STATE OF KERALA, ETC v. VERY REV. MOTHER PROVINCIAL, ETC

Hidayatullah, C.J. These appeals by certificates granted by the High Court of Kerala under Arts. 132(1) and 13J(l)(c) of the Constitution are directed against a common judgment, Septem ber 19, 1969, decJaring certain provisions of the KeraJa University Act, 1969 (Act 9 of 1969) to be ultra vires the Constitution of India while upholding the remaining Act as valid. They were heard together. This judgment will dispose of all of them. The validity of the Act was challenged in the High Court by diverse petitioners in 36 petitions under Art. 226 of the Constitution. Some parts of the Act were declared ultra vires the Constitution As a result there are cross appeals. 36 appeals hav.e been filed · against the several petitioners by the State of Kerala. Another 36 appeals have been filed by the University of Kerala which made common cause with the Government of Kerala. 7 appeals have been r referred by seven original petitioners, who seek a declara tion that some other provisions of the Act, upheld by the High Court as valid, are also void.

The Kerala University Act 1969 (which repealed and replaced the Kerala University Act 1957 (Act 14 of 1957) was passed to reorganise the University of Kerala with a view to establishing a teaching,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 communi ties in the State. They were consequently challenged on various grounds. The petitions were consolidated in the High Court and were decided by the judgment and order under appeal. F Before we begin to discuss these appeals we m:.y say a few words about them. 33 petitioners belong to different denomina tions of the Christian community; 8 are Superiors of different Catholic Religious Congregations; 8 are Catholic Bishops repre senting their dioceses; 3 are Vicars of Catholic parishes; 5 are Boards of Associations constituted by different Catholic demno- G minations for establishing colleges and other educational institu tions and 3 are Bishops of the Malankara Orthodox Church.

4 petitions have been filed by the Metropolitan of the Marthoma Syrian Church and 2 by the Madhya Kerala Diocese of the Church of South India. The remaining 3 petitions are respectively by pri-. vate colleges founded and administered by Sri Sankara College H Association Kalady, Sree Narayana Trusts Quilon and the Nair Service Society Changarinacherry; The pP.titioners in the 33 peti tions specially invoke the provisions of Art. 30 of the Constitution which protects the right of the minorities to establish and adminis- Lt69SupCI(PJ/71-3 A ter educational institutions of their choice. All the 36 petitions invoke Arts. 19(1J(f), 31 and 14 of the Constitution. ' The impugned Act consists of 78 sections divided into 9 chap- -ters. The mam attack m the pet1t1ons is aga.' nst l...napter VIII headed 'private colleges' consistmg of ss. 4 7 to 61 and some pro visions of Chapter lX particularly s. 63. The High Court has B declared that sub-ss.

(2) and ( 4) of s. 48, Sub-ss. (2) and ( 4) of s. 49, suo-ss. (1), (2), (3) and (9) of s. 53, sub-ss. (2) and (4) of s. 56, s. 58 (except to some extent) are offensive of Art.19(1) (f) in so far as citizen petitioners are concerned and additionally, in so far as the minority institutions are concerned, offensive to Art. 30(1 ), and therefore void. The petitions were, therefore, allowed except two petitions (O.P.S. No. 2339 and 2796 of 1969) filed by C Sree Sankara College Association and the Nair Service Society since the petitioners were companies and were not entitled to the benefit of Art. 30(1) not being minority institutions and not en titled to Art. 19(l)(f) not being citizens. Section 63 was, however, held to offend Art. 31(2) and not saved by Art. 31A(l)(b) and this declaration was in favour of all the petitioners. dared void as offending Art. 30(1) in so far as the minority institu tions were concerned.

The rest of the Act was declared to be valid and the challenge to it was rejected. There was no order about costs. It was also di.I- D The State of Kerala and the University challenge the judg ment in so far as it declares the provisions of the Act to be void and the petitioners in the 7 counter appeals challenge the judgment in so far as it has rejected the attack on some other provisions. We shall deal first with the contentions urged on behalf of the State of Kerala and the University of Kerala 3Jnd then deal with the con tentions of the majority institutions and the challenge to the sur ".iving portions of the impugned Act by the appealing original peti- honers. In the matter of the minorities the main attack comes from Art. 30(1) of the Constitution. This clause reads : "30. Right of minorities to establish and administer educational institutions. £ F G (1) All minorities, whether based on religions or language, shall have the right to establish and adminis ter educational institutions of their choice. ,, . . · It declares it to be a fundamental right of the minorities whether H based on religion or language, to establish and administ~r educa tional institutions of their choice.

