In Re: The Kerala Education Bill, 1957

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 22 May, 1958

Coram: B.P. Sinha, J.L. Kapur, S.K. Das, Das

In this matter, the President had invoked Article 143(1) of the Constitution of India to obtain the opinion of the Supreme Court on several questions of law that were of considerable public importance and that related to certain provisions of the Kerala Education Bill, 1957, hereinafter referred to as the Bill. The Bill had been passed by the Legislative Assembly of the State of Kerala on 2 September 1957 and, in accordance with Article 200, the Governor of Kerala had reserved it for the President’s consideration. After setting out the fact that the Bill had been passed by the Assembly and reserved by the Governor, the President listed some of the clauses contained in the Bill and indicated the doubts that might be said to arise from or touch those clauses. He then formulated a series of questions which he referred to the Supreme Court for its consideration and for a report on the issues raised. It was noted that, because the Bill had not yet received the President’s assent, the uncertainties that gave rise to the reference could not be said to have stemmed from the actual operation of any specific provision of an enacted law on the facts of a particular case. Consequently, the questions presented to the Court were of an abstract or hypothetical character and were not analogous to the concrete disputes that arise in a specific case brought before a tribunal by a party aggrieved by the operation of a law that he challenges. Moreover, counsel appearing on behalf of certain educational institutions characterized the reference as incomplete and unsatisfactory. They argued that the reference did not clearly disclose all of the constitutional defects inherent in the Bill’s provisions and expressed a serious apprehension that any opinion rendered on these isolated, hypothetical questions might seriously prejudice, and possibly destroy, the very existence of the institutions they represented. On that basis, the counsel urged the Court not to entertain the reference or to issue any advisory opinion on the matters presented. The Court then considered the scope and extent of the jurisdiction conferred by Article 143. It observed that no comparable provision existed in the United States Constitution or in the Commonwealth of Australia Constitution Act, 1900, and that, accordingly, the United States Supreme Court and the High Court of Australia limited their jurisdiction to the determination of concrete cases that came before them, refraining from furnishing advisory opinions to the executive or legislative branches of government.

The courts of the United States and Australia, which lack a constitutional provision comparable to Article 143, have restricted themselves to deciding concrete cases that are before them and have refused to render advisory opinions to either the executive or legislative branches of government. In Canada, section 60 of the Supreme Court Act of 1906 permits the Governor‑General‑in‑Council to refer important questions of law concerning particular matters to the Supreme Court, and the Supreme Court has been regarded as bound to entertain such references and to answer the questions presented. Nevertheless, the Judicial Committee of the Privy Council has highlighted the inherent dangers of offering advisory opinions and, on the basis of general principles, has disapproved of such references. The Earl of Halsbury, Lord Chancellor, expressed this view in Attorney‑General for Ontario v. Hamilton Street Railway (1903) A.C. 524 at page 529, stating that advisory opinions would be “worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given up on such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of the particular words when the concrete case is not before it.” Similar concerns were voiced by Lord Haldane in Attorney‑General for British Columbia v. Attorney‑General for Canada (1914) A.C. 153 at page 162, where he warned that under such a procedure questions may be posed that are impossible to answer satisfactorily, that future litigants may be prejudiced by principles laid down in abstract form without reference to actual facts, and that it may be practically impossible to define a principle safely without first ascertaining the exact facts to which it is to be applied. Lord Sankey, Lord Chancellor, also observed in In Re the Regulation and Control of Aeronautics in Canada (1932) A.C. 54 at page 66 that it is undesirable for a court to be called upon to express opinions that may affect the rights of persons not represented before it or to address matters of such a nature that its answers would be wholly ineffective with regard to parties who are not and cannot be brought before the court, for example a foreign government. Section 4 of the Judicial Committee Act 1833 (3 and 4 William IV, Ch. 41) provides that “It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing and consideration any such other matters whatsoever as His Majesty shall think fit and such Committee shall thereupon hear and consider the same and shall advise His Majesty thereon in manner aforesaid.” It is noteworthy that this provision makes it obligatory for the Judicial Committee to hear and consider the matter and to advise the Crown. The Government of India Act 1935, by section 213(1), authorised the Governor‑General to consult the Federal Court whenever, in his opinion, a question of law of public importance arose or was likely to arise, thereby allowing the Court to hear such a reference and to report its opinion to the Governor‑General.

It was provided that whenever the Governor‑General considered that a question of law had arisen, or was likely to arise, and that the question was of a nature and of such public importance that obtaining the Federal Court’s opinion was expedient, the Governor‑General could refer the question to that Court. The provision further authorised the Federal Court, after holding such hearing as it deemed appropriate, to report its opinion back to the Governor‑General. The same wording, unchanged except for the substitution of the name of the court, was later incorporated into clause (1) of Article 143 of the Constitution. Article 143 also introduced a new provision, clause (2), which empowered the President, notwithstanding any proviso to Article 131, to refer a dispute of the same description to the Supreme Court for an advisory opinion. Under clause (2) the Supreme Court was required to entertain the reference and to report its opinion to the President after a hearing it thought fit. By contrast, clause (1) granted the Supreme Court a discretion to decline to express an opinion, provided that it did so for proper reasons in an appropriate case. Considering the language of section 213(1) of the Government of India Act, 1935—which forms the basis of Article 143(1)—and noting the difference in wording between clauses (1) and (2) of Article 143, it was apparent that a reference made under Article 143(1) was of a different scope from a reference under section 4 of the Judicial Committee Act, 1833, or section 60 of the Canadian Supreme Court Act, 1906. Consequently, the Supreme Court, when dealing with a reference under Article 143(1), retained the discretion indicated in the earlier provisions, and the observations of the Privy Council Lords cited earlier remained relevant and needed to be taken into account.

In total, four references had been made by the Governor‑General under section 213(1) of the Government of India Act, 1935. In two of those instances, judges of the Federal Court had expressed their views on the ambit and scope of such references. For example, in the case titled In re Allocation of Lands and Buildings (1943 F.C.R. 20, 22), the Chief Justice, Gwyer, remarked that after reviewing the papers filed with the case, there was doubt as to whether an advisory opinion under section 213 would serve any useful purpose. He observed that the terms of section 213 did not impose a mandatory duty on the Court, although the Court should generally be reluctant to refuse a reference unless there were compelling reasons. He further identified two difficulties: first, that questions of title might eventually arise if the Government, whose arguments had found favour with the Court, intended to dispose of some of the lands in question to private individuals, and that an advisory opinion under section 213 would not provide a satisfactory root of title comparable to a declaration that might be issued in proceedings under section 204(1) of the Act between the Governments.

