XA VIERS COLLEGE. SOCIETY ETC. r. STATE OF GUJARAT April 26 & Anr. v. CiiANDRACHUD AND A. ALAGIR!SWAMI & Ors.

A glance at the context and s:heme of Part Ill of the constitution would show th3't the constitution makers did not intend to confer absolute ri~ on a religious or linguistic minority to establish and administer educational institutions. It is true that art 30( 1) is expressed in spacious and unqualified language. And so is art. 14. However, this Court has read the limitation tb classificatoin in the general and unrestricted language of art. 14. The "liberty recognised in the Fir§t Amendment to the U.S.A. Constitution and the freedom of trade, commerce and intercourse expressed in s. 92 of the Australian Consti tution, both of which are expressed in-absolute terms, are held to be subject to regu'ation. These ins~ances should be sufficient to explode the argument of absolute or near-absolute right to establish and adininister an educational insti- . tution by a religious or linguistic minority from the absolute words of art. 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 s:heme of the statute or the constitution as the case may be. [298 E; 2960; 298C] State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 at P. 295, Charanft Lal v. Union of India [1950] S.C.R. 869 at p. 890, Ka/Jri Raning Rawat v. State of Saurashtra [1952] s:C.R 435 at p. 442, Cantwell v. Connie.. lieut (310) U.S. 296 at pp. 303-304, 95 Law Edn. 1137 at p. 1160. W.S.A. Waynes: Legfa:lative_ Executive and Judicial Powers in Austra1ia. 2nd Edn: p. 339 and Commonwealth of Australia and others v. Bank of /\,rew South Walts and others [1950] Appeal i;ases 235. (6) Articles 29(2), 15(4) and 28(3) place certain express limitations on the right in art. 30(1). There are also certain implied limitation-; on this right. The right should be read subject to those implied limitations. [299C] A B C D E F G II y • .. ,, • • A B c D E F G H ST. XAVIERS COLLEGE V. GUJARAT 18 5 (7) Part III of the Constitution confers certain rights on individuals, on £fOUps and on certain minority groups. Those rights constitute a single, indi visib e balancing System of liberty in our Constitution. The system implies orde:- and harmony rumong the various rights constituting our liberty according to the necessities of each case.. Obviously, the ri2h·s could never have been intended by the constitution makers to be in collision with one another. Accord ing'y, the right in art. 30(1) cannot be so exercised as to violate a citizen's legal or constitutional rights. civilised community to _have absolute rights. Some regulation of rights is necessary for Clue enjoyment by every member of the society of his O\Vn rights. [2990; 300 B; DE] It is impossible for the liberty of ai (8) Extent of regulatory power: The extent of regulatory power of State wou d vary according to various types of educational institutions establish ed by religious and linguistic minorities. It may vai:y from class to dass a;; well as within a class. No minority educational institution can be singled out for treatment different from one meted out to the majotity edu::ntional institu tion. A regulation meeting out such a discriminatory treatment will be obnoxi ous to art. 30(1). [301 H; 302 DJ (9) The test of a valid regulation is its necessity. Any regulaition which does not go beyond what is nece5'5ary for protecting the interests of the society (which includes the minorities a11 so) or the rights of the individual member:; of the society should be constitutionally valid1 It cannot be said ~hat such a regulation takes away or abridges the rights conferred by art. 30(1). [302 E·F] • (10) No hard and fast rule .can be prescribed for determining what is neoes s~ry. The question should be examined in the light of the impugned provision~ and the facts and circumstances of each case. Whttt is required is that the impugned Jay,· 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 interC":?t or the individual right protected. While balan:ing these competing interests. the Court should give due weight to the legislative judg· m~nt. Like the Court, the Legislature ha:s also taken the oath to uphold the It is as much the protector of the liberty and welfare of the Constitution. It is more informed than the Court about the pressing people as the Court. necessities of the Government and the needs pf the community. [302 G-H] State of West Bengal v. Anwar Ali Sarkar [1952) S.C.R. 284 at p, 303 per Das J ( 11) It is difficult to accept the argument that a regulation, in order to be constitu~iona\ must always be shown to be ca.lculated to improve th., ex:cellen...~ of the minority educational institutions.. Th~ State prescri.bes the curriculum and syllabu~ as much from the point of view of excellence of instruction a,:; from the point of view of having a uniform standard of instruction. [303 B-CJ (12) Nor should the regulatory power be hamstrung by such concepts as "real and effective exercise of the right", should not be touched by the regula tion or that regul~tion should not "directly and immediately'' impinge on the right conferred by art. 30(1). What is. a real and effective exercise of right will depend on how far the impugned regulatiOJ?- is necessa-ry in. the co.n- 1ext of time place and circum!'itances for safeguarding any compe•1ng social interest or ;ny competing constitutional or legal right of an individu::i.1. [303, G-IIJ I~ Rev. Suthalbhai Sabhai and others v. State of Boml>ay [1963] 3 S.C.R. 817 at v. 850 referred to. (13) The right under art. 30(1) forms part of a complex and interdepend ent group of diverse social interests. There cannot be a perpetually. fixed ad justment pf -the right and those social interests. Th.ey would need adjustment and readjustment from time to time and in varyifl:2 circumstances. [305 HJ Section 33A (I) (a) is obnoxious to art. 30(1). (307 El 186 SUPREME COURT REPORTS {1975] l s.c.a. (14) Since the right of affiliation is not a fundamental right g'1aranteed by A art. 30( 1) there is no difficulty in the University t~king over the teaching in under-graduate cl~ses. No -iegitimate objection can be taken to sub-s.(1) ·of 9. 41. The mere circumstance that an affiliated college is made a constituent college of the university would not nece, ssarily offend art. 30( 1). The defini- tion of the expression 'constituent college' by itself is innocuous. The concept of a constituent colJege is fluid. It ls the d~gre,e of external control ovir the administration of ~ minority college and DQt i!s statutory name that is relevant for tbe purposes of art. 30( I). [308 A-Cf B (15) Sub-section (3) of s. 41 cannot also be objected to. It permits an affiliated college which does not want to be a constitueI,It college to get affiliated to another university with the permission of the State and the Guja'fat Univer sity. [308 El (16) Even assuming for the sake of argument that .clauses (ii) to (vi) <1f sub-s. 4 of s-. 41 are violative of art. 30(1) the petitioners stand to j!;ain nothing C thereby for no legitimate objection can be advanced against the first part of sub-section (4). Unless statutes are actually made the constitutional attack is premature. [309 A] ( 17) No legitimate objection can be taken to the first part of 5ub-scctions (I) and (2) of s. SIA. As the power of approval is confined to cbeckin~ the abn.se of the right to fire emp~oyees, it does not offend art. 30(1). The power of approval by the Vice-Chancellor is necessary in the interest of the security of service of the teaching and nop_-teaching staff. Security of service is ne~- s-ary to promote efficiency and honest discharge of duty. It is calculated 1o improve the institution in the long run. Section 51A provides a cheaper and expeditious remedy to the staff for the redress of their grievances. [310 F] (18) It is difficult to discover any legitimate objection to s. 52A on the ba~s of art. 30( 1). This provision is 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 staff. l 1t is necessary in the interest of security of service. [311 CJ Arguments for the petitioners : themselves on the basis of the (I) The law declared by the Supreme Court has been the law of the I a.nd since India becaJ!le a Republic. Minorities and educational institur:ons heve adapted law so declared. The variom laid down the law on the same basis. The High Courts in India have also question of minority rights is a very- sensitive and delicate one and there are no compelling or coercive considerations which would justify Court in over-ruling its previous decisions and reducing the content of right given to the minorities. D E F y t. • (2) Jn the objectives resolutions passed unanimously by the c_onstituent assembly it was declared that adequate. s~eguards sho!J~d be proVIded f~r minorities in the Constitution. The mu~onty c?mmun1h~s gave demand for political rights and we~e satisfied ~1tp. the nght. to p~ofe.ss .and practice their religion and to establish and adm1mster educationa_l insi; itutions G in _the of their choice. Articles 26, 29 and 30 were, therefo_re, embodied Con!titution for guaranteeing these rights to. minorities. (Re. Kerala E1_u_:ati°1d Bill 1959 SCR 995). The histori:aI genes1~ and .constitutional bacA&'otlll RHMt at all times be remembered in construing article 30. t ~ .. • • (3) Articles 29 and 30 of the Constitution co~er se~~rate and distinct rights viz. ( 1) the right of any section ~f the resident citizens ~o co115Cr:u itt! own language, script or culture [artic.le 290)1 (2), .the nght ~ religious and linguistic minorities to ~tabhsh and imtiutions of their choice [Article 30(1)]; (3) the nght of an •. ucauona t·mtitutiofl not to be discriminated against in the !D.atter of ;Sta~ !lld <?D rityt)>o a-round that it is under the management of a reh11ous or Itngu.lSticadm~~..:­ [Article 30(2)]; llDd (4) the right of the citizen not to be denied =-"'' ~dm1n1ster ~ucat!4 H ST. XAVIERS COLLEGE V. GUJARAT 18 7 A into any State-maintained or state-aided. -educational institution on tho ground of religion, caste, race or language [Article 29(2)]. 1 • • • c D E F G H reading Article 30( l) cannot be whittled down along with article 29(1). The differences between article 30(1) and 29(1) are un n1tstakable : while article 29 confers the fundamental right to .. any section of the citizens" which would include the majority section. Article 30(1) confers the right only on minorities, While article 29( 1) is concerned with. ·'.language, script or culture", article 30( 1) deals with divisions of t?e nation based on ''religion or language"; while articl~ 29fl) is concerned With.· the right to consefve language, script or culture article 30(1) deals with the right to establish and administer ''edu;;ational institutions" of the minorities' own choice The word "administer'' is a word of very wide import. The other key ~vords are ''of their choice''. The minorities' ri&ht to admi~ter must necessarily include (i) the right to choose its man.ag~ng or governmg body; (ii) the right not to be compelled to refuse. admission ~ studen.ts; (iii) the right to choose its teachers; and (4) the nght to use its properties :ind assets for the benefit of its own institution. invoke Although the minority institutions can claim the protection under Article 30· the_re are certain activities which cannot possibly be considered educational as for example a school of pick-pockets or where subversive or criminal activities are taught. Such institutions cannot protection of 1'i.rticle 30 because they are not imparting education at all. Though freedom under Article 30 is unqualified in terms, it is not free from regula tions. There can be no absolutes in a community governed by law. Accord ingly an educational institution must comply with the laws like municipal taVi>-s regarding construction and maintenance. of buildings. labour laws, tax laws and so on. Under article 30 the permissible regulatory measures are those which do not restrict the right of administration to facilitate it and ensure better and more effective exercise of the right for the benefit of the institution and tbrough the instrumentality of the management of the ~~uca­ tional institutions, but without displacing the management. If ~e adnunts~a­ to be improved it must be through the agency or instrumentality tion has 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 interest of and for the benefit of minority educational institutions are permissible. There the right to effectively manage is a fundamental distinction between restriction on the right of administration. and' administration and a regulation prescribing the manner of The right of a~ministratiol!- n;eai; is cpnduct the affa1rs of the institutions. It postulates autonomy in administra tion. T?e rig!J.t of. ad.mi~istration means the right to conduct and m ina,i;e the affatrs of the institution _through a Committee or body of persons in ~horn the manage~ent have fa~th. and confidence and who have full autonomy in tha! sphere sub1ect ~o permissible regulatory measures, the right to impart e~ucation . through on~ s own teachers having regard to their compatability \V1t? the _1de~ls . and aims, aspirations and traditions of the institution Edu cational institutions do not want a teacher who though brilliant cantanker~us or quarrelsome or who is antipathetic to the creed and beliefs aod . -practices of the religious minority. The right includes the aWn~t st~dents of the~r choice subject to reac; onable regulations about academic qualificaho!li. The nght to ~elec~ and appoint one's own teachers ;.::.d. nriali· supervision pa.1, Oller the ~eachers. Any act or measure which prevents riaht. rtal exercise ?f .a. fundamen1!11. right amounts to violation of There.fore to ms1st upon affiliation on terms and conditions which rcatrict the nght of administration is violative of Article 30( 1). the nght to enforce dIScipltne by exercising , control the effective ri&ht ·but ~4) The wording of articl"6 29(1) and 30(1) does not support the con tention that the latter article will apply only l!lltitutlon• established by a minority community for the sole purpose of conserving ii$ educatiollll! • 188 SUPREME COURT REPORTS [1975] 1 S.C.R. distinct language or script or culture. The words used in article 29(1) are A :'any section of the c!tizens having a distinct language, .script or culture of tts ·own". Tbe words used in article 30( 1) are "minorities, whether based '°n religio_n or language.'' There is no reference to religion in articles 29(1); ~n article 30 ( 1) the reference is only to religion <ind language and there is no reference to culture. So far as the Christians in India are concerned they do not claim to have a culture of their own. Their culture is culture of India. But they are a minority based on religion to whom .article 30(1) will apply. To insist that the minorities should surrender their funda- mental right as a condition for getting recognition or aid from the State is to make the right unreal and illusory. To give recognition and aid institutions of the majority community and to refuse them to those of the to surrender their fundamental minorities on right under the Constitution is in e.ffect discrimination within the meaning of a.rticle 30(2). Under the Constitution only the minorities have been given the fundamental right to establish and adininister educational institu, tion of their choice. The majority community has not got the right. that they refuse the ground B It is the creation of power that is subject to objection and not its exercise. Reasonable manner of administration of statutes is irrelevant in considering its constitutionality. -" c The. effect. of sections 41 a!1d 42 of the Amendment Act is that teaching and tra1ru~g 10 the colleg~s wdl be conducted by the University and private -colleges will become constituent colleges of the University which means that the minority colleges will Jose their minority relations of the constituent colleges \vill be governed by the statutes made 'by the University. The right to administer means the right to effectively mafl:age and conduct the affairs_ of the institution. It postulates autonomy in ,administration. character completely. The D Sections 51 and 52 of the Amending Act have the effect of destroying and non · the educational agencies' disciplinary control over the teaching teaching staff Of the college. No punishment can be management on a member of the staff unless it gets approval of the Vicc for compulsory Chancellor or an officer authorised by him. A provision arOitration of disputes will make it difficult for the management to have .effective disciplinary control over the staff. [D.A. V. College v. State of Punjab A.l.R. 1971 S.C. 737.J There could be no objection to make the rights of members of the staff justiciable but -0f administration if an outside body is made the fin1l a·Jthor"ty for determin ing all questions relating to disciplinary conyol over the members of the staff. it will be an infringement of the inflicted by_ E F Arguments for the respondents: Article 30( I) is to be interpreted not in isolation but in the context of ihe Constitution, particularly its id~al of a secular State and its object preserve and strengthen the integrity and unity of the country. Freedom, which may be expressed in absolute terms in the Constitution, is not incon sistent with regulatory measures in an orderly society in the interest of the society, In the matter of any educational institution s·eeking affiliation to a University. regulatory measures in the interest of the general secular cduca- ,tion must necessarily relate to the management as a. ~hole of such edu~a- tional institution the character and compos1hon of the governing body, the quality' of the tea.::hing staff. the security of it·s renure and dis~ipline in the educational institution. The regulatory measures must necessarily be uniformly applicable to al~ _educational. instit~tiOJ.lS ?nd cannot .be dis.cri,1;11-in~- . tn tory. "The right to administer educational institutions of their choice article 30(1) which includes the right to imp:u:t gene~al secular.. education H invoked where "the eduCation imparted is ~ecula! and of ~ .general or special .character. This article does not con~er ~ny nght o_r. pnyllege_ g_reater ti?-~ ,0r superior to that enjoyed by any hngu1shc or rehg1ous maJOnty. Article therefore be limited by regulatory measures. Article 30( I) cannot ~ that is, G • __ •. _ ~· • r, A B c [) E F G H . . .. ST. XAYIERS COLLEGE V. GUJAMT 18 9 30( 1) must be read along with other cognate prov1s10n$ viz., articles 30(2), 15, 26 and. 29 and particularly article 30(2) and 25(2)(a). There is no a fundamental right of minority institutions to insist University. A minority institution is _bound by the general law relating t• affiliation as any other minority or maiority institution based on language or religion. The provisions of sections 33A, 40, 41, 51A and 52A as also the impugned ordinances are not destructive of any fundamental right of the petitioners. They are only regulatory in nat_ure and im~ose only such restrictions as are indicated above. They are vahd and effective. affiliation No fundamental _right is absolute and claims based on ariy one right may be subject to qualifications in accordance with the claims based on other rights. Due regafd should be had to the Directive principles contained in articles 41, 45, 46 and 38 for securing which education is an essential 1and poweriul instrument. The right to administer a minority educational institution was not conceived to be unfettered and absolute. Administration can be carried on in accordance with the general law of the land. The object of adminis tration of a minority educational institution is two fold.:., (1) the conservation of culture including religion, language and script (ii) to ensure that children receive' general education also so that they could world \veil and sufficiently equipped with the qualifications necessary for a l,<;eful carrer in 1if·.:! which would impede the achievement of any of these twin objects of the minority would be invalid as violative of article 30( 1). Subject to these qualification the administration can be carried on in accordance with improve law. The provisions of .the Gujarat Act were intended to general education as also to guarantee security of tenure to teachers . Security of the servjce is not merely intended to protect the teachers against exploitation but is intended to ensure academic freedom, l\iianagement-t~acher relations have to be understood in proper canvass en1ployer e.tnployee relationship. (Re Keral& Education Bill 1957). Therefore, a -mere ORIGINAL JURISDICTION: Writ Petition No. 232 and 233 of 1973. (Petitions Under Article 32 of the Constitution of India.) N. A. Palkhiwala, I. M. Nanavati, Sudhir Nanavati, A. Natrai, 'l. B. Dadachanji, P. C. Bhartari, 0. C. Mathur and Ravinder Narain for the Petitioners. F. S. Nariman, Add!. Sol. General of India, R H. Dhebar and S. P. Nayar for Respondent No. 1. S. T. Desai, S. N. Shelat and S. R. Agarwal for respondent No. 2. N. A. Palkhiwala, !. B. Dadachanji, A.G. Menesses, P. C. Bhartari, S. Swarup, 0. C. Mathur and Ravbzder Narain for Intervener Nos. 1, 9, and 10. So!i J. Sorabjee, J. B. Dadachanji, P. C. Bhartari, S. Swaruo, o. C. Mathur and Ravinder Narain for Intervener Nos. 2, 6, 7-8. · I. M. Nanavati, !. B. Dadachanji, 0. C. Mathur and Ravinder Narain and P. C. Bhartari for Intervener Nos. 3 and 5. Frank Anthony, !. B. Dadachanji, P. C. Bhartari, S. Swarup, O. C. Mathur and Ravinder Narain for Intervener No. 4. Nirei1 De, Attorney General for India, S. P. Nayar for Intervener No. 11 (In WP No. 232/73). Dr. V. A. Seiyad Mohammed and K. M. K. Nair for No. 12 (In WP 232/73). Intervener 190 SUPREME COURT REPORTS [1975] 1 S.C.R.

#0. N. Tikku, Advocate General for the State of J & K and Vineet Kumar for Intervener No. 13. M. C. Setalvad, K. C. Agarwal, A. T. M. Sampath, M. M. L. .Srivastava, E. C. Agarwala for Intervener No. 14. Hardev Singh and R. S. Sodhi for Intervener No. 15. Joseph Vithayathil and E. C. Agarwala for Intervener No. 16. Naunit Lal and Miss Lalita Kohli for Intervener No. 17 (In WP. 232/73) and Intervener No. ·5 (In WP. 233/73). E. C. Agarwala and Danial A. Latifi fqr Intervener No. 18, 20, .to 43 and 50-52. Mrs. Scheherazade Alam, M. Qamaruddin and E. C. Agarwala for .Intervener No. 19. Haroo Bhai and J. Ramamurthi for Intervener No. 44. M. K. Ramamurthi, Haroo Bhai and J. Ramamurthi for Intervener No. 45. B. P. Maheshwari, C. L. Joseph and Suresh Sethi for Intervener No. 46. D. Gobardhan for Intervener No. 47. F. S. Nariman Addi. Sol. Gen. of India (for Intervener No. 48) .and M. N. Shroff for Intervener Nos. 48-49 (In WP. No. 233 of 1973). V. M. Tarkunde, Joseph Vithayathil, K. C. Agarwala, A.T.M. Sampath, P. C. Chandi, M. M. L. Srivastava and E. C. Agarwa/a for .the Intervener No. 53 (In WP. 233/73). The following Judgments were delivered by R:AY, C.J. The question for consideration is wheth~r the minorities tiased on religion or l'anguage have the right to establish and administer .educational institutions for imparting general secular education within the meaning of Article 30 of the Constitution. The minority institutions which are in truth and reality educational institutions where education in its various aspects is imparted claim protection of Article 3 0. This raises the question at the threshold whether Articles 30( 1) .and 29 (1) of the Constitution are mutually exclusive. Articles 29 and 30 of the Constitution are grouped under the head ing "Cultural and educational rights". Article 29(1) deals with right of any section of the citizens residing in India to preserve their langu age, script or culture. Article 30(1) provides th"t all religious and linguistic- minorities have the ~ight to. establish and a~n_iinist_er ~duca­ tional institutions of their chmce. Article 29(2) proh1b1ts d1scnmma- tion in matters of admission into educational institutions of the types mentioned therein on grounds only of religion, race, c~ste, lang~rng~ ~r any of them. Article 30(2) p:eve.nts. Stat_es from.mak~ng any dmcnm1- nation against any educat10nal ms!Itut10n m grantmg md on the grou11d that it is managed by a religious or linguistic minority. A B C D E F G H y . ' • • ,, "' ' •· A .B c D • .. E F G H ST. XAVIERS COLLEGE v. GUJARAT (Ray, C.J.) 191 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 to be discriminated against in the matter of State aid on the ground that it is under the managem>nt 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). institution not It will be wrong to react 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 langu age, 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, where as Article 30( 1) deals with the right to establish and administer educa tional institutions of the minorities of their choice. Fourth, the con servation 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 minori ty under Article 30(1) may be unconnected with any motive to con- serve language, script or culture. A minority may administer an insti tution for religious education which is wholly unconnected with any question of conserving a language, script or culture. If the scope of Article 30( 1) is to establish and administer educa- tional 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. 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 prop;:r fegisla tion do not pass a legislation prohibiting minorities to establish and If the scope of administer educational institutions of their choice. Article 30(1) is made an extension of the right und·cr Article 29(1) as the right to establish and administer educational institutions for giv ing 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. A ·~ y I B c D E • 192 SUPREME COURT REPORTS [1975] l S.C.R. . Ev~ry section of t~~ pnbJ.ic, the majority as well as minority has r!ghts ~n respect of rehg10n as contemplated in Articles 25 and 26 and rights m respect of language, script, culture as contemplated iu Article :?.9. The whole object of conferring the right on minorities under Article 3~ is :o ensure that. ther~ will be equality between the majority and the mmonty. If the mtnonties do not have such special protection they will be denied equality. In Re. The Kera/a Education Bill 1957 [1959] ·S.C.R. 995 this C-:iurt said that Article 30( 1) covers institutions imparting general seen· !ar education. The object of Article 30 is to enable children of mino· rities to go out in the world fully equipped. All p~rsons 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 ~s 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 linguis· tic minorities as well where no question of religion aris-es. It is, there fore, not at all possible to exclude secular education from Article 30. Since the Kerala Education Bill case (supra) in 1959 this Court has consistently held that g~neral secular educmion is covered by Article 30. This Court in Rev. Father Proost v. State of Bihar [1969] 2 S.C.R. 73 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-(,1) wa~ 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 aiJy 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 mino rities to establish educational institutions of their choice. This Court said that. the two Articles create two separate rights though it is possible that the rightSi might meet in a §iven case. 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 intend·w to develop the commonness of boys and girls. of our country. ~his is in the true spirit of liberty, equality and fratermty through the medmm of educJation. tion under Article 30 to establish and administer educational mstltu· tions 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. If religious or linguistic minori~es are not ~ven 1'ro~ec· . F G H ST. XAVIERS COLLEGE v. GUJARAT (Ra CJ) y, . The second question which arises for consideration is whether re!F gious and linguistic minorities who have the right to establish· and' administer educationar Institutions of their choice, have a fundamental right to affiliation. It is contended on behalf of thqietitioners that the right to establish educational institutions of their chmce wiirbe without any meaning if affiliation is denied., The respondents pose the question whether 'educational institutions established and administered by mino rities for imparting genera1'1secular education have a fundamental right to be affiliated to a. statutory University on different from those appliC:1ble to oth·er affiliated colleges, terms of management · ... · The consistent view of this Court has been that there is no funda~ mental right of a minority institution to affiliation .. An explanation It is that affiliation must be has been put upon that statement of law. a real and meaningful exercise for minori~y institutions in the matter · of imparting general secular education. Any law which provides for affiliation on terms . which will involve abridgement of the. right of linguistic and religious, minorities to administer and establish educational . institutions of their choice will offend ArticJ.e 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 childr·en ordinary careers. if affiliation be on terms which . would make them surrender and lose their. rights to establish and administer educational institutions of their choic" 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 ineffec tive but also unreal unless such institution is affiliated tb-a University· for the purpose of conferment of degrees on students. Affiliation to a University really consists of twff parts. · One part rdates 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 institu-- tions. The second part consists of terms and conditions regarding· It relates to administration of educational management of institutions. , instituHons. ==- - With regard to a'ffiliation a minority institution must · follow statutory' measures regulating educational standards and efficiency, the prescribed courses of study, courses of instruction.and the principles regarding the qualification of t·"achers, · education_al qualifications for entry of students into educational institutions etcetera. A B c D E F G Wb•n a minority institution applies to a University to be affiliatecf, it expresses its choice to participate in the syst·!m 'of general education and courses of instruction prescribed by that University; Affili~tion is regulating courses of instruction in. institutions for f1e purpose of co ordinating and harmo, ising 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 edµcation. Regulatory measures of affiliation enable the minority institutions to share the same Ii . 14-13!Su;>Cl/7S . 19 4 SUPREME COURT REPORTS (J 975) l S.C.R. courses of instruction and the same degrees with institutions. the non-minority A • This Court in State of Kera/av. Very Rev. Mother Provincial, etc. [1971] 1 S.C.R. 73.4 explained the necessity and importance of regu latory 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 education:,il character and content of the minority institutions. These regulations are not only reasonable in the interest of general secular education but also conduce to the improvement in the stature and strength of th·~ 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 acad·~mic and educational character of the insti tution. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employ facilities ment of teaclms, the health and hygiene of students, libraries and laboratories are all comprised in matters germane affil'iation of minority institutions. These regulatory measures aftiliation are for uniformity, efficiency and exce1lence in educational courses and do not violate any fundamental right of the minority institutions under Article 30. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institu tions. The right to administer is said to consist of four principal matters. It is said First is the right to choose its managing or governing body. that th·o founders of the minority institution have faith and confidence in their own committee or 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 com pelled 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. n c D E F G The right conferred on the religious and linguistic minorities administer educational institutions of their choice is not in an absoluk right. This right is not free from regulation. regulatory measures are necessary for maintaining the educational character and content of minority institutions similarly regulatory measures are neces- sary for ensuring orderly, efficient and sound administratio~. Das, C.J. H in the Kerala Educarion Bill case (supra) summed up 111 one tence the trne meaning of the right to administer by saying that the right to administer is not the right to mal-administer. Just as • A B c E F • . ,. ST. XAVJERS COLLEGE V. GUJARAT'(Ray, C.J.) 195 On behalf of the petitioners, it is said that the right to administer means autonomy in administration. Emphasis is pl'aced on the mino rity'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 manag~ment 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. The Kuala Education Bill case (supra) upheld certain regulatory provisions as to administration of minority institution not to infringe the right to adlrninister. 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 dis missed, removed or reduced in rank or suspended without the previous sanction of the officer authorised by the Govermnent in this behalf. The Kera/a Education Bill case (supra) did not uphold validity of clauses 14 and 15 in the Kerala Education Bill, 1957. These clauses authorised the Government to take over ally aided school under certain circumstances. This Court found that those clauses amounted recognised on to. expropriation of the schools. The schools were condition that they submitted to submission amounted to surrender of the right under Article 30 . This Court in Rev. Father W. Proost case 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 48-A 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. those clauses. Such (supra) held G .. Jn Rt. Rev. Bishop S. K. Patro v. State of Bihar [1970] 1 S.C.R. 172, the State of Bihar requested the Church Missionary Society School, Bhagalpur to constitute a managing co~mittee of the school in accordance with an order of the State. This Court held that the Stat·~ authorities could not require the school to constitute a managing committee in accordance with their order. H Jn D. A. V. College v. State.of Punjab [1971] Suppl. S.C.R. 688, clause1 17 of the impugned statute in that case which provided that the staff initially appointed shall be approved by the Vic·~·Chancellor and subsequent changes would be report~d to the University for the Vice Chancellor's approval was found to mterfere with the nght of manage ment. 19 6 SUPREME COURT REPORTS [1975] I S.C.R. This Court in State of Kera/a v. Very Rev. Mother Provincial case (supra) f~und sections 48 and 49 of the Kerala University Act of. 1969 to be mfract10n 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 contemrilated m th?