It is conceded by the petitioners KERALA v. MOTHER PROVINCIAL (Hidayatu//ah, C.J.) 739 representing minority communities before us (and indeed they could not .gainsay this in the face of authorities of this Court) that the State or the University to which these institutions are affiliated may prescribe standards of teaching and the scholastic efficiency expected from colleges.· They concede also that to a certain ex tent conditions of employment of teachers, hygiene and physical training of students can be regulated. What they co'ltended is that here there is an attempt to interfere with the administration of these institutions and this is an invasion of the fundamental right. The minority communities further claim protection for their pro perty rights in institutions under Arts. 31 and I 9(l)(f) and the right to practise any profession or to carry on any occupation, trade or business guaranteed by sub-cl.

(g) of the latter article. The majority community which is also the founder of private colleges (of which three instances are before us) do not claim the right stemming from Art. 30(1) but they claim the other rights mention ed above and further seek protection of equality in law with the minority institutions and thus freedom in the establishment and administration of their institutions. The claim of the majority community institutions to equality with minority communities in the matter of the establishment and administration of their institutions leads to the consideration whe ther the equality clause can at all give protection, when the Con stitution itself classifies the minority communities into a separate entity for special protection which is denied to the majority com munity. This is not a case of giving some benefits to minority communities which in reason must also go to the majority com munity institutions but a special kind of protection for which the Constitution singles out the minority communities.

This question, however, does not fall within our purview as the State, at the hearing announced that it was not -intended to enforce the provi sions of the law relating to administration against the majority institutions only, if they could not be enforced 8'.;ainst the minority institutions. Therefore, we have to consider the disputed provi sions primarily under Art. 30(1) and secondarily under Arts. 31 and 19 where applicable. · Article 30(1) has been construed before by this Court. With out referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first. right i.s the !nitial right to establish institutions of the minority's ~ho!ce.. Estabh.shment here mean~ th~ bringing into being of an ms!Jtut10n and 1t must be by a mmontv community. It matters not if a sin~le philanthropic individual with his own mean~. founds the irntitution or the community at large contributes the funds.

The position in law is the same and the intention in either case must. be to found an institution for ;he benefit of a minority com mumty by a member of that community. It is equally irrelevant '1' 740 SUPRE~E' COURT REPORTS ( 1971] l S.C.R. that in addition to the minority community others from other mmority communities or even from the majority communit)' can take advantage of these institutions. Such other commum!ies bnng in income and they do not have to be turned away to enioy the protection. The next part of the right relates to the administration of such institutions. 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. , . - There is, however, an exception to this and it is that the stan dards of education are not a part of management as such. These standards concern the body politic and are dictated by considera tions of the advancement of the country and its people. · There fore, if universities establish syllabi for examinations they must be followed,· subject however to special subjects which the institutiQns may seek to teach, and to a (;ertain extent the State may also re gulate 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 stan dards and allied matters cannot be denied. The minority institu tions cannot be allowed to fall below the standards of excellencC' expected of educationJl institutions, or under the guise of exclu sive right of management, to decline to follow the general pattern.

While the management must be left to them, they may be com pelled to keep in step with others. These propositions have been firmly established in the State of Bombay v. Bombay Education Society('), The State of Madras v. S. C. Durairajan( 2 ), In re the ), Sidharajbhai v. State of Gujarat(''), Kerala Education Bill 1957( 3 Katra Education Societ.v v. State of U.P. & Ors. ("), Gujarat Uni~ versity, Ahmedabad v. Krishna Ranganath Mudho/kar and Ors. ( 6 ) and Rev. Father W. Proost & Ors. v. State of Bihar(7) In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that. must fairly be left to the minority institutions and no more. Applying these principles we now con~ider the provisions of the Act. · Th'' Act as stated already consists of 78 sections arranged under 9 Chapters. Chapter VIII is headed 'Private Colleges' and (I) [1955]1 S. C. R. 56S. (3) [19591 S. C. R. 995.

(5) [1966] 3 S.C.R. 328. (2) [1951] S.C.R. 525. (4) [1963] 3 S. C. R. 837 (6) [1963] Supp t S. C. R. 112. H · i71 [1969] 2 S. C. R. 73. KERALA v. MOTHER PROVINCIAL (Hidayutullah, C.J.) 7H Chapter IX 'Miscellaneous'. Chapter I cont:iins the short title and commencement (s. 1) and definitions (s. 2). We are concerned with some definitions in s. 2 and Chapters Vlfi aind IX. The other chapters lay down the constitution ?f J:!niversity and :ontain m~t­ ters relating thereto. They are not m dispute. The High Court m its judgment has carefully summarized the impugned provisions and it is not necessary for us to cover the same ground. We shall content ourselves by mentioning - the important aspects briefly. "College" in the Act means an institution maintained by, or affi liated to, the Univers; ity, in which instruction is provided in accor dance with the provisions of the Statutes, Ordinances and Regula 'Educational Agency' tions.

