Constitution is held to confer absolute and unfettered rights of management upon minority institutions, subject only
to absolutely minimal and negative controls in the interests of health and law and order, it could not be meant to exclude a greater degree of
regulation and control when a minority institution enters the wider sphere of general secular and non-denominational education, largely employs
teachers who are not members of the particular minority concerned, and when it derives large parts of its income from the fees paid by those who
are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interests of those
who are affected by the management of the minority institution and the education it imparts but who are not members of the minority in
management. In other words, the, degree of reasonably permissible control must vary from situation to situation. For the reasons already given
above, I think that, Sections 5, 40 and 41 of the Act, directly and unreasonably impinge upon the rights of the petitioning minority managed college,
protected by Article 30(1) of the Constitution, but the other provisions do not have that effect. On the situation under consideration before us, the
minority institution affected by the enactment has, upon the claims put forward on its behalf, also a means of escape from the impugned provisions
other than Sections 5, 40 and 41 of the Act by resorting to Section 38B of the Act.
237. Consequently, I hold that Sections 5, 40 and 41 of the Act are restricted in their operation to colleges other than those which are protected,
as minority educational institutions, by Article 30(1) of the Constitution. Appropriate directions must, therefore, issue to the opposite parties not to
enforce these provisions against the petitioning college. But, 1 am of opinion that no such declaration or directions are required as regards the
remaining provisions of the Act.
S.N. Dwivedi, J.
238. Since I partly agree and partly degree with the plurality-opinions, it has become necessary for me to write a separate judgment.
Contrast between Articles. 25 and 26 and 30(1) of the Constitution
239. In a broad sense, all fundamental rights may be traced to a single central idea of ''Liberty''. ''Liberty'' has its various phases. The rights
safeguarded by Articles. 25 and 26 constitute one of those phases : the rights safeguarded by Article 30(1) constitute another phase. Articles 25
and 26 guarantee religious liberty; Article 30(1) guarantees educational liberty. To be more precise, Article 30(1) safeguards the freedom of
establishing and administering educational institutions. It is true that an educational institution may also impart religious instruction and may thus
serve as a means to the exercise of religious freedom. But Article 30(1) elevates the right of establishing and administering an educational institution
to the plane of an independent right. It is a case of a means becoming an end by itself.
240. Again, the beneficiaries of the rights under Articles. 25 and 26, and 30(1) are different. Article 25 safeguards the religious freedom of an
individual. Article 26 safeguards the religious freedom of a group of persons in respect of certain specified matters. The individual and the group
may belong to a minority community as well as to the majority community. In contrast, Article 30(1) safeguards the right of the minority community.
It has nothing to do with the majority community. Thus, although Article 30(1) safeguards a group-right like Article 26, is radically different from
Article 26 as it is confined only to the minority community.
241. While Articles. 25 and 26 are concerned with religious freedom, Article 30(1) extends the right of establishing and administering an
educational institution not only to a religious minority but also to a linguistic minority who may be even atheists. So the scope of Article 30(1), as
regards both the content of the right and the beneficiaries of the right, is wider than that of Articles 25 and 26.
242. Article 25(2) disentangles certain activities, including secular activity, from religious practices and makes them subject to legal regulation or
restrictions. But Article 30(1) secures the right to a secular activity to a religious or linguistic minority. Such a minority may establish and administer
institutions for imparting secular general education. The right to establish and administer educational institutions for imparting secular general
education cannot be disentangled from the whole plexus of rights under Article 30(1), and the right under Article 30(1) cannot be confined to the
mere imparting of religious or linguistic education.
Contrast between Article 29(1) and Article 30(1)
243. The content of the right under Article 29(1) differs from the content of the right under Article 30(1). Article 29(1) secures the right of a
Section of citizens having distinct script, language or culture to conserve the same. Article 30(1), on the other hand, guarantees the right of a
religious or linguistic minority to establish and administer ''educational institutions. Article 29(1) gives security to an interest: Article 30(1) gives
security to an activity. (Compare the marginal note to Article 29(1).
244. It is true that an educational institution may serve as a means for conserving script, language and culture But this is not the sole object of
Article 30(1). A religious or linguistic minority, in exercise of its right under Article 30(1), may establish an educational institution which may have
no concern with the object of conserving its script, language and culture. The minority community may establish an educational institution also for
imparting secular general education with the object of making its members worthy of serving the Nation and making them capable of enriching their
own life ethically, intellectually and financially.
245. Article 30(1) does not, in express or implied terms, limit the right of the minorities to establish an educational institution of a particular type.
The right to establish an educational institution impliedly grants two kinds of choices. The minorities have a right to establish or not to establish any
particular type of educational institution. This is the negative choice. The minorities may establish any type of educational institution. This is the
positive choice.
246. Choice is inherent in every freedom. The right to form associations and unions under Article 19(1)(c) extends to every kind of associations
and unions. Similarly, the choice of a citizen in respect of property under Article 19(1)(f) or business and profession under Article 19(1)(g) is not
limited to any specific type of property or business or profession. A citizen may acquire, hold and sell any kind of property or carry on any
business or profession. Of course, these freedoms are subject to State regulation under Art, 19(3),(5) and (6). But freedom without choice is no
freedom. So it seems to me that the words ''of their choice'' merely make patent what is latent in Article 30(1). Those words are not intended to
enlarge the area of choice already implies fin the right conferred by Article 30(1).
