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In Re: The Kerala Education Bill, 1957. Reference Under Article 143(1) of The Constitution of India
AIR 1958 SC 956, [1959] 1 SCR 995
Hon’ble Judges/Coram: Sudhi Ranjan Das, C.J., B.P. Sinha, J.L. Kapur, N.H. Bhagwati, S.K. Das, Syed Jaffer Imam and T.L. Venkatarama Aiyyar, JJ.
Date of Decision: 22.05.1958
FACTS: –
This was a reference under Art. 143(1) of the Constitution made by the President of India for obtaining the opinion of the Court upon certain questions relating to the constitutional validity of some of the provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly but was reserved by the Governor for the consideration of the President. The Bill, as its title and preamble indicated, had for its object the better Organisation and development of the educational service throughout the State, presumably, in implementation of the provisions of Art. 45 of the Constitution and conferred wide powers of control on the State Government in respect of both aided and recognised institutions.
ISSUES: –
- Does sub-clause (5) of clause 3 of the Kerala Education Bill, read with clause 36 thereof or any of the provisions of the said sub-clause, offend article 14 of the Constitution in any particulars or to any extent?
- Do sub-clause (5) of clause 3, sub-clause (3) of clause 8 and clauses 9 to 13 of the Kerala Education Bill, or any provisions thereof, offend clause (1) of article 30 of the Constitution in any particulars or to any extent?
- Does clause 15 of the Kerala Education Bill, or any provisions thereof, offend article 14 of the Constitution in any particulars or to any extent
- Does clause 33 of the Kerala Education Bill, or any provisions thereof, offend article 226 of the Constitution in any particulars or to any extent?
JUDGMENT: –
Clause 3(5) of the Bill made the recognition of new schools subject to the other provisions of the Bill and the rules framed by the Government under 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, clause 9 to 13 made provisions for the regulation and management of the schools, payment of salary to the teachers and the terms and conditions of their appointment and clause (33) forbade the granting of temporary injunctions and interim orders in restraint of proceedings under the Act.
A directive principle of State policy could not override a fundamental right and must subserve it, but no Court should in determining the ambit of a fundamental right, entirely ignore a directive principle but should try to give as much effect to both as possible by adopting the principle of harmonious construction. In answering the questions under reference, the merits or otherwise of the policy of the Government sponsoring the Bill could be no concern of this Court and its sole duty was to pronounce its opinion on the constitutional validity of such provisions of the Bill as were covered by the questions. Judged in the light of various principles laid down by a series of decisions of this Court explaining Article 14 of the Constitution, the clauses of the Bill that came within questions 1 and 3 could not be said to be violative of that Article. The restriction imposed by clause 3(5) read with clause 26 of the Bill, which made it obligatory on the guardians to send their wards to a Government or a private school in an area of compulsion and thus made it impossible for a new school in such area, seeking neither aid nor recognition, to function, could not be said to be discriminatory since the State knew best the needs of its people, and such discrimination was quite permissible, based, as it was, on geographical classification. No statute could be discriminatory unless its provisions discriminated, and since the provisions of the Bill did not do so, it could not be said to have violated equal protection of law by its uniform application to all educational institutions although not similarly situate.
The policy and purpose of a statute could be deduced from its long title and the preamble. The impugned down its policy in the long title and the preamble and reinforced it by more definite statements in the different clauses and, consequently, such discretion as it left to the Government had to be exercised in implementing that policy. The use of the word may in clause 3(3) could make no difference, for once the purpose was established and the conditions of the exercise of the discretion were fulfilled, it was incumbent on the Government to exercise it in furtherance of that purpose. If it failed to do so, the failure, and not the Bill, must be censured. Discretionary power was not necessarily discriminatory, and abuse of power by the Government could not be lightly assumed. Apart from laying down the policy, the State Legislature provided for effective control by itself by clause 37 and the proviso to clause 15 of the Bill. It could not, therefore, be said that the Bill conferred unguided or uncontrolled powers on the Government.