In its discussion of section 213 of the Government of India Act, the Court noted that an advisory opinion under that provision could, in certain circumstances, establish a root of title comparable to a declaration that might arise from proceedings brought under section 204(1) of the Act by one Government against another. The Court then referred to the observations of Spens C.J. in the case concerning the levy of estate duty, where the Chief Justice explained that the mere existence of section 213 in the Constitution does not permit the Court to claim that the advisory jurisdiction is inexpedient, and that it is not helpful to argue that the opinions rendered would have no effect beyond those of the law officers, as held in Attorney‑General for Ontario v. Attorney‑General for Canada. The Chief Justice further addressed the objection that the questions referred concerned contemplated legislation rather than the validity or operation of an already enacted measure. He observed that the fact the questions relate to future legislation does not, by itself, constitute a valid objection, because section 213 authorises the Governor‑General to make a reference when questions of law are likely to arise. Consequently, such references are normally made before the legislation is introduced, and the hypothetical nature of the questions cannot defeat the reference. The Chief Justice added that references have been made under the comparable provision in the Canadian Supreme Court Act when the matter was still at the stage of a Bill. Subsequently, Justice Zafrulla Khan declined to entertain the reference and to answer the questions, invoking the high authority he had quoted in a separate opinion. He emphasized that the exercise of this jurisdiction requires delicacy and caution, and concluded that, given the material before him, attempting to answer the questions would not serve any useful purpose and could generate endless litigation and prejudice to persons potentially targeted by the proposed law. For these reasons he respectfully declined to express any opinion on the questions referred. The Court also noted that the present reference was the second of its kind made under article 143(1) of the Constitution.

The present reference was made under article 143 (1) of the Constitution. The first reference made under the same article concerned the matter identified as In Re Delhi Laws Act, 1912 (reported in the 1951 Supreme Court Reports at page 747). In that earlier case the Court did not examine the precise nature and scope of a reference under article 143 (1). Nevertheless, the Court believed that the principles articulated by the Judicial Committee and by the Federal Court, which were quoted in that decision, would provide a useful guide for determining the method to be adopted in dealing with and disposing of the present reference. The established case law makes clear that a complaint that the questions presented relate not to the validity of a statute that has already been enacted, but to the validity of a Bill that has not yet been passed and has not received the President’s assent, does not constitute a sufficient reason for the Court to refuse to entertain the reference. In the words of Spens C.J., article 143 (1) expressly allows for the reference of a question of law that is “likely to arise.”

It was additionally submitted that other constitutional objections arise from certain provisions of the Bill when read in the context of article 19 (1)(g) and article 337 of the Constitution, and that because those objections were not included in the reference, the Court should decline to consider an incomplete reference lest its answers be misleading without addressing the other questions. The Court held, however, that the President alone determines which questions are to be referred. If the President does not consider there to be serious doubt concerning particular provisions, no party may invoke doubts on those provisions, and the Court cannot expand the reference beyond the matters that have been placed before it. Moreover, the President’s decision not to refer additional questions concerning the constitutional validity of certain clauses of the Bill, on the ground that they might infringe other constitutional guarantees, does not provide a valid or persuasive basis for refusing to entertain the present reference and to answer the questions that the President has indeed referred. To properly understand the true meaning, import and consequences of the provisions of the Bill that are said to have generated doubts, it is necessary first to examine the relevant constitutional provisions that may bear upon the issues, and thereafter to consider the actual wording of the Bill. The preamble to the Constitution, expressed with inspiring and noble language, records the solemn resolve of the people of India to constitute India into a sovereign democratic republic and, among other objectives, to secure to all its citizens justice, liberty and equality, and to promote fraternity, thereby assuring the dignity of the individual and the unity of the Nation.

It was observed that the Constitution guarantees its citizens the liberty of thought, expression, belief, faith and worship, and that education most effectively stimulates such mental activity. The Court explained that education clarifies an individual’s belief and faith and thereby strengthens the spirit of worship. To give effect to the supreme purposes expressed in the preamble, Part III of the Constitution provides a catalogue of fundamental rights. Article 14, which is referred to in two of the questions, promises every person, whether a citizen or not, equal protection of the laws throughout the territory of India. Article 16 guarantees equality of opportunity to all citizens with respect to employment or appointment to any office under the State, and the Court noted that to enjoy this guarantee citizens must be afforded equal opportunity to acquire the necessary qualifications, whether educational or otherwise. Article 19(1) enjoins citizens to the right of freedom of speech and expression under sub‑clause (a) and to the right to practise any profession, or to carry on any occupation, trade or business under sub‑clause (g), subject, however, to the reasonable restrictions permitted by clauses (2) and (6) of Article 19. Article 25 confers on all persons, subject to public order, morality, health and the other provisions of Part III, the freedom of conscience and the right to freely profess, practise and propagate religion. Article 26 gives every religious denomination, or any section thereof, the right, again subject to public order, morality and health, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to acquire property and to administer that property in accordance with law. Article 28(1) provides that no religious instruction shall be given in any educational institution that is wholly maintained out of State funds, and clause (3) adds that a person attending any State‑recognised or State‑aided educational institution shall not be compelled to participate in any religious instruction or worship there unless that person, or if a minor, his guardian, has given consent.

Article 29(1) was explained to confer on any section of the citizens possessing a distinct language, script or culture the right to conserve that distinctiveness. Clause (2) of the same article bars the denial of admission to any educational institution maintained by the State or receiving State aid on the sole grounds of religion, race, caste, language or any combination thereof. Article 30(1), which forms the subject‑matter of question 2 of this reference, runs as follows: “All minorities, whether based on religion or language, shall have the”. The Court therefore set out these constitutional provisions to frame the discussion of the questions presented for consideration.

The Constitution provides that minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice. It also states that the State shall not discriminate against any educational institution when granting aid on the ground that the institution is managed by a minority, whether that minority is religious or linguistic in character. The Court observed that while fundamental rights are guaranteed under Part III of the Constitution, Part IV contains directive principles of State policy. Those principles are not enforceable by any court, yet they are regarded as fundamental to the governance of the nation, and the State is obliged to give effect to them when enacting legislation. Article 39 directs the State to formulate policies that ensure, among other objectives, that men and women alike have an adequate means of livelihood. Article 41 requires the State, within the limits of its economic capacity and development, to make effective provision for securing the right to education, among other rights. Under Article 45, the State is required to strive to provide free and compulsory education for all children up to the age of fourteen within ten years from the commencement of the Constitution. Article 46 commands the State to promote, with special care, the education and economic interests of weaker sections of the people, particularly Scheduled Castes and Scheduled Tribes, and to protect them from social injustice and exploitation.