247. The Court has already held that the right to establish an educational institution under Article 30(1) is not confined to the purposes specified in
Article 29(1). [See the 281272 ;; 281270 ;; 275277 and D.A.V. College v. State of Punjab [1971] Su. S.C.R. 688.
The Right of Affiliation
248. Three different arguments have been urged before us on this issue : (1) The right is necessarily implied in Article 30(1). Accordingly the right
of affiliation is also a fundamental right. (2) It is neither expressly nor impliedly granted by Article 30(1). Accordingly it is not a fundamental right.
On the contrary, affiliation is a statutory concept and may be obtained on the fulfilment of the conditions prescribed therefore by a statute. (3)
Although it is not a fundamental right, it is necessarily implicit in Article 30(1) that affiliation cannot be denied for refusal of a minority institution to
give us totally or partially its right under Article 30(1).
249. Evidently, there is no express grant of the right of affiliation, in Article 30(1). In my view, it is also not necessarily implied in Article 30(1). My
reasons are these : (1) The context does not favour the asserted implication. The framers of the Constitution have taken special care to dissipate
doubts as regards choice by the words ''of their choice''. They have also taken special care to extend a guarantee to a minority educational
institution against discrimination in the matter of aid from the State on the ground that it is under management of a minority based on religion or
language. [See Article 30(2)]. If they had intended to elevate the right of affiliation to the status of a fundamental right, they could have easily
expressed their intention in clear words in Article 30. It is obvious that a minority institution imparting only religious instruction or teaching its own
theology would neither need nor seek affiliation. It would not seek affiliation because affiliation is bound to reduce its liberty at least to some extent.
Again as our State is secular in character, affiliation of an institution imparting religious instruction or teaching only theology of a particular religious
minority may not comport with the secular character of the State. As Article 30(1) does not grant the right of affiliation to such an situation cannot
confer that right on an institution imparting secular general education. The content of the right under Article 30(1) must be the same for both kinds
of institutions. [See Kerala Education Bill (supra) at pp. 10764077 per Vekatarama Iyer J.].
250. In 281763 this Court said
There can be no doubt that the freedom of ideas; and expression includes freedom of propagation of ideas; and that freedom is ensured by the
freedom of circulation. Liberty of circulation is as essential as liberty of propagation. No doubt without circulation the propagation would be of little
value.
It is urged that as freedom of circulation is held to be implied in freedom of speech and expression, so the right of affiliation should be implied in the
right to establish educational institutions The argument is plausible but fallacious. There is a distinction between freedom of thought and freedom of
speech and expression. The former gives freedom to a man to think whatever he likes; the latter gives him freedom to communicate what he thinks
to one or more persons. Consequently, the latter necessarily implies freedom of propagation or circulation of ideas. But the right of affiliation is not
necessarily implied in that sense in the right of establishing educational institutions. History shows that educational institutions have existed with
vigour and excellence without State recognition or affiliation. In Europe unaffiliated academies have made great contribution to the development of
science and humanities. In pre-independent India there were a number of unaffiliated and unrecognised educational institutions of good repute. One
of our late Prime Ministers was a product of one of those institutions. The vast area of private sector employment would be open to students
coming out of unaffiliated educational institutions, if they are otherwise merited. The mere accident of recruitment to the State services being made
on the basis of recognised degrees and diplomas should not be a sufficient reason to read the right of affiliation in Article 30(1). The State may at
any time abandon this facile and mechanical suitability test and may make selections by competitive examinations open to all, whether possessing or
not possessing a recognised degree or diploma.
251. However, in case of an affiliating University affiliation cannot be denied to a minority institution on the sole ground that it is managed by"" a
minority whether based on religion or language or on arbitrary or irrational basis. Such a denial would be violative of Articles 14 and 15(1) and
will be struck down by courts. Again, Article 13(2) prohibits the State from taking away or abridging the right under Article 30(1). Since the State
cannot directly take away or abridge a right conferred under Article 30(1), the State cannot also indirectly take away or abridge that right by
subjecting the grant of affiliation to conditions which would entail the forbidden result. [See In Re. Kerala Education Bill (supra) at pp-1063-
1964].
Affiliating University
252. Sri Palkhiwala has submitted in the course of his reply that Article 30(1) obligates every State to have at least one affiliating university. I am
wholly unable to accept this submission. As Article 30(1) does not grant the right of affiliation, the State is not under an obligation to have an
affiliating university. It is open to a State to establish only a teaching university.
Illusory Absoluteness of Article 30(1).
253. Some counsel supporting the petitioners have, I think, -wrongly over emphasised the verbal absoluteness of Article 30(1). According to Sri
Tarkunde, while Article 19(1)(g) gives a right to the majority community to establish and administer educational institutions subject to reasonable
restrictions in the public interest, Article 30(1) gives similar right to a religious or linguistic minority in absolute terms. According to him, Article
30(1) should be construed to confer a higher right on the minority than the one conferred on the majority by Article 19(1)(g). According to Sri
Palkhiwala, the right under Article 30(1) is conferred in absolute language and can neither be taken away nor abridged by the State on account of
the injunction of Article 13(2).
254. It is true that Article 30(1) is expressed in spacious and unqualified language. And so is Article 14 : ""The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India."" However, this Court has read the limitation of classification
in the general and unrestricted language of Article 14.