Article 30(1) of the Constitution, which was a necessary concomitant to Art. 29(1) and gave the minorities the right to establish and administer their institutions, did not define the word ’minority’, nor was it defined anywhere else by the Constitution, but it was absurd to suggest that a minority or section envisaged by Article 30(1) and Article 29(1) could mean only such persons as constituted a numerical minority in the particular region where the educational institution was situated or resided under a local authority. Article 350-A of the Constitution, properly construed, could lend no support to such a proposition. As the impugned Bill extended to the entire State, minorities in the State must be determined on the basis of its entire population, and thus the Christians, the Muslims and the Anglo-Indians would be its minority communities. Article 30(1) of the Constitution made no distinction between minority institutions existing from before the Constitution or established thereafter and protected both. It did not require that a minority institution should be confined to the members of the community to which it belonged and a minority institution could not cease to be so by admitting a non-member to it. Nor did Article 30(1) in any way limit the subjects 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 determinable by the nature of the institutions that the minority communities chose to establish and the three categories into which such institutions could thus be classified were (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. The word ’aid’ used by Articles 29(2) and 30(2) included grant’ under Article 337 of the Constitution and that word occurring in the Bill must have the same meaning. Consequently, such clauses of the Bill mentioned in question No. 2 as imposed fresh and stringent conditions precedent to such grant over and above those to which it was subject under Arts. 337 and 29(2), violated not only Art. 337 but also, in substance and effect, Art. 30(1) of the Constitution and were to that extent void. Although there was no constitutional right to the grant of aid except for Anglo-Indian educational institutions under Art. 337 Of the Constitution, State aid was indispensable to educational institutions and Articles 28(2), 29(2) and 30(2) clearly contemplated the grant of such aid and Arts. 41 and 46 charged the State with the duty of aiding educational institutions and promoting such interests of the minorities. But the right of the minorities to administer their educational institutions under Article 30(1) was not inconsistent with the right of the State to insist on proper safeguards against maladministration by imposing reasonable regulations as conditions precedent to the grant of aid. That did not, however, mean that the State Legislature could, in the exercise of its powers of legislation under Arts. 245 and 246 of the Constitution, override the fundamental rights by employing indirect methods, for what it had no power to do directly, it could not do indirectly. So judged, clause 3(5) of the Bill by bringing into operation and imposing clauses 14 and 15 as conditions precedent to the grant of aid, violated Article 30(1) of the Constitution. Similar considerations applied to the grant of State recognition as well.
No minority institution could fulfill its real object or effectively exercise its rights under Art. 30(1) without State recognition, as otherwise it would not be open to its scholars under the Education Code to avail of the opportunities for higher education in the University or enter the public services. While it was undoubtedly true that there could be no fundamental right to State recognition, denial of recognition except on such terms as virtually amounted to a surrender of the right to administer the institution, must, in substance and effect infringe Article 30(1) of the Constitution. Clause 3(5), read with Clause 20 of the Bill, in forbidding the charging of tuition fees in the primary classes, deprived the minority institutions of a fruitful source of income without compensation, as was provided by clause (9) for aided schools, and thus imposed a condition precedent to State recognition which was in effect violative of Art. 30(1) and was, therefore, void to that extent. No rules, when framed under the Act, could cure such invalidity. Article 45 of the Constitution did not require the State Government to provide free and compulsory education to the detriment of minority rights guaranteed by the Constitution, if the Government so chose it could do so through the Government and aided schools, and this Court was in duty bound to uphold such fundamental rights as the Constitution had thought fit to confer on the minority communities.
The wide powers and jurisdiction conferred on the High Courts by Art. 226 of the Constitution could not be affected by a provision such as clause (33) of the Bill, which forbade Courts to issue temporary injunctions or interim orders in restraint of any proceedings thereunder, and it must be read as subject to the overriding provisions of Article 226 of the Constitution.
HELD: –
Sub Clause (5) of clause 3 and clause 15 of Kerala Education Bill, read with clause 36 do not offend Article 14 of the Indian Constitution. As far as question no. 2 is concerned, court held that yes, it offends so far as Anglo-Indian educational institutions entitled to grant under Art. 337 are concerned and 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 to them under Art. 337, clauses 8(3), and 9 to 13 do not offend Art. 30(1) but clause 3(5) in so far as it makes such educational institutions subject to clauses 14 and 15 does offend Article 30(1). Clause 7 (except sub-clauses (1) and (3) which applies only to aided schools), clause 10 in so far as they apply to recognised schools to be established after the said Bill comes into force do not offend Art. 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). And lastly, clause 33 is subject to Article 226 of the Constitution.
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