Part XVI of the Constitution makes special provisions for certain classes. Article 330 reserves seats for Scheduled Castes and Scheduled Tribes in the House of the People, while Article 331 provides for the representation of the Anglo‑Indian community in the same House. Articles 332 and 333 create reservations for Scheduled Castes, Scheduled Tribes, and Anglo‑Indians in the Legislative Assemblies of the States for a period of ten years, after which, according to Article 334, these special provisions are to cease. Article 336 also contains a special provision for the Anglo‑Indian community regarding appointment to certain services. Article 337 is particularly relevant to the matter before the Court. It stipulates that during the first three financial years after the Constitution’s commencement, the Union and each State shall make the same educational grants to the Anglo‑Indian community that were made in the financial year ending 31 March 1948. Thereafter, for each succeeding three‑year period, the grant may be reduced by ten per cent compared with the immediately preceding period, provided that ten years after the Constitution’s commencement all such grants, to the extent that they constitute a special concession, shall cease. The second proviso to Article 337 further clarifies the conditions under which educational institutions may receive such grants.

The provision in the article states that no educational institution may receive any grant under the article unless at least forty percent of its annual admissions are made available to persons who are not members of the Anglo‑Indian community. This requirement is a condition imposed by the Constitution on the community’s entitlement to the grant. Article 366(2) provides the definition of an “Anglo‑Indian”. Presumably, to give effect to the directive principles mentioned earlier, the Kerala Legislative Assembly enacted the Bill exercising the legislative authority given to it by Articles 245 and 246 of the Constitution, read with entry 11 of List II of the Seventh Schedule. That authority, however, must be exercised subject to the provisions of the Constitution. Consequently, even though the legislation may have been undertaken by the State of Kerala in fulfilment of the obligations imposed by the directive principles in Part IV, it must nevertheless serve and not override the fundamental rights found in the provisions of Part III that were previously referred to. The Court has explained in State of Madras v. Smt. Champakam Dorairajan ([1951] S.C.R. 525, 531) and reiterated recently in Mohd. Hanif Quareshi v. The State of Bihar ([1959] S.C.R. 629) that the directive principles of State policy must conform to and act as a subsidiary to the Chapter on Fundamental Rights. Nevertheless, when determining the scope and ambit of the fundamental rights claimed by any person or body, the Court may not completely ignore the directive principles in Part IV; instead it should adopt a harmonious construction and try to give effect to both as far as possible. Applying the principles of construction just discussed, the Court proceeded to examine the provisions of the Bill to obtain a clear overview. The long title of the Bill describes it as “A Bill to provide for the better organisation and development of educational institutions in the State.” Its preamble states: “Whereas it is deemed necessary to provide for the better organisation and development educational institutions in the State providing a varied and comprehensive educational service throughout the State.” Accordingly, the substantive provisions must be examined in light of the policy and purpose evident from the long title and the preamble, and the clauses should be interpreted in a manner that furthers that policy and purpose. Sub‑clause (3) of clause 1 provides that the Bill shall come into force on such date as the Government may, by Gazette notification, appoint, and that different dates may be appointed for different provisions of the Bill – a fact indicating that the Government will

In this case, the Court observed that sub‑clause (3) of clause 1 authorised the Government to study the prevailing circumstances and to bring into force those provisions of the Bill that would most effectively serve the genuine needs of the people. The Court then turned to clause 2, which supplied definitions for several terms employed in the Bill. Sub‑clause (1) defined “aided school” as a private school that had obtained recognition from the Government and was receiving Government aid. Sub‑clause (3) explained that an “existing school” meant any aided, recognised, or Government school that had been established before the commencement of the Act and that continued to exist at that commencement. Sub‑clause (6) described a “private school” as an aided or recognised school, while sub‑clause (7) clarified that “recognised” referred to a private school that had been acknowledged by the Government under the Act. The Court proceeded to analyse clause 3, which dealt with the establishment and recognition of schools. Sub‑clause (1) empowered the Government to regulate primary and other stages of education as well as the courses of instruction in both Government and private schools. Sub‑clause (2) required the Government, from time to time, to take such steps as it considered necessary or expedient for providing facilities for general education, special education, and teacher training. Sub‑clause (3) gave the Government three alternative methods for providing such facilities: (a) establishing and maintaining schools; (b) permitting any person or body of persons to establish and maintain aided schools; or (c) recognising any school that had been established and maintained by any person or body of persons. By sub‑clause (4), all existing schools—meaning any aided, recognised, or Government school that had been established before and continued at the commencement of the Bill—were deemed to have been established in accordance with the Bill. The proviso to sub‑clause (4) allowed the educational agency of an aided school that existed at the commencement to, within one month after that commencement and after giving notice to the Government of its intention, elect to operate the school as a recognised school, subject to the conditions specified in the Bill. Sub‑clause (5) of clause 3, which formed part of the subject‑matter of two of the referred questions, stated that after the commencement of the Act the establishment of a new school or the opening of a higher class in any private school would be subject to the provisions of the Act and the rules made thereunder; any school or higher class established otherwise would not be entitled to Government recognition. Clause 4 provided for the constitution of a State Education Advisory Board composed of officials and non‑officials, specifying their terms of office and duties, with the purpose of advising the Government on educational policy and the administration of the Department of Education. Finally, clause 5 required the manager of every aided school, on the first day of April each year, to furnish to the authorised Government officer a list of the school’s movable and immovable property, making clear that failure to provide such a list would, under sub‑clause (2) of that clause, result in the withholding of the maintenance grant.