The general language of Article 14... has been greatly qualified by the recognition of the State''s regulating power to make laws operating differently
on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of
the laws is only given effect to as a safeguard against arbitrary State action."" 281215
Article 14 confers a right by enacting a prohibition which in form, at least is absolute... but.... Article 14 is not really absolute, for the doctrine of
classification has been incorporated in it by judicial decisions. Article 14, as interpreted by the Courts would run in some such words as these : The
State shall not deny to any person equality before the law or equal protection of the law provided that nothing herein contained shall prevent the
State from making a law based on or involving a classification founded on an intelligible differentia having a rational relation to the object sought to
be achieved by the law."" (Constitutional Law of India by H. M. Seervai, 1967 Edn. p. 188). According to Patanjali Sastri C.J., the necessity of
making special laws to attend particular ends'' obliged the Court to read down the wide language of Article 14. 281675 and 281023
255. Like Article 30(1), the I Amendment of the U.S.A. Constitution is also expressed in absolute terms : Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the Press; or the right of the people
peaceably to assemble, and to petition the government for the redress of grievances."" Nevertheless it has been held by the U.S.A. Supreme Court
that the liberty recognised in the I Amendment is not absolute and is subject to regulation. ""Freedom of religion) embraces two concepts, freedom
to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be."" (Cantwell v. Connecticut) 310 U.S. 296 . As
regards freedom of speech, Justice Frankfurter has said:
The first ten amendments to the Constitution, commonly known as ""Bill of Rights"" were not intended to lay down any novel principles of
government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors and which had from tune
immemorial been subject to certain well recognised exceptions arising from the necessities of the case. In incorporating these principles into the
fundamental law there was the intention of disregarding the exceptions, which continued to be recognised as if they had been formally expressed.
95 Law Edn. 1137 at p. 1160
256. Like Article 30(1), Section 92 of the Australian Constitution is also expressed in absolute terms : ""On the imposition of uniform duties of
customs, trade, commerce and intercourse amongst the States, whether by means of internal carriage or ocean navigation shall be absolutely free.
(emphasis added) Nevertheless, it has been held that this ''absolute'' freedom is subject to regulation. The words ""absolutely free"" ""have
occasioned the greatest problems in relation to Section 92. It was early settled that they were not limited to pecuniary burdens, but while it is clear
that the nature of freedom predicated does not involve: an abnegation of all legal restrictions upon trade, commerce, and intercourse, the precise
extent of permitted interference is not easy to formulate.... The difficulty of stating a general rule applicable to all cases arises from the impossibility
of reducing an essentially practical subject to general abstract terms. The precise nature of trade, commerce and intercourse, exactly what it
comprehends for the purpose of sec. 92, no more, and no less and the quality of the freedom prescribed are questions which have been differently
answered and with differing results. (W. S. A. Waynes : legislative, Executive and Judicial Powers in Australia, 2nd Edn. p. 339). )
257. The Privy Council has recently held that the regulation of trade, commerce and intercourse amongst the State is compatible with its absolute
freedom. (Commonwealth of Australia and Ors. v. Bank of New South Wales and Ors. [1950] A.C. 235 As to the extent of regulation, the Privy
Council said:
Their Lordship do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State
or Commonwealth agency or in some other body be justified. Every case must be judged on its own facts and in its own setting of time and
circumstances, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that
prohibition with a view to State monopoly was the only practical and reasonable manner of regulation and that inter-State trade, commerce and
intercourse thus prohibited and thus monopolized ''remained absolutely free.
258. This survey should be sufficient to explode the argument of absolute or near-absolute right to establish and administer an educational
institution by a religious or linguistic minority'' from the absolute words of Article 30(1). Absolute words do not confer absolute rights, for the
generality of the words may have been cut down by the context and the scheme of the statute or the Constitution, as the case may be. Thus while
restricting the generality of the word ''arrest'' in Article 22(1) and (2) of the Constitution, Das J. said :
If, however, two constructions are possible then the court must adopt that which will ensure smooth and harmonious working of the Constitution
and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law
nugatory."" 282328
259. A glance at the context and scheme of Part III of the Constitution would show that the Constitution makers did not intend to confer absolute
rights on a religious or linguistic minority to establish and administer educational institutions. The. associate Article 29(2) imposes one restriction on
the right in Article 30(1). No religious or linguistic minority establishing and administering an educational institution which receives aid from the
State funds shall deny admission to any citizen to the institution on grounds only of religion, race, caste, language or any of them. The right to admit
a student to an educational institution is admittedly comprised in the right to administer it. This right is partly curtailed by Article 29(2).
260. The right, of admission is further curtailed by Article 15(4) which provides an exception to Article 29(2). Article 15(4) enables the State to
make any special provision for the advancement of any socially and educationally backward class of citizens or for the scheduled caste and
scheduled tribes in the matter of admission in the educational institutions maintained by the State or receiving aid from the State.
261. Article 28(3) imposes a third restriction on the right in Article 30(1). It provides that no person attending any educational institution
recognised or receiving aid by the State shall be required to take part in any religious instruction that may be imparted in such institution or to
attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a
minor, his guardian has given his consent thereto. Obviously, Article 28(3) prohibits a religious minority establishing and administering an
educational institution which receives aid or is recognised by the State from compelling any citizen reading in the institution to receive religious
instruction against his wishes or if minor against the wishes of his guardian. It cannot be disputed that the right of a religious minority to impart
religious instruction in an educational institution forms part of the right to administer the institution. And yet Article 28(3) curtails that right to a
certain extent.
262. To sum up, Articles 29(2), 15(4) and 28(3) place certain express limitations on the right in Article 30(1). There are also certain implied
limitations on this right. The right should be read subject to those implied limitations.