~e sections was to administer the coll<oges in accordance with the prov1S1ons of the Act, statutes, ordinances, regula l!ons, by·o-laws and orders made 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 sfatutes. These provisions amounted to vesting the management and administration of the institution Uniwrsity. in the hands of bodies with mandates These rulings of this Court indicate how and when there is taking away or abridgement of the right of administration of minority institu tions in regard to choice of the governin!J body, appointm(:nt of teac!hers and in the right to administer. The decision of this Court in Rev. Sidhajbhai Sabhai v. State of Bombay [1963] 3 S.C.R. 837 illustrates as to how the right of 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 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. (supra) Educational institutions are tempks of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is CQ!!!lllete harmony between the teacher an.ct J)t_.ll_!llUght, 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 worship pers of barning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged It is, therefore, manifest in the common ideal of pursuit of knowledge. that the appointment of t-::achers 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 adminis ter institutions. This right implies the obligation and duty of In the minority institutions to render the very best to the students. 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 S·ervice. The right to administer is to be tempered 'D!e b~st with regulatory measures to facilitate smooth admi1_1istr.ation. administration will reveal no trace or colour of mmonty. A mmonty ·institution shonld shine in exemplary eclectism 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. , A B c D • E F G .. H A B c D E G H ST. XAVIERS COLLEGE v: GUJARAT (Ray, C.J.) 19 7 Regulations which will serve the interest of the students, regul~ti~ns which will serve the ·interests of the teachers are of paramount import ance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for pre$erving harmony among affiliated institutions. 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. · · ' . . - . Three sets of regulations are impeached as violative of. Article J~. ·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(l)(a). The third set consists of sections 51A and 52A. Section 40 of the Act enacts that· teaching and traii; iing shail be , conducted by the university and shall be imparted by teechers 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 univers ty determines that the teaching.and training shalfbe conducted.by the university the . provisions of section 41 of the Act come into fotce. Section 41 of the Act consists .of four subCsections. The first sub· section states that all colleges· within the university area which are admitted to the privileges of the university under sub-section ( 3) of sectiori 5 of the Act· and all colleges which may heieafter be affiliated It is to the university shall· be constituent colleges of the university. · true that no determination has yet been. made by the court of university under section 40 of the Act bur 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. Under section 40 of the Act the university takes oveneaching of under-graduate classes. . . . Section 41 of the Act is a corollary to section 40 of the Act Sec- · tion 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 ef !he Act pursuant to a declaration under section 40 of the Act it becom~ integrated to the university. A con stituent college does not retain its former individual character any longer. The minoi; ity character of the college is lost: Minorify instifotions become part and parcel of thei university. The result· is that section 40 of the Act carinot have any compulsory application to minority instifu tions because it will take away· their fundamental right to administer the educational institutions of their choice. · · Section 41 ·or" the Act contains four sub-sections.· The first sub section broadly states that all colleges within the University area shall '·be the constituent colfeges of the university. The second sub,$<!Ction states that all institutions within the university. area· shall be the con stituent institutions of the· university. The third sub-section states that 198 SUPREME COURT REPORTS [1975] l s.c.R. no educational institution situat.o within the university area shall, save with the consent of the university, and the sanction of the State Govern n1ent be associated in any Way with or seek admission to any privil~ge 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 tho 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 po\\'ers enumerated therein in respect of constituent degree colleges and constituent recognised institutions. Section 41 ( 4) Oii) of the Act confers power o.n 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 teach· jng on behalf of the university . . Section 41(4)(iv) of t~i; ;!\ct cm!fcrs power on.the universtiy to co-ordmate and "'!fula~e t?e fa~1httes provided and expenditure incurred. by colleg~s and mst1tut10n.s m . libraries laboratories and other eqmpmcms for teachmg and research. Section '41(.<4)(v)· confers power on the university to require colleges ar.d institutions when necessary to confine the enrolment of s~ude~ts in certain subjects.· Section 41(4)(vi)'~on!er~ power on the umvers1ty to levy contributions from colleges and mslttutmns and to make grants to them. regard · 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 compuls0ry 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 conversion of affiliated colleges into constituent colleges. The provisions corttained in section 33A(l )(a) of the Act state that every ~ol!·~ge shall be m.1der the management of a governing body which shall. mclude amongst its members, a representative of the university nommated, by the Vice-Chancellor and representatives of teachers non teaching staff and.students of the college .. These provisions are' chal lenged on the ground that this amounts to invasion of the fundamental · 1t is said, Jhat the governing body of the college right of administration. is a part of its administration and therefore that administration should n·ot ·be touched. The .right )O adininister 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 pf the institiltion have· faith and confidence and w.lla!Jave full autonomy in that sphere'. The right to administer is sub~ llJ permissible regulatory measures •. Permissible regulatory measures are those which do not restrict the right of adminis tration but facilitate it· and ensure better and more effective exercise . of the. right for the D!'tl<fit of the institution and through the instruriien tarrty of the management of the educational institutions and withO'.it displacing the management. If the administration has to be improved 'it shOllld be· done. through the agency or instrumentality of the existing right of management and not by. displacing it. Restrictions on the A R c D E F G H • • ST, XAV!ERS COLLEGE V. GUJARAT (Ray, C.J.) 19 9 A administration imposed in the interest of the general public alone and not in th·c interests of and for the benefit of minority educational institutions concerned will affect the autonomy in ad.ministration. B c D Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinc tion is between a restriction on the right of administration and a regula tion prescribing the manner of administration. The right of adminis tration is day to day administration. The choice in the personnel of management is a part of the administration. The university will always If there is have a right to see that there is no mal·administration. mal-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 th·~ requirements of In State of Kerd'a v. Very Rev. Mother the teachers and the students. Provincial etc. (supra) this Court said that if the administration goes to a body in the sdection of whom the founders have no say, the admin:strntion would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That The provisions would also affect the autonomy in administration. contained in section 3 3 A ( l) (a) of the Act hav.o the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is Jost. 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(l)(a) cannot therefore apply to minority institutions. E F G H Tho provisions contained in section 33A(l )(b) of the Act were not chall'enged by the petitioners. Th·o 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( I) (b) of the Act. The provisions contained in section 33A(l) (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 sef.oction 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 reprcsentativ·~ 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 interv·eners 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 representa It was suggested that such matters should not be left to unlimited tiv·~. power as to choice. The provisions contained in section 33A (I) (b) cannot therefore apply to minority institutions. The third set of provisions impeached by the petitioners consists of sections SIA and S2A. Section SIA states that no memb~r of the teaching. 0th.er academic and non-teaching staff of an affiliated college .. 200 SUPREME COURT REPORTS [1975] 1 S.C.R. shall ~e dismissed or removed or reduced in rank except after an inquiry m 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 opp?rti; nity of m~king representation on any such penalty proposed to be mihcted on him; and (b) the penalty to be inflicted on him is appro~ed by the Vice-Chancellbr or any other officer of the university authonsed 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 guid ance. Second, it is said that the words "any other officer of 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 5 IA, clause (b) of the Act cannot be said to be a permissive regulatory measure inasmuch as it confer., arbitrary power on the Vice-Chancellor to take away the rlght of administration of the minority institutions. Section 51 A of the Act cannot, therefore, apply to minority institutions_ 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-t-eaching staff of an affiliated college which is connected with the conditions of service of such mem ber to a Tribunal of Arbitration consisting of one member nominated by the governing body of th·e 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 coP trov·~rsy 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 domes tic 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. For these reasons the provisions contained in sections 40, 41, 33A(l)(a), 33A{l)(b), 51A and 52A cannot be applied to minority institutions. These provisions violate the fundamental rights of minori!y institutions. JThe ultimate goal of a minority institution too imparting general s·~cular education is advancement of learning. This Court has consis tently 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. In the field of administration it is not reasonable to claim minority institutions wiil have complete autonomy. Checks on the administration may be necessary in order to ensure that the administra tion is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institu tion involves, as part of it, a correlative duty of good administrat1on. A B c D E F G H ST. XAVIERS COLLEGE V. GUJARAT (Ray, CJ.) 201 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 adininistration of minorities should bo adjusted to concentrate on making learning most excellent. That is possible only when all institutions follow the motto that the institu- tions are places for worship of learning by the students and tb teachers together irrespeCtive of any denomination and distinction. . · JAGANMOHAN REDDY, J. This larger Bench has been constituted to consider the scope of the fundamental rights under Art. 30(1), the inter relationship of those righ.ts with the rights und'ir Art. 29( 1), the scope of the regulatory powers of the State vis-a-vis thq rights under Art,.30(1), and in the light of the view taken on the several · aspects aforesaid to consider the validity of certain' impugned provision~ of the amended · Gujarat University Act, 1949-;-hereinafter referred to as 'the Act'. The. contentions raised before us on the scope and ambit of Arts. 29(1) and 30(1) are not. new but have been earlier urged before and·deeided by this Court. The attempt on behalf of the State of Gujarat has been to once again raise the same crucial issues wfiich go to the root of the rights conferred on the minorities to· establish educational institutions of their choi<e and whether the State could treat the majority and m!nority edu cational institutions equally, an issue upon which this Court has pron, ounccd in no uncertain terms on earlier occasions. · B c D We agree with the judgment of Hon'ble the Chief Justice just pro nounced and with his conclusions that ss. 40, 41, 33A (1) (a), 33A (I') (b), 5.l A and .52A of the Act violate the fundamental rights of minorities and cannot, therefore, apply to the institutions established and adminis tered 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 the principles already adumbrated is. stated or some departure from 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 Art. 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 im pugned provisions which Hon'ble the Chief Justice has held to be in- ·- applicable to the minority institutions but to examine the. question as to what extent the right conferred by· Art: 30( 1) would include .within it the right of the minorities to claim affiliation for or recognition to educational institutions established by them. E F G The right of a linguistic or religious mfoority ·to administer educa tional 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 edu cation. The scope and ambit of the rights under Arts. 29(1) and30(1) were first considered and analysed by thisCourt while giving its advice on the PresidentiaJ. Reference un.der Art. 143 of the Constitution in Re. H (I) 11959] SCR 995. (2) [t944] F.C.R. 317. 202 SUPREME COURT REPORTS (1975] l S.C.R. The Kera/a Education Bill, 1957('). 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 Art. 143 this Court expresses its opinion to express its if it so chooses and in some cases it might even decline opinion, vide In Re. Levy of Estate Duty(") cited with approv~ by Das,, C.J. in In re. The Kera/a Education Bill, 1957. In some cases the opinion may be based on certain stated contingencies or on assumed or hypothetical situations whereas in a concrete case coming before tbis Court by way of an appeal under Art. 133, or by special leave under Art. 136 or by a petition under Art. 32, the law declared by it by virtue of Art. 143 is binding on all courts within the territority of India. Nonetheless the exposition of the various facets of the rights under Art. 29(1) and Art. 30(1) by Das, C.J., speaking 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 larger this case would prima facie govern these case•, unless Bench chooses to differ from them. In respect of certain provisions of the Kerala Education Bill, namely, clauses 9, 11(2) and 12(4), Das, C.J. sta'.c:!; "These are, no doubt, serious inroads on the right of ad ministration and appear perilously near violating that right. But considering that those provisions are applicable to all edu cational institutions and that the impugned parts of els. 9, 11 and 12 are designed to give protection and security to the ill paid teachers who are engaged in rendering service nation and protect the backward classes, we are prepared, "" 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 els. 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 els. 11, l 2 (1), (2), (3) and (5) have been held invalid by this Court when they were challenged as offending fundamental rights of minority institutions. In the State of Kerala v.Very Rev. Mother Provincial(') sub-ss. (I) (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 cl. 11 of the Kerala Education Bill, 1957. Similarly, sub-sections (2) and (4) of s. 56 of the Kerala University Act being similar in terms and effect to sub-clauses (!), (2) and (3) of clause 12 of the Kerala Education Bill, 1957, which were held to be reasonable and sub-clause (4) of (1) [1971] I S.C.R. 734. (2) [1971] Supp. S.C.R. 688. t A B c D E F G H ST. XAVIERS COLLEGE V. GUJARAT (Ray, C.J.) 203 A B c D E that clause which was considered Ii> .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 pro vision in the Statutes of the Gnru Nanak University Act, namely, Statute 17 making a provision similar to sub els. ( l), (2) and (3) of clause 12 of the Kerala Education Bill was held invalid in D. A. V. College etc. v. State of Punjab & Ors(2). Sub-sections (4) and (6) of s. 63 of the Kerala University Act, 1969, which provide for similar contingencies as those provided in s. 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(l) and (b) and 51A of the Act are similar in nature to the provisions of ss. 53, 56 48 and 49 of the Kerala University Act. Statute 2(1) (a) of the Guru Nanak University Act also corresponds to ss. 48' and 49 of the Kerala · University Act and is similar in nature to s. 33A of the Act. These have been held to be invalid in their application to minority educa tional 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. The impugned provisions, namely, ss. 40, 41, 33A(l) (a), 33A(l) (b), SIA 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 : • • Kera/a Education Bill .cl.· 11-Appoint:"lent of teachers in Gov .. • · ernment .and aided. schQOl~ (I) T.be Public Service Commission fhall. as empowered' by this Act. select candidates for. appointmCnt as teachers in aided · schools. Before Government and ., ..... tp•• JO ACl\I 1s1 ( 041 O!JqOd oq1 ~rvice Commi'>sion shal' se:lect candidates regar ... t to the· probable number with du€= of vacancies of teachers that may arise in the course of tho year. The candidates shall. be selected for each district separate ... selec_ted ly and the list of candidates so shall be publishe<l in the Gazette. Teachers of aided schools shall be appointed by the ,.manager only from the candidates so selected for the district . school is located provided that manager may, for sufficient reason. \.'ith the per ... mission of the Public Service Commission; appoint teachers selected for . other district, Appointment of te.nchers in Gov .. ernment schools shall also be made from tl)e list of candiJatcs so published. in which Kerala · Universily Act ~.- Section· 53- Appointment of teachers leges- --------011r11 ~'i,;k-ufii; eiSiiY ·s1aiUiei----··---- in private· col· (I) Posts of principal of private colleges $h<ill be selection · po~ts. (2) Appointment to thC post of princi· in a private college shall be made by the i:overning body or managing conn· cil. as the case may be. from · among teachers of the college or of au· colleges. as the case may be or if there is no suitable· person in such college or colleges, from other persons. teacher. aggrieved (9> Any ·an appointment under · 'sub-section-f7') may within sixty days "from the date of tµe uppointment, appeal to. the Syndicate, and the decision of the Syndicate thereon shall be fim:il, bY · A B c (2) In- selecting canJidates under . sub· section (I), the Public Service Commissi::>n shall have regard to the provisions made by the Government under cl. ( 4) of Art. 16 of the . Constitution.' · Cl. 12-Conditions of service of nidcd School teachers : - ( 1) The. -conditions· of service' · relating to pensions, provident fund, insurance and S. 56~Conditions. or scrvicl! of of p;:ivate colleges- teachers ( I) Thi: conditions of service of. teachers of private colleg~s. including conditions . relating to pay. pension, provident fund. retirement gr::1tuity. it:11a1runce ;ind ng:e of sln1ll·· be:_.s'i..1ch <l'i 1nay be prescribed by the iStatutes. (2) No teacher of private college shall be. dismissed1 removed, or reduced · appointe<l D initially Stati1tl! 17-The staff shall bl! approv~d by the Vice·Chancellor. All subsequent changes shall be· reported to the University for Vice-Chancellor's In the case of training institu approval. tions the teachers. pupil ratio shall not t : 12. Non-Government th~1n Colh.·g~·s sh;1IL con1plY with require· n1ents lait.1 down· in the Ordinance govern. ing service and conduct of non-Government Colleges framed by the University, as may be teachers in E ., 0 .. "' c:: "' "' '" :::: "' " 0 ~ .... "' '" "' 0 "' .... "' ~ -"' _, "' ~ -"'' " i" age of retirement applicable of Government schools shall apply teachers of aided schools- teachers (il who are .. after the commenCement of this ·and · · Jpointed under ·sec 11 sec"tion; . i rank by the Governing body or managing council without the previous sanction of the Vice. Chancellor ·or placed under sus . pension the Govcrnini:t · Body · or Managing Council for a continuous period· exceeding fifteen days without such pre .. vious sanction. (4) A teacher against 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 case of wrongful removal or dismissal and to_ order such other remedial measures as it deems fit. and the governing body or managing, council, as the case may be, shall .comply with the order. (ii) who. have been appointed be[Ore. the . but who cai.lfllencement of this section, JlM>'o ·expressed in writing their willingness · to tie governed by such conditions, within · qe year from ·sucn commencement; · (3) The Goveu\ment shall extend to the teachers of. aided schools who have· O:en appointed before the commencem:nt of this section and who have not expressed · their willingness under clause (ii) of ·sub .. section speci_fied : there(or the conditions of service relating to pension, provident fund, insurance and age of retirement. applicable to teachers pf Government schools with such modifi .. cations as the Government may deem fit, (2) within (4) No teacher of an aided school shall be . dismissed· removed, reduced in or suspended- by the manager without the previous sanction of the officer authorised by the Government in this behalf •. (S) Subject to the provisions of sub• sections (1), (2), (3) and (4), the condi. teachers of aided tions of service · of schools shall be such s.s mav . be pres cribed, A 3 c D E F "' :-' " > <: ;;; "' "' g I"' I"' "' Cl "" :" Cl c:: ; :;:; ... '"' ~ § ~ i'l 'It ~ :-. "' 0 "" ~ I I ------ Section 48-Governing body for private Statute 2(l)(a) college not under corporate rn:i.nagement- - - - - - · - - - - ( 1) ------ -----------------···--· (2) A College applying for admission lhe privileges of the University shall send a letter of application the Registrar nnd shall satisfy the Senate : (a) That the College shall have a regu lul'ly constituted ·governing body consist ing of not mor_f? than 20 ·persons approved by the Senate and including. among others, representatives of the University and '.? the Principal of the college ex-officio. Provi<led that the said condition not apply in the case 'of College main· fained. by Go"lr:ernment which shall how ever have an advisory Committee consist ing: of among others the principal of the College two rcprc~enta· lives of the University. (E.x-ollicio) and (I) The educational agency of a priVate college, other than a private college under a corporate management, shall constitute the provisions , of in accordance with the statutes a governing body consisting: of foliowinc members, namely : (a) the princip<1l of the private college; (b) the manager of the private-. college; (c) a person. nominated by the Univer· sity in accordance with the provisions in that behalf contained in the statutes. (d) a person nominated by the Govern· ment; (e~ a person clcclcd in accordance with ~uch procedure 01s may be prescribed by the · Statutes fron1 among themselves the permanent teachers of private college; and (f) not more than six .persons non1inat .. the educational agency. cd _by · ·(2) The governing body shall be a body corpor:1te havin.(? perpetual succe.co.c;ion :ind a con11no11 seal. (3 The riunager or the private college shall b~ the Chairman of the Governing body, ( 4) 1\ 1nc1nbcr of the _governing body sh•1ll holJ office fQr n yea'rs from the date. of its constitution. period of . ·-·----------·-----"·- ( 3) ,., o "' A B c "' c: "' "' "' ;: "' " 0 c: "' .., "' "' "' 0 "' .... "' ~ -"' ..... ~ -E D V> ?' r !" (!i) Tl shall be the Juty of· the govcrn in1: body 10 administer the private college in accordrince with the provisions of ·this Act and the Statutes, Ordinances, Regula tions, Rules, Byc-lriws. rind orders made thereunder. the· delegation of ( 6) The powers and fllnctions of ~overning body, the removal of members thereof ;.ind the procedure to be followed by it, including powers. sh:.lll be prescribed by the Statute~. (7) Notwithst:::inding anythin2 contained in sub-section (6), decisions of the gov erning body shall be taken at meetings on the basis of simple majority of the members .present ·and voting. Scc~ion 49- Managing Council under corporate management- for private Colleges

1.1', (a) one principo1l by rotation in such prescribed by ntanncr as may be Statutes: (b) !he m:1n:.1£Cr of the private college: ·cc) a person nominated by·the Univer sity in accordance with ·the provisions in that behalf contained in the Statutes; Cd} a person nominated by the Govern n1ent; f c) twu persons elected in accordance with such procedure as may be prescribed themselves ·by the Statutes from by the permanent teachers 'lf all the pri vate colleges: nnd A B c D E F "' :-' >< ,. < ;:;; ,, "' n 0 .... .... '" Cl "' :" Cl 8 ,. ,, ,. .... ~ .... ~ ;:: ::; ~ "' ;:: ::<l " ft :.< .... .:.... "' 0 ... I I ( I) ( 2) ( f) riot more than fifteen persons no mi .. nated by the educational agency. (2) The nianaging council shall be a. body corporate having perpetual succession and a comn; ion seal. (3) -- - A 0 "' "' (3) The manager of the private colleges the managing shall be the chairman of · council. - • ( 4) A member of the nianaging council shall hold office for a period of years from tho date of the constitution, (5) It shall be the. duty of the mapag- ing council to administer all the private colleges under the . Corporate management in accordance With the .provisions of· this Act and the Statutes, Ordinances, Regn-: lations, Dye-laws and Ord~rs made there- under. ( 6) ·The powers and -functions of managing council, the removal of members thereof and the. procedure to be followed by it, including powers. shall be prescribed by . the Stah1..: tes. the delegation of sub-section (7) Notwithstanding anything coniained . (6). decisions of.' the managing council shaU be taken at meet- ings on the basis of simple majority of the members present and voting, · Section 63-PowCr to regulate the manage- ment of private colleges- (4) Tf the goVerning -body or managing col.lncll, as 'the case may - be, disapproves n c D ~ ~ ~ "' c: "' "' ... "' n 0 .., ~ "' "' 0 .., . "' ~ ~ - '"' ...... "" /':::: , !" n ;., • ( 1 )' -------~ i -::: "' c '& ( 2) ( 3) theo · tak""en by the University In any decision connebtion with the management of private college the matters shall be referred by the governina: body or managing coun .. cil, as· the case may be, to the Govern .. ment, within one month of the date - of receipt of the report under sub.section (3) who shall thereupon pass such ·order thereon as they think fit and communieate lhe same to the governing body· or m::inagin& council and also to the Univer· sity. ·. - (6) The manager appointed under sub· section ( 1) of section ~O shall be bound to give eflect to the decisions of University and. if at any time, it appear,) to the Univenity that the manager ·is not carrying out its decisions, it may,· for reasons to be rei; ordcd in writing and after giving the manager an opportunity of being heard, by order remove him from office and appoint another ; person to b~ the manager after consultin$ · thQ edµcaiional BJCDC)', ,_ "' :-i ~ < r;; .. "' n ..... 0 ~ " "' :"' 8 > ~ -i ~ i :i ~ " ):! .. ~ :.< .. 0 :--- ... ....; A -~ c D E· I I 210 SUPREME COURT REPORTS [1975] 1 s.c.R. In spite of the consistent and categorical decisions which have held invalid certain provisions of the University Acts of some of the States as interfering with the fundamental rights of management of minority in- situations inherent in the right to establish educational institutions of their choice under Art. 30( I), 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 in- stability 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. A B c The Central Government to which notice was given probably realis- ing 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 Attor ney-General on some of the aspects of those rights. Equality of treat ment of minority and majority or equality before law precludes discri- D ruination. 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 estab- lishes an equilibrium between different situ.ations. ............ It is easy to imagine cases in which equality of treatment of the majority and of the minority whose situa tion 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 ad vanced on behalf of some of the respondents in support of the validity of the impugned provisions cannot be accepted. 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('") seem to negative any such right under Art. 30 (I). 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 educa- tional institutions except upon terms tantamountto the surren- der of their constitutional right of administration of the educa- tional institutions of their choice is in truth and in effect to de- prive them of their rights under Art. 30(1)." These observations appear to us to be somewhat at variance with cer tain other observations. But if these observations are carefully scruti- (1) [I959J s.c.R. 995. E F G H • f11 ST. XAVIERS COLLEGE v. GUJARAT (Jaganmohan Reddy, J.) 2l L nised, 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 ot their children should be in accordance with the teachings of their religion and they hold, quite hones tly, 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 gui dance 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 Edu-. cation Code now in operation to which it is permissible to re fer for ascertaining the effect of the impugned provisions on existing state of affairs the schol"ars of unrecognised schooIS are not permitted to avail themselves of the opportunities for hig her education in the University and arc not eligible for enter ing 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 Art. 30 (!) cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real in stitutions which will effectively-serve the needs of their com munity and the scholars who resort to their educational institu-. tions." · The right under Art. 30 cannot be exercised in vacuo. 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 educa tion and enlightenment of its citizens, there must be elements which give protection to them. The meaningful exercise of the right under Art. 30 (I ) would and must nccesssarily 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 taritamount. to · surrender· of its rights under Art. 30(1) as abridging or taking· away those -rights. _ Again as without affiliation there can be· no meaniiigful exercise of the right under Art. 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 Kera/a Education Bill Case(p Rev. Sidhajbhai Sabhai & others v .. Stale of Bombay and Another(') and D.A.V. College Case(') at p. 709. B c D E F G If the right of recognition is not a fundamental right, the logical result of this postulate would be !bat the State need not recognise except on general terms open to all institutions .. Bnt if the recognition by a State is limited in so far as minority institutiotis are concerned, in that under H (I) 11959] S.C.R. 9~5, at.P-1059, 1060, 1067 & 1068. (2) 11963) 3 S.C.R. 837 at 856. (3) (1971] Supp. S.C.R. 688 at 709. •• 212 SUPREME COURT REPORTS [1975] 1 S.C.R. the guise of exercising this power, the State cannot prescribe conditions which will make an inroad and take away the right guaranteed under Art. 30(1), then there is no meaning in saying that the right to recog nise 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 ob servations will have to be confined to the provisions of law regarding the In that case, the validity of which the opinion of the Court was sought. Bill had provided for giving recognition to schools for preparing stu dents 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 Art. 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 main tained schools. The observations of Das, CJ. 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 recog nition at least to the minority institutions or accord recognition subject lo such conditions as would in truth and in effect not amount to an infringement of their right under Art. 30 ( 1). In other words, where the law does not provide for giving recognition or affiliation to any edu cational 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 estab lished by them cannot fulfil the real objects of their choice and the mino rities cannot effectively exercise their rights under Art. 30 ( 1 ) ? If the logi('al answer flowing from the observations is that it cannot, then the· question would arise as to what is the purpose which clause (I) of Art. 30 serves ? The only purpose that the fundamental right under Art. 30' (I) 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 dip lomas. Such institutions have the right to seek recognition to their de grees and diplomas and ask for aid where aid is given to other educa-· tional institutions giving a like education on the basis of the excel lence achieved by them. The State is bound to give recognition to their qualifications and to the institutions and they cannot be discriminated except on the ground of want of excellence in their educational stand ardY.: so far as recognition of degrees or educational qualifications is concerned and want of efficient management so far as aid is concerned. In the D. A. V. College case(') the compulsory affiliation of mino rity 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 Arts. 29 ( !) 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 faci lity for the language and script of the minorities. This pre-supposes that (1) [1971] Supp. S. C. R. 688 at 709. A B. c D E. F G HI A B c D E F G H ST. XAVIERS COLLEGE v; GUJARAT (Khanna, J.) 213 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. We may in this connection refer to a unanimous resolution of Parlia ment 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 faci- lities 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 itsing niinority la;z guages.-Connected with the proposals contained in the pre ceding paragraphs is the question of the affiliation of educa tional institutions located in the new or reorganised States to It is of appropriate Universities or Boards of Education. course desirable that every effort should be tnade 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 con venient, 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 ad minister 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 circum stances, education including University education being a State subject and the legislative power of the State also being subject to Art. 29 ( 1) and Art. 30(1), minorities able to establish an educational institution can insist on recognition, where affiliation is not provided for by the them, University Acts to the educational qualifications awarded by 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. KHANNA, J. What is the scope and ambit of 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 Ahmedab~d St. Xavier's College Society and another under article 3 2 of the Constitution. The respondents impleaded, in the petition are the State of Gujarat and the Gujarat University. The first petitioner (hereinafter referred to as the petitioner) a Society registered under the Societies Registration Act, 1860 (Act 214 SUPREME COURT REPORTS (1975] 1 S.C.R. 