In this case, the Bill required the manager of each aided school to furnish the authorised officer of the Government with a list of the school’s movable and immovable property. The Bill stipulated that a failure to furnish such a list would, under sub‑clause (2) of the same clause, lead to the withholding of the maintenance grant that might otherwise be paid to the school. Clause 6 then imposed restrictions on the alienation of any property belonging to an aided school, allowing such alienation only after obtaining prior written permission from the authorised officer of the Government. The Bill further provided that an appeal could be made against any order of the authorised officer either refusing or granting that permission, as prescribed in sub‑clause (1). Sub‑clause (3) of Clause 6 declared any transaction that contravened either sub‑clause (1) or sub‑clause (2) to be null and void, and, in the event of such a contravention, sub‑clause (4) authorised the Government to withhold any grant to the school. Clause 7 dealt with the appointment and duties of managers of aided schools. Under sub‑clause (1), any education agency was empowered to appoint a person as manager of an aided school, subject to the approval of the authorised officer, and all existing managers were deemed to have been appointed under the provisions of the Bill. The manager was made responsible for the conduct of the school in accordance with the Bill and the rules made thereunder. Sub‑clause (4) imposed on the manager the duty to maintain the school’s records and accounts in the manner prescribed by the rules. By sub‑clause (5), the manager was required to provide all necessary and reasonable assistance and facilities for the inspection of the school, its records and accounts, by the authorised officer. Sub‑clause (6) prohibited the manager from closing down any school without giving the authorised officer a notice of one year, the notice to expire on 31 May of the year in which the closure was intended. Sub‑clause (7) provided that, if a school were closed, discontinued, or its recognition withdrawn, the manager must hand over all the school’s records and accounts to the authorised officer. Sub‑clause (8) prescribed a penalty for any violation of the provisions of sub‑clauses (6) and (7). Clause 8 dealt with the recovery of amounts due from the manager of an aided school as arrears of land revenue. Sub‑clause (3) of Clause 8, which was also referenced in one of the questions, stated that all fees and other dues, except special fees, collected from students in an aided school after the commencement of that section were to be made over to the Government in the manner prescribed, irrespective of any existing agreement, scheme or arrangement. Clause 9 made it obligatory for the Government to pay the salaries of all teachers in aided schools, either directly or through the headmaster of the school, and also to pay the salaries of the non‑teaching staff of aided schools. The Bill further gave the Government the power to prescribe the number of persons to be appointed in the non‑teaching establishment of aided schools, together with their salaries, qualifications and other conditions of service, and authorised the Government, under the relevant sub‑clause, to implement those prescriptions.

The Court observed that under sub‑clause (3) the government was obliged to pay the manager of an aided school a maintenance grant at rates that could be prescribed, and that sub‑clause (4) authorised the government to provide grants‑in‑aid for the purchase, improvement and repair of any land, building or equipment belonging to an aided school. Clause 10 required the government to prescribe the qualifications that persons must possess in order to be appointed as teachers in government schools and in private schools, the latter term being defined to include aided or recognised schools. The State Public Service Commission was empowered, under clause 11, to select candidates for appointment as teachers in both government and aided schools according to a procedure laid down in that clause.

The Court explained that the procedure required the Commission, before 31 May of each year, to select, for each district separately, candidates with due regard to the probable number of teacher vacancies that might arise during the year. The list of candidates thus selected was to be published in the Gazette. The manager of an aided school was then required to appoint teachers only from the candidates listed for the district in which the school was situated, subject to a proviso that, for sufficient reason and with the permission of the Commission, the manager could appoint teachers who had been selected for any other district. Appointments in government schools were also to be made from the same published list. In making its selections, the Commission had to consider the provision made by the government under sub‑clause (4) of Article 16 of the Constitution, which mandated representation in the educational service for persons belonging to the Scheduled Castes or Scheduled Tribes. The Court noted that learned counsel appearing for the Anglo‑Indian and Muslim communities had severely criticised this requirement.

Clause 12, according to the judgment, prescribed the conditions of service for teachers of aided schools and was evidently intended to give those teachers some security of tenure. It stated that the pay scales applicable to teachers of government schools would also apply to all teachers of aided schools, regardless of whether they were appointed before or after the commencement of the clause. The rules that applied to teachers of government schools were also to apply to certain teachers of aided schools as specified in sub‑clause (2). Sub‑clause (4) prohibited the dismissal, removal, reduction in rank or suspension of any teacher of an aided school by the manager without the prior sanction of the authorised officer. Other conditions of service for teachers of aided schools were to be prescribed by rules. Finally, the Court highlighted that clause 14 was of considerable importance because sub‑clause (1) empowered the government, whenever it was of the opinion that a manager of an aided school had neglected to perform any duty imposed by the Bill or the rules made thereunder and that such neglect was contrary to the public interest, to take over the management of the school after giving the manager a reasonable opportunity to show cause against the proposed action.

In this provision, the Government was permitted to assume management of an aided school for a period that could not exceed five years. When an emergency arose, the Government could, under sub‑clause (2), take over the management immediately after publishing a notice in the Gazette, without first informing the Educational agency or the school manager. If a school was taken over in this manner without prior notice, the Educational agency or the manager could, within three months of the Gazette notification, file an application to the Government requesting that the school be restored and could set out the reasons for such a request. The Government was also empowered to issue any orders that it deemed necessary or expedient in connection with the assumed management of the aided school. According to sub‑clause (5), the Government was required to pay rent on the properties it possessed, the amount of which was to be fixed by the Collector. Upon taking over a school, the Government could continue to operate it and could provide any special educational facilities that the school had been offering immediately before the takeover. The order of the Collector fixing the rent could be appealed to the District Court. Sub‑clause (8) authorized the Government to acquire the school that had been taken over under this clause, provided the Government was convinced that such acquisition was required in the public interest; in such cases, compensation had to be paid in accordance with the principles set out in clause 15. Clause 15 conferred on the Government the power to acquire any category of schools, but this power could be exercised only when the Government was satisfied that acquisition would serve one or more of the following purposes: standardising general education in the State, improving literacy levels in a particular area, managing the aided educational institutions more effectively, or bringing education of any category under direct governmental control, and that the acquisition was necessary in the public interest. No notification for a takeover could be issued unless the proposal was backed by a resolution of the Legislative Assembly. The Bill also provided for the assessment and apportionment of compensation, and it allowed an appeal to the District Court against the Collector’s order determining the amount of compensation and its distribution among entitled persons. Consequently, the Bill envisaged two methods of acquiring aided schools: first, under sub‑clause (8) of clause 14, the Government could acquire a school after it had taken possession of it pursuant to the earlier sub‑clauses; second, under clause 15, the Government could acquire any category of aided schools in a specified area for any of the purposes listed in that clause. Clause 16 gave the Government the authority to exempt immovable property from being taken over or acquired. Clause 17 dealt with the creation of Local Education Authorities, outlining their constitution and term of office, while clause 18 described the functions of those authorities. Finally, clauses 19 and 20 were highlighted as important, with clause 19 relating to recognised schools.