263. Part III of the Constitution confers certain rights on individuals, on groups and on certain minority groups. Those rights constitute a single
indivisible balancing system of Liberty in our Constitution. The system implies order and harmony among the various rights constituting our Liberty
according to the necessities of each case. Obviously, the rights could never have been intended by the Constitution makers to be in collision with
one another. For instance, a citizen cannot exercise his right of freedom of speech and expression on another man''s property without his leave, for
such exercise of right would violate the latter''s right to hold property conferred on him under Article 19(1)(g). Although the right of a religious
denomination under* Article 26 to manage its own affairs is not expressly made subject to Article 25(2)(b) which protects a law throwing open
Hindu religious, institutions of a public character to all classes of Hindus, this Court upheld the validity of a law throwing open public temples to
excluded class of Hindus. Speaking for the Court, Venkatarama Aiyar J. said :
The result then is that there are two provisions of equal authority, neither of them being subject to the other. The question is how the apparent
conflict between them is to be resolved. The rule of construction is well settled that when there are in an enactment two provisions which cannot be
reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of
harmonious construction. Applying this rule, if the contention of the appellants is to be accepted, then Article 25(2)(b) will become wholly nugatory
in its application to denominational temples, though, as stated above, the language of that Article includes them. On the ether hand, if the contention
of the respondents is accepted, then full effect can be given to Article. 26(b) in all matters of religion, subject only to this that as regards one aspect
of them, entry into a temple for worship, the rights declared under Article 25(2)(b) will prevail. While, in the former case, Article 25(2)(b) win. be
put wholly out of operation, in the latter, effect can be given to both that provision and Article 25(b). We must accordingly hold that Article 26(b)
must be read subject to Article 25(2)(b)."" (Sri Venkataramana Devaru and Ors. v. State of Mysore [1958] 2 S.C.R. 895.
264. Accordingly the right in Article 30(1) cannot, in my view, be so exercised as to violate a citizen''s legal or Constitutional rights. Thus the
management cannot punish a member of the teaching or non-teaching staff or a student for legitimate exercise of his freedom of speech and
expression or of forming associations or unions.
265. The Constitution makers have endeavoured to unite the people of our country in a democratic Republic. The democratic Republic would not
last long if its members were in constant war among themselves for the ascendancy of their separate rights. It will soon drift into Absolutism of one
kind or another. European history demonstrates that whenever one group has attempted to deny liberty to another group, it has lost its own liberty.
Pagans persecuted Christians and lost their own liberty. Christians, in their turn, denied religious freedom to pagans and surrendered their own
freedom either to an Absolute Emperor or to an Infallible Pope. Catholics and Protestants denied religious freedom to one another and
strengthened the absolutism of the monarchy.
266. Absolute rights are possible only in the moon. It is impossible for a member of a civilized community to have absolute rights. Some regulation
of rights is necessary for due enjoyment by every member of the society of his own rights.
267. It cannot be disputed that the right under Article 30(1) is also subject to regulation for the protection of various social interests such as health,
morality, security of State, public order and the like, for the good of the people is the supreme law. Today, education, specially Science and
Technology, is a pre-emptive social interest for our developing Nation. ""It is now evident that the real source of wealth lies no longer in raw
material, the labour force or machines, but in having scientific, educated, technological man-power base. The education has become the real wealth
of the new age(J. D. Bernal, Science in History. Pelican Book, Vol. I p. 117 ) J. D. Bernal, Science in History. Pelican Book, Vol. I p. 117"" The
attack on complex and urgent problems of the country has to be made ""through two main programmes : (1) The development of physical resources
through the modernisation of agriculture and rapid industrialisation. This requires a science-based technology....(2) The development of human
resources through a properly organised programme of education.
268. It is the latter programme which is the more crucial of the two. While the development of the physical resources is a means to an end, that of
human resources is an end in itself, and without it, even the adequate development of physical resources is not possible(Kothari Education
Commission Report, para]12 )Kothari Education Commission Report, para].12 "" Obviously secular general education, more especially science
and technology, should play decisive role in the development and prosperity of our Nation. Accordingly our State should be as much interested as,
nay more than the religious or linguistic minorities in the light and socially needful education of students of the minorities. The students do not belong
only to the minorities; they belong also to the Nation. The over-accentuated argument of imparting secular general education a religious atmosphere
seems to me to overlook this important national aspect. Secular general education should be the Nation''s first concern. It may legitimately be
assumed that the Constitution makers were alive to the priority which education should receive in the programme of our Republic. (See Articles
41, 45 and 46). How could they then intend to confer an absolute or near-absolute right on a religious or linguistic minority to establish and
administer an educational institution for imparting secular general education ?
269. It is well to remember that it is the Constitution which we are expounding. A statute is a specific contrivance for dealing with the specific
needs of the people at a particular time and place. But the Constitution is a general contrivance for the good government and happiness of all the
people of our developing Republic. It is made for the present as well as for the future. Like all great organic texts, it is written in broad and
accommodating language. (The words of the Veda are commodious--M.B., Shanti Parwa, XIX, 1). Far from implying state inaction, the general
language of Article 30(1) is to my mind, designed to give due flexibility to the legislature and to the courts in adjusting the rights in Article 30(1) to
the necessities of each case.