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 bro:hers. The peti tioner society was formed with the object of taking over the above men tioned college. The petitioner society and the St. Xavier's College seek to provide higher education to Christian students. Children, however, of all academic classes and creeds provided they attain the standards are admitted to the St. Xavier's College. qualifying 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 obiect of the Act was to establish and in corporate a teaching and llffiliated university. St. Xavier's College was accorded affiliation under section 33 of the principal Act on or about June 1955. Section 2 of the principal Act contained defini tions. We may set out the relevant definitions : "(1) 'Affiliated College' means a college under section 5 or 33. affiliated (2) 'College' means a degree college or an intennediate college. (2A) 'Constituent College' means a University college or affiliated college made constituent under section 41. ( 3) 'Degree College' means an affiliated college which is authorised to submit its students to •an examination quali- fying 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 such by the University. (12) 'Teachers' means professors, lecturers and such other persons imparting instruction in the Univer sity, an •affiliated college or a recognized institution as may be declared to be teachers by the Statutes. readers, ( 13) Teachers of the University' means teacher ap imparting pointed or recognized by the University instruction on its behalf. (15A) 'University College' means a college wvich 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, post graduate or research institution or department maintained by the University." .K " • B c D F G H A • n • • c D E F G H ST. XAVIERS COLLEGE V, GUJARAT (Khanna, J.) 215 Section 39 of the Principal Act provided that within the University area, all post-graduate instruction, teaching and trainini; shall be conducted by the University or by such affiliated colleges or institu tions and in such subjects as may be prescribed by the Statutes. According to section 40 of the Act, within a period of three years trom the date on which section 3 (which dealt with the incorporation of the University) comes into force, the Senate sttall 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 Sen-ate may determine, be con ducted 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 mqmry as it thinks fit, by notification in the Official Gazette decl-are 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 under section 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 institu tions within the Ahmedabad area would be constituent institutions of the University. No educational Ahmedabad area, it was specified, would save with the consent of the Univorsity and the sanction of the State Government, be asso ciated 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 mstitutions 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. situate within institution The Senate of Gujarat University did not take any decision men tioned in section 40 within the stipulated period of seven years. The s•aid 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, I 971 the Senate passed a reso lution that all instructions, teaching and training beyond the stage of mtermediate ex•amination in the city of Ahmedabad be conducted by the University ai:d imparted b~ the teachers of th~ University._1:he Registrar of the Umvers1ty was directed to commur,u~ate the dec1s1on of the Senate to the State Government. The pettt10ners 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 under section 40 of the principal Act bid got exhausted on November 22, 1957 when the period of seven years In the from the commencement of the principal Act had expired. ' I( .. • I ,,. 216 SUPREME COURT REPORTS _[1975] ] S.C.R. alternative, it was stated by the petitioners that the provisions of A 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 inpugned resolution passed by the Senate on September 28, 197 l. The Gujarat University (Amendment) Act, 1972 (Act No. 6 of 1 Y"/3) (hereinafter referred to as the amending Act) was thereafter pa>Sed by the Gujarat legislature. The amending Act came into force on 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 amend-' ing Act may for the sake of convenience be described as the amended Act. Sect10ns 33A, 39, 40, 41, 51A and 52A of the amended Act read as >omder : B c "33A. ( 1) Every college (other than a Government college or a college maintained by the Government) affi liated before the commencement of the Gujamt University (Amendment) Act,_ 1972 (hereinafter in this section refer red 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 te-achers 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; ( b) that for recruitment of the Principal and members of the teaching staff of a college there is a selection com mittee of the college which shall include- (I) in the case of recruitment of the presentative of the University nominated Chancellor, and Principal, •a re the Vice- (2) in the case of recruitment of a member of 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) sh•all,- (a) within a period of six months after such commence- ment, constitute or reconstitute its governing body in con formity with sub-section (1), and ( b) as and when occasion first arises after such com mencement, for recruitment of the Principal and teachers of - D E F G H A B c 0 F G H ST. XAVJERS COLLEGE v. GUJARAT (Khanna, J.) 217 the college, constitute or reconstitute its selection committee so as to be in conformity with sub-section (I). (3) The provisions of sub-section ( 1) shall be deemed to be a condition of affiliation of every college referred to m sub-section (I). ·

#39. Within the University post·graduatc instruct10n, 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. area,

#40. ( 1) The Court may determine that all instructions, teaching and training in courses of studies respect of which the University is competent to hold examiimtions skll within the University area be coducted by the. Uni versity and teachers of the University and the Court shall communicate its decision to the Srnte Government. imparted by the shall be (2) On receipt of the communication under sub-section ( l), the State Government may, after making such inquiry as it thinks fit, by notification in the Offic1al 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 sub section ( 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 recognized under sections 35 and 63 or approved under institutions of the section 35A shall be the constituent University. the University institution (3) No educational situate within the University area shall, save with the consent of the University and the sanction of the State Government, be a'sociate<1 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 consti tuent, recognizeci or approved institutions within the Uni versity .area shall be governed by the Statutes lo be made ;n 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 constitue"t recognized institutions- (i) to lay down minimum educational qualifications for the dtt!erent classes of teachers and tutorial staff employed by such colleges and institutions and the conditions of their service; 218 SUPREME COURT REPORTS [1975] 1 S.C.R. (ii) to approve the appointments of the teachers made by such colleges and institutions; A (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 laboratories and other equipments for teaching and research; libraries, ( v) ·to require such colleges and institutions, when necessary, to confine the enrolment of students to certain snbjects; (vi) to levy contributions fiom institutions and mal::e grants to them; and colleges (vii) to require satisfactory arrangements for tutorial and simil•ar other worl:: in such colleges and institutions and to inspect such arrangements from time to time; Provided that a constituent degree college or a consti tuent recognized institution shall supplement such teaching by tutorial or other instruction teaching or in a manner to be prescribed by the Regulation to be made by the Academic Council. tra1nii.ig (5) Subject to the provisions of the Statutes the Board ot University Teaching •and Research shall organize and co-ordinate the instruction, teaching and training within the University area. SIA(!) 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 given a been informed of the charges against him and reasonable opportunity of being heard in respect of charges and until- ( a) he has been given a reasonable opportunity of making representation on any such per:alty 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 (I) shall be valid unless- ( a) he has beer, given a reasonable opportunity of showing cause against the proposed termination, and • ' c I) F G H • ' • A B c D E F G H ST. XAVIERS COLLEGE v. GUJARAT (Khanna, !.) 21 !> ( 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. (I) Any dispute between the governing body and any member of the teaching, other academic and non recogn:z"d or teaching staff of an affiliated college or approved institution which is connected with the conditions of service of such member, 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, institution, one member of the recognized or approved member nominated by the member concerned and Umpire appointed by the Viee-Chaneel!or. shall; on a request of (2) The provisions of mutatis mutandis apply to such request and section 52 shall, thereupon ti:e decision . that may be given by such Tribunal." A meeting of the. University Senate was convened for March 27,. 28 and 29, 1973 wherein resolutions were proposed to be moved as items Nos. 144 and 145 of the agenda that all instructions, leaching and training in courses of studies in respect of which the University was competent to hold examinations be conducted by the University 'Ihe petitioners ana be imi:-urted by the teachers of the University. thereupc1a filed the present petition under article 32 of the Constitu tion. According to the petitioners, the St. Xavier's College Ahmeda bad is an educational institution established by a minority and provisions of sections 40 and 41 of the amended Act are violative of the fundamental rights c[ the petitioners guaranteed under articles 14, 19, 26, 29, 30 and 31 of the Constitution. The petitioners have a]SC} questioned the competence of the Gujarat legislature the petitionersc amending Act. The three main reliefs sought by are : to pass "(!) That sections 40 and 41 of the Gujarat UniYersity 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 (I )(a). (f) and (g), 26, 29, 30 and 31 of the Constitu tion of India; (2) That sections SIA and 52A as inserted in the Guja rat 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 (l)(a)(f) and (g), 26, 2\1 and 30 of the Constitution of India, and Ordinances 120D, 120E, 120F and !20G of the 220 SUPREME COURT REPORTS (1975] l S.C.R. Ordinances framed by the Gujarat University under the Guja rat University Act, 1?49 and saved by sub'sectiou (4) of sectiqJ 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 udvcrsity Act 1949 (Bombay Act No. L of 1949) as amended by the Gujarat University (Amendment) Act, 1972 (GujJrat Act No. 6 of 1973) read with section 20 (Clause XXXIX) a> Jnserted in the Gujarat University Act, 1949 by the Gujarat University Amendment Act, 1972 are ultra vires article' I 4. 19(1) (f) and (g), 26, 29 and 30 of the Constitution of India.'' A • c Prayer was also made by the petitioners fc~ 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 2 7, 2 8 and 29, 1973. When the petition came up for preliminary hearing on March 27, 1973 this Cciurt made an order that the University might pass the resolutions in question on March 27, 28 and 29, 1973 but should not implement the same. The following resolution was passed D by the Senate in the meeting held on March 27 and 28, 1973 . "It is hereby resolved that af! instructions, teaching and training in courses of studies in respect of which the Umver sity is competent to hold examinations shall within the Uni versity area be conducted by the University and shall be im parted by the teachers of the University." In view of the stay order of this Court, the above resolution has not been implemented. The petition has been resisted by the two respondents, and affidavits of the Under Secretary to the Government of Gujarat and the Registrar of the University have been petition. in opposition When the petition came up for hearing on November 12, 1973, the It was dtrected that Court referred the petition to a larger Bench. notice of the matter be issued to the Advocates Gcne:·al 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 appeaiance, if so advised. The All India University Teachers Ass.ociation was also granted permission for being heard in the matter. Lengthy arguments have thereafter been addressed ocfc~e U5 on behalf of the petitioners, the respondents as well as others who have been allowed to intervene. The arguments have, however, been con fined to the question as to whether the impugned provision> viofate article 30 of the Cc1nstituiton. No arguments were heard on the point as to whether the impugned provisions are liable to be struck down on other grounds. E F G H • \ ~ A B c D E F G H ST. XAVIERS COLLEGE v. GUJARAT (Khanna./.) 221 We may now refer to some of the relevant provisions of the Consti tution to which reference has been made. According to clause (I) 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 o! conscience and the right freely to profess, practise and propa~ate religion. Article 26 gives a right, subject tel public order, moral!Jy and health, to every religious denomination or any section thereof (a) to establish and maintain institutions for religious and cha1itable pur poses; (b) to manage its own affairs in matters of religic,n; (c) to own and acquire movable and immovable property; and (d) to admini~ter such property in accordance with law. Articles 28, 29 and 30 con tain provisions for educational institutions and read as uuder : "28. (I) No religious instruction shall be providei in any educational institution wholly maintained out of State funds. (2) Nothing in clause (!) 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 institut10n. (3) No person attending any educatic!l1al institution re· cognized by the State or receiving aid out of State funds in>truction shall be required to take part in any that may be imparted in such institution or to attend any religious worship that may be conducted in such institution Cir in any premises attached thereto unless such person or. if such person is a minor, his guardian has given his consent thereto. religious

#29. (I) Any section of the citizens residing in the terri tory of India or any part therecjf 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 educa tional institution maintained by the State or receiving aid out of State funds en grounds only of religion, race, caste, lar.gu age or any of them.

#30. (I) All minorities. whether based on religion or language, shall have the right to establish and admini3tcr educafonal institutions of their choice. (2) The State shall not, in granting aid tc educational institutions, discriminate against any educaticl!'al institut; on on the ground that it is under the management of a minority, whether based on religion or language." Article 28 forbids. snbject to the exception c·ontained in clcusc (2), the imparting of religious instructions in any educational institutic111 wholly maintained out of State funds. The article also contarns pro vision against compulsion for persons attending an educational insti- 222 SUPREME COURT REPORTS [1975] 1 s.c.R. tuticlll, recognized by the State or receiving aid out of State funds, to A take part in any religious instruction that may be imparted in rnch institution or to attend any religious worship that may be c~nducted in such institution or in any premises attached thereto. • X 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 B article, any section of the citizens residing in the territory of India qr any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. benefit of this clause, all that is essential is that a section of the citi- zens residing in the territory c~ India or any part thereof shculd have a distinct language, script or culture of its own. Once that is provided those citizens sha!J have the right to conserve their language, script or C ·culture irrespective of the fact whether they are members of the majo- rity. community or minority community. Clause (2) of a•ticlc 29 forbids the denial of admission to citizens into any educational institu- tion maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or an)· of them. In order to invoke Clause (1) of article 30 gives right to all minorities, whether based D .. ( , r.igh( -on religion or language, tel establish and administer educational insti- tutions of their choice. Analysing that clause it would follow that the right which has been oonferrcd by the clause is on two types of minori- ties. Those minorities may be based either on religicni or on language. The right conferred upon the said minorities is to establish and ad- institutions of their choice. The word .. estab- minister educational lish" indicates the right to bring into existence, wbile tJ:Le administer .an institution means the right to effectively manage and ·conduct the affairs of institution. Admimstration conllQtes management of the affairs of the institution. Th.e. ma11a&eme11_t must be free of control so that the fctunders or their nominees can mould the "institution as they think fit and in accordance with their ideas of bow the interest of the community in general and the imtltution particular will be best served. The words "of their choice" qualify the educational institutions and show that tlie educl!l!onal 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 t.o any educational instiution on the ,uound that the institution is under the management of a minority whether G 'based on religion or language. F E Before we deal with the contentions advanced 1Jefore us and the scope and ambit o! article 30 o1' the Constitution, it may be pertinent to refer to the historical background. India is the second most popu lous country of the world. The people inhabiting this vast land pro- fess different religions and speak different languai;,es. Despite the ·diversity of religion and language, there runs through the fabric of the It is a mosaic of nation the golden thread of a basic innate unity. ·different religions languages and cultures. Each of them has made a II ST. XAVJERS COLLEGE v, GUJARAT (Khanna, J.) 223 A B c D mark on the lndian polity and India today represents a· synthesis· of them all. The closing years of the British rule wero ma, ked by com munal riots and dissensions. There was also a feeling of distrust hn.d the demand was made by a secticlll of the Muslims for a separate home land. This ultimately resulted in the partition of the country. Those who led the fight for independence in India always :aid 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-discriminatirn. Demand had also been made before the partition by sections of peoplo belonging to the minorities for reservation of seats and separa•e ekctorates. . In order to bring abc; ut integration and fusion of the difiercnt s~ctions of the population, the framers of the Constituti·on did away with separate electorates and introduced the system of joint electorat<s. so 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 instil a sense of confidence and security in the minorities. Those provisions ·were a kind of a Charter of rights for rhc n1innriti~s so that none might have the feeling that any section of the population ccmisted of first-class citizens and the others of secund-ctass citizens. The result was that minorities gave up their claims for rc>ervation of seats. · Sardar Patel, who was the Chairman of the Advisory Coin mittee dealing with the question of minorities, said in the course of his speech delivered on February 27. 1947 : E F G H "This Committee forms one ct the most vital palls of the Constituent Assembly and one of the mo.st difficu!t 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 'responsibiirty-a special obligation-for protection of the interests of the mh:orities. They claim to have more special interest than 11·e hove. It is for us to prove that it is a bogus claim. a false 1=laim. and that nci'Jody can be more interested than us in Indra in the pro tection of our mi"noritics. Our-- missjon is to satisfy every interest and safeguard the interests of all the minorities to (The Framing of India's Constitution B. their satisfaction." Shiva Rao Select Dc1:uments. Vol. H p. 66). Jt is in the context of that background that we should view the provi sions of the Constitution contained in articles 25 to 3il. The object of articles 25 to 30 was to preserve the rights of rdigicus and linguis· tic minorities. to place them on a secure pedestal ai.d withdraw them from the vicissitudes of political controversy. These provisions en shrined; a befitting pledge to_ the minorities in the Coustiluticn 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 constitu- 224 SUPREME COURT REPORTS (1975} 1 S.C.R. the co; rts. A tionally impermissible and liable to be struck dowu by Although the words secular state are not expressly mentioned in the there can be no doubt that our Constitution-makers Constitution, wanted establishment of such a state. The provision; ol the Constitu- tion 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 frcm the matters of the state and ensures that no 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 Constitu tion-makers were consciq:is of the deep attachment the vast masses of our country had towards religion, the sway it had on their minds and the significant mle it played in their lives. To a:Jay all apprehensions of interferenc;; by the legislature and the executive in matters of reli· gion, the rights mentioned in articles 25 to 30 wrc made a part of the fundamental rights and religious freedom contained in those articles was guaranteed by the Constitution. 11 C 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 D note of by the Constitution-makers. Language has a close relationship with culture. According to the Royal Commission on Bilingu-alism and Biculturalism ( 1965), the vitality of the language is an essential condition for the preservation of a culture and an attempt tel provide for cultural equality is primarily an attempt to m~k~ provisions linguistic equality (quoted on page 590 of Cana:lian Constitutional Law in a Modern Perspective by J. Noel Lycp: and Ronald G. E Atkey). • ( . F The idea of giving some special rights to the minorities is not to have a kind of a privi'eged or pampered section of the poou!alion but to give to the minorities a sense ct security and a feeling of confidence. The great leaders of India since time immemorial had preached doctrine of tolerance and catholicity of outlook. Those noble were enshrined in the Constitution. Special rights fctr 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 admi· nistration of thci>o imtitutions. The differential minorities by giving them speciai rights is intended to brinq about an G equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and true, genuine equality, an equality not merely in theory but also in 'act. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure .vanted by the majority can witho.ut much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to H It is onlv the minorilles who need protec- the elected representatives. tion, and article 30, besides some other articles. is intended to afford It may be appos·te in this comext to and guarantee that protection. treatment result • ST. XAVIERS COLLEGE v. GUJARAT (Khanna,/.) .2.25 A B c J> E F G H refer to the observations made by Latham C.J. in Adelaide Co. of !elwmh's Witnesses Inc .. v. The Commonweallf1(1) while dealing, \··:it'.t sectioil I16 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 relig on. 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 loJ'.( after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities." It would in the above context be also pertinent to refer tq the ob servations 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 relatin15 to the position of minorities in Albania. The first paragraph of Article 4 of. that Declaration ran as follows : "All Albanian nationals shall be equaloefore 'the law, and shal' 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 b~long \0. racial, religious or linguistic minorities will en.i'1Y 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 estab lish in the future, charitable, religious and social institutions,, schools and other educational. establishments, with the right to use their own Janvuge and to exercise their religion freely therein":. In .. 1933 the Albanian National Assembly modified Articles 206 rina 207 of the Albanian Constitution which permitted the- setting up of private schools. Henceforth those articles provided a~ !allows ; -"The .illStrµ<:c lion and education of Albanian subjects are reserved to the State and will b given in State schools. Primary education is compuE'ary for all Albanian nationals and will be given free of charge. Private schools of all categories at present in operation will be closed." Follow.ing upon the ab.ave change in the articles of .thG Constitu · tion, 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 of.the League adopted a Rcwlution requesting the Permanent C<Jurr 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 Alba~ian 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 in conformity with the It was held by S' votes to 3 letter and the spirit of the stipulation". that the plea of the Albanian Government that, as the abolition of pri vate schools in Albania constitutes a general measure applicable to the (1) [19431 67 Com. L. R. 116. 16-L 131 Sup. Cl./7} . • • 226 SUPREME COURT REPORTS [1975] 1 S.C.R. majority as well as to the minority, it is in conformity with the letter A 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 conte~ the Court observed : • '1 "1. The Object of Minorities Treaties.-'The idea under- lying the treaties for the protection of minorities is to se~"Ure 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 preserv- ing the characteristics which distinguish them from the majo- rity, 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 pro visions in these treaties. The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every res pect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority ele me]lts suitable means for the preservation oi their racial peculiarities, their traditions and their national characteristics. These two requirements are indeed. closely interlocked, for there would be no true equality between a majority and a institutions minority if the latter were deprived of its own 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 estab- T Iishes 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 thi& description wc111Id run counter to the first sentence of puragraph I of Article 5. The equality between members of the majority and of the minority must be au effective, genuine equality; that is the meaJting of this pro· vision." .. B c D E F G The Court referred to Article 5 of the Declaration and observed : H "This sentence of the paragraph being linked to the first by the words 'in particular', it is natural to conclude that it • • • A B ' c D E F G H ST. XAVIERS COLLEGE v. GUJARAT (Khanna,!.) 227 .envisages a particularly important illustration of the appli cation of the principle of identical treatment in law and in fact that is stipulated in the first sentence o~ the paragraph. For the institutions mentioned in the second sentence are indispensable to enable the minority to enjoy the same treat ment 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 mirn>rity groups, and their re placement by government instituticlns, would destroy .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 institutkms created hy the State." It would be appropriate tq 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 ('1 ) was a refe rence made by the President under article 143 ( 1J .Jf the Constitution for obaining the opinion of this Court upon certain questions relating to the constitutional validity of the provisions of !he Kerala Education Bill which had been passed by the Kera!a Legbiativc Assembly and had been reserved by the Governor for the consideration of the Presi dent. 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-clau1e (3) of clause 8 and clauses 9 to 13 of Kerala Educatictll Bill, or any pro vision thereof, offend clause ( 1) of article 30 of the Consti tution in any particulars or to any extent ?" Clause 3 ( 5) of the Bill made the reoognition of new schools sub· ject to other provisions of the Bill and the rules framed by the Gov ernment under clause 36. Clause 15 authorised the Government acquire any category of schools. Clause 8 ( 3) made it obligatory on all aided schools to band over the fees to the Government. Clauses 9 to 13 made provisions for the regulation and management of schools, payment of salary to the teachers and the terms and conditirn1s 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 edu cational institutions entitled to grant under Art. 337 are con cerned. (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 re gards 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 j in so far as it makes such educational . (I) (1959] S. C.R. 995. 228 SUPREME COURT REPORTS (1975] 1 S.C.R. institutions subject to clauses 14 and 15 do offend Art. 30 (1). (iii) Clause 7 (except sub-els. (1) and (3) which applies only to aided schools), cl. 10 in so far as they apply to recognized schools to be established after the said .Bill comes into force do not offend Art. 30(1) but cl. 3(5) in so far as it makes the new schools established after the com mencement of the Bill subject to cl. 20 does offend Art. 30(1)." It was held that : "Article 30(1) of the Constitution made no distinction between minority institutions existing from before the Con.sti It did tution or established thereafter and protected both. 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 Art. 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 i.t 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 recog- nition 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 educationaf institutions under Art. 10(1). wa< nnt incM<i<tent with the right of the State to insist on proper safeguards against mal administration by imposing reasonable regulations as condi tions precedent to the grant of aid. That did not. however, mean that 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 nC)t do in directly." • A c D E Dealing with the question of State recognition of the minocity institu- lions, 'the Court held : · G "While it was undoubtedly true that there could be no funda mental right to State recognition, denial of recognition except . on such t·erms as virtually amounted to a surrender of the . right tp adqlinister .the institution, must, in substance ·and ·effect infringe Art, 30(1) of the Constitution." . H Verikatarama Aiyar J. in his minority opinion held that 'a~ticl~ 390.l of the Constitution did not in terms confer a nght on the mmon\y mst1- tutions to State• recognition, nor, properly construed,. could' it d{J so by ST. XAVIERS COLLEGE v. GUJARAT (Khanna,!.) 229 A B c D E F G H implication, for such an implication, if raised, would be contrary to the express provisions of articfe 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 there under to recognize them would be tantamount not on~y to rendering article 45 wholly infructuous but also to nullifying the basic concept of the Constitution itself, namely, its secular character. Rev. Sidhajbhai Sabhai & Ors. v. State of Bombay & Anr.('J was the next case in which this Court went into the question of the right of minoriti·es 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 absorb-ed in the primary schools conducted by society and those not so absorbed were employed by other Christian Mission Schools conducted bv the United Church of Northern India. The cost of maintaining the iraining 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 teachers in non-Government training colleges should be reserved for teachers nominated by the Government. The Principal of 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 class. It was also mentioned by the Educational Inspector that the refusal to admit Government nominated teachers was irregular and against Go"' ernment policy. Warning was administered to the petitioners that dis regard 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 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 for as they related to reservation of seats therein und·or orders of Government and directions given pursuant ther·:=to re,Q:arding reservation of 80% of the seats and the threat to withhold grant-in-aid and recog nition of the college, infringed the fundamental freedom under article 30(1). Rev Father W. Proost & Ors. v. The Stale of Bihar & Ors.(') was the next cas·3 wherein this Court dealt with the protection afforded by article 30(1) to educational institutions established by the minori ties. The case related to the St. Xavier's College Ranchi which had been establish·3d by the Jesuits of Ranchi and was affiliated to Patna Univer sity. The object of founding the College, inter alia, was to give Catholic (l) [1963] 3 S. C.R. 837. (2) [1969] 2 S. C. R. 73. 230 SUPREME COURT REPORTS (1975) 1 S,C.R. youth a full course of moral and liberal education, by imparting a thorough religious instruction and by maintaining a Catholic atmos phere 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 I, 1%2. The said section related to the establishment of a University Service Commission for affiliated colleges no\ belonging to the State Govern ment. 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 at!iliated college not be longing to the State Government shall be made by the governing body of the colle&e on the recommendation of the Commission. Clause 11 of that section inter alia provided that the Commission shall be con sulted 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 other wise 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'~ 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 stafI must. be madei by the governing body on the recommendation of the University Service Com mission for affiliated colleges; in no case could the governing body appoiI<t person not recommended by the Commission; the Commis sion had to be consulted in all disciplinary matters and any punishment imposed on a teacher could be only in accordance with the lindings 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 peti tion was pending, section 48-B was inserted into the Bihar Universities Act whereby it was provided that the governing body of affiliated col leges established by a minority based on religion or language would bo entitled to make appointments, dismissals, termination of service or reduction in rank of teachers or take other disciplinary measures sub~ iect only to the approval of the Commission and the Syndicate of the Uni ~ersity. While allowing the petition tiled by. the petitioners, it was held by a Constitution Bench of this Court speakmg through H1dayatullah C.J. that the protection claimed by the petitioners cl'early 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. Rt. Rev. Bishop S. K. Patro & Ors. v. State of Bihar & Ors.