The Court observed that the provisions contained in sub‑sections (2), (4), (5), (6), (7), (8) and (9) of section 7 were to be applied to recognised schools exactly in the same way and to the same extent as they applied to aided schools. The judgment then noted the provision labelled “20. No fee to be charged from pupils of primary classes,” which states that no pupil shall be required to pay any tuition fee for primary classes in any Government or private school. The Court further explained that Part II of the Bill, identified as clause 19, dealt with compulsory education and was intended to operate in the areas specified by clause 21. Clause 23 was highlighted as providing for free and compulsory education of children throughout the State within a ten‑year period, a measure designed to fulfil the obligation imposed on the State by Article 45 of the Directive Principles of State Policy. The Court mentioned that clauses 24 and 25 concerned the constitution and functions of Local Education Committees. Clause 26, which had been the subject of extensive discussion, was quoted in full: “Obligation on guardian to send children to school – In any area of compulsion, the guardian of every child shall, if such guardian ordinarily resides in such area, cause such child to attend a Government or private school and once a child has been so caused to attend school under this Act the child shall be compelled to complete the full course of primary education or the child shall be compelled to attend school till it reaches the age of fourteen.” The Court then indicated that it would pass over several clauses that were not material to the present consideration and turned to clause 33, which was relevant to one of the questions before it. Clause 33 states: “Courts not to grant injunction – Notwithstanding anything contained in the Code of Civil Procedure, 1908, or in any other law for the time being in force, no court shall grant any temporary injunction or make any interim order restraining any proceedings which is being or about to be taken under this Act.” The judgment proceeded to describe clause 36, which confers on the Government the power to make rules for giving effect to the Bill, including matters such as the establishment and maintenance of schools, the grant of aid and recognition to private schools, the levy and collection of fees in aided schools, regulation of fees in recognised schools, the manner of maintaining accounts, registers and records, the submission of returns, reports and accounts by managers, standards of education, courses of study and other matters specified in sub‑clause (2) of clause 36. Finally, clause 37 was quoted: “Rules to be laid before the Legislative Assembly – All rules made under this Act shall be laid for not less than fourteen days before the Legislative Assembly as soon as possible after they are made and shall be subject to such modifications as the Legislative Assembly may make during the session in which they are so laid.”

In this case the Court observed that the provisions of clause 38 stipulated that none of the measures contained in the Bill would extend to any school that was neither a Government‑run institution nor a private school, that is, a school that was not recognised or aided. The Court then explained that the summary it had prepared was intended to make clear both the purpose and the scope of the Bill’s provisions. It pointed out that the Bill sought to impose a considerable degree of State control over the management of educational institutions within the State, whether those institutions were aided or merely recognised. Moreover, the Court noted that the provisions affecting aided institutions were considerably stricter than those applicable solely to recognised schools. The Court further recorded that the breadth of control proposed by the State appeared to the President to raise serious doubts about the constitutional validity of certain clauses, because they might infringe fundamental rights guaranteed to minority communities. Consequently, exercising the authority granted to him by article 143(1) of the Constitution, the President referred the matter to the Supreme Court for consideration and requested a report on four specific questions. The questions were: (1) whether sub‑clause (5) of clause 3 of the Kerala Education Bill, read with clause 36 or any of its provisions, violated article 14 of the Constitution; (2) whether sub‑clause (5) of clause 3, sub‑clause (3) of clause 8, and clauses 9 to 13 of the Bill, or any of their provisions, infringed clause (1) of article 30; (3) whether clause 15 of the Bill, or any of its provisions, contravened article 14; and (4) whether clause 33 of the Bill, or any of its provisions, offended article 226. After receiving the President’s reference, the Court issued notices to all persons and institutions that appeared to have an interest in the issue, urging them to submit written statements of case on the aforementioned questions. Subsequently, three additional institutions applied for and were granted leave to present arguments at the hearing. The Union of India, the State of Kerala, and all the previously mentioned parties filed their respective statements and appeared before the Court through counsel, actively participating in the oral arguments. The Court also received written views from an organization identified as the Crusaders’ League, although that body did not appear in person. The Court acknowledged that it had benefited from hearing comprehensive arguments on the matters raised by the questions and expressed deep appreciation for the counsel who had assisted by presenting detailed submissions. At this stage the Court indicated that it would need to clear the ground by disposing of the preliminary issues concerning the scope and ambit of the first two questions.

At this stage the Court found it necessary to resolve the dispute concerning the reach of questions 1 and 2. Both of those questions asked the Court to examine the constitutional validity of clause 3(5) of the Bill, which had been reproduced in full earlier. The Attorney General, together with other counsel representing bodies that challenged the Bill, argued that clause 3(5) – which states that the establishment of a new school “shall be subject to the provisions of this Act and the rules made thereunder” – should be read as if every other clause of the Bill were incorporated into sub‑clause (5) itself. Accordingly, they maintained that when questions 1 and 2 attack the validity of clause 3(5), they are in reality challenging the validity of all the remaining clauses of the Bill. The counsel for the State of Kerala rejected this sweeping interpretation on several grounds. First, he asserted that clause 3(5) only pulls into its scope those provisions that deal directly with the establishment of a new school. When pressed to identify which provisions of the Bill relate to school establishment and are therefore caught by clause 3(5), he pointed solely to sub‑clause (3) of clause 3. He therefore maintained that clause 3(5) extends only to clause 3(3) and to any rules that might be framed under clause 36(2)(a), and to no other clause of the Bill. Consequently, he argued, none of the other clauses fall within the ambit of the questions unless the questions expressly mention them, as indeed some clauses are specifically referenced in question 2. He further asked why, if the mere mention of clause 3(5) automatically drew in every other clause, the drafters of question 2 felt it necessary to list certain clauses individually. Moreover, the State counsel contended that after a school is created, the other clauses of the Bill would apply to that school automatically, without requiring an explicit statement that a newly established school is subject to the remaining provisions. Since the remaining clauses would apply to all schools established after the Bill became law, a reference to clause 3(5) in the questions could not logically expand the scope of the questions to include any clause that is not separately and specifically mentioned. Finally, he warned that even assuming clause 3(5) did attract other provisions, that fact alone does not mean those provisions become the subject‑matter of the questions. In the Court’s view, neither of the extreme positions – that clause 3(5) pulls in every other clause, nor that it pulls in none – could be sustained.

The Court observed that the arguments presented by the State counsel were open to several criticisms. If the purpose of sub‑clause (5) was only to incorporate provisions related to the establishment of a new school, and if sub‑clause (3) of clause 3 was the sole provision dealing with that matter, then a more precise drafting would have been to state in sub‑clause (3) that the establishment of new schools “shall be subject to the provisions of this clause and the rules to be made under clause 36(2)(a).” Clause 3(5) is clearly concerned with the creation of new schools – whether government‑run, aided, or recognised – and declares that, once the Bill becomes law, all new schools will be governed by the other provisions of the Bill. For new government schools, clause 3(5) undoubtedly incorporates clause 3(3)(a), which authorises the government to set up new schools. However, limiting clause 3(5) to merely clause 3(3) is untenable, because sub‑clause (3) does not, by itself, provide for the establishment of aided or recognised schools. Thus, the Court found that the State’s narrow construction could not be accepted as a sound interpretation of the legislative intent.