270. Bose J. has observed : ""(The) true content (of the words of the Constitution) is not to be gathered by simply taking the words in one hand and
a dictionary in the other, for the provisions of the Constitution are not mathematical formulas which have then* essence in mere form. They
constitute a framework of government written for men of fundamentally differing opinions and written as much for the future as for the present.
They are not just pages from a textbook but from the means of ordering the life of a progressive people."" State of West Bengal v. Anwar All
Sarkar (Supra) at p. 359]. The learned Judge further said : ""(The words of the Constitution) are not just dull, life-less words static and hide-bound
as in some mummified manuscript, but. living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to
mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering
conditions of a changing world with is shifting emphasis and differing needs. (Supra at p. 363)
Extent of regulatory power
271. The extent of regulatory power of the State would vary according to various types of educational institutions established by religious and
linguistic minorities. Educational institutions may be classified in several ways: (1) According to the nature of instruction which is being imparted by
the minorities. It may be religious, cultural and linguistic instruction or secular general education or mixed; (2) According to grant of aid and
recognition by the State. Some institutions may receive aid; the others may not. Similarly, some institutions may receive recognition; the others may
not. There may be some others which may receive both aid and recognition; some others may receive neither aid nor recognition. (3) According to
the standard of secular general education which is being imparted in the institutions primary, secondary and higher. (4) According to the nature of
education such as military academy, marine engineering, in which the State is vitally interested for various reasons.
272. The extent of regulatory power may vary from class to class as well as within a Sections For instance, institutions receiving aid and
recognition may be subject to greater regulation than those which receive neither. Similarly, institutions imparting secular general education may be
subject to greater regulation than those which are imparting religious, cultural and linguistic instruction solely.
273. An educational institution would consist of : (1) the managing body of the institution, (2) teaching staff, (3) non-teaching staff, (4) students
and'' (5) property of various kinds. Here again, the extent of the regulatory power may vary from one constituent to another. For instance, the
teaching staff and property may be subject to greater regulation than the composition of the managing body. Plainly, no minority educational
institution can be singled out for treatment different from one meted out to the majority educational institution. A regulation meting out such a
discriminatory treatment will be obnoxious to Article 30(1).
274. Subject to these preliminary remarks, it is now necessary to consider how far a regulation may touch upon the right conferred by Article
30(1) without incurring the wrath of Article 13(2). In other words, what is the test for deciding whether a regulation imposed on a minority
educational institution takes away or abridges the right conferred by Article 30(1) ? It has already been discussed earlier that the test of a valid
regulation is necessity. Any regulation which docs net go beyond what is necessary for protecting the interests of the society (which includes the
minorities also) or the rights of the individual members of the society should be Constitutional. It cannot be said that such a regulation takes away
or abridges the rights conferred by Article 30(1).
275. No hard and fast rule can be prescribed for determining what is necessary. The question should be examined in the light of the impugned
provisions and the facts and circumstances of each case. What is required is that the impugned law should seek to establish a reasonable balance
between the right regulated and the social interest or the individual right protected. The court should balance in the scale the value of the right
regulated and the value of the social interest or the individual right protected. While balancing these competing interests, the Court should give due
weight to the legislative judgment. Like the Court, the Legislature has also taken the oath to uphold the Constitution. It is as much the protector of
the liberty and welfare of the people at the Court. It is more informed than the Court about the pressing necessities of the government and the
needs of the community. (See State of West Bengdi v. Answer All Sarkar (supra) at p. 303 per Das J.)
276. I find it difficult to accept the argument that a regulation, in order to be Constitutional, must always be shown to be calculated to improve the
excellence of the minority educational institutions. It is conceded by counsel supporting the petitioners that the State may prescribe the curriculum
and syllabus for the minority educational institutions which are aided or recognised by it. Now a regulation prescribing curriculum and syllabus may
not necessarily be calculated to improve the excellence of a particular minority educational institution. Left to itself, a minority educational institution
may opt for a higher standard of instruction than the one prescribed by the State in its curriculum or syllabus. It appears to me that the State
prescribes the curriculum and syllabus as much from the point of view of excellence of instruction as from the point of view of having a uniform
standard of instruction. A uniform standard is perhaps necessary owing to the different calibre of students coming from different developed and
undeveloped strata of society and from different developed and undeveloped geographical regions of the country.
277. But it is pressed upon us that the prescribing a curriculum and syllabus is not a part of the administration of an educational institution. With
profound respect to the learned Judges who decided the 280210 , I find it difficult to accept this argument. Counsel supporting the petitioners have
maintained that the State could not prescribe curriculum and syllabus for religious, cultural or linguistic instruction which is being imparted in a
religious or linguistic minority unaided and unrecognised educational institution. The reason obviously is that curriculum and syllabus is a vital part of
the administration of an educational institution.
278. As far as Catholic educational institutions are concerned. Catholics believe that education belongs pre-eminently to the Church. Catholic
dogma categorically denies the premise that secular general education can be isolated from religious teaching. In the encyclical ''Christian Education
of Youth'' Pope Pius XI has commended : ""The only school approved by the Church is one (where) the Catholic religion permeates the entire
atmosphere (and where) all teaching and the whole organisation of the school and its teachers, syllabus and textbooks in every branch (is)
regulated by the Christian spirit."" (Pfeiffer, Church, State and Freedom, 1953 Edn. p. 294).