( 1 ) was th·e next case wherein this Court dealt with a claim based on article 30(1) of the Constitution. The case related to a schooffounded in 1954 at Bhagalpnr. The school was being managed by the National A c E F G HI (I) [1970] I S.C,R. 172. • • • A B c D E F G H ST. XAVIERS COLLEGE v. GUJARAT (Khanna, J.) 2 31 Christian Council of India. Two persons were elected as the President and Secretari)' of the school and their election was approved by President of the Board of Secondary Education. The order of 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. Peti tions under article 32 of the Constitution were also filed by other peti tioners in this Court. This Court held that 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 Com mittee in accordance with the order dated May 22, 1967 was invalid. Question of the protection of article 30 (1) next arose in the case of State of Kera/a, etc. v. Very Rev. Mother Provincial.(') This case related t.1 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 dist ricts of the State of Keral'a. Some of its provisions affected prjvate colleges, particularly those founded by minority communities in th0 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 of the Act dealt with governing body for private colleges not under corporate manag, ment and with manag In ing council for private colleges under corporate management. either case the educational agency of a private college was required to set up 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 Prin cipals and Managers of the private colleges, nominees of the. Univer sity and Government, as well as elected representatives of te, achers. Sub section (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. Sub section ( 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) oT 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, (1) [1·971] l. S.C.R. 734. 232 SUPREME COURT ·R.EPORTS [1975] f S.C.R. "'.o~ld be prescribed by statutes. The petitioners challenged the pro v1s1ons of those two ~ect10ns as also sub-sections ( 1), (2), (j) and (~) of sect10n 53 which conferred on the Syndicate of the University (he power to veto the d~cisions of the governing council and a right of ~ppeal to any person aggrieved by their action. Likewise, the petl tloners challenged section 56, which conferred ultimate powers on the University and the Syndicate in disciplinary matters in respect of teach· ers, section 5 8, 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 University to manage the affairs of such private college for a tempo rary period. The High Court on petitions filed by the petitioners dec lared some of the provisions of the Act to be invalid. On appeal this Court sp·,aking through Hidayatuliah 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 fur ther held, was also right in declaring that sub-sections (J), (2) am! (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 agree to), and section 63 were ultra vires article 30(1) in resp~ct of the minority institutions. A B' c D 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 & Ors.( 1) and D. A. V. College etc. v. State of E Punjab & Ors. ( 2 ) Judgments in both these cases were pronounced on Jaganmohan Reddy J. spoke for the Court in these two May 5, 1971. cases. The petitioners in the case of D. A. V. College Bathinda were educational institutions founded by the D.A.V. College Trust and It was an association of Arya S.amajis. The instltutions were Society. 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 under section 5 of the Act specified tbe areas in which the Punjabi University exercis- ed its power and notified the date for the purpose of the section. The efl; ec_t of the notification was that the petitioners \vere deemed to be associated with and admitted to the privikges of the Punjabi Univer- siny and ceased to be associated in any way with the Punjab Univer- sity. Thereafter by circular dated June 15, 1970 declared that Punjabi would be the sole medinm of instruction and examination for the pre-University even for science gronps, with effect from the academic year 1970-71. On October 7, 1970 a modifica- tion was made allowing English as an alternative medium of exami nation. 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 H of the Constitution on the ground that the University had no power the University G F (1) [1971] S. C. R. 677. (2) [l971] 1 S. C.R. 6S8. ( j A B c ST. XAVIERS COLLEGE v. GUJARAT (Khanna,].) 233 ··------ It was held by to ma'.,e, Punjabi as the sole medium of instruction. this Court :trnt th~ drcular of June 15, 1970 as amended by the circu lars of July :, _'.J7Q ani;t Octorer 7, 1970· was invalid and ultra vlres 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 langu"£!' in the Gurmukhi script as the medium for instruction and for examination in all colleges direetly infringed the petitioners' right to conserve their script and administer their institutions. The relaxation n;iade subse quently 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, adminis trative or financial, could justify the infringement of guaranteed rights. • The other case, D.A. V. College v. State of Punjab (supra) arose out of writ petitions filed by .the various colleges J!!il, Ilaged and adminis tered b.)I Pie D.A.V. Colleg~ Trust and Managing Society. These colleges were before the Punjab Reorganization Act affiliated to the Punjab University. As a result of notification issued under section 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 coll-:ges were required fo have a regularly .constituted governing body consisting of not more thal.l 20 persons approved by' the Senate. It was also provided that the govern ihg body would include two representatives of the University and the Principal of the College. Under clause ( 1 )(3) if these requirements were no.t 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. requir ed non-Governm~nt 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 invoke the right guaranteed by article 29 (I) because they were a sec .lion 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 ihe Court as offending article 30(1) because they interfered with the right of the religious minority to administer their educational institutions. Oanse 18 was held notto suffer from the. same vice as clause 17. I' H I have giv~n above the gist of the different decisions of this Court dealing with articles 29 and 30. Having done that, we should now 234 SUPREME COURT REPORTS [1975] 1 S.C.R. consider the principle which should be adopred in construing those articles. -A A liberal, generous and sympathetic approach is reflected in the Constitution in the matter of the preservation of the right of minoritie·s so far as their educational institutions are concerned. Although at· tempts 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 viofate the provisions of the Constitution embodied in articles 29 and 30. This Court has consistently upheld the rights of the minoriti. 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 Jed to the drafting of the provisions relating to minority rights should !'.ot 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 delibera· tions 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 oth~rwise suffering from some kind of infir. niity. The Constitution and the laws made by civilized nations, there fore, generally contain provisions for the protection of those interests. It can, indeed, b~ 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. We may now deal with the scope and ambit of t~e right guara:itelJ!I ht clause (1) of artid~ 30. The clause confers a right on all mmon· ties, whether they are based on religion or language; to establish and administer educational institutions of their choice. The right confer red by the clause ~s in absolut-~ terms a\ld is not subject to _res!fictions, as in the case of nghts conferred by article 19 of the Constitution. The right of the minorities to administer educational institutions does not. however, prevent the making of reasonable re~ations in res~ct of those institutions. The regulations have necessanly to be made Ill the interest of the institution as a minority educational institution. Th~y have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly B c I> F G H A B c D E F G ST. XAVIERS COLLEGE v. GUJARAT (Klza1111a, /.) 235 ·- not include . the right to malaeminister. Regulations can be made·· to preve~t the hous; na, of an educµtional institution in unhealthy sur-· roundrngs as also to prevent the setting up or continuation of an educa•· tional 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 cf the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitatfon, morality, public order and the like ·may undoubtedly 1>: imposed. Such regulations are not restrictions on the substance of tbe ·right which is guaranteed : they secure the proper functioning of 1he institution, in matters educational (,see observations of Shah J. in Rev. Sidhajbhai Sabhai, supra, p. 850). Further, as observed by Hidayatullah CJ. in the case of Very Rev. Mother Provi11Cial. (supra) the standards concern the body politic and are dictated by considerations of the advancement of the country and its pwple, Therefore, if·universities establish syllabi for. examinations they must be followed, subject however to special sub~ jects 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 regulatiO!lS do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational stand~ . ards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence cxp-~cted of educational institutions, or under the guise .of·exclusive right· of man·· agement, to decline to follow th·: general pat(err.. While the manage•·. ~ent must be left to them, they may be compelkd to keep in step with others. · It is, in mty opinion, permissible to make regulations fer 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 purpo•es of education or for the betterment of the bstitution 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. 0 !;"revisions for audit of the accounts of .. institution would be permissible regulation. Likewise, regulations may provide that ·no anti-national activity would be permitted in the educa tional il>Slitutions arul that those employed as members of the staff should not have been guilty of any activities against the national inter est. Minorities are as much part of the nation as the majority, and anything that impinges upcn national interest must necessarily in its ultimate operation affect the interes!S of all those who inhibit this vast Iarur krespective of the fact whether they belong to the majority O( minority. sections of the pepulation. It is, therefore, as much in the ·interest of minorities as that of the majority to ensure that the protec· · iion .. affordCd to minorit,y institutions is not used as a cloak for doing something .which is subversive. of national interests. Regulations to pre·· vent anti-national activities in educational institutions can, therefore,. be considered to be _reasonable. '( ' . • • ( • 236 SUPREME COURT REPORTS [1975] ! S.C.R. A regulation which is designed to prevent maladministration of an .. educational institution cannot be said to offend clause (I) of article 30. At the same tim~ it has to be ensured that under the power of making regulations nothing is done as would detract from the charac· ter of the in&titution as a minoritv educational institution or which would impinge upon the rights of the· minorities to establish and ~dminister educational institutions of their choice. The right conferred by arti:le 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. 'i\s observed by this Court in the use 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 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 eJu .cational character of the institution and is conducive to making the institution an effective vehicle of education for the minority commu nity or other persons who resort to it. to making It has been said in the context of the American Constitution ~nd lhe Canadian Bill of Rights that the constitutional protection of re ligious 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 Frank furter J . .in West Virginia State Board of Education v. Barnene• 1) .as well as the judgment of Ritchie J. speaking for the majority of Canadian Supreme Court in Robertson & Rosetanni v. Quern\') 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 ~hat the danger is that one may not while denying what appears to be a privilege· impinge upon a provision which is designed lo 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 "1>o create positive rights for them. Article 30( I) belongs to that ca:e gory. If a request is made for the affiliation or recognition of an educa• tional institution. it is implicit in the request that the educational insti- 1ution would abide by the regulations which are made by the autho· rity 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 insti-· 1ution. To deny the power of making regulations to the authority (!) 319 u. s. 624 (2) 11963] S. C. R. 651; (1964) D. L. R. 2d 485. A B c D E F G H ST. XAVIERS COLLEGE v. GUJARAT (Khanna, J.) 237 A B c D E F G H . plied .with before an institutidn can seek and retain affiliation concerned vnuld result in robbing the concept of affiliation or recog nition until it cot.form' !o a certain standard. The fact that the· institution· .Is of the ~J:escribed standard irideed. inheres in the very concept of _affiliation or recognition. It is, therefore, permissible .for the authority concerned to prescribe regulations which must be CO!I'.-· am.1 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 regu lations must. bear in mind that the Constitution has guaranteed a funda montal 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 cf 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 T.easonable. 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. 1t would be wrong to assume that an unrestricted right as in article 30 postulates absence of regulations. Regulations can be prescrib~d in spite of the un restricted nature of the right. . The unrestricted. nature of the right freedom in the exercise of the right. Even the words connotes· '"freedom" and "free" have certain limitations. In James v. The Co111111011wea/1h(') the Privy Council dealt with the meaning of the words ... absolutely free" in section 92 of the Constitution of Australia. It must It was said: ·'Free" in itself is vague and indeterminate. . take its colour from the context. Compare for instance, its use 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 free dom governed by Jaw, •... " The First Amendment of the American Constitution provides inter· alia that the Congress shall make no Jaw respecting establishment of religion or prohibiting the free exercise thereof. Dwline with that Amendment, the· US Supreme Court held in the case of Reynolds v. United StateJ(') 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 con tention advanced on behalf of the appellant iii that case that poly gamy was ·a part of his religious belief and the Act of the Congress prohibiting polygamy violated his free exercise of religion was re pelled. In the tase of Cantwell.;; Connactic11t( 3 ) Roberts J. speakin~ for the US Supreme Court observed in respect of the First Amend ment: <n lt936J A.C. s18 •. (3).310 u. s. 296 (t940). (2) 98 U.S. t4S 0878). . 238 SUP-RE!yfE COURT REPORTS [1975] 1 S.C.R . "Thus the Amendment embraces two concepts-free dom to beheve and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Con du~t remains subject to regulation for the protection 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 "obli .Jlation to obey the laws which apply generally to the community is not regarded as inconsistent with freed'om "'. 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. 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 In this res is subject to the provisions of clause ( 1) of article 29. pect 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 (I) article 29. Article 29 (I) confers a right on any section of citizens having a distinct language, script or culture of its own to conserve It is not necessary, as mentioned earlier, for invoking this the same. .clause that the section of citizens should constitute a minority. As .against that, the right conferred by article 30(1) is only upon minori ties which are based either on religion or language. The right con 'ferred by article 29 (1) is for the conservation cf bnguagc, script or culture, while that guaranteed by artide 30( 1) is for the establish ment and administration of educational institutions of the choice of minorities. Had it been the intention of the Constitution-makers that 1he educational institutions which can be established and administered by minorities should be ouly those for conservation of their language, script or culture, they would not have failed to use words In the absence of those words, it is difficult effect in article 30( 1). 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 con tains the words "of their choice". These words which qualify "edu cational institutions" show the vast discretion and option which the minorities have in selecting the type of institutions which they want In case an educational institution is established by a to establish. minority to conserve its di,<;tinct 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 dej; igned 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 A B c D E F G H y ' ., • I • •• ST. XAVIERS COLLEGE v. GUJARAT (Khanna, J.) 239 A 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( I). I am fortified in the above conclusion by the observations of Das in Re Kera/a Education Bill (supra) and Hidayatullah CJ. in the CJ. case of Rev. Father Proost (supra). Das CJ. observed: B c iD !H "The right conferred on such minorities is to establish educational institutions of their choice. It does not that minorities based on religion should establish educa· tional institutions for teaching religion only, or that linguis tic minorities should have the right to establish educational their language only. What the institutions for teaching 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 eligi ble for higher university education and go out iii the world fully equipped with such intellectual attainments as wiil make them fit for entering the public services, educational institutions of their choice will necessarily include institu tions imparting general secular education also." Hidayatullah CJ. expressed somewhat similar view in the following words : "In our opinion, the width of Art. 30 (1) cannot be cut down by introducing in it considerations on which Art. 29 (I) 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 r1inority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Art. 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it possible that they may meet in a given case." It has been argued on behalf of the respond~nts 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 permis· sible 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 institntion. 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 I .. ... ' • 240 SUPREME COURT REPORTS (1975] J S.C.R. .and. :ecognition are, no doubt, not mentiont;d in article 30 (I), the pos1t10n all the same remains that refusal to recognize or affiliate mi nority institutions unless they (the miuorilies) 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 indeeo " It is, in our opinion, not permiss; ble to exact from teasing illusion. 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 ur:less it is afliliated to a University or is otherwise recognized like other educational institu tions. The right conferred by article 30 is a real and meaningful right. It is neither an abstract ri!!ht nor is it to be exercised in vacuum. Article 30(1) was intended to have a real significance and it is no' permissible to construe it in such a manner as would rob it of that It may be appropriate in this context to refer to the signincance. observations or Dus CJ .. n the case of Re Kera/a Education Bill (supn) on pages 1067·68 : - "Without recognition, therefore, the educational institu· lions established or to be established by the minority com munities cannot fulfil the real objects of their choice and the rights under Art.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 i5, no doubt, no such thing as fundan12ntal right to r~cogni­ tion by the State but to deny recognition to the educational institutions except upon terms tantamoi; nt to the surrender of their constitutional right of administration of the educa tional institutions of their choice is in truth and in effect to deprive them of their rights under Art.30(1). We repeat that the legislative power is subject to the fundamental rights end 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." Simil3r view was expressed in the. case of . Rev .. Sidhajbliai Sabhai (supra) wherein it was observed : . successful candidates as 'The Government also holds examinations for grantin; trained primary certificates to teachers, and scholars receiving training in recognized insti tutions alone are entitled to appear at the examination. Mani festly, in the absence ~r recognition bX. the '.Govern\!1.ent trai,n" ing in the College will have. httle pract1ca! ut1hty. Tn.c College is a non-profit making . institution 'and depends .i;ri-'. ' marily upon donations and Government grant for meetmg extremely· its expenses. Without such grant, it wquld be difficult if not impossible for ·the 'institution fo function." - A B c D E F G H A B c D E F G H ST. XAV!ERS COLLEGE v. GUJARAT (Khanna, /.) 241 What is said above with regard to aid or recognition applies equally to affiliation of a college to the University because but for such affi liation the student will not be able to obtain a University degree which is recognized as a passport to several professions and future employ ment in Public Service. Argument has been advanced on behalf of the respondents that unless a law or regulation is wholly destructive of the right of minori ties under article 30(1), the same would not be liable to be struck down. This argument is untenable and runs counter to the plain langu age 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. Kera/a Education Bill (supra) this Court observed in the case of Rev. Sidhajbhai Sabhai : "The Court did not, however, lay down any test of rea sonableness of the regulation. The Court did not decide that pub!'c 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." It is, no doubt, true that on page 1065 of the case Re Kera/a 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, how ever, 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. 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 ll!anagement council would be violativ.e of the right gua; ameed ~y article 30(1). This view has been consistently taken by this Court m the cases of Rt. Rev. Bishop S. K. Patro, Mother Provincial and D.A.V. College affiliated to the Guru Nanak University (supra). 17-131SupCI/75 242 SUPREME COURT REPORTS [1975] 1 S.C.ll. 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 wouid 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 Co_urt in the case of Mother Provincial (supraJ In the case of Rt. Rev. Bishop S. K. to be violative of article 30( I). Patro, this Court declared invalid the order passed by the education1l authorities requiring the Secretary of the Church Missionary Society Higher Secondary· School to take steps to constitute a managing com mittee 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 pri vileges of the Universi~v shall send a letter of application to t)le Registrar and shall satisfy the Senate : - (a) that the College shall have a regularly constituted governing body consisting of not more than 20 per sons 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 how ever have an advisory Committee consisting of among others the principal of the College (Ex-officio) and two represen tatives of the University." The above statute was struck down by this Court in the second D.A.V. College case. Another conclusion which follows from what bas 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 (I). It is, of course, permissible for the State and its edu cational 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 insti'.U tion 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 Bibar Universities Act observed that the said provision A B c D E F G H A B c 0 F G H • • ST. XAVIERS COLLEGE v. GUJARAT (Khanna, J.) 243 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 section have been referred to earlier. Accord ing 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 gmerning body of a college in all disciplinary matters affecting t_eachers 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. In the case of D.A.V. College which was ,affiliated to the Guru Nanak University, statute 17 framed under the Guru Nanak Univer sity (Amritsar) Act inter (f/ia 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 17 interfered with the right of management of the petitioner colleges and, as such, offended article 30(1). Although disciplinary control over the teachers of a minority edu cational 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 purpose should be considered to be in the interest of minority educa tional institutions and as such they would not violate article 30 (I). ' Clause (a) of sub-sections (1) and (2J of section SIA of the impugned Act which make .provision for giving a reasonable oppor tunity of showing cause against a penalty to he 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 a11arding punishment to a member of the staff. in my opinion, interferes with the disciplinary control of the managing body over its 244 SUPRU,'.IE COURT REPORTS (1975] l S.C.R. , 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 f~r the exercise of that. power and it is. not provided that the approval 1s to be withheld only m case the dmmssal, removal reduction in rank or termination of service is ma/a fide or by way of vic_timisation or other similar cause. The conferment of such blanket power on the Vice-Chancellor or other officer autho rised 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 5 IA should, therefore, be held to be violative of article 30 (]) so far as minority educational· institutions are concerned. - a Tribunal of Arbitration, 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 stall' of an affiliated college or recognized or approved institution connected with the conditions of service of such member 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 rhe member of the staff involved in the dispute and an Umpire appoint ed by the Vice-Chancellor. Section 52A is widely worded, and 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 It may also be stated that there is nothing educational institution. 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 nomi nated 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 latter'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 admi nister the institution. Section 52A should, therefore, be held to be violative of article 30(1) so far as minority educational institutions are concerned. A B c D E F G H l J • A B c D E F G H ST. XAVIERS COLLEGE v. GUJARAT (Khanna, J.) 245 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 sub section (2) of section 40, all instructions, teaching and training under-graduate courses shall within the University area be conducted by the University and shall be imparted by the teachers of the Uni versity. 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 hithertofore been conducted by the affiliated colleges, would be conducted by theso colleges, because the same would have to be conducted by the Uni versity and would have to be imparted by the teachers of the Univer sity. 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 ):JY the University and can be imparted only by the teachers of the Umvers1ty 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 rrcinority educational institutions are concerned as being violative of Art.30( 1) Further, once section 40 is held to be unconstitutional so far as mino rity 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). T would therefore, hold section 40 and 41 to be void in respect of minority educational institntions. It has been argued on behalf of the respondents that in the case of Re Kera/a 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 regula tions as permissible regulations. I have already mentioned above that in subsequent cases this Court held similar provisions to be viola tive of article 30(1 l 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 246 SUPREME COURT REPORTS (1975] 1 S,C.R. 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 Kera/a 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(1) Spens CJ. referred to an obser vation made in the case of Attorney-General for Ontario v. Attorney General for Canada(') 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 Educa tion Bill is ·correct and calls for no interference. Reference has been made on behalf of the respondents to the re commendation of Dr. Radhakrishnan Commission made in 1948-41f wherein preference was shown for constituent colleges. So far as this aspect 1s 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 pro It may also be mentioned that in the case of Mother Provin vision. cial (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 re port was, therefore, considered to be not necessary. I may further mention that subsequent to the report of Dr. Radhakrishnan Com mission, three other bodies submitted their reports. One of the re ports 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 sub mitted in 1972. There was no reference to the conversion of affi liated colleges into constituent colleges in any of these three reports. No observation was also made in any of the reports that the pro visions 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 con cept and can vary from university to university. The concept of constituent colleges which is visualized in the impugned provfaions 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 col leges as such would not be entitled to impart education in courses of study through their own teachers. Sections 40 and 41 would, there fore be as already mentioned violative of article 30(1). An a matter like this, one may perhaps. have also to ~ake into ac count the accepted norms for the impartmg of education. So tar as post-graduate teaching is concerned, . the general patte~n which prevails and has been accepted so far 1s that the education 1s im against that, the mode for under- parted by the University. As (I) [1944] F. C. R. 317. (2) [ 1912] A. C. 571. A c D E ' F G H 'I". • I j,. A B c D E F. - r G H ST. XAV!ERS COLLEGE v. GUJARAT (Khanna, J.) 247 graduate teaching has been that it is imparted by the individual col- leg es. A very large number of colleges, including minority colleges, have been established and are in existence for th·~ purpose ot 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-gr~duate teaching by the Universities has been accepted with- out objection, the same rule should also hold good for the nnder- graduate teaching and the same shonld not be impermissible. Such If it is a process of extension, in my opinion, is not very helpful. permissible for tb.e State to prevent the imparting of education by colleges at under-graduate level because such a course has been ac- ceptcd at post-graduate level, there would be no reason why principle be not extended further to the school education. The pro- cess of extension can thus totally annihilate the right guaranteed by article 30( 1). 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 frmdamental 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 impugned provisions. The fact that no statutes or ordinances have been framed in pursuance of the impugned provisions would consequen- tly be hardly of much significance in determining the constitutional It would not, therefore, be a validity of the impugned provisions. correct approach to wait till statutes are framed violating the right under article 30(1). No rules or statutes or ordillances framed und·er 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 & Ors.,(1) 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. Simi- Jar view was expressed in the case of Re Kera/a Education Bill (supra) wherein Das CJ. while dealing with clause 3 ( 5) read with clause 20 observed : "It is true that cl. 36(2)(c) empowers the Government to make rules providing for the grant of recognition to pri· vate 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 cl. 36(2)(c) can nullify the constitutional infirmity of cl. 3 ( 5) read with cl. 20 which is calculated to infringe the fundamental rights of (I) [1917] A. C. 76. 248 SUPREME COURT REPORTS (1975) 1 S.C.R. minority communities in respect of recognized schools to be established after the commencement o\ the said Bill." A to section 38B, 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 autonomous colleges, autonomous institutions and autonomous Uni- B versity departments. According 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 c 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. colleges of the minorities into constituent colleges contravenes article 30( I), 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. If the conversion of affiliated D 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 SIA of the Act, I uphold the validity of clause (a) of sub-1>ections (!) 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. MATHEW, J. (on behalf of himself and Chandrachud, J.) We agree respectfully with the conclusions of the leoarned Chief Justice, but we propose to state our reasons separately. 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 langll'3ge, 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. Article 30(1) reads : - "All minorities, whether based on religion or language, slrall have the right to establish and administer educational institutions of their choice." E F G H A B c D E p G ' H • I . .. • ST. XAVIERS COLLEGE v. GUJARAT (Mathew,!.) 249 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 esrablish and administer educational institutions of their choice, that can only mean educational institutions for conserving their language, script or culture, or, at the most, edu cational institutions for imparting general secular education in order to conserve their language, script or culture and not institutions for imparting general secubr education divorced from the above purposes. In In re: The Kerala Education Bill, 1957(1) Das, C.J. speaking for the majority of 6 to 1 said in a Presidential reference under article 143(1) thab the key to the understanding of the true meaning and im plication 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, r.amely, the purpose of conserving their religion, language or culture, and the purpose of giving a thorough, good general education to their children. The inter-relation of articles 29(1) and 30(1) was examined by a bench of five judges of this Court presided over by Hidaytull-ah, C.J . in Rev. Falher W. Proost and Others v. State of Bihar and Others('). 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 ·lan guage, 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 raken 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 c•ase. In Rev. Sidhajbhai Sabhai and Others v. State of Bombay( 3 ) the Court overruled the contention that article 30 ( 1) is limited to con serve only the language, script or culture of religious and linguistic minorities. The question was examined again by in Rt. Rev. Bishop S. K. Patro and Others v. State of Bihar and Others(4 ) 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(2) and held that articles 29(1) and 30(1) confer separate rights, though in a given case, these rights may overlap. this Court (1) [1959] S. C.R. 995-1053. (3) [19631 3 S. C. R. 837. (2) [1969] 2 S. C. R. 73. (4) [1970] S. C. R. 172. 