These are framed by the University. means any person or body of persons who or which establishes and maintains a private college. 'Private College' means a college maintained by an agency other than the Government or the Uni versity and affiliated to the University. 'Principal' means the head of a college. By 'teacher' a> us¢ in the Act is meant a Principal, Professor, Assistant-Professor, Reader, Lecturer, Instructor or such othr person imparting instruction or supervising research and whose appointment has been. approved by the University in 'Recognised teacher' any of the colleges or recognised institutions. means a person employed as a teacher in an affiliated institution and whose appointment has been approved by the University. There is much overlap between 'college', 'teacher' and 'recognised teacher' but there is no antinornical conlµsion which might have otherwise resulted. These definitions by themselves are not ques tionable but in the context of the provisiO!ls of Chapters VIII and IX, about to be referred to, the insistence on the recognition by the University is claimed to be interference with the freedom of management.

Chapter VIII embraces ss. 47 to 61. It begins with the definition of 'corporate management' vihich means a person or body of persons who or which manages more than one private college. Sections 48 and 49 deal respectively with (a) the govern ing body for private colle~ not under COJ'POl'llte management and (b) with managing council for private · colle~ under coroorate In either case the educatioa agepcv (by which tenn manal!llment vie denote t~e educational. agency of a priVate college as also cor porate manal(ement, that JS to say, the person or body of persons who or which manages more than one private college) is required to set U!> a e:oveming bodv for private coHe"" or a managina coun cil for private colle<?es under one corporate management. The two sections embodv the same orinciples and differ onlv because in one case there is but one institution and in the other more than one. Both consist of 7 sub-sections.

Under these orovisions the educa tional agencv or the coroorate · management has to e~tablM1 a governing bodv or a mana!!ing council resnPctivelv. The sections give the comno~itions of the two bodies. The govPrniiw bociv set up by the educational agency is to consist of 11 members and the managing council of 21 members. The 11 members of the govern ing body are (i) the princ.ipal of the private college (ii) the manaoer of the private ~ollege (iii) a_ J?=O~ nominated by the Universit/in accordance with the proyis1ons m that behalf contained in the Statutes _(iv) a person n~inillated by the Government (v) a person elected m accordance with such procedure as may be prescribed by the Statutes of the University from among themselves by the perma~ent teachers ~f the private college and (vi-xi) not more th~ .six persons nom~nated by .the e~ucational agency. The com pos1t1on of ~he managmg counct! consists of a principal in rotation fr?m the pnvate ~olle~es, manager of the private colleges, the no mbnees of the Umvers1ty and the Government as above described two elected representativeS of the teachers and not more than 1.5 members nominated by the educational agency.

The Act ought to have used the expression 'corporate management' instead of 'educational agency' but the meaning is clear. It will thus be seen that a body quite apart from the educational agency or the corporate inanagement is set up. Sub-section (2) in either section make these bodies into bodies corporate having perpetual succession and a common seal. The manager of the col lege or colleges, as th_e _ciis_e ni.ay be, is the Chairman in either case [sub-s. (3) ]. Sub-section ( 4) then says that the members shaH ho'd office for a period of 4 years from t)le date of its constitution. Sub section (5) then says as follows : . ' "It shall be the duty of the Governing body I (Manag- ing council) to administer the private college (all the pri vate colleges under the corporate management) in accor dance with the provisions of this Act and the Statutes, Ordinances, Rel(Ulations, Bye-laws and' Orders made thereunder.

" ('Ne have attempted to combine the two provisions here. In the case of goveming body the sub-section is to_ be read ~mitting the words in brackets and i)l the case of managmg council the under lined words are to be omitt.ed and the sub-section' read with the words in brackets.) Sub-section (6) then· lays down _that the po_wers and functions of the governin~ bodv (the managmg counc1!), the. rei:noval. of members thereof and the procedure to be followed by 11, mc!udmg the delegation of its powers. shal~ ?e p~esc.ribed by_ the Statut~. Sub-section (7) lays down that dec1S1o~s m e1_ther of th~ tY"o bodies shall be taken at meetings on the basis of simple ma1onty of the members present and voting. The1e sections were partly declared ultra vires of Art. 30'.1) by the High Court as they took away from the founders the nght H 43 It is obvious that after the to administer their own institution. erection of the governing body or the managing coll!lcil the foun ders or even the community has no hand Ill the administration.