279. Nor should the regulatory power be hamstrung by such concepts as ""real and effective exercise of the right"" should not be touched by the
regulation or that regulation should not ""directly and immediately"" impinge on the right conferred by Article 30(1). What is a real and effective
exercise of the right will depend on how far the impugned regulation is necessary in the context of time, place and circumstances for safeguarding
any competing social interest of any competing Constitutional or legal right of an individual.
280. The majority opinion in Re : Kerala Education Bill (supra) supports the construction which I am seeking to put on Article 30(1). Speaking for
the majority, Das J. said :
We are thus faced with a problem of considerable complexity apparently difficult of solution. There is on the one hand the minority rights under
Article 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on
the other side the obligation of the State under Article 45 to ""endeavour to introduce free and compulsory education. We have to reconcile
between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two."" (emphasis added)
(supra at page 1062).
Holding that Clauses. 9, 11(2) and 12(4) were permissible regulations, the learned Chief Justice said :
Clauses 9, 11(2) and 12(4) are, however, objected to as going much beyond the permissible limit.. . It is said that by taking over the collections of
fees.. . etc. and by undertaking to pay the salaries of the teachers and other staff the Government is in reality confiscating the school, for none will
care for the school authority. Likewise Clause 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all
except out of the panel to be prepared by the Public Service Commission, which, apart from the question of its power of taking up such duties may
not be qualified at all to select teachers who will be acceptable to religious denominations and in particular sub- Clause (2) of that Clause is
objectionable for it thrusts upon educational institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the
tenents of their religion and .may be otherwise weak educationally. Power of dismissal, removal, reduction in rank or suspension is an index, of the
right of management and that is taken away by Clause 12(4). These are, no doubt, serious inroads on the right of administration and appear
perilously near violating that right. But considering that those provisions are applicable to all educational institutions and that the impugned parts of
Clauses. 9, 11 and 12 are designed to give protection and security to the ill paid teachers who are engaged in rendering service to the nation and
protect the backward classes, we are prepared, as at present advised, to treat these Clauses 9, 11(2) and 12(4) as permissible regulations which
the State may impose on the minorities as a condition for granting aid to their educational institutions."" (Supra at p. 1064)
281. At the moment I am not concerned with the correctness or incorrectness of the view that Clauses 9, 11(2), 12(4) are Constitutional. I have
quoted this passage in order to bring out the technique of adjudging the Constitutionality of a statute which has commended itself to the majority of
the Court, That technique requires the Court to balance the right conferred by Article 30(1) and the social and individual interests which it is
necessary to protect.
282. In 267347 Shah J. said:
Regulations made in the 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, in matters of education.
(emphasis added).
283. This passage also shows that the Court has adhered to the view taken by Das C.J. in Re Kerala Education Bill (supra) to the effect that the
State has power to make regulations for protecting certain social interests.
284. The decision in this case does not seem to me to be in conflict with the construction suggested by me, because the Court took the view that
the right of the Private Training Colleges to admit students of their own choice was ""severely restricted"" by the government order. In other words,
the impugned order went much beyond what was necessary in the circumstances of the case.
285. In 280210 . Hidayatullah C.J., speaking for the unanimous Court, observed:"" ""Administration"" means management of the affairs'' of the
institution. This 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 of how the interests of the community in general and the institution in particular will be best served. No part of this
management can be taken away and vested in another body without an encroachment upon the guaranteed right."" With great respect, I find it
difficult to go that far. Take for instance the right of any citizen, including a religious or linguistic minority to establish and administer a military
academy for imparting theoretical as well as practical training to the students admitted to it. Sri Nanavatty, counsel for the petitioners, conceded
that this right may be restricted and regulated in the interest of the security of the State. The State may make a regulation for effective control and
supervision of the arms and ammunition belonging to the academy by the officers of its own choice and confidence. The State may, I believe, go to
the length of even prescribing that the arms and ammunition should be kept in the government armory and should be issued by a State officer
holding charge of the armory. The right under Article 30(1) forms part of a complex and inter-dependent group of diverse social interests. There
cannot be a perpetually fixed adjustment of the right and those social interests. They would need adjustment and readjustment from time to time
and in varying circumstances.
286. In D. A. V. College vs. State of Punjab [1971] Su. 1 S. C. R. 688, this Court struck down Clause 17 of the statutes which provided that the
staff initially appointed should be approved by the Vice-Chancellor and that all subsequent changes should be referred to the University for the
Vice-Chancellor''s approval. However, Reddy J., speaking for the unanimous Court, observed!:
In our view there is no possible justification for the provisions contained in Clause . 17 of Chapter V of the statutes which decidedly interfere(s)
with the rights of management of the Petitioners College. These provisions cannot therefore be made as conditions of affiliation, the non-
compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1).
The words ""no possible justification"" in the passage seem to me to suggest that the Court would have upheld Clause 17 if the State of Punjab could
have satisfied the Court that it was necessary to subject the power of appointment etc. of teachers to the approval of the Vice-Chancellor, There
seems to be nothing in 275277 and D. A. V. College, Bhathinda v. State of Punjab [1971] Su. S. C. R. 677 which would militate against the
construction of Article 30(1) suggested by me.
287. No new principle is expounded in the decisions of various High Courts in 543266 , 909527 , 907396 , Varkey v. State of Kerala ILR 1969
Ker48. State of Kerala v. The Corporate Management of Schools of the Archdiocese of Chanancherry'' I. 1970 K. L. T. 232, and 201890 . All
these decisions, follow one or the other decisions of this Court as they should have done. Accordingly it is not necessary to refer to them in any
detail.