259 SUPREME COURT REPORTS (1975] 1 S.C.R. · In D.A.V. College, etc. v. State of Punjab & Ors.('), 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 minorities based on religion or language. He then went on to say that a reading of these two articles together would lead to the con ciusion that a religious or linguistic minority has the right to establish and administer edurntional 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 main taining and facilitating the excellence of its standards and that while tlus is so, these two articles are not inter-linked nor do they permit cf their being always rmd together. He quoted with approval the observations of Hidayatullah, C.J. in Rev. Father W. Proo!t's case (2) to the effect that the width of article 3 0 ( !) cannot be cut down by introducing into it considerations on which article 29(1) is based, anc> that, the expression "educational institutions of their choice" in article language, 30(1) is not limited to institutions seeking to conserve . script or culture. Ramaswami, C.J. said in Dipendra Nath v. State of Bihar(") 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 botq these classes of insti tutions. Article 29 (I) 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 (I) confers the right not only upon a minority as nnder- stood 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 a minority, either religious or linguistic. That is one distinction between article 29(1) and mticle 30(1). A B c D E F The second distinction to be noted is that whereas article 29 ( 1) G confers in respect of three subjects viz., language, script or culture, article 30(1) deals only with the right to establish and administer It is true that under article 29(1) a section educational institutions. of the citizens having a distinct language, script or culture, might establish an educational institution fc~ conserving the same. But, under article 30 (I), the right conferred on the religious O! Iin!!lJistic minority is not only the right to establish an educational instituton for H -{1)[197] Supp, 2 S. C. R. 688. (3) A. I. R. 1962 Patna, !OJ. (2) fl969) 2 S.C.R. 73. -. ST. XAVIERS COLLEGE v. GUJARAT (Mathew, J.) 25 l' A B c D E F the purpose of conserving its langµage, script or culture, but any edu cational in~ti1·1tio.1 of its choice. Whereas article 29 does not deal with. education as ouc!;. article 30 deals only with the establishment ·and administratior. of educational institutions. It might be that in a given· case, the two articles might overlap. When a linguistic minority estab-. lishes an educational institution to conserve its language, the linguistic minority can invoke the protection of both the. articles. W.hc'n 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. A more .look at the two· articles would be sufficient to show article 29(1) cannot limit the width of article 30(1). There are reli gious minorities in this country which have no distinct language, script· or ci!lture, as envisaged in article 29 (I). Fcir these religious minori- . ties, 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 institu- • tions of their choice. What then are the educatirn1al institutions which they· are entitled to establish and administer under the article ? Ex- / hypothesi, these religious minorities have no distinct language, script oc 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 estab lish any. educational institution of its choice. The question wh_ether 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 con C..°IIled with an institution imparting general secular education as ordi narily understood. The learned Additional Solicitor General appearing on behalf of the State of Gujarat submitted that· although religious and linguistic minorities have the furidamental right to establish and administer edu cational institutions c~ their choice, they have no right, fundamenta. or otherwise, to get recognition or affiliation as the case may be •. for the G . educational institutions established by· them, unless they submit to the regulations maqe l?Y the appropriate authority ·and applicable alike ta educational. ins!iUititllS. established and administered. by the majority as:well ·as· to thoce established and administered by religious and liiigwstic minorities. The argument was that article 30(1) does not fonfer ,any right to recognition or affiliation, that recognition or a.Jlillil; tioo-is' a ·privilege which might be granted ck' withheld as the legisl:Unre· might think fit. . . . . . · We think that the point raised by the Additional Solicitor General is of far reaching constitutional importance not only in the sphere oC 252 SUPREME COURT REPORTS [1975] l s.c.R. the right of the religious and linguistic minorities to impart general secular education but alscl in other areas and merits an examination of its juristic basis. And, we also think, that the question has to be dis posed of within the strict confines of legal reasoning which laymen might too often deem to be invidious1y technical. As judges, we are - neither Jew nor Gentile, neither Catholic nor agnostic and we wciuld 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 pciitical or religious conflict beneath the issues. We owe equal allegiance to the Constitution and are equally bound by judicial obligation to support it.(l) A B ' 'f *· • It is necessary in the interest of clarity of thd1ght to begin with an understanding of the real reason for protection of minorities in a demo cratic polity. c "Protection of minorities is the protection c~ non-dominant groups, which, while wishing in general for equality of treatment with the majo rity, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish from the majority of the pc; pulation. 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 whde".( 2 ) "The problem of the minorities is not real!y a problem of the estab lishment of equality because if taken literally, such equality wonld mean absolute identical treatment of both the minorities and the majo rities. 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 eqm1lity in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations (3 )" 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. D E F ( J Over one and a half decades ago, Chief Justice Das led this Cc/Jrt in holding that without recognition, the educational institutions estab lished or to be established by the minority communities cannot folfil the real objects of their choice and that the right under article 30(1) G right tel e!ltab!ish -cannot be effectively exercised. He said that the -educational institutkms of their choice means the right to establish real institutions which will effectively serve the needs of their com- - - - (l) See the observations of Justice Frankfurter in West Virginia State Board of Education v. Bernette, 319 U.S. 624. {2) The recommendation by the Sub-Commission in its report to the Com~ mission on Human Rights-quoted at page 27 of "Minority protection and international Bill of Human Rights" by Urmila Haksar. H !(3) The Advisory opinion on ;v!inority Schools in Albania 6th April, 1935 publications of the Court series A/B No. 64 P. 19. • l ST. )[AVIERS COLLEGE v. GUJARAT (Mathew, J.) 2 53 A n munity and the scholars who resort to their educational institutions and that though there is no such thing as a fundamental right tci 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 educaticpal institutions of their choice is in truth and in effect to deprive them of their rights under article 30(1) [see In re: The Kera/a Education Bill, 1957 (supra).]. c D E F G H 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 tel 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 of education. As a matter of fact, according to several religious minorities, the State maintains a system of schools and colleges which is not ccm pletely satisfactory to them, inasmuch as no place is given to religion and morality. The sheer omission of religion frcm curriculum is itself a pressure against religion. Since they realize that the teaching elf religion and. instruction in the secular branches cannot rightfully or successfully be separated one from the other, they are compelled to maintain their owo system of schools and colleges for general educa tion as well as fc~ religious instruction. "It is important to examine the raison d'etre of educa tional institutions administered by religious groups. Gearly, 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 started with a primarily schools. Rather, such schools are religious qbjective-to secure the opportunity for direct reli gious instruction and to develop a religious atmosphere and viewpoint even for the study of literature, geography and In other words, a religious body establishes mathematics. and maintains schools in c~der to create a total environment which will be favourable to the promotion of its particular religious values".(!) It is perhaps, possible to secularize subjects such as mathematics" physics or chemistry, but as Justice Jackson said: "Music without sacred music, architecture minus cathedral, or painting without the scriptural themes would. he accentric and incc!lllplete, even from a secular point of yiew. 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. lSee "India as a Secular State" by Donald Eugene Smith, p.361. l 254 SUPREME COURT REPORTS [1975] 1 S.C.R. But how cine 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 c6ntrciversies with detachment they may summon to teaching about remote sub jets such as Confucius or Mohamef'. ( 1) The State cannot insist that the children belonging to the religious :minority community shciuld be educated in State-maintained educa tional institutions or in educational institutions conducted by the majo rity. The State's interest in education, so far as religious minorities .are concerned, would be served sufficiently by reliance on secular edu catic111 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 cdu -cation in the institutfon. The cc111tinued 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 jcfo 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 compel ling attendance at public school or cc11Iege, preclude attendance at the school or college established by the parents· seek to secure the benefit of religious instruction not provided · m public schools. The parents have the right to determine to which ·school or college their children should· be sent for education. religious minority, when We fail to see how affiliation of an education institution imparting religious instruction in additicln 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 separa tion between church and state. We have grave doubts whether the ex- ·pression "secular state" as it denotes a definite pattern of church and state relationship can with prcipriety be applied to India. It is only in a qualified sense that India can be said to be a secular state. The.re are provisions i'1 the Constitution which make o~e hesitate to charac ;terize our state as secular. Dr. Radhakrishnan has said : - "The relJgious impartiality of the Indian State is not to be confused with secularism or atheism. Secularism as here defined is in acoordance with the ancient religiqus tradition It tries to build up a fellowship of believers, not by of India. 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('). Secularism here does not mean irreligion or atheism or even stress on A B > f I J c D E F G H (1) See the opinion of. Justice Jackson in McCollum v Board o Education, 333, us. 303. (2) Recovery of Faith p. 202 ST. XAVIERS COLLEGE v. GUJARAT (Mathew, J.) 25 5 A B c material comforts. It proclaims that it lays stress on the uni versality of spirtual values which may be attained by a variety of ways'( 1)". In short secularism in the context of qur Constitution means only "an attitude of live and let live developing into the attitude of live and help Jive."( 2 ) The fundamental postulate of personal liberty excludes any power of the State to standardize and socialize its children by forcing them to attend public schcpls only. A child is not a mere creature of State. Those who nurture him and direct his destiny have the right coupled with high duty to tional obligations.(') recognize and prepare him for The parental right in education is the very pivotal point of a demo cratic system. It is the touchstcine 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 cf. the religious and establish and administer educational institutions of their choice is the . only legal barreir to confine the bursting expansionism of the new Educational Leviathan. Great diversity of opinion exists among the people of this ccr.mtry 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 im posed upon a nation compounded of several strains, the Ccl1lStitution has provided this right to religious and linguistic minorities. linguistic minorities Today, education is an important function qf State and governments. Compulsory school attendance laws and the mounting expenditure for education both demonstrate a recognition of the im pcirtance of education to our' democratic society. It is required in the It is the very performance of our most basic public responsibilities. foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later pro fessional training and in helping him to adjust normally tq his environ ment [see Brown v. Board of Education(')]. 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 cf several types of schools and colleges including affiliated colleges on a looting of iuridirnl 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 impmt secular education in a religious atmosphere. D E F G H (1) Dr. Radhakrishnan's Foreword Culture of India, p. vii. to Dr. S. Abid Hussain's, National (2) Hoarace M. Kallen, Secularism is the Will of God, pp. 11, 12 and 13. (3) See Pierce v. Society of Sisters of Holy Names, 268 US. 510, 535. (4) 349 U.S. 294. • I l. ' ' • 256 SUPREME COURT REPORTS (1975] 1 S.C.R. The Str.te's interest in secular education may be defined broadly as an interest in ensuring that children within its boundaries acquire a minimum level of cqmpeteucy 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-impe~ed 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 oolleges meet the standards established for secular education. The concept of the commeill pattern of secular education needs to be brought down to the earth of reality and divested of. its mystification. The concept has nothing to do with an artificial govern ment-promoted levelling of all differences. The public schepl is not a temple in which all children are to be baptized into unity of secular democratic faith, while those who stand without are faintly heretical. "In democratic countries therefore the freedom of offering educa tion e~ different types with different values within the framework of the constitution should not be needlessly circumscribed. This is mately connected with the freedom of thought. The control over colleges suggested above should be such as to secure ultimately obser vance e~ these high principles by colleges of their own acoord and not through fear of action by the university". (1) A B c D Whatever spiritual mission of promoting unity the government may have, it is conditioned by its primal duty of promoting justice, respect ing guaranteed rights and ensuring equality of differences. E The framers of the Constitution were net unaware that under the legislative or governmental system which they created, most of the curtailments of the guaranteed fundamental rights will have the support of legislative judgment that public interest will be served by its curtail ment than by its oonstituticinal 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 importance of a why this Court has, time and again peinted to the 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 Steine, J. in his famous foot-note to United States v. Carolene Prod., Co.( 2 ) F G Over the years, this Court has held that without recognition or affiliation, there can be no real OT meaningful exercise of the ri!!ht to establish and administer educational institutions under Article 30(1) (see In re:, The Kera/a Educatlon Bill, 1957(1) (at 1067-68); Rev. H (1) See Report of the Committee on 'Mode] Act for Universities', Chapter V: Colleges and Students' Welfare, p 28. (2) 304, u. s. 144. ST. XA"/!ERS COLLEGE v. GUJARAT (Mathew, J.) 257 A :lidhajbhai Sabhai and others y. State of Bombay(') Co/1ege, etc. \'. S:r:c of Piinjab and Others('). and D.A.V. ·- Let us now examine the validity of the argument that '" . there is no right, fundamental or otherwise, to rocognition or affiliation, the government ·may withold recognition or the . affiliation for any reason or imp9se any condition for same, and consequently, it may withhold or revoke it even though the reason for doing so may be the minority"s re- fusal to surrender its Constitutional rights to administer _thC institution. This argument is phrased in syllogistic terms : Article 30( I). does not confer a fundamental right upon a rcIJgious or linguislic minority to obtain recognition ur atli liation; a State Legislature has no duty or obligation 10· set up or establish a university with facilities for allllialicn of established and educational insti.utions, · let alone those administered by the religious· or linguistic minorities; in fact, there are many universities which are only !~aching univer sities and which do not provide for any facility for aililiulion; if the legislature is competent to establish universities with- out providing· any facility fer affiliatio~ or recognition and thereby withhold affiliation, it may grant it in a limited form since the gr~ater po\ver of \vithho'.ding absolu.~ly must ncc~s .. · sarily include the lesser cpower Df granting it with restric tions and conditions and, therefore, the legislature has.power to impose conditions on affilialed colleges established and administered by the religious or linguistic minorities \\hich result in their becoming constituent colleges, And, as a Corol lary to this argu:n:nt, it i~ submi.tc1,L that· the' recipb1t of iing, uistic the benefit or facility, minority,, is not d~privcd of its fundan1.:ntal. right sir.cc it 111:.iy re~ain Hs fundamental right simply _by· rejecting the prcierred'bcnofit or facility._ . nam~y;1hC religious or · · II c D E F 1 G muitiplication of go·:crnn1cnt contr,1cts We think that d;ingero;;s consequences will follow if the logic of. .. c th~ argument is accepted in all cases. The rapid rise in •he number - cf goveTnmcnt regutatory and \Vclfar~ programmt:s, coupled with the resulting from expand~d budge">. has greatly increased the tot:il number of benefits or privileges . which con b~ conferred by government, •hus affording the government coun1less nc\V opportunities to bargain for the surrender of constitu tional rights. With the growth of spending power of the State-a necessary accomponimcnt of the modern welfare State-the poten-. tiality of ·control through the power of purse has grown apace.(') " (I) (1959)t S. C.R. 91; f2l !1963) 3 S.C.R. 837, 856 <-4J. Sec .. The New Property"• by U-LUISup.Cl/75 (3! [!971] Supp,S:C. l!.. 68&, 7il9· C.~arles A Reic!1. 73 yrt!e Law Jc .. ; al 733~ 258 SUPREME COURT REPORTS (1975) 1 S.C.R. 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 bene fit or privilege like recogni"ion, affiliation or aid is so conditioned tha!, to get it, one must surrender some part of one's basic freedoms. judgment of The story begins with the Jus•ice Holmes U. McAuliffe v. New Bedford(') where he despatched the peti'ion of a policeman who had been discharged from his service for violating a regulation which restricted his political activities by saying that "the petitioner may have a: constitutional right to talk politics: bu• he hll6 no constitutional right to be a policeman ... The servan• cannot com plain as he takes the employment on terms which are offered to him.'' . The notion that •:the pe•itioner 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 adminis'ering aa educational institution .has no· right to recognition or affiliation, thongll it has a fundamental rig'it to establish or adminis"er it. This aohorism of Mr. Justice Holmes has had a seductive influence in the develop ment of this branch of the law. Iii Dqvis v. Mosrach11setts1 2 ) the ·aone.l!ant had been convictei of making a speech on the Boston Co=on, in . violatiou of a city ordinance forbidding, inter alia, the making of any pubFc address upon public grounds without a permit from the mayor. The conT~ lion had been affirmed by ihe Supreme Court of Massachusetts in an opinion by Justice Holmes, in which he said : - "The argumeut that the ordinance was unconstitut; onal fallac-1 that was dealt with in involves the same kind of McAul.ifje v. Nrw BPdford.(I) the ordi nance is directed against free speech generally. . . . whereas in fact it is dirJ'cted toward the modes in which Boston Common· may be used.'' It assumes that He continued, in language quoted by the United States SuprC!llll 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 his house. When no oroorietarv right interferes. the Jeqislature m~v end the right of the public to enter upon the public place by put ting an end to the dedication to oublic uses. SO it mav take the lesser step of Jimi'i~g the public use to certain.purposes." The Supremz Courf then said: OJ 155 M•ss,; 216. (2) 167 u. s. 43. A B c D E F G H ST, XII.VIERS COLLEGE v. GUJARAT (Mathew,.!.) 25 9 A ' "The right to absolutely exclude all right to use, neces sarily includes the authority to determine under what cir cumstances such use may be availed of, as the greater power contains the lesser (at 4~) ." When he took his seat in the United States Supreme Court iu 1902, Justice Holmes still adhered to the views about conditional privileges which he had expressed in McAulifje v. New Bedford(supra) and Davis v. Massachusetts.(supra) Writing for the court in Pullman Co. v. Adams(!) he disposed summarily of a contention that a tax on 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 re nounce." And, when in 1910, the majority of the Court swung to .the opposite position in Western Union Co. v. Kansas,(') he dissented saying a "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 : (') E F G "The pith of his (Holmes') argument was expressed in 'Even in the law the whole generally in the aphorism: cludes 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 he absolutely excluded is not the same as a thing lvhich 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. 111e 'power of absolute exclusion' is a term not indentical 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 <Uld its companion cases, he _accepted the result. Eight ye?rs later we find him saving for a unammous court m Western Unwn Tel. Co. v. Foster(•), which struck down an interference with inter-state com• merce: "It is suggested that the State gets the power from its power over the streets which it is necessary for the tekgraph II --(!) 189.u. s. 420-:-- (2) 216 u. s. 1. (3) See Thomas Read Powell: 16 Columbia Law Rev. 99, at 110-111. (4) 247 u. s. 105. ' 260 SUPREME COURT REPORTS [1975] 1 S.C.!I. to cross~· But if we assume that the plaintiffs i~ error under · their present characters could he 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 r·esu)t" (at 114). A (emphasis added) · B Uie orthpdox American doctrine was that the right of a foreign corporation to transact business within the boundaries of a state depend• entirely· \ipo11 · the state's permission. That se·emed to offer a meal)s If the states had power to refuse of accomplishin·g the desired result. admittance, to".~rcign 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 In the case of Insurance Co. v. Morse(1) attaining the desired end. th" Suprcm;: Court of th~ United States held void a statute requiring an agreement not to remove suits to the federal courts as a ·condition. precedent to admission. 'Di.is decision was based upon the ground, supported by dicta expressed in the two earli-er 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 em ployed in the opinion, the case seems clearly to be the fot:ntainhead of the doctrine which now goes by iharname(2 ). Th~ cioctriD:e of ~'unconstitutional condition" means any stipulation imposed upon the grant of a governmental privilege which in effect requires the receipient' o1 -the privilege to relinquish .some constitutional right. This doctriir. takes f0r granted that. 't'\1e'.petitioner has no right to be a policeman' but it eniphasizes ti1!' right_ he is .conceded to p0ssess by reason of an explicit provision of the Constitution, namely, his right· "to talk politics". The 0major requirement of the doctrine is that the person complaining of the. conuition must demonstrate that it is un reasonab'e in the special sense that it takes away or abridges the exercise ~of a right protected biy an explicit provision of the Constitution (see William W. Van Alstyne·: "'The Demise of th~· Right-Privilege Distinc· tion in Constitution Law") .( 3 ) Jn Frost and Frost Trucking Co. v. Railroad. Comm.(')' the ·Sury· reme Court of United States was concerned witli the question of the validity of a statute of California requiring a certificate of public con venience and necessitv to be secured by carrirs, whether common or private, as a prerequisite to carying on their business over the public highwavs of the state. The Act was interpreted by the Supreme Court as i.mposin upon the applicant the obligation to assume the duties and (I) 20 Wall. 44S, 447 (u. s. 1814). (2) See "Unconsti.tutional C.o~ditionsH by Maurice _H. Merrill. 77. UniVers_ity Of Pennsylvania Law Rev.,. 879. 880. (3) 81 Harv. Law Rev., 1439. (4) 271 U. S. S83. c D E H ST. XAVIER$ COLLEGE v. GUJARAT (Mathew, J.) 261 A B c • E F G • liabilities of a common carrier as a condition precedent io the issuance It held the statul\', so .construed, unconstitutional, of the ccrt'ficate primarily on .ie zround that to force the status of a common carrier upon a pri'•ai~ ..;airier &5ainst his w~ll amounts to-depriyation of pro· perty without due process of Jaw. · To the suggestion that, as the state might deny ·the use of its highways altoge.ther as ca1riers, it might make its permission conditional upon assumptio'l df the public utility st:itus, 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 [or the majority observed: . "It is not' n~cessary to chal'enge the p~oposition. that, as a generarrule, 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 un limited, 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 constitu· tional right as a condition of its favour, it may, in like manner, . compel a surrender of all. It is inconceivable that guarantees embedded fa 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 privileg~s 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 b! beyond its constitutional power. • 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 th·! 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 burd..!ns of a common. carrier, the state. does not possess. According to him, it is clear that any attempt to exert the latter, separately and substantively must fall befor<: 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 indir<:ct, but no less effective, process of requiring a surrender. which, though in form ,voluntary, in fact lacks none of the elements of In reality, the carrier is given no choice, except a choice compulsion. between the· rock and the whirlpool-an option to forego a privile~ which may be .vital to his livelihood or submit to a requirement whiclt may constitute an intolerable burden. · This is much the sa.ne as what Das, CJ. said in /11 re : Th" Kerw • Education Bi/1( 1) : "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, l.ty ccim~ -(I) [1959J S. C. R. 99 262 SUPREME COURT REPORTS (1975] 1 S.C.R. pulsion of financial necessities, be compelled to give up thew rights under Article 30( 1) ". In this situation, the condition which involves surrender is as effective a de~e~r~nt to the exercise of the right under Article 30 ( 1) as a direct pr_oh1~1tJon would be. Thus considered, it is apparent that the religious. mmonty does not voluntarily waive its right-it has been coerced· becau~e of the basic importance of the privilege involved, namely, aflihat1011. It is doubtful whether the fundam:mtal 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 col11munity 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 administernd by a religious mino- rity the past members of the community cannot surrender the right of the future members of that community. The future members of tire community do not derive the right under Article 30(1) by succession or inheritance. 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 surrcnd-er of constitutional rights in connection with other activities, have borrowed phrases and reasoning from the cases dealing with state control of corporations and have transplanf.~d them to contemporary decisions involving numerous and diversified subjects.(!) "Congress may withhold all sorts of facilities for a better life" wrote Mr. Justice Frankfurter in the Douds case(') "but if it :1ffords them it cannot make them availab'.e in an obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of the facilities". Professor Hale said that a state malY not, by attaching a condition to a privilege, bring about undue interforence 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 'serves a purpose germane to that for which the power can normally be exerted without conditions.(') The latter limitation. it will be noted, is essentially tlie same as that voiced by Justice Frankfurter in the Douds Case (2 ) that1 Congress may not 'exact surrender of freedoms unr-elated to the purpose of the facilities'. The most significant characteristic of the power to impose a condi~ tion in this area is the relevancy of the condition to th.e attainment of the objective involved in the grant of the privilege or benefit. (1) See 28 Indian Law Journal, Notes: "Judicial Acquiescence in the For- feiture of Constitutional Rights through Expansion of the Conditioned Privilege Doctrine", 520, 525. f2) Anrerican Commiunications Assoc. v. Douds. 339 U. S. 382, 417. ") See .''Unconstitutional Conditions and Constitutional Ri¥h~~", 35 Columbi'\ · · · Law Rev., 321 357. c E F H • (· J ; A B c D E F G 11 ST. xAVIERS COLLEGE v. GUJARAT (Mathew,!.) ;!63 A condition may be invalidated on the ground that denying a oonefit or privilege because of the exercise of a right in effect penalize& its exercise (see Steinberg v. United States)('). In She~bert v. Verner('), the doctrine of "Unconstitutional condition" has been app\led by the Umced Stat·~s Supreme Court to torb1d a state to dis· continue unemployment benefits to a S·~venth Day Adventist refusing Saturday cmp, oyment on account of the day being the Sabbath day of ·her fa'1th. 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 It is too late in the day to 'tight' but merely a 'privilege'. <loubt that the liberti~s of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. American Communications Assa v. Douds (supra) Wiema11 v. Undegraff,(') Hannegan v. Esquire, lnc(')". 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 In means to curtail non-criminal speech (see Speiser v. Randall('). 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 spe~ch. Its deterrent effect is the same as if the State were to fine them for their speech. The appellees are plainly mistaken m their argument that, bocause a tax exemption is a 'privilege' or 'bounty', its denial may not infringe speech. This conten tion did not prevail before the California Courts, which recog nized that conditions imposed upon the granting of privileges or gratuities must be 'reasonable' .... "S.o here, th·~ denial of a tax exemption for engaging in certain speech necessari!y will have the effect of coercing the chimants to refrain from the prescribed speech .... " A con.ditio~ may t.~ inv~lidated on yet ~nother ground : precluding from parl1c1pallon m the enioyment of a pnv1lcgc or benefit those who wish to retain their rights wonld seem an unreasonable classification violative of article 14. The discriminatorlY nature of the imposition of the conditions has been alluded to by Mr. Justice Frankfurter in his con curring opinion in American Communications Association v. Douds (supra). The Additional So'icitor General argued that the State is not d.;nying equality before the law because the burden of the condition (.1l 163 F. Supp. 590. 592. ~) 544 us 183, 191, 192. (5) 357 U. S. 513, (2) 374 u. s. 398, 404-405. (4) 327 us 146, 155, 156, 518-9. 264 SUPREME COURT REPORTS [1975) 1 S.C.R. -applies to all recipients: namely, all who establish and admini;;;e,iuca- - A tion.al }nst~tutions impd.rting secular education and seek recognition or affihat1on whether they be religious or linguistic minoritko or not. The a_rgum; mt. is that a ·b~nefit-burden package viz., the privilege of affilia- l!on with all the cond1t10ns, is being offered without discrimination· that the St~t.e oi- university does not .withhold the privilege from any pe~son' or enl!t1es, but that th·' person or entity himself or itself decides whether to accept or rejec.t it. · We are of the opinion that, in fact everyone B is not being offered the same package since the condition s~rves as a significant restriction on the activities only of those who have fundamental right of the nature guaranteed by artide 30Cp, namely, the l'eligious and linguistic minorities, and who desire to exerci<e the right required to be waived as a condition to the receipt of the privijege. It is contradictory to speak of a constitutional right and yet to discrimi· . C· nate oagainst a person who exercises that right. · .. To avoid invalidation of a condition on any· of these grounds, it would seem necessary to show that the granting of the benefit or privi- lege places. the recipient in .a position which gives the State or the universir_y a legitimate intcr·ost 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 tlto. intended, in order to protect the eff.,ctiveness of tlte. benefit nr facility itself. Second, social interests must be protected against thca whose capacity for inflicting harm is increased by posse5sion of me benefit or facility('). · . An traditional bases of examination · of · the the power impose conditions upon governmental benefits or privileges would reveal that the power to impose conditions is not a les""r part of the greater power to withhold, but .instead is· a distinct exerci'~ of power which must find its own justification, and tha: the power to withhold recognition or affiliation altogether does not carry with it un limited power to impose con<litions which have the effect of re5traininc the exercise of fundamental rights. The normal desire to enjoy privileges like affiliation or recognition without which the educational i stitu ions established by the minority for iinparting secular education will not cffec-. tively serve the purpose for whic!Lthey were established, canno be made Infringement m an instrument of suppression of the right guaranteed. a fundamental right is nonetheless infringement because acco"T!plished through the· conditioning of. a privilege. If a legislature attaches to a pubHc benefit or privilege an addendum, which in. no rational woy ad vances the purposes of the scheme of benefits but d6es restrain· the ex ercise of a fundamental right, the restraint can draw no consti'utional ~treng•h whatsoever from it• being attached to benefit or privilege, but must be measured as though it were a wholly ~eparate enactment. . In considering the question whether a regwation i"Tlposing a condi tion subserves the purpose for which recognition or affiliation is granted, it is necessary to have regard to what regulation the ajipropiia•c aut~ . - ~~ . '(I) See .notes: uunconstitutional Conditions'•. 