The two bodies are vested with the complete administration of the institutions. These bodies have a legal personality distinct from the educational agency or the corporate management. They are not answerable to the founders in the matter of administration~ Their powers and functions are determined by the University laws and even the removal of the members is t\) be governed by the Statutes of the University. Sub-sections (2), (4), (5) and (6) clearly vest the management and administration in the hands of the two bodies with mandates from the University. In attempting to save these provisions Mr. Mohan Kumaraman galam drew attention to two facts only.· The first is that the nomi nees of the educational agencies or the corporate management have the controlling voice and that the defect, if any, must be found in the Statutes, Ordinances, Regulations, Bye-Jaws and Orders of the University and not in the provisions of the Act.

Both these argu ments are not acceptabl~ to us. The Constitution contemplates the administration to be in the hands of the particular community However Jesirable it might be to associate nominated members o. the kind mentioned in ss. 48 and 49 with other members of the governing body or the managing council nominees, it is obvious that their voice must play a considerable part in management. Situations might be conceived when they may have a preponderat· In any event, the administration goes to a distinct cor ing voice. porate body which is in no way answerable to the educational agency or the corporate management. The founde.rs have no say in the selection of the members nominated or selected except those to be nominated bv them. force of sub-ss. (2), (4) and (6) of ss. 48 and 49 the minoritv com munity loses the riitht to administer the institution it has founded. Sub-section (5) also compels the governing body or the managing council to follow the mandates of the Universitv in the administra tion of the institution.

No doubt the Statutes, Ordinances, Re~nla­ tions, RulPS, Bve-Jaws and Orders can also be examinPd in the iio.:ht of Art. 30(1) but the blanket power so given to the University bears adverselv unon the riPht of administration. This position is further heightened bv the other provisions of the Act to which n reference is now needed. It is, therefore, clear that by Section 53, sub-ss. (I), (2) and (3) confer on the Svndicate of the Universitv the nower to veto even the action of tlie 2overning bodv or the mana<rin~ council in the selection of the princioal. Similarlv. snb-s. ( 4) takes awav from the educ•tional a2encv or the. cornorate m•n•o•m•nt the rioht to ,e1•rt the t••clier•. Tlie in•i•tence on me•it in •nh-•. I IL) or '"' <enindtv-cum-fitne'' in sub· s. (7) does not save the situation. The power is exercised not by ~e . educational agency or the corporate management but by a A dIStmct and autonomous body under the control of the Syndicate of th~ University.

Indeed sub-s. (9) gives a right of appeal to the Syndicate to any person aggrieved by the action of governing body or the managing coundl thus making the Syndicate the final and absolute authority in these matters. Coupled with this is the power of Vice-Chancellor and the Syndicate in sub-ss. (2) and ( 4 l of s. 56. These sub-sections read : B "56. Conditions of service of teachers of private colleges. (1) (2) No teacher of a private college shall be dismiss- ed, removed. or reduced in rank by the governing body or managing council without the previous sanction of the Vice-Chaneellor or placed under suspension by the gov- erning body or managing council for a continuous period exceeding fifteen days without such previous sanction. (3) (4) A teacher ~gainst whom disciplinary. action is taken shall have a right of appeal to the Syndicate, and the Syndicate shall have power to order reinstatement of the teacher in cases of wrongful removal or dismiosal and to order ~ch other. remedial measures as it deems fit, and the governing body or managing council, as the case ·may be, shall comply with the orde~." These provisions clearly take away the disi:;iplinary action from the governing body and the managing council and confer it upon the Unive.rsity.

Then comes s. 58 which reads : "58. Membership of Legislative Assembly, etc., not to disqualify teachers.- A teacher of a private college shall not be disquali fied for continuing as such teacher .merely on the ground that he has been elected as a member of the Legislative Assembly of the State or of Parliament or of a 10~al authority: Provided that a teacher who is a member of the Legislative Assembly of the State or of Parliament >hall be on leave durinl( the period in which the Legislative Assembly or Parliament, as is in session. " the case may be, This enables political parties to come into the picture of the ad ministration of minority institutions which may not like this inter- KllRALA v. MOTHER PROVINCIAL (Hidayatullah, C.J.) 745 A ference. When this is coupled with the choice of nominated mem· bets left to Government and the University by sub-s. (1 )(d) of ss. 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence.