If the purpose of sub‑clause (5) of clause 3 was merely to bring within its reach those provisions of the Bill that dealt exclusively with the establishment of a new school, and if sub‑clause (5) alone, together with the rules to be framed under clause 36(2)(a), was intended to be the only mechanism for that purpose, then a clearer draft would have been to state in sub‑clause (3) of clause 3 that the establishment of new schools “shall be subject to the provisions of this clause and the rules to be made under clause 36(2)(a)”. Clause 3(5) is plainly focused on the creation of new schools—whether they are Government schools, aided schools, or recognised schools—and it declares that once the Bill becomes law, every new school shall fall under the other provisions of the Bill. For newly created Government schools, clause 3(5) unquestionably brings clause 3(3)(a) into operation, because clause 3(3)(a) authorises the Government to establish new schools. However, to argue that clause 3(5) only draws in clause 3(3) is untenable, because that sub‑clause does not, in its terms, provide for the establishment of new aided or recognised schools.

Clause 3(3)(a) is limited to the establishment and maintenance of new schools by the Government alone. Clause 3(3)(b) deals solely with the Government’s power to grant permission to a person or body of persons to establish and maintain aided schools. Clause 3(3)(c) authorises the Government merely to recognise any school that is established and maintained by any person or body of persons. Clause 4 creates a legal fiction whereby all existing schools—meaning all existing Government, aided, or recognised schools—are deemed to have been established under the terms of this Bill. Clause 3(5) follows, expressed in very broad language, stating, inter alia, that after the Bill commences, the establishment of new schools shall be subject to the other provisions of the Bill and to the rules made thereunder. The rules to be framed under clause 36(2)(a), (b) and (c) appear to correspond respectively to clauses 3(3)(a), (b) and (c). Considering clause 38, which excludes from the Bill any schools other than Government and private schools—that is, aided or recognised schools—the question arises as to what type of new schools sub‑clause (5) contemplates and authorises. The answer is that it envisions aided or recognised schools established after the Bill becomes law. Although clause 3(5), like clause 3(3), is drafted without much artistry, a reading of the whole clause, especially its concluding provision that any school not established in accordance with those provisions shall not be entitled to Government recognition, leaves no doubt that clause 3(5) itself contemplates and authorises the creation of new aided or recognised schools. Thus, the opening of new schools and the securing of aid or recognition from the Government constitute the establishment of new schools contemplated by clause 3(5) read together with clause 3(3).

The Court examined clause 3(5) in the context of its overall setting and concluded that the clause was intended not merely to permit the establishment of new schools but to subject those schools to every provision of the Bill and to the rules made thereunder. The Court rejected the narrow construction that clause 3(5) merely invokes clause 3(3), observing that such a constricted reading was not justified by the broad language of sub‑clause (5) nor by the wording of clause 3(3). The Court also found little merit in the contention that it was unnecessary to expressly provide for the application of the other provisions to new schools, because the other clauses would, by their own operation, apply to such schools. Since clause 3(5) expressly makes new schools subject to the remaining provisions, the Court held that the State of Kerala could not now argue that sub‑clause (5) need not have made those other provisions applicable, nor could it claim that clause 3(5) does not attract the other clauses despite its express purpose. The Court noted that had clause 3(5) failed to attract the other provisions, the President would likely have framed the questions in a different manner. Consequently, the Court was inclined to hold that clause 3(5) binds new schools to the other provisions of the Bill. In that scenario, if, as submitted by the learned Attorney‑General and supporting counsel, certain clauses of the Bill infringe the fundamental rights of minority community members or of educational institutions established or to be established by them, then those clauses would not only violate the rights of the minority but also render clause 3(5) itself vulnerable to a challenge of unconstitutionality, because clause 3(5) expressly makes the new schools subject to those objectionable clauses. In other words, any unconstitutionality inherent in the other clauses would attach to clause 3(5), which, by its terms, subjects the new schools to those clauses. Therefore, the Court regarded a discussion of the validity of clause 3(5) as necessarily encompassing a discussion of the validity of the other clauses to which it subjects the new schools. While the validity of the other clauses is not, in itself, the independent subject of the present questions, their constitutionality must be taken into account when determining the constitutional validity of clause 3(5), since clause 3(5) makes those clauses applicable to the newly established schools. This line of reasoning, the Court explained, forms the basis for considering the other clauses in the context of the challenges to clause 3(5).

In this case, the Court observed that examining the constitutionality of the other provisions of the Bill necessarily fell within the ambit of questions 1 and 2. The Court held that, given the wording of clause 3(5), it would be inappropriate to exclude from consideration the validity of those other provisions when the parties were challenging the validity of clause 3(5) itself. The arguments presented before the Court repeatedly referred to the remaining clauses of the Bill, and the Court had heard the respective submissions of counsel on whether those clauses were valid insofar as they affected the matters raised in questions 1 and 2. Consequently, the Court decided to include the discussion of the other clauses in its analysis and to answer the questions on that basis.

With respect to questions 1 and 3, the Court noted that question 1 contested the constitutional validity of sub‑clause (5) of clause 3 of the Bill, read together with clause 36, on the ground that it breached the guarantee of equal protection under Article 14 of the Constitution. Question 3 attacked clause 15 of the same Bill on the identical ground, alleging that it also violated Article 14. Because both questions were founded on the same constitutional provision, the Court considered it convenient to deal with them together. The Court then traced the development of the meaning, scope and effect of Article 14 through the decisions of this Court. It referred first to the early case of Chiranjit Lal Chowdhuri v. Union of India ([1950] S.C.R. 869). It then cited the decision of a seven‑Judge Constitution Bench in Budhan Choudhry v. State of Bihar, which explained the true meaning and scope of Article 14. The Court further mentioned the more recent judgment in Ram Krishna Dalmia and others v. Sri Justice S. R. Tendolkar ([1959] S.C.R. 279), where the Court reviewed the position at length on 28 March 1958 and set out several principles. Finally, the Court referred to the summary provided in Mohd. Hanif Quareshi v. State of Bihar ([1959] S.C.R. 629), which stated that the doctrine of equal protection forbids class legislation but does not prohibit reasonable classification for legislative purposes. The Court reiterated that, for a classification to be permissible, it must satisfy two conditions: first, the classification must be based on an intelligible differentia that distinguishes the persons or things placed in a group from those left out; second, that differentia must have a rational relation to the object sought to be achieved by the statute in question.