74 Harv. I.aw .Rev. 1'95. D E F G ST. XAVIERS COLLEGE v. GUJARAT (Mathew, J.) 265_ A B c rity may make and impose in respect of an cducatiocal institution estab lished and 3dminister~d by a religious minority and receiving no 1coogni tion or aid. Such an inslitution \\•ill, oi course, be subjec1. Lo tt1c ge.1c ral laws of the land like the law of taxation, law relating to ;anildtion, transfer of.property, or registration of documents, etc., becaus~ they ar_e la~s ~ecting not only educational instit!Jtions established by rciigious mmont1es but also all other persons and m>titutions. It cannot b<! said that ~y these general laws, the State in any way takes away or abridges the nght .guaranteed under article 30( I). Because . ar.iclc 30(1) is ~ouched '':' absolute terms, it docs not follow that the right guaranteed is not subject to regulatory la'ws which would not amount to i1s ab•id~c­ ~ent. It is a total misconcel.'tion to say that because the right is couchej . m absolute terms, the exemse of the right canno' be regulated er that every regulation of that right would be an abridgcmcm of th: ri~h:. Justice Holmes said in Hudson Country Water Co, v. Mccarter(') : "AU rights tend to declare themselves abso!llte to . >logical extreme. Yet all in fact are limited by the ncigh :bourhood of principles of policy which are other than those on which the particular right is funded, and_ which bocoinc strong_ enough to hold th.cir own when a eer; ain point is _teached" E N6. right, however absolute, can be free from regulation. The Privy Coui\cil said ii) Commo11wealtlz of Australia v. Bank of .Vew South · IJ'.a!es( 2 ) that regulation of freedom of trade and commerce is com 'patible with their absolute freedom; that s. 92 of the Australian· Com~ mrmwealth Act is violated only when an Act restricts commerce directly a11tl immediately as distinct from creating some indirect or coo•cqucn tial impediment which may fairly be regarded as remote. Likewise, the fact that trade and. commerce are abwlutely. free under article 301 of lhe Constitu•ion is compatible with their· regulation which will 11ot amount to restrictioo( 3) . . :F The applicat10n of the term 'abridge' may not be difficult in many cases but the ·problem arises acntely in certain typ~s of situations. The important· ones are where a law is not a direct restric:ion of the right but is designed to accomplish another objective an_d the impact upon the ····right is secondary or indirect. Measure< which are"dirccte1 at o'her forms of activities but which have a secondary or indirect o_r incidental effeet upon the right do not generally abrid~e a right unless the content G 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 P,.omote health and to preserve hygiene 3nd other Jaws of general appl'cation. By.hypothesis, the Jaw, taken by itself? is a legitimate one, aimed directly at the control of some other activ.1ty. The question is about it~ secondary impact upon the admitte" area of. administration of ·eoucational institutions. This is especially a problem (I} 209 u. s. 349, 355, 357 (3) Th, Aut••inf>b;/e Transport (l?ajasthan} Ltd., Others (19631 l S. C. R. 491. (1950] A. C. 235, 3_10. (2) v. Start of Rajasthan anJ • 266 SUPREME COURT REPORTS (1975] 1 S.C.R. of determining when the regulation in issue has an effect which coa siitutes an abridgement of ihe constitutional right within ihe meaning of Article 13 (2). In other words, in every case, ihe court must under take to define and give content to the word 'bridge' in article 13(2)(1). The question to be asked and answered is whether the particular mea sure is regulatory or whether it crosses the zone of permissible regula tion and enters the forbidden territory of restrictions or abridgement. So, even if an educational institution established by a religious or lint; uisti.c minority does not seek recognition, affiliation or aid, its activity can be regula!ed in various ways provided the regulati.ons do not take away or abridge the guaranteed right. Regular tax measures, economic regulations, social welfare legislation, wage and hour legislation anti similar measures may, of course have some effect upon the right under article 30(1). But where the burden is the same as ihat borne by others engaged in different forms of activity, the similar imNct on the right seems clearly insufficient to constitute an abridgement, if an educa tional institution established by a religious minority seeks no recogni tion, affiliation or aid, the state may have no right to prescribe cmriculum, syllabi or the qualification of the teachers. We find it impossible to subscribe to the proposition that State neces sity 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 think" nece> sary to protect what in its view is in the interest of the state or society, the right under Article 30 (I) 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 iu corporating 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 t6 regula tions dictated by the protean concept of state necessity as conceived by the majority would be to subvert the very purpose for which the right \vas given. What then are the additional regulations which can legitimately be imposed upon an educational institution established and administe:ed by a rel; gious or linguistic minority which imparts general secular educa tion and seeks recognition or affiliation? A c I) c F Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational G standard set up by the univer>ity. Recognition or alflliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted bv the university and to obtaU. 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 st"ndartl of education prescribed by the univer, ity. Recognition ?r a~liat_ion creates an interest in the university to ensure that the educatronal mst1tu- II - (I) see generally the judgment of one of us (Mathew, J.) in Bennett· Colem6'fn & Co. etc. etc. v. Union of India & Others (1972] 2 S. C. C. 788. f . t • A B c D E ., G H ST. XAVIERS COLLEGE v. GUJARAT (Mathew, /.) 267 tion is maintained for the purpose intended and any regulation which will subscrvc er advance that purpose will be reasonable and no educa tional institution estah'.'shod and administered by a relig10us or linguistic. minority can ciaim rccor,n1lion or atfiliat1on WJLhout submitting to ,hose re>gulations. 1'hat is the priee of recognition or affiliation; buL this does not mean that it slnuid submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrcla~ed to the purpose of recognition or affiliation. Jn other word$, recognition or •ffiliation is a facility which the university grants to an educational institution; for the purpose of enabling the students there to sir for an ex:imination 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 pur pose can be imposed. If, besides recognition or affiliation, an educa tional institution conducted by a religious minority is granted aid, fur ther 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 minor, ty can claim total immunity from regulations by the legislature or the uni versity if it wants affiliation or recognition; but the character of the per missible regulations must depend upon their purpose. As we said, such to the purpose of regulations will be permissible if they are relevant securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a ref; ula tion really subserves the purpose of recognition or affiliation. But that the question of principle. Jn every case, when the does not affect reasonableness of a regulation comes up for consideration before the court, the question to be asked and answered is whether the regulation is calcu!atcd to subscrvc or will in effect subserve the purpose of reco gnition or alliliation, 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 ;n the general interest of the public has no relevance, if it docs not adv.rncc the excellence of the institution as a vehicle for general secular educa tion as, e.r-hypothesi, the only permissible regulations arc those which secure the effectiveness of the purpose of the facility, namely the ex cellence of the educational institutions in respect of their cduc~tionaf stanqards. This is the reason why this Court has time and again said that the question whether a particular regulation is calcuiated ill ad vance the general public interest is of no consequence if it i:; not con ducive to the interests of the minority community and those persons who resort to it. · · · Jn Sidhajbhai v. State of Bomb~('), the Court said that no gene ral principle on which reasonablenc« or otherwise of a regulation may . be tested was sou2h• to be laid down by the court in In re : The Kerala Iiducario11 Bill, 1957(') and. therefore, the case is not an authority for the proposition that all regulative measure• which are not dc<tructive or annhilativc of the character of •he institution established by the mino mv can be imposed if the regulations arc in the national or public interest. 'Fite Court further said that unlike the fundamental freedoms guaran- (l) (1963. 3 S.C.R. 837, 856-857.. 12) [1959] S.C.R. 9J5. 268 SUPREME COURT REPORTS [1975] l S.C.R. teed by article 19, the right guaranteed under article 30(1) is not sub ject to reasonable rc:::.[r1cuon:::. a111..1 thaL the right is intendeli. to be cu;.'!C tive and is not to be whittled down by so-Called regulative measures <:once1ved in the interest not of the mmority euucational msti.ut1on, but -0! tne pub11c or tne natwn as a wno1c. lt was tne view oi the Court that regulat10ns which may l"wiully be imposed either by legislatu,e or exe ·cuuve acuon as a cond1t1on ot' receiving grant or ol r~cogJJition must be directed to· making the insti ution, wtltle retaining its character as a minority institut10n effective as an educational institution and that such regulation must satisfy a dual tes -tne test of reasonableness, namely the test that it is reguiative of the education.al charac er of the institu tion and is conducive to making the ins itution an effective vehicle of education for the minority community or other persons who resort t<> it. In State of Kera/av. Mother Provincial('') 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 :is such, that the standards of education conc~rn the body po!itic ~nd nrc dictated by considerations of the advancement of the country and i(s 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 S,ate may also regulate the conditions of employment of teachers and the heaLh 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 mac!crs cannot be denied since 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 them, they may be compelled to keep in step with others. What the ·Court said in answer to the contention of Mr. Mohan Kumaramanga lam that the provisions in the Kerala University Act wtiich were struck down were conceived in the interest of general education is instruc tive 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 particularlv the impugned sections. We have no doubt that the provi, ions of the Act were made bona fide and in the interest of education but unfortunately they do affect the admini, tration of these institu•ion' and rob the founders of that right which the Constitution desires should (I) [l97l] l S.C.R. 734. A 1; c D E F G H ' A B c • E F G H .. • , r•~ 'I k .. • ST, XAYIERS COLLEGE v. GUJARAT (Mathew, !.) 2e!J. 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." In the light of the above discussion let us examine the validity oi the impugned provisions of the Gujarat University Act, 1949, as sub sequently amended. Section 33A(l) (a) provides: "33A(l) Every College (other than a Government college 01 a college mamtaincd by the Govcrnmen.) affiliated before the c0m.nence- 111cnt of the Gujarat University (Amendment) Act, 1972 (hereinaftef" in this section referred to as "such com1ncncement" ) - (a) shall be under the management of a governing body which shall include amongst its members the Prir, ci pal of the College, a represencative 01 the Unive"iLy nominated by the Vice Chancellor, and three represen tatives of the teachers of the college and at least one representative each of the members of the n0n-leuching staff and the students of the colkge, to be elected res pecti vcly 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 com mittee of the college which shall include- (!) in the case of recruitment of the Principal, a re presentative of the University .nominated by the Vice-Chancellor, and (2) in the case of recruitment of a member of •he teaching staff of the college, a rep1·cscntativc of the University nominated by the Vice Chancellor and the Head of the Departmen~ if any, cvncvn cd with the subject to be taught by such mcr,1bcr." We think that the provisions of sub-sections (!)(a) and (l)(b) of s. 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 shal! include persons 01 her than those w'10 are memb crs of the governine bodv of the Socie y of Jesus would take away the management of the college from the governing body C0'1'tituted by the S~ciety of J csus 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 Socie'v cf Jesus that he religious minoritv which established the college has vested the institution and that body alone has the right to administer the same. The requirement that the college should have a governing body in cluding persons other than those who cons~itute the governing body o! the Society of Jesus has the effect of divesting that body of its: administer 270 SUPREME COURT REPORTS [1975] 1 s.c.~. institution. That it .exclusive right to manage the educational .desirable in the opinion of the legislature to associate the Principal of the college or the other persons referred to in s. 33A(l)(a) in the management of the college is not a relevant consideration. The question is whether the provision has the effect of divesting ,governing body as constituted by the religious minority of its exclusive right to administer the institution. Under the guise of prevening 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 "Administration means 'management of the affairs' of the founded. institution. This management must be free of control so that the iounders or their nominees can mould the institution according to their way of t!Jinking 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(')''. Sections 48 and 49 of the Kerala University Act, 1969, which came np for consideration in that case respectively dealt with .•the governing body for private colleges not under corporate manage- ment 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 oody or a managing council respectively. The sections provided for It was held that the sections had ·the composition of the two bodies. 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 ·.corporate management and that they were not answerable to fo1mders in the matter of administration of the educational institution. The Court said that a law which interferes with the composition of 1he 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 W. Proost v. Bihar( 2 ) and Rev. Bishop S. K. Parra v. Bihar( 3 ). It is upon the principal and teachers of a college that the tone ·and temper of an educational institution depend. On them would -Oepend its reputation, the maintenance of discipline and its efficiency fa teaching. The right to choose the principal and to have 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 educational institu'ion. We can perceive no reason why a representative of the !University nominated by the Vice Chancellor should be on administer -(I) See Kera/av. Mother Provincial, [1971] 1 S.C.R. 734 at 740 . . (2) [19691 2 S. C.R. 73 at 77-78. (3) [197] 1 S. C.R. 172. A B c D E F G H # ,• (· "" I J - • ST. XAVIERS COLLEGE v. GUJARAT (Mathew, J.) 271 A Selection Committee for recruiting the Principal or for the insistence 0f 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 manage ment. That is part of the fundamental right of the minorities to aammister the educational institution established by them. Section 40(1) provides that the Court (senate) may determine !hat all instructions, teaching and training in courses of studies resoect of which the university is competent to hold examination shall, Within the university area be conducted by the university and shall be imparced by the teachers of the university and the Court shall communicate its decision to the State Government. Sub-section (2) of s. 40 says that on receipt of the communication under sub-secti011 (1), the Government may, after making such inquiry as it thinks tit, by notification in the Official Gazette declare that the provisions of s. 41 shall come into force on such date as may be specified. c D 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. To decide this question, it is necessary to read some of the other provisions. Section 2(2) defines a 'college' as a degree college or an inter mediate college. Section 2(2A) states that a 'constituent college' means a university college or an affiliated college made comtituent under s. 41. A 'degree college' has been defined by s. 2(3) as an affiliated college which is authorized to submit its students an examination qualifying for any degree of the university. Sectio11 2(13) provides: "Teachers of the University" means teacher appointed by the University for imparting instruction on its behalf". Section 2(15A) states that a "University college" means a college which the University may establish or maintain under the Act or a eollege transferred to the University and mai'1lained by it. On the plain wording of s. 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 comorises within it the elementary right to conduct teaching. training and instruction in courses of studies in the institution~ so established by teachers appointed by the minority. If this essential component of the right of administration is taken away from E F G II ~ ...,--- !!II • ""' 272 SUPREME COURT REPORTS [1975) 1 S.C.ll.. minority and vested in the univecity, there can be no doubt that its A rignt to adrmmster the educational institution guaranteed und·~r article 30(1) is taken away. Section 39 provides that the university shall conduct post-graduate instructions. That means that teaching, trarning and instructron post-graduate courses will be conducted by the university. The word conduct occurring rn s. 40 cannot have a meanmg different from If in s. 39 it means that the umversrty is tne what it has in s.39. exclusive teaching and training agency in post-graduate instructron, 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 there after be done by the teachers of the university for and on behalf of \he umversity. The detinitron of the term 'teachers of the un•ve.sity' C given in s. 2(13) would indicate that they are teachers appointed by the university for imparting instruction on its behalf. :a If this section is ultra vires article 30( 1), we do not think that s. 41 which in the present sche11.c of legislation is dependent upon s. 40• can survive and therefore it is unnecessary to express any view upon the constitutionality of its provisions. ' Sub-sections (1) and (2) of s. 51A read: "51A(l) 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 mak ing representation on any such peuality proposed to be inflicted on hin1, and (b) the penalty to be inflicted on him is approved by the Vice Chancellor or any other officer of the univer- sity authorised by the Vice Chancellor in this behalf. (2) No termination of se!·vicc nf '.')UCh n1en1bcr nol amoantin.I! to his dismissal or removal falling under sub-section ( l) shall be valid unless- ing caus against the proposed ( a) he has been given a reasonable opportunity of show (b) such termination is approved by the Vice Chancellor or any officer of the University authorised by the Vice Chancellor in this behalf : termination, D E F G Provided that nothing in this sub-section shall apply to any per- son who is appointed for a temporary period only." H It was argued for the petitioners that clause ( 1 )(b) of s. 5 lA has the effect of vesting in the Vice Chancellor a general power of , • ' i . l ~1· J A B c D E F G ' ST. XAVIERS COLLEGE v. GUJARAT (Mathew, J.) 273 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 If the University authorized by him in this sub-section is not clear. purpose of the approval is to see that the provisions of sub-section 51A(l)(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 unqana!ised 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 enqniry. 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 servicjes 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 oppor tunity of being heard in his defence. But to require that for terminat ing the servicies of a teacher after an inquiry has qeen 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 tho Vice-Chancellor for the exercise of his power. The fact that the power ~n 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 nnder the sub-1iections (l)(b) and (2)(b) that the Vice Chanc"'Ilor 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 croach upcn the right of the management to dismiss or terminate the services of a teacher after an enquiry. While we uphold the pro visions of (2) (al of s. 51A we think that sub-clauses (l}(b) and (2)(b) of s. 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 ins. 51A(l)(b) and 51A(2)(b). But the subseqnent 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 (I). In D.A.V. Co11ege v. State of Punjab, clause 17 of the impugned statute related to the requirement of subsequent approval for termi nation of the services of teachers._ This Court struck down the pro- vision as an abr; deement of the right to administer the educational institution established by the minority in question there. sub-clauses certainly (I) (a) H Section 52A states that any dispute between the governing body and any member of the teaching, other acad·emic and non-teaching staff of an affiliated college or institution, which is connected with the conditions of servicle of such member, shall, on a request of the governing body, or of the member con cerned be referred to a Tribunal of Arbitration consisting of one recognized or approved 19-tJ!Sup. C.T.175 2H SUPREME COURT REPORTS (1975) J S.C.R. member nominated by the governing body of the college, or, as the case. may be, the recognized or approved institution, one member nommated 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. . This provision sub-serves no purpose and we feel no doubt that ~t ~ill . needlessly interfere with the day-to-day management of the ms!itution. Any and every petty dispute raised by a member of the teaching or non-teacJhing staff will have to be referred to arbitra tion if it seems to touch the service conditions. Arbitrations not imparting education, will become the business of educational 'insti· tu.tion~._ This section is in our opinion bad in its applic; ation to mmonties. In the result, we hold that the provisions of s. 33A, s. 40, sub· c\auses (l)(b) and (2)(b) of s. 51A and s. 52A are violative of article 30( I) of the Constitution and, therefore, they cau have no application to educational institutions established and administered by religious or linguistic minorities. BEG, J. The two questions to be answered by us are : (I) Whether the impact of Article 30 (I) of the Constitution upon any of the provisions of the Act before us, or, to put it converse ly, whether the effect of any of the provisions of the Act upon the lund•amental rights guaranteed to minorities by Art. 30 (I) is such a> to invalidate these provisions ? (2) Whether the rights guaranteed by Article 30 are in any way circumscribed by Article 29 ? B c D E , It. ., • 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 11nd 30 may supplement each other so far as certain rights of minorities are concerned, yet, Article F 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 jmpart through its Institution to the childrerr of its own members or to those of others who may choose to send their children to its schools. In I other words, it has a right to impmt a general secular education. would, however, like to point out that, as rights and duties are corre lative, it follows, from the extent of this wider right of a minority G under Art. 30 (I) to impart even general or non-denominational secu- lar education to those who may not follow .its culture or subscribe to its beliefs that, when a minority Institution decides to enter this wider educatio~ sphere of national education, it, by reason of choice ,itself, could be deemed to opt to adhere to the needs of the general pattern of such educati~ in the country, ~t _least wheneve; that choice is made in accordance with statutory provmons. impart an e~ucation inte!1ded to. gi~e a secular oriei; itation ?r clmracter 10 its education necessarily entails its assent to the imperative needs of the choice made by the State about the kind of "secular" education Its ch01ce to H I ¥ A 4 ,,.) ' \ B c D E F G H ST. XAVIERS COLLEGE v. GUJARAT (Beg. J.) 215 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 11 choice is that the particular minority Institution, which choo~es to impart snch 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 "'ill crumble and fall. It may refuse to accept the choice made by the Stale of the kind of secular educatio.n 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 ? 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 behal£ of the State of Gujarat, that, where a minority lnstitution has, of its own free will, opted for affiliation under terms of a statute, it must be deemed to have chosen to give up, as a price for the benefits resulting from affili_ation, the exercise of certain rights which may, in another context, appear to be unwarranted im pairments of its fundamental rights. It is true that, if the object of an enactment is to compel a minority Jnstitution, 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 l nstitution conferred by Art. 30 ( 1) of the Constitution. This aspect of the matter, therefore, raises the question whether any of the pro visions 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 toot is their necessary consequence or effect. I shall endeavour 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 pro~ positions accepted, has the virtue of leaving the result to the balancing of conflicting considerations to be carried out on the particular provi sions and facts involved in each case. When we ex•amine either the Act as a whole or the impugned pro visions of the Act before us, we find no mention whatsoever of any thing which is directed against a minority or its educational Institu ticns. 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 Gujarat University (Amendment) Act, 1972; Section 33A inserted in the Gujarat University Act, '1949, as amended by the Gujarat Univer- 276 SUPREME COURT REPORTS [1975) l S.C.R. sity (Amendment) Act, 1972, (Gujarat Act No. 6 of 1973); Sections 40 and 41 of the Gujarat University Act 1949, as amended by Gujarat University (Amendment) Act, 1972 (Gujarat Act No. 6 of 1973); Sections 51A <and 52A inserted in the Gujarat University Act, (Amendment) Act, 1949, as amended by the Gujarat University 1972, (Gujarat Act No. 6 of 1973). If we accept the argument that, before enacting the amendments which are assailed, the State Legis lature must be deemed to be aware of the fact the petitioning minority Institution before us, the Ahmedabad St. Xavier's 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 11fftliation 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 11ny time. Hut, can it be deemed to have opted to submit to any and every future amendment '! Perhaps it will be carrying the doctrine of impnted knowledge and consent too far to say that a minority Institution opt- ing for 11 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 11 fundamental right? It may be that the bar may be only a conditional one so that it could be removed by the institution con cerned 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 he construed only as a permissible regulatory restriction. The first provision which has a compulsive effect on Ahmedabad St. Xavier's College Society is Sec. 5 (1) of the Act which says : "5(1): No educational Institution situate within 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". As St. Xavier"s College is apparently situated within the University area, it is prevented from seeking affiliation to any other Unive!"Sity established by law. This would, in my opinion, have the effect of compelling it to abandon its fundamental rights guaranteed by Article the Gujarat 30(1) of the Constitution as a price for affiliation by University because it is not permitted to uffiliate with any other Uni··. versity without the sanction of the Govt. The petitioner has not, however, in the reliefs prayed for by the petition, asked for a declara tion that Section 5 is invalid. But, the compulsive effect of Sec. 5 w~s one of the arguments advanced by Mr. Nana\'ati for the petitioner. The Additional Solicitor General, arguing for the State, had practically conceded that Sec. 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 A • B c D E F G H ST. XAVIERS COLLEGE V. GUJARAT (Beg,].) 217 A case where a minority Institution applies for affiliation with another University. Inasmuch as Section S 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. Section 41 (1), however, operates even more directly upon the peti tioning College, which had been "admitted to the privileges of B University" under Section 5(3) by affiliation. This provision would. have the compelling effect of making it automatically a constituent unit o! the University, and must, therefore, be held to be inoperative sgainst rights the petitioning College as it cannot affect guaranteed by Art. 30 (1) of the Constitution. Provisions of Sec. 40 and the remaining provisions of Sec. 41 of the Act are all parts of the same compulsive scheme or mechanism which is struck by Art. 30(1). fundamental c 1f we hold, as I think we must, having regard to the provisions of Art. 30 (1) of the Constitution, that the words "shall be constituent college of the University", used in Sec. 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 under Sec. 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 embo in Sections 20, died in amended provisions contained 33A, 5 IA and 52A of the Act. (3) To face the consequence of withdrawal of affiliation under Sec. 3 7 of the Act and the resulting disadvantages of disalliliation 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 under Sec. 38B of the Act for which the petitioning college has al ready applied. '!'he 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. If the combined effect of provisions of the statute is that four alter native courses are open to the College due to its initial option to apply tor "affiliation" which is, strictly speaking, only a statutory and not a fundamental right, can its rights under Art. 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 <;onstituent part of the University amounts taking away of its separate identity by the force of law. But, if the College has really attained such standards of organisation and excel lence as it claims to have done, it can have an autonomous status D E F G 11 .. ' ,. 278 SUPREME COURT REPORTS (1975] 1 S.C.R. unde~ Section 38B of the Act with all its adV'antages · and practically for the asking. Could it, in these circumstances be said that loss. of the !dentity of the College is a necessary consequence of the prov1s10ns of the statute before us? No other statute with identi cally similar provisions and effect was interpreted in any case which has so far come to this Court. freedoms A C If the petitioning College, which has applied for the status of an B autonomous College under Section 38B of the Act as amended 1972, is provided with, an avenue of escape·by the amended provi sions themselves, it seems quite unnecessary to consider the impact or Sec. 20, Sec. 33A and Sec. 51A and 52A of the Act, which ·have been introduced by the Act of 1972, on fundamental rights protected by Art. 30. Section 20 does not lay down any func- tion of the Executive Council of the University with regard to an auto- nomous 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 st·anding Committees under Sec. 38C of the Act instead of the Govern- ing Bodies mentioned in Section 33A of the Act. Again, Sec. SIA and 52A apply only to an "affiliated College or recognised or approved Institution" so that .an autonomous College, functioning nnder the pro- D visions 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 sec. 5 and then Sections 40 and 41 of the Act which would automatically convert affiliated Colleges into con stituent 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, Sec. 41 of the Act, as it stands, could have the effect of negativing the rights conferred by Sec. 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 oper-ation of Sections 5, 40 and 41 of the Act, as we can, to Institutions other than minority Institutions protected by Art. 30( 1) of the Constitution because they would compel the petition- ing college to lose its identity, it may not be necessary, in the instant case, to consider the impact of any other .provision upon the fund,a mental 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 anse. The only Sections which e-0uld stand in the way of its becoming an autonomous institution could be sections 5, 40 and 41 of the Act. G 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. E F Assuming, however, that we mus; consider the impact of sections H 20, 33A, 51A, 5.2A upon the fundamental rights of the petitioning colfoge as it would, at least until it gets an autonomous status, be affec- ted and governed by them if they are valid, questions arise as to the t' ""' ST. XAVJERS COLLEGE v. GUJAl!.AT (Beg./.) A B c D E F G H source or basis and extent of permissible regulation or restriction upon the rights conferred upon the petitioning college by Art. 30( I) of the Constitution. Each and every learned counsel appearing for 11 minority institution has conceded that, despite the "absoluteness" of the terms in which rights under Art. 30 (I) 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 Art. 3 O 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 Art. 30 (1) of the Constitution we will be able to lay down with less indefiniteness and more preci sion and certitude the extent to which the State can regufate or res trict fundamental rights protected by Art. 30( 1) of the Constitution. Provision for and regulation by the State of the very conditions which secure to minority institutions the freedom to establish and ad minister its educational institutions is, obviously, inevitable and un deniable. 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 edu cation nor proper tmd 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 esta blish and administer an institution itself in a sound state is inherent in the very existence of organised society which the State represents. 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 Art. 245 to 254 read with the three Legislative lists in the Seventh Schedule of the Constitu ticln 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 Art. 30 (I), like other fundamental Constitutional rights, is meant to limit the. scope of ordinary legislative power. But, it was snbmitted, on behalf of the State, that it is only a "Jaw which takes away or abridges the rights conferred" by Part III of the Constitution, containing the fundamental rights of citizens, which is "void"' and th•at too only "to the extent of the contravention". 