288. Sri Nanavatty has also relied on a decision of the Permanent Court of International Justice in Case No. 182 referred to in the Annual Digest
of Report of Public International Law .Cases (years 1935--37) by Lauterpacht. Article 4 of the Declaration relating to the position of minorities in
Albania provided that "" all Albanian nationals shall be equal before the law and shall enjoy the same civil and political rights without distinction as to
race, language or religion."" Article 5 of the Declaration ran as follows: ""Albanian nationals .who belong to racial, religious or linguistic minorities will
enjoy the same treatment and security in law and in fact as other Albanian nationals. In particular they shall have an equal right to maintain, manage
and control at their own expense or to establish in the future, charitable, religious and social institutions, schools and other educational
establishments, with the right to use their language and to exercise their religion freely therein."" In 1933 the Albania National Assembly amended
the Albanian Constitution thus: ""The instruction and education of Albanian subjects are reserved to the State and will be given in State schools.
Primary education is compulsory for all Albanian nationals and will be given free of charge. Private schools of all categories at present in operation
will be closed. Following this amendment certain Albanian minorities, presumably of Greek origin, complained to the League of Nations regarding
the violation of their right guaranteed by Article 5 of the Declaration. The matter went to the Permanent Court of International Justice for
consideration. The majority of the Court (with three dissents) was of opinion that the Constitutional amendment violated the rights of the 30(1).
Obviously, the context of Article 30(1), both notional as well as textual, bears no comparison with the context of the Albanian
290. Constitutional Amendment and Article 5 of the Declaration.
It is now necessary to examine the various impugned provisions in the light of the construction of Article 30(1) suggested earlier in miss judgment.
Section 33A(4)(1)(a)
291. I agree with the plurality view that it is obnoxious to Article 30(1), and I have nothing further to add.
292. Counsel for the petitioners, Sri Nanavatty, abandoned the attack against this provision. Counsel for the State and the Gujarat University
accordingly gave no reply. Sri Nanavatty did not attack the provision even in his reply. So I should not express any opinion on this provision.
Section 40
293. Section 39(1) provides that within the University area, all postgraduate instruction, teaching and training shall be conducted by the University
or by such affiliated colleges or institutions and in such subjects as may be prescribed by the Statutes. The petitioners do not challenge this
provision. But they seek to question Section 40 which is similar to Section 39(1). Section 40(1) provides that the Court may determine that all
instructions, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall within the
University area be conducted by the University and the Court shall communicate its decision to the State Government. Section 40(2) provides that
on receipt of the communication the State Government may after making such inquiry as it thinks fit, by notification in the Official Gazette declare
that the provisions of s. 41 shall come into force on such date as may be specified in the notification.
294. It has already been held earlier that the right of affiliation is not a fundamental right guaranteed by Article 30(1). Accordingly I See no
difficulty in the University take over of the teaching in under-graduate classes.
295. Section 41 consists of five sub-sections. Sub-section (1) provides that all affiliated colleges will become constituent colleges of the University.
We are not concerned with Sub-section (2). Sub-Section (2) provides that no educational institution shall, save, with the consent of the University
and the sanction of the State Government be associated with or seek permission to any privileges of any other University.
296. I do not think that any legitimate objection can be taken to. Sub-section (1). Merely because an affiliated college is made a constituent college
of the University, would not necessarily offend Article 30(1). The definition of the expression ''constituent college'' by itself is innocuous. After all,
someone has said: ""What is there in a name!"" The concept of a constituent college is fluid. It is the degree of external control exercised over the
administration of a minority college, and not its statutory name, that is relevant for the purposes of Article 30(1), For instance, the associate
colleges (which are similar to affiliated colleges) of the Allahabad University are subject to University control in the matter of appointment of
teachers. But the Motilal Nehru Medical College, Allahabad, which is a constituent college of that University, is not subject to such control. While
the Selection .Committee selecting teachers to the associate colleges consists of certain University authorities, the selection of teachers to the
constituent colleges is made wholly by the U.P. Public Service Commission ""and the University has no voice what-so-ever in the selection of the
teachers. (See Allahabad University Calendar 1968). Sub-section (3) cannot also be objected to. It permits an affiliated college which does not
want to be a constituent college to get affiliated to another University with the permission of the State and the Gujarat University.
297. Serious objection on behalf of the petitioner has, however, been taken to Clauses (ii) to (vi) of Sub-section (4). Sub Section (4) may be
divided in two parts. According to the first part the relations of the constituent colleges and the University shall be governed by the statutes to be
made in that behalf. The second part provides that any such statutes may provide in particular for the exercise by the University of the powers in
respect of the constituent colleges specified in Clauses (ii) to (vi) of Sub-section (4).
298. Obviously, the first part of Sub-section (4) confers a general power of making statutes. The second part thereof specified certain matters on
which the statutes should be made. The two parts of Sub-section (4) follow the normal pattern of provisions in modern statutes providing for rule
making. The second part of Sub-section (4) is merely illustrative of the generality of the power conferred by the first part. While counsel for
petitioners have urged that Clauses (ii) to (vi) clearly violate rights under Article 30(1), the Additional Solicitor-General has urged that the wide
language of those Clauses may be so read down as to make them Constitutional. I do not think it is necessary to enter into this controversy at all. It
may he presumed for the sake of argument that Clauses (ii) to (vi) of sub Section (4) are violative of Article 30(1). Even so, the petitioners stand to
gain nothing thereby, for no legitimate objection can be advanced against the first part of Sub-section (4). Then it comes to this that unless statutes
are actually made, the Constitutional attack is premature.