The Court explained that for a classification to be constitutionally valid it must satisfy two requirements. First, the classification must distinguish the persons or things that are placed in a group from those that are left out of that group. Second, the distinction must have a rational relation to the purpose that the statute seeks to achieve. The Court further observed that a classification may be based on many different criteria, such as geography, the objects of the law, the occupations of the persons concerned, or similar bases. What is essential, the Court said, is that there be a clear nexus between the basis on which the classification is made and the object of the legislation that is being examined. The Court also reiterated that its earlier pronouncements establish a general presumption in favour of the constitutionality of any enactment. Accordingly, the burden of proof lies on the party who challenges the law to demonstrate that a clear violation of constitutional principles has occurred. Courts, according to the Court’s view, must presume that the legislature understands and correctly appreciates the needs of the people it represents, that legislative measures are aimed at problems that have become apparent from experience, and that any discrimination contained in the law rests on adequate grounds. The Court reminded that the legislature is free to recognise varying degrees of harm and may limit its restrictions to those situations where the need for regulation is most evident. Moreover, to preserve the presumption of constitutionality, the Court may consider matters of common knowledge, widely reported facts, the historical context of the period, and any conceivable state of facts that might have existed at the time the legislation was enacted. In the earlier judgment of this Court in Ram Krishna Dalmia’s case ([1959] S.C.R. 279) the statutes under consideration were classified into five separate categories as enumerated in that decision. The Court found no benefit in reopening that classification discussion, and noted that counsel had not sought to do so. Consequently, the Court proceeded to examine the provisions that were challenged, applying the principles set out in the earlier judgments.

The Court then turned to the principal argument raised under Article 14. It was alleged that the Kerala Education Bill was a deliberate attempt by the party then in power to attack the Christian Church, particularly the Catholic Church, to eradicate religion, to confiscate the property of minority communities that owned schools preserving their distinct language, script and culture, and, in short, to eliminate all educational agencies other than the State. The alleged purpose, according to the submission, was to impose a uniform system of education and, through the state‑run institutions, to disseminate the ruling party’s political philosophy and to indoctrinate the impressionable minds of the younger generation. The Court noted with regret that the debate had become inflamed with heat and passion, although it recognised that such emotion was understandable given the bitter agitation and excitement provoked by the Bill among certain sections of the people of the State. However, the Court emphasized that its role was not to assess the merits of the Government’s policy but solely to determine the constitutional validity of the questioned provisions and to pronounce its opinion on whether those provisions fell within the scope of the constitutional issues presented.

In this case, the Court emphasized that it was not called upon to assess the merit of the Government’s policy underlying the Bill; its role was limited to examining the constitutional questions presented and expressing an opinion on the validity of those provisions of the Bill that fall within the scope of those questions. The doubts that gave rise to the first question were set out in the following terms. Sub‑clause (3) of clause 3 of the Bill permits the Government of Kerala, among other things, to recognise any school that is established and maintained by any person or body of persons for the purpose of providing facilities mentioned in sub‑clause (2) of the same clause, namely facilities for general education, special education and the training of teachers. Sub‑clause (5) of clause 3 provides, inter alia, that any new school established or any higher class opened in any private school after the Bill has become an Act and the Act has come into force, if such establishment or opening is not carried out in accordance with the provisions of the Act and the rules made under section 36 thereof, shall not be entitled to be recognised by the Government of Kerala. A doubt therefore arose as to whether the provisions of sub‑clause (5) of clause 3 confer upon the Government an unguided power of recognition of new schools and of higher classes in private schools that could be exercised in an arbitrary and discriminatory manner. A further doubt was expressed as to whether such a power of recognition could be exercised in a way that affects the right guaranteed to minorities by clause (1) of article 30 of the Constitution to establish and administer educational institutions of their choice. In the same manner, the doubts concerning clause 15 were formulated as follows. Clause 15 of the Bill empowers the Government of Kerala, by notification in the Gazette, to take over any category of aided schools in any specified area or areas if it is satisfied that, for the purpose of standardising general education in the State of Kerala, improving the level of literacy in any area, more effectively managing the aided educational institutions in any area, or bringing education of any category under its direct control, such a step is necessary in the public interest. The takeover would be effected on payment of compensation calculated on the basis of the market value of the schools taken over, after deducting from that amount any aids or grants given by the Government for requisition, construction or improvement of the property of the schools. A doubt consequently arose as to whether that power could be exercised in an arbitrary and discriminatory manner.

The Court recorded that a question had been raised as to whether the power granted by clause fifteen could be exercised in an arbitrary and discriminatory manner. Counsel for the respondents who challenged the validity of the Bill argued that the legal issues emerged from two principal questions. They explained that clause three sub‑paragraph five made every provision of the Bill applicable to schools that might be founded after the Bill became law. According to the counsel, clause three sub‑paragraph five conferred on the Government an unguided, uncontrolled and unchanneled authority, which could be exercised “with an evil eye and an unequal hand.” The counsel warned that the Government could, at its whim or pleasure, select any person or institution and subject that entity to hostile and discriminatory treatment. No policy or principle was set out in the Bill to guide the Government in exercising the wide powers granted by its various clauses. Specifically, the counsel pointed out that clause three did not prescribe any policy or principle on which the Government might decide whether to permit any person or body to establish and maintain an aided school or to grant recognition to a school established by any person. The counsel further observed that the Government could grant such permission or recognition to those who supported its policy but could deny it to those who opposed the policy. Clause six, the counsel noted, failed to specify the circumstances in which the authorised officer of the Government might or might not give permission for the alienation of the property of an aided school. Consequently, the officer could grant permission in one case and arbitrarily withhold it in another similar case. Likewise, under clause seven, the authorised officer might refuse to approve the appointment of a particular individual as manager of an aided school merely because of prejudice or dislike of that person’s political views or affiliations. Under clause nine, the Government could choose to pay the maintenance grant to the manager of one aided school but not to the manager of another. The counsel further argued that particular schools or categories of schools in specific areas could be singled out for discriminatory treatment under clauses fourteen and fifteen of the Bill.