'J;hu>, a mere incidental regulation of or restriction upon the exercise of a fundamental right intended to secure and actually ensuring its more ettective enjoyment could not be said to be really directed at an ab ridgement 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 some thing quite different from the abrid.gement of a minority's fundamental rights under Art. 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 2i0 SUPREME COURT REPORTS (1975] 1 s.c.R. right from a minority institution, it would not be S'aVed simply because it d<>e$ not say so but produces that effect indirectly. For the purposes of applymg Art. 13 (2) of the Constitution we have to loo! at the total ettect of statutory provisions and not merely intention behind them. This is how I uncterstand the majority view in Re. Kera/a Edu cation Bill, 1957. (1) The essence of the right guaranteed by Art. 30(1) of the Cons titution is a free exercise of their choice by minority institutions of the pattern of educatton as well as of the administration of .Both these, taken together, determine the educational institutions. kind or character of an educational institution which a minonty has the right to cho9se. Where these patterns are accepted voluntarily the object may be to by a minority institution itself, even though secure certain al:lvantages for itself from their acceptance, the re quirement to observe these patterns would not be a real violation of rights protected by Art. 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 Art. 30( !) . In a case in which the pattern is accepted voluntarilv bv a minoritv 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. He.re, the incidental fetters on the ri, ght to manage the institution, which is only a part of the fundamental right, woulll be consequences of an exercise of the substance or esse_nce of the ri,!tht which. as I see it, is freedom of choice. No doubt, the rights protected by Art. 30(1) are laid dowi1 in "absolute .. terms without tlie 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 restric tions altogether, if it abandons, with it, the benefits of a statutory right, I fail to see how the absoluteness of the right under Art. 30( 1) of the Constitution is taken away or abridged. that the statute exacts a price in genera! interest for conferrin~ its It is open to the minority institution concerned to free it• benefits. self from any statutory control or fetters if freel:lom from them considered by it to be essential for tile fll11 exercise of its fundamental rights under Art. 30( 1) of the Constitution. This article, meant to serve as a shield of minority educational institutions against the in vasion 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 It is only when the terms reject the obligations of statutory rights. of the statute necessarily compel a minority institution to abandon the core of its fundamental rights under Art. 30 (I) that it could amount to taking away or abridgement of a fundamental right within the meaning of Art. 13(2) of the Constitution. It is onlv then that the ·Principle could apply that what cannot be done directly cannot be achieved by indirect means. Having stated my approach to the .All that happens (0 [1959] S. C.R. 995. A B c D E F G H ,.. .. )) • A B c D E F G H ST. XAVIE!\S COLLEGE v. GUJARAT (Beg. J.) 281 interpretation of Art. 30 (1) of the Constitution, I proceed now to consider the effect of this article. on the impugned provisions . It appears to me that Sec. 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 Art. 30( 1) of the Constitution merely because the Executive Council may if Art. 30 ( 1) take decisions which may have that effect. operates as a fetter on the powers of the Executive Co.uncil as well, the Council is powerless to take such decisions under Sec. 20 of the Act which take away or abridge fundamental rights so as to be struck by Art. 13. In any case, it is only when specific decisions and actions said to have that effect are brought before the Courts that their vali dity, in purported exercise of powers conferred by Sec. 20 of the Act, could be determined because the section itself gives a general power not specifically directed against minority institutions. Indeed, Sec. 33A of the Act requires the observani;e of a general pattern with regard to the constitution of the governing body of an affiliated cellege irrespective of whether· it is a minority or a majority institu tion. The mere presence of the representatives of the Vice-Chancel lor, the Teachers, the Members of the Non-teaching stall', and the students of the College would not impinge upon the right to adminis In my opinion, such a ''sprinkling" is more likely to help to ter. make that administration more effective and acceptable to everyone affected by institution can still have its majo rity 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 Art. 30(1) of the Constitution. it. A minority Section 5 lA of the Act appears to me to lay down general condi tions 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 Sec. 51A of the Act on the ground that it violates any fundamental right other than I the ones conferred by Art. 30(1) of the Constitution. have indicated above, a greater degree of interference with the right lo 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 5 lA do as disadvantages, it seems to me that provisions of Sec. not constitute an unreasonable encroachment on the essence of rights of a minority institution protecteXI by Art. 30(1) of the Constitution which consists of freedom of choice. For similar reasons, I do not think that Sec. 52A of the Act constitutes an infringement of the the Constitution rights under Art. 30(1) of special minority when the institution opts for a statutory right which necessarily in volves statutorv restrictions. Of course, if these provisions, could be held to be invalid on any grounds as against all affiliated colleges, If, as SUPREME COURT REPORTS (1975] ! S.C.R. 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 grounk!s or questions at all. In Re. The Kera/a Education Bill, 1957 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 Jµdges held (at p. 1062): (supra), "The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an eduqtional institution run by them in unhealthy surroundings, without any competent possessing any semblance of qualification, and teachers, which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stanl:ls 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 ins titutions to be aided. Learil.ed Attorney-General concedes that reasonable regulations may certainly be imposed by the State as a condition for aid or even for recognition". The function of education was set out there as follows (at page 1019) : "One of the most cherished objects of our Constitu tion is. thus. to secure liberty of thought, expression, belief; faith and worship. Nothing in people provokes and stimulates more than education. that clarifies our belief and faith and helps to strengthen our spirit of worship. thought and expression to al! its citizens is education It ·A person of secular .outlook may consider gopd works or per formance 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 i.t is asserted that the spirit which the State is bound to foster is that . of pursuit and worship of the ideals set out in the preamble Jo our ·Constitution. Explaining Art. 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' anltl the content of that Art!cle is as wide as the choice of the particular minority community may . make it The ambi.t of the rights conferred by Art. 3.0( 1). · has, therefore, to be determined on a consideration of the A B c D E E G H "\i A B c D E F ST. XAVJERS COLLEGE V. GUJARAT (Beg, J.) 283 matter from the points of view of the educational institu tions themselves". He also said !ibid at p. 1052) : "The real import of Art. 29(2) and Art. 30(1) seems to us to be that they clearly contemplate a minority institu- tion with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shell its character and cease to be a minority institu tion". except , educational to be paid before statutory existence a minority regulations To my mind, the ma1onty op1mon in the Kera/a Education Bill It does not case (supra) only lays down certain general principles. declare anything more to be unconstitutional and invalid than that which has a compelling effect so as to practically leave no choice submit institution institution. It did not deal with the case in which a minority institution had the option of choosing more or Jess autonomy, unlder 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 Art. 30( 1) of the Constitution, and also that such recognition by the State could entail payment of a p1ice for it. The majority and the minority views reasonably permissible amount of statutory compulsion as 'a price for aid and If the price to be paid is a fetter upon the exercise of a recognition. fundamental right, the very essence or core of the fundamental right being an exercise of choice, what is reasonable or not must, neces sarily, depend upon the total effect of all the provisions considered together and not of particuloar 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. differed only with to the regartl It seems to me, with great respect, that, in Rev. Sidhrajbhai Sabhai & Ors. v. State of Bombay & Anr.,(I) this Court went somewhat ber yond the majority view in Re. Kera/a Education Bill case (supra) G. after pointing out that n? "generbal princdiple on whhich rebaso1n~dbldeness or otherwise of a regulation may e teste was song t to " at 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 ~as totally destructive of the right" under Art. 30(1). Here, the que~t~on really considered was whether threats of withdrawal of recogm!Ion t,ninor, ity and of the grant to the college could be used to compel. a educational institution to admit nominees of the Govt. mto 1t. 1he use ·of such coercive methods was held to be unconstitutional. A test H (1) [19631 3 S. C. R. 837. 284 SUPREME COURT REPORTS (1975) 1 S.C.R. of validity of a regulatory measure was propounded as (at p. 857): follows A "Such regulation must satisfy a dual test of reasonableness, and the test that it is regulative of the edu.. cational character of the institution and is conducive making the institution an effective vehicle of education for the minority community or other persons who resort to it". test-the It was, however, pointed out, after observing treedom under cl. ( 1) of Art. 30 is expressed (al p. 850): that the fundamental · in absolute "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 it is a right to establish and ad- educational institutions : minister what are in trnth educational institutions, in~titn- tions, which cater citizens, or sections thereof. Regulation made in the true interests of efficiency of instruction, discipline, health, sani- tation, 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". the educational needs of B C D I 1 Tuns, here also a distinction was made between impainnent of t~ 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 E connected with imparting of education at an institution. In Rev. Father W. Proost & Ors. v. The St{J.te of Bihar & Ors.,( 1} the right of St. Xavier's College at Ranchi to impart general education, not circumscribed by the requirements of Art. 29 (1) of the Constitu tion, vtaS recogmsed in view of the width of Art. 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 Sec. 38B of the Act before us, which offers the right to the petitioning college to tlecome quite independent and free from the administrative control of the University beyond a "general supervision". The effect of that deci· .sion must, in my opinion, be confined to the situation which emerged from a consideration of the terms of the statute before this Court for G interpretation on that occasion. F In Rt. Rev. Bishop S. K. Patro & Ors. v. Stale of Bihar & Ors-.,( 2 ) -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 instl· tution to take steps to constitute a managing Committee in accord· H ance 'Yith the terms of the orders sent to it was challenged. The lega1 (!) [1969) 2 S.C.R. 73. (2) [1970] I S.C.R. 172, A B c D E F G H ST. XAVJERS COLLEGE v. GUJARAT (Beg. J.) 285 sanction for such an order itself was not clear. It was, therefore, after references to !he provisions of Art. 30(1) of the CoJ!stitution and the earlier cases dec; ded by this Court, set side. Apart from the question that it was a case on the ambit of the right under Art. 30 (1) of the Constitution, it does not appear to me to be helpful in resolving the difficulties of the case before us. In State ·of Kera/a etc. v. Very Rev. Mother Provincial, etc.(') tl1is Court had occasion to consider again the ambit of Art. 30(1) of I he Constitution and its impact upon the provisions of the Kerala University Act 9 of 1969. It was pointed out t)lat Art. 30(1) has two distinct spheres of protection separated in point of .time from each ocher : 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 7 40) : "This management must be free of control so that founders or their nominees can mould the institution as they think lit, and in accordance with their ideas of how the inte rests 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 scme difficulty in completely reconciling with any the management of .. absolute" freedom of conlrol : institution "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 dic tated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations they must be followed, subject however 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 stu dents. Such regulations do not bear directly upon manage ment 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 ·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". Evidently, what w~s meant was that the right to exclusive manage ment of the institution is separable from the right to determine character of education and its standards. This may explain why "standards' of education were spolien of as "not part of management" It meant that the right to manage, having been conferred in at all. --------- · (1) [1971J 1 s.c.R.·7J4. 286 SUPREME COURT REPORTS [1975] ! S.C.R. -absolute terms, could not be interfered with at all although the object of that management could be determined by a gcm; ral 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 diffi cult 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 o~ teachers and provisions intended to ensure fair and equitable ment 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, general standard of education. distinguish this case on the ground that the provisions to be preted by us are different, although, speaking for myself, I feel bound to say, with grrnt respect, that I am unable to accept every proposition found stated there as correct. 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 ha\'e already observed, in the case before us, Sec. 38B of the Act provides the petitioning College before us with a practically certain mode of esC'ape from the compulsiveness of provi sions other than Sections 5, 40 and 41 of the Act if claims made on its behalf are correct. therefore, to raise I think that it is enough for us In that case, the provisions of In D.A.V. College, Bathinda, etc. v. Str:l,te of Punjab & Ors.,( 1) this Court considered the effect of a notification of the Punjab Govt. and the constitutionality of sections 4(2) and 5 of the Punjoabi Univer- sity Act 35 of 1961, the result of which was that the petitioning col lege there ceased to be affiliated to the University constituted under the Punjab University Act of 194 7 and was compelled to become aililiated 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 c]laracter and medium of instruction in order to comply' with the provisions of the Act. rights pro tected both by Arts. 29(1) and 30(1) were held to be infringed by the offending provisions. In such a situation, its A B c D E F • G In D.A.V. College etc. v. State of Punjab & Ors.(') the validity -0f certain sections of Guru Nanak University (Amritsoar) Act 21 of 1969, and of some statutes of the University made under it, was con sidered by this Court in the light of fundamental rights guaranteed by H Articles 29(1) & 30(1) as well as Art. 19(1) (c) of the Constitution. (l) [1971] supp. s.c.R. 677. (2) [19711 Supp. S.C.R. 688. A B c D • ST. XAV!ERS COLLEGE v. GUJARAT (Beg. J.) 287 The attacks on sections 4 & 5 of the Guru Nanak University Act as well as 'on ciau~e ie under Chap. V of the University statutes failed but .clauoe• ;~J){::) 1nd 17 were struck down for conflict with rights guar.anteed by Art. 30(1) of the Constitution .since their effect was to compel compliance with their provisions as "conditions of alliliation". 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 Uni versity 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 excellen~e. It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications 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 Col leges 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 infringe ment of the right, if any. under Article 30(1) will depend on the actual purpose and import of the ordinance when made and the mauner in which it is likely to affect the administra tion of the educational institution, about which it is not possible now to predicate". F It was urged on behalf of the petitioning college that .if it could I: get the advantages of affiliation or recognition by the University only under the terms of an enactment which requires it to adhere to n pattern or scheme under which substantial powers relating to manage ment of the institution have to be surrendered, iLreally amounts to compelling it to abandon the exercise of its right of management guaranteed by Art. 30(1) of the Constitu1ion l>Q- cause, without recognition, the guarantee would be illusory. It is sub mitted that the situation which emerges is that there is, .. practically speaking, no alternative le~ before the college other than compli.ance with tlie 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 impart- -- ed to get on in life and thus will have little practical value. This G means, the argument runs, that the_ minority .institutions would be discriminated against and denied equality before the law which Art. 30(1) of the Constitution is meant to confer upon it. fundamental The answer given is that such arguments could be adwnced only to urge that there must re 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 ns well as majority managr4 collcgcs could not be invalidated on such a ground. In other wmds, it may be that Art. 30(1) of the Constitution enables a Jllino- - - 288 SUPREME COURT REPORTS [1975] 1 S.C.R. rity to contend. that, in order to secnre an equal .protection .of laws, the State should make some statutory provision so that minority. insti tutions may obtain recognition or teach for degrees recognised by the State without sacrificing any part of it rights of management guaran- teed by Art. 30(1) of the Constitution. No claim for an order direct- ing the State to make such alternative provision for the petitioning mmority institution js made before us. ' Whoat 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 im- pugned provisions applicable to affiliated colleges, whether majority or minority managed, apart from sections 5, 40 and 41 which are sepa rable, are contained in sections 20, 33A, SIA 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. It is true that section 38B of the Act imposes certain conditions which, if the claims made on behalf of the petitioning college are In any case, correct, the college will have no difficulty in satisfying. 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 Art. 30 ( 1) of the Constitution. A B c D E Section 38B, to which I attach considerable importance for F purposes of this case, reads as follows : "38B. (!) 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 Execu tive Council to allow the college, institution or, as the case may be, Department to enjoy autonomy in the matters of ad- mission of students, prescribing the courses of studies, im- parting instructions and training, holding of examinations and the powers to make necessary rules for the purpose (herein- after referred to as "the specified matters"). G 4 (2) Either on receipt of a letter or application under sub-section (1) or where it appears to the Executive Coun cil 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 H A B c 0 E F G H ST. XAVJERS COLLEGE V. GUJARAT (Beg, J.) 289 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 stan dards 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 Department to enjoy auto nomy in the specified matters- (i) direct a local inquiry to be made by a. competent pfrson or persons authorised by the Executive Council this behalf, and (ii) make such further inquiry as may appear to it to be necessary; (b) after consulting the Academic Council on the ques :wn 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 embody mg 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 !or 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 there to, to the State Government. ( 5) On receipt of the proposals and proceedings under sub-section ( 4), the State Government. after such iaquiry as may appear to it to be necessary, may sanction the prope »als or reject the proposals. ( 6) Where the State Government sanctions the prDpoBals it shall by an order published in the Official Gazette confer on the college. institution or Department specified in the pro posals, 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. institytion or Department. the imparting of instructions, teaching and train- ing in the course of studies, the holding of examinations and powers to make the necessary rules for tre purpose after con sulting the Executive Ceuncil and such other powers as may have been specified in the proposals . . 20-1 l!SupCT/75 290 ·SUPREME COURT REPORTS [1975] I s.C~R. . (7) A college, recognised institution or. University De: partment exercising the powers under sub-section. (6) shall· be called an 11utonomous ·college, autonomous . recognized institution or, as the case may _be, autonOmous University Departm~~t; · (8) In the case of an autonomous college, autonomous recognized institution or autonomous University Department, the University shall continue "to exercise general supervisi.on over such college, institution or Department and to . confer degrees on the students of the college,. institution or De- partment passing 11ny examination qualifying for any degr~e : of the University". A. B · The effect of an enactment upon the fundamental rights of a mino- rity educational institution, as I have already tried to indicate above, depends· upon the totality of actual provisions, and, indeed, 11Iso upon the actual facts relating to a particular institution. Is it possible for . us to gauge the total eff<!ct without taking au these factors into con ::idcration ? · I venture to 1hirik, 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 petition- ing college put forward before us. · C · D · It may be that Art. 30(1) of the Constitution is a natural result of the feeling of insecurity entertained by the ·minorities which !rad to be dispelled by a guarantee which could not be reduced to a '"teasing • But, is it anything more than an illusion to view. the choice illusion' 7 of a minority as to what it does with ·its educational institution as a matter of unconcern and indifference to the whole or;;anised society · which . the St11t_e represents ? · The Nineteen!~ Century "liberal'' view of freedem as absence of constraint'', ·which was largely negative, was voiced by J. S. Mill in llis "Es~ay on Liberty''.(') learned· author set out the purpose of his essay as follows (See: "Great Books of the Western World", J. S. Mill at page 271) : - In the introduction, the ''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 tlie mean~ used be physical force in the form of legal penalties, or the moral coercion of public opinion. Th'at 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. rightfully That the only purpose for which power can be ·.· exercised over any member of a civilized community, against · his will. is -to··p~event ha~ to oth~rs. His own good, either physical or moral, is· ·not a sufficient ·warrant. . He cannot rightfully be ccimpellect to ·do or forbear because it will be . . (IJ America_n State Pa_pe:s-Federalist-J.S. Mill, p. 267@271 and JOs: E F G H ' A B c ·o F G H ST. XAVIERS COLLEGE V. GUJARAT (Beg, J.) . . . 291 better far hi'll. to. do so, because it will make him happi~r bec_~u~e, in -~e opinions of others,- to do so would be \Ilise· o;. 'f!lese '.""e j\OO<l reasons f<:>r rei:iionstrating ~ith e~en right. h!m, or reasorung with him; or persuadmg him, or entreatmg . him, but not for compelling hint, or visiting him wit!t 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 fn. the part which merely concerns him- ;concerns others. . ·self, his independence is, of right, absolute. Over himself, .. over his own body and mind, the individual is sovereign". Is Art. 30 C?f 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 Sta.le, or, is ihe · philosophy underlying .it not the more generous' one animating the · whole of our Constitution and· found stated in the · preamble which, 'Education· Bill case according to Chief Justice Das, in the Keiala (supra); embraces also the purpose .of education? · fodeoo,' tne <liffi culty of separating the good of the individual, or, by an ext~nsion, tne. 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; 11 is L'llpossible for a person to do anything seriously. or permanently hu~ul ··.to himself,· without mischief reaching at least to his near con- If he injures his pro . nections, and often· far beyond them. perty, he does harm to· those who directly or indirectly derived support from it, and usually diminishes; by a greater the community. or less amount, the. general resources of If he deteriorates· his bodily or mental faculties, he not· only brings evil upon oall who depended on him for any portion of their happiness, but disqualifies himself for services which he owes to his fellow . creatures· ~enerally; ·perhaps becomes a burthen on their affection 01 benevolence; and if such conduct were very frequent, hardly any offence that ls committed.would detract.more from the 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 con trol himself for the sake of those whom 1.h(l' sight or know ledge of .his conduct might corrupt or mislead". rendering the . Even if Art. 30 ( 1) of the Constitution is held to confer absolute and unfettered rights of management upon minority institutions, sub. ject only to absolutely minimal and negative conttols 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 instit?tion enters the wider sphere of general secular and non-denom1na1ton~l education, largely employs teachers ~ho a~e not members of. th~ parti cular minority concerned, and when 1t denves. large parts of its income 292 SUPREME COURT REPORTS [1975] .I S.C.R. from the fees P'aid by those who are not members of the particular A 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 imparts management of the minority institution and the cduc8tion it In other but who are not members of the minority in management. words, the degree of reasonably permissible control must vary from situation to situation. For the reasons already given •above, I think that, soctions 5, 40 and 41 of the Act, directly and unreasonably B impinge upori the rights of the petitioning minority managed college, protected by Art. 30 (1) of the Constitution, but the other provisions do not have that effoct. On the situation nnder consideration before us, the minority institution affected by the enactment has, upon the claims put forward on its behalf, also a means of escape ~mpugned provisions other than sections 5, 40 and 41 of the Act bv resorting to Sec. 38B of the Act. C Consequently, I hold that sections 5, 40 and 41 of the Act are restricted in their operation to colleges other than those which are pro tected, as minority educationoal institutions, by Art. 30( I) of the Can stitntion. 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 D as regards the remaining provisions of the Act. E F DwrvEDI, J. Since I partly agree and partly degree with plurality-opinions, it has become necessary for me to write a separate judgment. Contrast between Arts. 25 and 26 and 30(1) of the Constitution In a broad sense, all fundamental rights may be traced to a single central idea of 'Liberty'. 'Liberty' bas its various phases. The rights safeguarded by Arts. 25 and 26 constitute one of those phases : !Ae rights safeguarded by Art. 30(1) constitute another phase. Articles 25 and 26 guarantee religious liberty; Art. 30 ( 1) guarantees educa tional liberty. To be more precise, Art. 30(1) soafeguards the freedom of establishing and administering educational institutions. It is true that an educational institution may also impart religious instruction and may tbus serve as a means to the exercise of religious freedom. But Art. 30(1) elevates the right of establishing and administering an educational institution to the plane of an independent right. a case of a means bocoming an end by itself. It is G Again, the beneficiaries of the rights under Arts. 25 and 26, and 30(1) are different. Article 25 safeguards the religious freedom of an individU'al. 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 majo rity community. In contrast, Art. 30(1) safeguards the right of minority community. It has nothing to do with the majority community. Thus, although Art. 30 ( 1) safeguards a group-right like Art. 26, is H • • • ST. XAVIERS COLLEGE v. GUJARAT (Dwivedi, !.) 293 A is radically different from Art. 26 as it is confined only to the minority community. B C While Arts. 25 and 26 are concerned with religious freedom, Art. 30 ( 1) extends the right of establishing and administering an educa tional institution not only to a religious minority but also to a linguis tic minority who may be even atheists. So the scope of Art. 30(1), as regards both the content of the right and the beneficiaries of right, is wider than that of Arts. 25 and 26. · Article 25 ( 2) disentangles certaill activities, including secular activity, from religious practices and makes them subject to legal regu lation or restrictions. But Art .. 30(1) secures the right to a secular Such a minority may activity to a religious or linguistic minority. establish and administer institutions for imparting secular general education. The right to establish and administer educational institu tions for imparting secular general education cannot be disentangled from the whole plexus of rights under Art. 30 ( 1), and the right under Art. 30(1) cannot be confined to the mere imparting of religious or linguistic education. D Contrast between Art. 29(1) and Art. 30(1) The content of the right under Art. 29 ( l) differs from the content of the right under Art. 30 ( 1). Article 29 ( 1) secures the right of a section of citizens having distinct script, language or culture to con serve the same. Article 30 (1), on the other hand, guarantees right of a religious or linguistic minority to establish and administer educational institutions. Article 29 (1) gives s~urity to an interest : Article 30(1) gives security to an activity. (Compare the marginal note to Art. 29 (1). 1t is true that an educational institution may serve as a means for conserving script, langua)le and culture But this is not the sole object of Art. 30(1). A religious or linguistic minority, in exercise of right under Art. 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 finan- cially. 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. Choice is inherent in every freedom. The right to form associa tions and unions under Art. 19(l)(c) extends to every kind of asso- E F G H 294 SUPREME COURT REPORTS (1975] 1 S.C.R. ciations and unions. Simifarly, the choice of a citizen in. respect of property under Art. 19(1) (f) or business and profession under Art. 19 ( !) (g) is not limited to any specific type of property or business or profession. A citizen may acquire, hold and sell any kind of pro perty or carry on any business or profession. Of course, these free doms are subject to State regulation under Art. 19(3),(5) and (6). Hut freedom without choice is no freedom. So it seems to me that the words 'of their choice' merely make patent what is latent in Art. 30(1). Those words are not intended to enlarge the area of choice already implied in the right conferred by Art. 30 (!). A B The Court has already held that the right to establish an educa the purposes [See the State of Bombay v. Bombay Edu- tional institution under Art. 30 (1) is not confined to specified iri Art. 29(1). r.ation Society;(') In Re. Kera/a Education Bi/1;( 2 ) Rev. Father W. C Proost and others v. State of Bihar( 3 ) and D.A.V. College v. State of Punjab( 4 )]. The Right of Affiliation Three different arguments have been urged before us on this issue : (!) The right is necessarily implied in Art. 30 (1). Accordingly the right of affiliation is also a fundamental right. pressly nor impliedly granted by Art. 30( 1). Accordingly it is not a fundamental right. On the contrary, affilil1tion is a statutory concept and may be obtained on the fulfilment of the conditions prescribed therefor by a statute. (3) Although it is not a fundamental right, it is necessarily implicit in Art. 30 ( 1) that affiliation cannot be denied for refusal of a minority institution to give us totally or partially its right under Art. 30(1). (2) It is neither ex- D • • E right of affiliation In my view, it is also not necessarily Evidently, there is no express grant of the implied in Art. (!) The context does not favour the 'of Art. 30(1). 30(1). My reasons are these: asserted implication. The framers of the Constitution have special care to dissipate doubts as regards choice by the words their choice'. They have also taken special care to extend a guarantee F to a minority educational institution against discrimination in matter of aid from the State on the ground that it is under manage ment of a minority based on religion or language. [See Art 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 Art. 30. It is obvious that a minority institution im parting only religious instruction or !C'aching its own theology would G 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 impart- ing religious instruction or teaching only theology of a particular reli gious minority may not comport with the secular character of State. As Art. 30(1) does not grant the right of affiliation to such an imparting; institution, it cannot confer that right on an institution ' H (I) [1955] 1 S.C.R. 568, 578, 582. (3) [1969] 2 S.C.R. 73 at 180. (2) [1959] S.C.R. 995, 1047, 1052-53. (4) [1971] Supp. S.C.R. 688, 695. ST. XAVIERS COLLEGE v. GUJARAT (Dwivedi, J.) 2 95 A secular general education. The content of the right under Art. 30 ( l) must be the same for both kinds of institutions. [See Kera.'a Educa tion Bill (supra) at pp. 107iH077 per Vekatarama Iyer J.]. In Ramesh Thapper v. The State of Madras(,!) this Court said : "[T]here can be no doubt that the freedom of ideas; and ideas; and expression includes freedom of propagation of 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 free dom of speech and expression, so the right of affiliation should be im plied 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 treedom to communicate what he thinks to one or more persons. Con sequently, the latter necessarily implies freedom of propagation or circulation of ideas. But the right of affiliation is not necessarily im- plied 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 un- affiliated academies have made great contribution to the development In pre-independent India there were a of science and humanities. 