B To crown all there is the provision of s. 63(1) which reads : "63. Power to regulate the management of privak colleges. c ·~ E F G (1) Whenever Government are satisfied 011 r1:.ceipt of a report from the University or upon other informa tion that a grave situation has arisen in which the work ing of a private college cannot be carried on for all or any of the following reasons, namely : - (a) default in the payment of the salary of the mem · bers of the staff of the college for a period of i1ot less than three months; (b) wilful closing down of the college for a period of not less than one month except in the case of the closure of the college during a vacation; (c) persistent default or refusal to carry out all or any of the duties imposed on any of the authorities of the college by this Act or the Statutes or Ordinances or Regulations or Rules or Bye-laws or lawful orders orders passed thereunder; and that in the interest of private college it is neces sary so to do, the Government may, after giving the gov erning body or managing council, as the case may be, the manager appointed under sub-section (I) of section 50 and the education agency, if any, of the college a reasonable opportunity of showing cause against the proposed action and after considering the cause, if any, shown, by order, appoint the University to man&ge the affairs of such private college temporarily for' a period not exceeding two years; Provided that in cases where action is taken under it shall be consulted before taking such sub-section otherwise than on a report from Uni\'ersity, action.

H The remaining provisions of this section lay down an elabo- rate procedure for management in which even the governing body or the managing counr'' have n0 say. Sub-section 63(1) involves " . 746 SUPREME COURT REPORTS (1971]1 S.C.R. t~e transfer of right to possession of the properties to the Univer· s1ty. The High Court rightly pointed out that this se-:tion provid~s for compulsory requisition of the properties within Art. 31(2) and (2A). To be effective the section required the assent of the Presi dent under sub-s. (3) and it was not obtained. Therefore the saving in Art. 31A(l)(b) is not available. Mr. Mohan Kumarmangalam brought to our notice passages from the Report of the Education Commission in ...,hich the Com· mission bad made suggestions regarding the condilk; ns of service of the teaching staff in the universities and the collegeJ and stan· dards of teaching. He also referred to the Report of the Educa tion Commission on the status of teachers, suggestions for im proving the teaching methods and standards.

He argued that what has been done by the Kerala University Act is to i1uplement these suggestions in Chapters VIII and IX and particelarly the impugned sections. We have no doubt tnat the provisions of the Act were made bona fide and in the illterest 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. The result of the above analysis of the provisions which have been successfully challenged discloses that that High Court was right in its appreciation of the true position in the light of the Con stitution. We agree with the High Court that sub-ss. (2) and (4) of ss. 48 and 49 are ultra vires Art. 30(1). Indeed we tl:!ink that sub-ss.

( 6) of these two sections are also ultra vires. They offend more than the other two of which they are a part and parcel. We also agree that sub-ss. (1), (2), (3) and (9) of s. 53, sub-ss. (2) and ( 4) of s. 56 are ultra vlres as they fail with ss. 48 and 49. We ex press no opinion regarding these sub-sections vis-a-vis Art. 30(1). We also agree that Section 58 (in so far as it re1noves disqualifica tion which the found~rs may not like to agree to) and Sec. 63 are ultra vires Articles 30 ( 1) in respect of the minority institutions. The High Court has held that the provisions (Ex~ept s. 63) are also offensive to Art. 19(1 )(f) in so far as the petitioners are citirens of India both in resoect of maioriiv as well as minority institutions. This was at first debated at least in so far as majority institu•ions were concerned. The maiority institutions invoked Art. 14 and comnlained of discrimination. However, at a later stage of pro ceedings Mr.

Mohan Kumaramangalam stakd that he had in structions to sav that anv nrovi•ion held inennlicsble to minority institution, would not be enforced against the majority institutions al•o. Hence it ,.,,lieve• u• ,.,f the, ta•l<: of cnnoinering the matter under Art. 19(l)(f) not only in respect of minority institutions 4 7 A but in respect ot majority institutions also. The provisions of s. 63 affect both kinds of institutions alike and must be declared ultra vires in respect of both. B The result is that the Judgment under appeal is upheld. The appeals of the State Government of Kerala and of the University are dismissed with.costs. One set of hearing fees. For the reasons given by the High Court we do not accept the contentions of the sevr.li appellants who have challenged some of the other provi sions ot the Act except ss. 48 (6) and 49(6) and do riot consider it necessary to repeat what is said by the High Court. These appeals are dismissed except as to those sectioris but without costs. R.K.P.S. Appeals dismissed.