Section 51(A)
299. Section 51(A) consists of two sub-sections. The first sub-section provides that no member of the teaching and non-teaching staff of an
affiliated college shall be dismissed or removed or reduced in rank except after an inquiry, in which he has been informed of the charges against him
and given a reasonable opportunity of being heard in respect of those charges. Until he has been given a reasonable opportunity of making
representation against the penalty proposed, he cannot be punished. This part of Sub-section (1) is similar to Article 311(2) of the Constitution,
and no legitimate objection can be taken to it. Sub-section (1) also contains another rider on the power of the administration to fire its staff.
According to this rider, the penalty inflicted by the management shall not take effect, until it is approved by the Vice-Chancellor or any other officer
of the University authorised by the Vice-Chancellor in this behalf.
300. Sub-section (2) provides that the services of no member of the teaching and non-teaching staff shall be terminated unless he had been given a
reasonable opportunity of showing cause against the proposed termination. It is clarified that this provision shall not apply to a person who is
appointed for a temporary period. Like Sub-section (1), this power is also made subject to the approval of the Vice-Chancellor or any other
officer of the University authorised by the Vice-Chancellor. No legitimate objection can be taken to the first part of Sub-sections (1) and (2). But
serious objection is taken to the provision for the approval of the Vice-Chancellor or any other officer of the University authorised by the Vice-
Chancellor in this behalf.
301. It is true that the right to fire an employee belongs to the employer under the contract of service. It is also true that the .right to fire is a
management right safeguarded under Article 30(1). But this right cannot include the right to take away or abridge the employee''s Constitutional
right to form associations, to carry on his profession and other Constitutional and legal rights. The purpose of Section 15A is to check this kind of
misuse of the right to fire an employee. So the Vice-Chancellor''s power of approval is not unguided and unreasonable. After the Chancellor, the
Vice-Chancellor is the next highest officer of the University. It should be presumed that in granting or withholding approval he would act according
to reason and justice.
302. When the matter goes before the Vice-Chancellor for approval, both the management and the teacher or the member of the non-teaching
staff should be heard by him. Hearing both parties is necessarily implied, because without hearing either of them it will be difficult for him to make
up his mind whether he should grant or withhold approval to the action proposed by the managing body of the educational institution. It would also
follow that while granting approval or disapproval, the Vice-Chancellor should record reasons, for the exercise of his power is subject to control
by courts. The statute does not make his order final, and courts would surely nullify his order if it is arbitrary, mala fide or illegal.
303. If the managing body exercise the right to fire mala fide or as a measure of victimization, it will be proper for the Vice-Chancellor to withhold
approval. The Vice-Chancellor may also withhold approval where fair hearing has not been given or where the record of the inquiry contains no
evidence to establish the guilt for which the teacher or the member of the non-teaching staff has been punished. On the other hand, if the Vice-
Chancellor finds that the punishment is imposed after due hearing and is supported by evidence, and is not imposed mala fide or as a measure of
victimization, he cannot withhold approval.
304. It is also urged that the power of giving approval is not conferred exclusively on the Vice-Chancellor. It is open to him to nominate any other
officer of the University for this purpose. Section 8 of the Act enumerates the officers of the University. They are: (1) the Chancellor; (2) the Vice
Chancellor; (3) the Pro-Vice-Chancellor; (4) the Deans of Faculties; (5) the Registrar; (6) the University Librarian; and (7) such other officers of
the University as may be declared by the statutes to be the officers of the University.'' The first six officers are all important and responsible officers
of the University. They can be trusted to exercise the power of approval in a reasonable manner. It has not been pointed out to us whether statutes
have made any other officer an officer of the University. So we are not concerned with the last clause.
305. It seems to me that the power of approval by the Vice-Chancellor is necessary in the interest of the security of service of the teaching and
non-teaching staff. Security of service is necessary to promote efficiency and honest discharge of duty. It is calculated to improve-the institution in
the long run. The members of the teaching and non-teaching staff cannot ordinarily afford to go to courts for redress of their grievances. Section
51A provides a cheaper and more expeditious remedy to them for the redress of their grievances. The impugned provision is identical to Section
33, Industrial Disputes Act which this Court has held to be valid.
306. It may be stated that this aspect of the matter which I have considered in regard to Section 51A was not placed before the Court in the
earlier cases. As the power of approval'' is confined to checking the abuse of the right to fire employees, I am of opinion that it does not offend
Article 30(1).
Section 52A.
307. It consists of two Sub-sections. Sub-section (1) provides that any dispute between the governing body and any member of the teaching and
non-teaching staff of an affiliated college which is connected with the conditions of service of such member shall, on a request of the governing
body or of the member concerned be referred to a Tribunal of Arbitration consisting of one arbitrate nominated by the governing body and the
other by the member of the teaching and non-teaching staff and an Umpire appointed by the Vice-chancellor. Sub-section (2) in effect provides
that the provisions of the Arbitration Act, 1940 shall-apply to the arbitration under Sub-section (1).
308. Counsel supporting the petitioners have urged that this amounts to external interference with the management of the affairs of the college; This
provision is also intended to check the abuse of power of administration by the managing body and to provide a cheap and expeditious remedy to
the small-pursed teaching and non-teaching taff. It is necessary in the interest of security of service. I am unable to discover any legitimate objection
to it on the basis of Article 30(1).