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 insti tutions, if they are otherwise merited. The mere accident of recruit- ment to the St'ate services being made on the basii; of recognised de grees and diplomas should not be a sufficient reason to read the right of affiliation in ArU30( I). The ~tate may at any time abandon this facile and mechanical suitability test and may make selections by·com- petitive examinations open to all, whether possessing or not possessing a recognised degree ·or diploma. 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 Arts. 14 and 15 (1) and will be struck down by courts. Again, Art. 13 (2) prohibits the State from taking away or abridging the right under Art. 30(1). Since the State cannot directly take away or abridge a right conferred under Art. 30( 1), the State cannot also indirectly take away or abndge that right by subjecting the grant of affiliation to conditions which would entail the forbidden result. [See In Re. Kera/a Education Bill (supra) at pp-1063-1964]. ·Affiliating University Sri Palkhiwala has submitted in the course of his reply that Art. 30(1) obligates every State to have at least one affiliating university. B c D E F G H (l) [1950] S.C.R. 594 at 597. • .. r ~. 296 SUPREME COURT REPORTS [1975) J S.C.R. I am wholly unable to accept this submission. As Art. 30 (1) does not A 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 teach- ing university. Illusory Absoluteness of Art. 30(1). Some counsel supporting the petitioners have, I think, wrongly overemphasised the verbal absoluteness of Art. 30( 1). According to Sri Tarkunde, while Art. 19(1 )(g) gives a right to the majority com munity to establish and administer educational institutions subject to reasonable restrictions in the public interest, Art. 30( 1) gives similar right to a religious or linguistic minority in absolute terms. According to him, Art. 30( 1) should be construed to confer a higher right on the minority than the one conferred on the majority by Art. 19(1)(g). According to Sri Palkhiwala, the right under Art. 30( 1 ) is conferred in absolute language and can neither be taken away nor abridged by the State on account of the injunction of Art. 13(2). It is true that Art. 30(1) is expressed in spacious and unqualified language. And so is Ari. 14 : "The State shall not deny to any person equality before the law or the equal protection of the laws within the limitation oi' territory of India." However, this Court has read classification in the general and unrestricted language of Art. 14. "[T]he general language of Art. 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 protectioq of the laws is only given effect to as a safeguard against arbitrary State action." (State of West Bengal v. Anwar Ali Sarkar(') per Patanali Sastri C.J.). "Article 14 confers a right by enacting a prohibition which in form, at least is absolute.. . but.. . Art. 14 is not really absolute, for the doctrine of classification bas been incorporated in .it by judicial deci sions. Article 14, as interpreted by the courts would run in some such words as these : The State shall not deny to any person equality be fore 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 relatiOI\ 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 Art 14. (Charanjit Lal v. Union of India(") and Kathi Raning Rawat v. State of Saurashtra.( 3 ) Like Art. 30( 1), the I Amendment of the U.S.A. Coru; titution is also expressed in absolute terms : "Congress shall make no (l) [1952] S. C. R. 284, 295. (3) [1952] S. C. R. 435, 442. (2) [1950] S. C. R. 869 890. B c D E F G H A B c 0 E F G H ST. XAVJERS COLLEGE v. GUJARAT (Dwivedi, J.) 297 respecting an establishment of religion, or prohibiting the free exer cise tllereof; or abridging freedom of speech, or of the Press; or the right of the people peaceably to assemble, and to petition the govern ment for the redress of grievances.'' Nevertheless it has been held by the U.S.A. Supreme Court that the liberty recognised in the I Amend ment is not absolute and is regulation. "Freedom of subject religion) embraces two concepts, freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second can not be." (Cantwell v. Connecticut).(') As regards freedom o! speech, Justice Fqnkfurter has said : '·(T)he first ten amendments to the Constitution, com monly known as "Bill of Rights" were not intended to lay down any novel principles of government, but embody certain guarantees and immunities which we had imerite<l from our English ancestors and which had from time im_!'lemorial been subject to certain well recognised exceptions arising from the necessities of the case. In incor porating these principles into the fundamental law there was ne intention of disregarding the exceptions, which continued to be recognised as if they bad been formally expresse<l."(2 ) simply Like Art. 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 "absolutely 'absolute' freedom is subject to regulation. The words 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 pur pose 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.''( 3 ) The Privy Council has recently held that the regulation cf trade, commerce and intercourse amongst the State is compatible with its (Commonwealth of Australia and others v. Bank absolule freedom. of New South Wales and others).(') As to the extent of regulation, the Privy Council said : (!) 310 U.S. 296 at pp. 303-304. (2) 95 Law Edn. Jll7 at p. 1160. (3) W. S. A. Waynes : Lagislative, Executive and Judicial Powers in Australia, 2nd Edn. p. 339). (4) 11950] A.C. 235. 298 SUPREME COURT REPORTS [1975] 1 S.C.R. "[T]heir Lordships 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 circum stances, and it may be that in regard to some economic acti vities 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 intercours.e thus prohibited and absolutely free."(!) thus monopolized remained This survey should be sufficient to explode the argument of abso lute or near-absolute right to establish and administer an educational institution by a religious or linguistic minority from absolute words of Art. 30( I). 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 Art. 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 har monious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical incon venience or make well established provisions of existing law (State of Punjab v. Ajaib Singh)(') nugatory." A glance at the context and scheme of Part III of the Constitu tion would show that the Constitution makers did not intend to con fer absolute rights on a religious or linguistic minority to establish and administer educational institutions. The associate Art. 29(2) imposes one restriction on the right in Art. 30(1). No religious or linguistic minority establishing and administering an institution which receives aid from the State funds shall deny admission to any citizen to the institution on grounds only of race, caste, language or any of them. The right to admit a student to an educa tional institution is admittedly comprised in the right to administer it. This right is partly curtailed by Art. 29(2), educational religion, The right of admission is further curtailed by Art. 15(4) which provides au exception to Art. 29(2). Article 15(4) enables the State to make any special provision for the advancement of any socially and educationally backward class of citi7..ens or for the scheduled caste and scheduled tribes in the matter of admission the educational institutions maintained by the State or receiving aid from the State. Article 28(3) imposes a third restriction on the right in Art. 30(1). It provides that no person attending any educational institution recog nised or receiying aid by the State shall be required to take part any religious instruction that may be imparted in such institution or (I) [1950] AC. 235, 31 J. (2) [1953] S.C.R. 254, 264. A B c D E F G • A B c D E F G H ST. XAVIERS COLLEGE v. GUJARAT (Dwivedi, /.) 299 to attend any religious worship that may be conducted in such insti tution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Obviously, Art. 28(3) prohibits a religious minority establishing and administering an educational institution which receives aid or is recog nised by the State from compelling any citizen reading in the institu tion 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 Art. 28(3) curtails that right to a certain extent. To sum up, Arts. 29(2), 15(4) and 28(3) place certain express limitations on the right in Art. 30 ( 1). There are also certain implied limitations on this right. The right should be read subject to implied !imitations. 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 consti tuting our Liberty accord10g 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 ou 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 Art. 19(1) (g). Although the right of a religious denomination under Art. 26 to manage its own affairs is not expressly made subject to Art. 25(2)(b) which protects a law throwing open Hiudu religious insti tutions of a public character to all classes of Hindus, this Court up held the validity of a law throwing open public temples to excluded class of Hindus. Speaking for the Court, Venkatarama Aiyai 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 Art. 25 (2) (b) will become wholly nugatory ·in application to denominational temples, though, as stated above, the language of that Article incl\1des them. On the , other hand, if the contention of the respondents is accepted. then full effect can be given to art. 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 Art. 25(2) \b) will prevail. While, in the former case, Art. 25(2) (b) will be. put wholly out of operation, in the that provision and· latter, effect can be given to both 300 SUPREME COURT REPORT [1975] 1 S.C.R. Art. 25(b). We _must accordingly hold must be read subject ramana Devani and others vs. State of Mysore.(') to Art. 25(2)(b)." that Art. 26(b) (Sri Venkafa A_ccordingly t~e right in Art. 30(1) cannot, in my view, be so exercised as t,o v10late a .citizen's legal or coBstitutional rights. Thns the management cannot punish a member of the teaching or non teachmg staff or a studeut for legitimate exercise of his freedom of speech and expression or of forming associations or unions. The Constit1.1tion makers have endeavomed 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 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 tmn, denied religious freedom to pagans and surrendered their own freedom either to an Absolute Emperor or to an InfalJible Pope. Catholics and Protestants denied religious freedom to one another and strengthened the absolutism of the monarchy. 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. It cannot be disputed that the right under Art. 30(1) is also sub ject to regulation for the protection of vario1.1s social interests s1.1ch as health, morality, sec1.1rity of State, p1.1blic order and the like, for good of the people is the supreme law. Today, education, specially Science and Technology, is a pre-emptive social interest for 01.1r deve loping, 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 educatio!l has become the real wealth of the new age."( 2 ) 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 modernisa\ion of agriculture and rapid industrialisation. This requires a science-based technology .... (2) The development of human resources through a properly organised programme of educa tion." 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 j)pSsi ble." (•) Obviously secular general education, more especially science and technology, should play decisive role in the development and pros perity of our Nation. Accordingly our State should be as much (I) [1958] 2 S. C. R. 895, 918. (2) J. D. B~rnal, Science in History. Pe1irtln Book, Vol. Ir. 117. (3) K.othari Education Comrnic; sion Report, parat.12. A B c D E F G H ST. XAVJERS COLLEGE v. GUJARAT (Dwivedi, !.) 301 A B c D E F G H interested as, nay more than the religious or linguistic minorities the right 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 gene ral educatiou a religious atmosphere seems to me to overlook important national aspect. Secular general education should be the Nation's first concern. It may legitimately be assumed that the Consti tut10n makers were alive to the priority which education should receive in the programme of our Republic. (See Arts. 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 educa tional institution for imparting secular general educatiou '! J t is well to remember that it is the Constitution which we are ex pounding. A statute is a specific contrivance for dealing with 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. lt is made fm me present as well as for the future. Like all great organic texts, iiO:""''f'\ it is written in broad and accommodating language. (The words of the Veda are commodious-M.B., Shanti Parwa, XIX, l J. Far from implying state inaction, the general language of Art. 30( l) is, to my mind, designed to give due flexibility to the legislature and to the courts in adjusting the rights in Art. 30(1) to the necessities of each case. 'B"'l~ 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 Constitu tion are not mathematical formulas which have their essence in mere form. They constitute a framework of govermnent 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 Bengl•' v. Anwar Ali Sarkar (Supra) at p. 359]. The learned Judge further said : "(The words of the Constitution) are not just dull, life le8' 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 jndgment, be elastic enough to meet from time to time the altering conditions of a changing world with is shifting emphasis and differing needs. (Supra alp. 363) Extent of regultt.tory power ~e extent of regulatory power of the State wouid vary according t? V3;fI?ns t~pes. <;>f educatio1!al ins!itu~ons established by religions and lmgu1st1c mmonties. Educational mstitutions may be classified several ways: (1) According to the nature of instrnction which is bein~ i?Jp.arted ~y the minorities. It may be religions, cultural and lingmst!c mstruclton or secular general edncation or mixed; (2) Accordm~ to grant of aid and rec·:gnition by the State. Some i1l!ltitu- 302 SUPREME COURT REPORTS (1975) 1 S.C.R lions may receive aid; the others may not. Similarly, so:11e institutions may recei.ve recognition; the others may not. There may · be 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 raature of edu cation such as military academy, marine engineerin1', State is vitally interested for various reasons. in which 1be extent of regulatory power may vary from class to class as well as within a class. For instance, institutions receiving aid and recog nition 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 reli gious, cultural and linguistic instruction solely. A B c An educational institution would consist of : ( 1) ihe managing body of the institution, (2) teaching staff, (3) non-teaching staff, ( 4) students and (5) property of various kinds. Here again, the extelit of the regulatory power may vary from one constituent to another. For instance, the teaching staff and property may be subject to greater D regulation than the composition of the managing body. Plainly, no minority educational institution can be singled out for treatment diffe- rent from one meted out to the majority educational institution. A regulation meting out such a discriminatory treatment will be obno- xious to Art. 30( 1). t Subject to these preliminary remarks, it is now necessary to con- sider how far a regulation may touch upon the right conferred by Art. 30(1) without incurring the wrath of Art. 13(2). In other words, what is the test for deciding whether a regulation imposed on a mino· rity educational institution takes away or abridges the right conferred by Art. 30( 1) ? It has already been discussed earlier that the test of a valid regulation is its necessity. Any regulation which docs net go beyond what is necessary f9r 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 Art. 30(1 ). E F • 1 ~ · • No hard and fast rule can be prescribed for determining what is the G light of necessary. The question should be examined in 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. H 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 as the Court. It is more informed than the Court about ST. XAVJERS COLLEGE v. GUJARAT (Dwivedi, J.) 303 A the J'lressing necessities of the government and the needs of the com (See State of West Bengaj v. Anwer Ali Sarkar (supra) at munity. p. 303 per Das J.) I find it difficult to accept the argument that a regulation, in order lo be constitutional, must always be shown to be calculated to improve lhc excellence of the minority educational institutions. It is conceded by counsel supporting the petitioners that the State may prescribe the curriculum and svllabus for the minoritv educational institutions which are aided or recognised by it. Now a regulation prescribing curriculum and syllabus may not necessarily be calculated to imp10ve the excel lence 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 m~ 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. is not a part of institution. With profound But it is pressed upon us that the prescribing a curriculum and syllabus the administration of an educar to the learned Judges tional who decided the Mother Provincial case(:!). T find accept this argument. Counsel supporting the petitioners have main tained that the State could not prescribe curriculum and syllabus for religious, cultural or linguistic instruction which is being imnarted in a religious or linguistic minority unaided and unrecognised educational institution. The reason obviously is that cirriculum and syllabus is a vital part of the administration of an educational institution. it difficult respect As far as Catholic educational institutions are concerned. Catho the Church. lics believe that education belongs pre-eminently to Catholic dogma categorically denies the premise that secular general the 1930 en education can be isolated from religious teaching. cyclical 'Christian Education of Youth' Pope Pius XI has commended : "The only school approved by the Church is one (where) the Catho lic 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." (Pfeffer, Church, State and Freedom, 1953 Bin. p. 294). In Nor should the regulatory power be hamstrung by such concepts as "real and effective exercise of the right" should not be touched by ~he ~egulation or _that regulation should not "directly and immediately" 1mpmge on the nght conferred by Art. 30( 1). What is a real and effectiv_e e~ercise of th~ right will depen? on how far the impugned regulation 1s necessary m the context of l!me, place and circumstances for safeguarding any competing social interest of any competing consti_ tutional or legal right of an individual. (I) [1971] t ~.C.R. 734. B c D E F G H 304 SUPREME COURT REPORTS [1975] 1 S.C.R. The majority opinion in Re : Kerala Education Bill (supra) A supports the construction which I am seeking to put on Art. 30(1). Speaking for the majority, Das J. said : "We are thus faced with a problem of considerable com plexity apparently difficult of solution. There is on the one hand the minority rights under Art. 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 Art. 4S 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 l'ossible and bring about a synthesis between the two." (emphasis added) (supra at page 1062). Holding that els. 9, 11(2) and 12(4) were permissible regulations, the learned Chief Justice said : "Qauses 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 under taking 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 cl. 11 takes away an obvious item of management, for the n1anager cannot appoint any teacher at all except out of the panel to be pre pared by the Public Service Commission, which, apart from the question of its power of taking up such duties may net be qualified at all to select teachers who will be acceptable to religious denominations and in particular sub-cl. (2) of that clause is objectionable for it thrusts upon educational insti tutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenents of their religion and may be otherwise weak edncationally. Power of dismis- sal, 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 violatiag that right. But co11sidering that _those provisions are applicable to all educational institutions and that the impugned parts of els. 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. 12H) 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) C F' G~ At the moment I am not concerned with the correctness or incor rectness of the view that els. 9, 11(2), 12(4) are constitutional. I have quoted this passage in order to bring out the technique of adjU:dg• ing the constitutionality of a statnte which has commended itself to the majority of the Court, That technique requires the Court to balance St. XAViERS COLLEGE v. GUJARAT (Dwivedi, i.) 305 A B- the right conferred by Art. 30 ( 1) and the social and individual interests which it is necessary to protect. In Rev. Sidhajbhai Sabhai and others v. State of Bombay(,') Shah J. said : "Regulations made in the true interests of efficiency of public instruction, disciplme, health sanitation, morality, order and the like may undoubtedly be imposed. Such regu lations arc not restrictions on the substance of which is guaranteed; they secure the proper functioning of the institution, in matters of education." (emphasis added). c 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. D The decision in this case does not seem to me to be in contlict 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. lti other words, the impugned orifer went much beyond what was neces sary in the circumstances of the case. In the State of Kera/a v. Very Rev. Mother Provincial('). Hidayatnllah 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 manage ment can be taken away and vested in another body without an en· croachment 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 train· ing to the students admitted to it. Sri Nanavatty, counsel for the peti tioners, 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 be longing to the academy by the officers of its own choice and confi· dence. The State may, I believe, go to the length of even prescribing that· the arms and ammunition should be kept in the government armoury and should be issued by a State officer holding charge of the armoury. The right under Art. 30(1) forms part of a e-0mplex 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. (t) [1963] 3 S.C.R. 837 at p. 850. (2) [197tl 1 S.C.R. 734 at p. 740. H 3 fJ6 SUPREME COURT REPORTS this Court struck In D. A. V. College vs. State of Punjab,( 1) down cl. 1 7 of the 'statutes which provided that 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 unani mous Court, observed : "In our view there is no possible justification for the pro visions contained in clause .. 17 of Chap!er V of the statu tes which decidedly interfere(s) with the rights of manage ment of the Petitioners Col!ege. These provisions cannot therefore be made as conditions of affiliation, the non-com pliance of which would involve disaffiliation and consequently they wil! have to be struck down as offending Art. 30(1)." The words "no passible justification" in the passage seem to me to suggest that the Court would have upheld cl. 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 Rev. Father W. Proost and others vs. The State of Bihar(') and JJ. A. V. College, Bhathinda vs. State of Punjab(') which would militate against the construction of Art. ~0( 1) suggested by me. No new principle is expounded in the decisions of various High Courts in A/µo Meria Patroni v. V. E. C. Kesavan,( 4 ) Dipendra Nath Sarkar v. State of Bihar,(') The MusUm Anjum<Jn;-e-Tc!leem, Dhar bhanga vs. The Bihar University,(") Varkey vs. State of Kerala,(') State of Kerala vs. The Corporate Management of Sclzoo/s of Archdiocese of Chanancherry,(") and Direcf{)r of School Educalion, Tamil Nadw vs. Rev. Father G. Irogiasw111my.( 9 ) All these decisions, follow <Jlle or the other decisions of this Court as they should have done. Accordingly it is not necessary to refer to them in any detail. 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 shal! 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 treat ment and security in law and in fact as other Albanian nationals. In particular they shall have an equal right to maintain, manage and con trol at their own expense or to establish in the future, charitable, reli gious and social institutions, schools and other educational establish- (l) [1971] Supp. 1 S. C. R. 688. (J) [1971] Suppl. S. C. R. 677. (5) A. !. R. 1962 Patna 101. (7) I. L. R. 1969, I Kcrala 48. (2) [1969] 2 S. C.R. 73. (4) A. f. R. 1965 Kerala 75. (6) A. f. R. 1967 Patna 148. (8) 1970 K. L. T. 232. (9) A. r. R. 1971 Mad 440. A B c D E F G H A B c D • ST. XAVIERS COLLEGE v. GUJARAT (Dwivedi, ]. ) 307 ments, 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 cer· tain Albanian minorities, presumably of Greek origin, complained to the League of Nations regarding guaranteed by Art. 5 of the Declaration. The matter went the - Permanent Court of International Justice for consideration. The majo· rity of the Court (with three dissents) was of opinion that the cons ti· tutional amendment violated the rights of the minorities guaranteed by Art. 5 of the Declaration. the violation of It is difficult to appreciate how the majority opinion would shed any useful light on the nature. and scope of the right guaranteed by Art. 30(1). Obviously, the context of Art. 30(1), both notional as well as textual, bears no comparison with the context of the Albanian Constitutional Amendment and Art. 5 of the Declaration. It is now necessary to examine the various impugned provisions in the light of the construction of Art. 30(1) suggested earlier in this judgment. Section 33A (1) (a)' I agree with the plurality view that it is obnoxious to Art. 30(1), and I have nothing further to add. Counsel for the petitioners, Sri Nanavatty, abandoned the attack against this provision. Counsel for the State and the Gujarat Univer· sity accordingly gave no reply. Sri Nanavatty did not attack the pro· vision even in his reply. So I should not express any opinion on this prov:..sion. Section 40 Section 39(1) provides that within the University area, all post gra9uat~ instruction, teachi~g and !mining shall be conducted by the Umvcrsity or by such affiliated colleges or institutions and in such subjects as ~ay be p~escribed by the Statutes. The petitioners do not challenge this provis10n. But they seek to question s. 40 which is simil'.'r to s.39(1). S~ction 40(1) provides that the Court may de· termme that all mstructlons, teaching and training in courses of studies m respect of which the University is competent to hold examinations sha;[ ,within the University area be conducted by the University and l}le .court shall cm~municate its decision to the State Government. ~cct1on 40(2) provides that on receipt of the communication St~te Gover~ment may. after making such inquiry •as it thinks fit, by no.i!1cal!on !n the Official Gazette declare that the provisions of s.41 shah come mto force on such date as may be specified in the notifi· cation, . · E ' H 308 SUPREME COURT REPORTS (1975] 1 S.C.R. It has alwady been held earlier that the right of affiliation is not a fundamental right guaranteed by Art.30(1). Accordingly I see no difficulty in the University take over of the teaching in under-graduate Glasses. Section 41 consists of five sub-sections. Sub-section ( 1) provides that all affiliated colleges will become constituent colleges of the Uni versity. We are not concerned with sub-s. (2). Sub-Section (2) pro- vides that no educational institution shall, save, with the consent of the University and the sanction of the State Government be associ- ated with or seek permission to any privileges of any other l.!mversity. I do not think that any legitimate objection can be taken to sub- s. ( 1) . Merely because an affiliated college is made a constituent college of the University, would not necessarily offend Art. 30(1). Th; defuiition of the expression 'constituent college' by itself is innocu- ous. 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 Art.30(1). For instnnce, the associate colleges (which are similar to affiliated colleges) or the Allahabad University are subject to University con- trol in the• matter of appointment of teachers. But the Motilal Nehru Medical College, Allahabad, which is 'a constituent college of University, is not subject to such control. While the Selection Com mittee selecting teacher> to the associate colleges consists of q!rtain University authorities, the selection of teachers to the constituent col leges is m:d; wholly by the U.P. Public Service Commission anj the University has no voice what-so-ever in the selection of the teachers. (See AUahab-act University Calendar 1968). Sub-section (3) cannot It permits an affiliated college which does not also be objected to. want to be a constituent college to get affiliated to another University with the permission of the State and the Gujarat University. Serious objection on behalf of the petitioner has, however, been taken to clauses (ii) to (vi) of sub-section (4). Sub Section (4) first part two parts. According may be divided the relations of the constituent colleges and the University shall be governed by the statutes to be made in that behalf. The second p<art provides that any such statutes may provide in particular for the exer- cise by the University of the powers in respect of the constituent col- leges specified in els. (ii) to (vi) of sub section ( 4). A ~ E (; Obviously, the first part of sub-section ( 4) confers a general power of making statutes. The second part thereof specified certain mat- ters 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) merely illustrative of the generality of the power conferred by th~ first H part. While counsel for petitioners have urged that. ~lauses (!I~ to (Vi) clearly violate rights under Art.30( l), the Additional Sohc1tor General has urged that the wide language of thos.; c]auses ma~ be sq ... ' - w • ·-- ~ ST. XAVIERS COLLEGE v. GUJARAT (Dwivedi, J.) 309 A B c E F G H I do not think it is neces read down as to make them constitutional. sary to enter into this controversy at all. It may be presumed for the sake of argument that clauses (ii) to (vi) of sub section ( 4) are vio lative of Art. 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) Section 51 (A) consists of two sub-sections. The firs·t sub-section provides that no member of the teaching and non-teaching staff of an alhliated 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 reasomble opportunity of being heard . in respect of those charges. Until he has been given a reasonable oppDr- tunity of making representation against the penalty proposed, he can not be punished. This part of sub-section ( 1) is similar to Art.311 ( 2) of the Constitution, and no legitimate objection can be taken to it. Sub-section (I) also contains another rider on the power of the administra'ion 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 autho rised by the Vice-Chancellor in this behalf. 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 It is clarified that this provision shall not apply to a termination. person who is appointed for a temporary period. Like sub-.. ( 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 C'an be taken to the lirst part of sub-sections (I) 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. It is true that the right to fire an employee belongs to the employer It is also true that the right to fire is under the contract of service. a management right safeguarded under Art.30 ( 1). But this right can not include the right to take away or abridge the employee's consti tutional right to form associations, to carry on his profession and other constitutional and legal rights. The purpose of s.51A 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. Alter the Chancellor, the Vice-Chancellor is the next highest officer of It should be presumed that in granting or withholding the University. approval he would act according to reason and justice. 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 neces sarily implied, because without hearing either of them it will be diffi- 310 SUPREME COURT REPORTS (1975] J S.C.R. cult for him to make up his mind whether he should grant or withhold approval to t?e act10n proposed by the managing body of the educa t10nal mst1tut10n. 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. If the managing body exercise the right to lire 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 in quiry 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 im posed after due hearing and is supported by evidence, and is not im posed mala fide or as a measure of victimization, he cannot withhold approval. · It is also urged that the power of giving approval is not conferred It is open to him to nominate exclusively on the Vice-Chancellor. any other officer of the University for this purpose. Section 8 of the Act enumerates the officers of the University. They are: 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 concer ned with the last clause. (I) 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 ~nd non-teaching staff. Security of service is necessary to promote It is calculated. to improve efficiency and honest discharge of duty. the institution in the long run. The members of the teachmg and non teaching staff cannot ordinarily afford to go to courts for redre.s~ of their grievances, Section 5 lA provides a cheaper and more exped1t1ous remedy to them for the redress of .their. grievances. ~he il'.'pugned provision is identical to s.33, Industnal Disputes Act which this Court has held to be valid. It may be stated that this aspect of the matter which I hav~ consi dered in regard to s.51A was not placed before the Court earlier cases. As the power of approval is confined to checkmg the abuse of the right to lire employees, I am of opinion that it does not offend Art.30(1).

1.n Section 52A. It consists of two sub sections. Sub-sec.( I) provides that any dis pute between the governing body and any member of the teaching and A B c E F G H A .B c ST. '.XAVIE!lS. COLLEGE v. GUJARAT (Dwivedi, /.) 311 non-teaching st&f: of 'an affiliated college which is connected with the conditions of service of such member shall, on a request of the govern ing body or of the member concerned be referred to a Tribunal of Arbitration consisting of one arbitrate;.;· nominated by the govi:rning body and the other by the member ot the teaching and non-teachi11g 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). Counsel supporting the petitioners have urged that this amounts to- external interference with the management of the affairs of college, This provision is also intended to check the oabuse of power of administration by the managing body and to provide a cheap and expeditious remedy to the small-pursed teaching and non-teaching talf. · It is necessary in the. interest of security of service. I am un able to discover any. legitimate objection to it on the basis of Art. ·30(1). . . . P.B.R. .o:;;.. 2-L177 Sup Cl/75 · ..