The counsel then explained that if clause three sub‑paragraph five were read together with clauses twenty‑one, twenty‑six and twenty‑eight, the result would be palpably discriminatory. In an area that was not designated as an area of compulsion, a new school established after the Bill came into operation could charge fees, attract scholars and operate without seeking recognition or aid. In contrast, a new school established in an area of compulsion would be directly affected by clause twenty‑six, would be unable to attract any scholars because no guardian could lawfully send a child to a school that was neither a Government school nor a private school, and consequently the school would be unable to function at all, for it would have

The Court observed that a school which fails to attract any scholars cannot be said to raise the question of charging fees for any class, and that this observation carries no persuasive force because the Legislature, being fully aware of the needs of the people, is entitled to limit its restrictions to those localities where the needs are most evident; consequently, limitations imposed in areas of compulsion are permissible on the basis of a geographical classification. The Court added that, irrespective of whether any other constitutional provisions might be engaged—a matter that would be examined later—such geographical restriction does not contravene Article 14. The Court then turned to another alleged possibility of discrimination arising from the uniform application of the Bill’s provisions to schools that are not similarly situated. It noted that the Constitution treats schools established by minority communities differently from other schools: Anglo‑Indian schools receive grants under Article 337, and educational institutions founded by all minority communities, including Anglo‑Indians, are protected by Articles 29 and 30. By contrast, schools established by the majority community do not enjoy any special privilege or protection. The Bill, however, classifies all educational institutions together, ignoring the differing characteristics of minority and majority schools and thereby imposing the same burdens on institutions that are not equal. The Court held that this indiscriminate application of identical provisions to institutions possessing distinct attributes results in a serious discrimination that violates the equal‑protection clause of the Constitution. To support this argument, reliance was placed on the American Supreme Court decision in Cumberland Coal Co. v. Board of Revision (1931 284 U.S. 23; 76 L.Ed. 146, 150). The Court carefully explained that the cited American case was inapplicable to the present facts. In that case, the taxing authority imposed a uniform tax rate of fifty per cent on an artificial valuation of $260 per acre for all coal lands in the city of Cumberland, regardless of location. The actual market values of properties near riverbanks or railways were considerably higher than those of properties situated farther away, yet the artificial valuation undervalued the former and approximated the value of the latter. As a result, owners of the more valuable properties paid less tax than they would have on the true value, while owners of remote properties bore a heavier burden. The Court emphasized that the discrimination in that case was an essential feature of the taxation scheme and therefore the principle of that decision could not be applied here, because the provisions of the Bill do not create any discrimination. Consequently, the Court concluded that the American precedent has no bearing on the present dispute.

The assessment scheme described would have required owners to pay tax based on the actual market value of their land. Because the assessed value was set artificially low for properties located in the remote parts of the city, those owners would have paid far less than they would have under a valuation that reflected true market prices. Consequently, the assessment method operated to the disadvantage of owners of properties situated in the distant areas, and it clearly created a discriminatory effect. In that earlier case the discrimination was an essential feature of the taxation system. In the present matter, however, the Court noted that the provisions of the Bill do not contain any such discrimination, and therefore the principle stated in the earlier decision cannot be applied to the present case. The Court further observed that this observation does not end the inquiry, because the principal contention advanced by the petitioners was that the Bill fails to set out any policy or principle to guide the Government in exercising the extensive powers conferred by the legislation. The Court referred to the long title and the pre‑amble of the Bill, noting that the policy and purpose of a statutory measure may be discerned from those introductory parts, a principle that has been affirmed in several decisions of this Court, including the cited authority of Biswambar Singh v. State of Orissa. The Court explained that the long title and the pre‑amble articulate a general policy that the Bill is intended “to provide for the better organisation and development of educational institutions providing a varied and comprehensive educational service throughout the State.” The Court stressed that every clause of the Bill must be read and interpreted in the context of that overarching policy. Accordingly, whenever a particular clause grants the Government discretion to act, that discretion must be exercised in a manner that advances, rather than hinders, the stated policy of improving the organisation and development of educational institutions.

The Court further clarified that it is incorrect to assert that the Bill contains no guiding policy or principle for the Government’s exercise of discretion. The Court added that the general policy derived from the title and pre‑amble is reinforced by more specific policy statements embedded in various clauses of the Bill. For example, the power conferred on the Government by clause 3(2) may be exercised only “for the purpose of providing facilities for general education, special education and for the training of teachers.” The three separate powers listed under heads (a), (b) and (c) of that sub‑clause are therefore limited to the purpose of providing such facilities. The Court concluded that, when the Government considers granting permission or recognition under the Bill, it must examine whether such permission or recognition will further the better organisation and development of educational institutions in the State, and whether it will facilitate the delivery of general or special education or the training of teachers, consistent with the policy expressed in the Bill’s title and pre‑amble.

The Court observed that when a permission or recognition under the Bill will aid the delivery of general or special education or the training of teachers, the Government is bound to grant such permission, whereas it must refuse it if the action would hinder those purposes. Although subsection 3 employs the term “may,” the Court applied the well‑known principle of statutory construction that, once the statutory purpose is established and the conditions for exercising discretion are satisfied, the authority is obligated to act in furtherance of that purpose and no claim of arbitrary discretion can arise, citing the case of Julius v Lord Bishop of Oxford. The Court added that any actual discrimination carried out by the Government would contravene the policy and principle embodied in the Bill itself, and in such an event the Court would invalidate the discriminatory act rather than the provisions of the Bill. Turning to clause 14, the Court noted that the power granted there may be used only when the Government is of the opinion that the manager of an aided school has failed to perform his statutory duties and that exercising the power is required in the public interest; thus, no unfettered or unguided discretion is conferred. Similarly, under clause 15(1) the Court held that the Government may act only when it is convinced that such action is necessary for standardising general education in the State, improving literacy in a particular area, managing aided institutions more effectively, or bringing a category of education under direct governmental control, and that the action must be justified as being in the public interest. The Court clarified that the merit of the State’s policy choices is not before it; rather, the clause merely provides a policy framework to guide the exercise of the broad power it creates. Moreover, the Court emphasized that the clause is subject to a proviso requiring that no notification be issued unless the proposal for a takeover is supported by a resolution of the Legislative Assembly, thereby preventing the Government from acting on mere whim. Skipping forward, the Court examined clause 36, which authorises the Government to make rules solely for the purpose of giving effect to the provisions of the Act, meaning that any rules framed must implement the policy and purpose set out in the Bill’s long title, preamble, and other clauses.

The judgment explained that clause 36 authorises the Government to make rules for the purpose of giving effect to the title, preamble and all other provisions of the Bill. Clause 37 requires that such rules be laid before the Legislative Assembly not later than fourteen days after they are made, and that they be presented as soon as possible. Once laid, the Assembly may modify the rules during the same session in which they are presented. If the Assembly amends the rules, the amended version becomes effective; if the Assembly makes no amendment, the rules automatically come into operation after the fourteen‑day period has expired, thereby obtaining the tacit assent of the Assembly.

Counsel for the State of Kerala argued in vivid language that this procedure amounts to legislation in two stages, and that the final measure—consisting of the Bill together with the rules, whether amended or not—embodies the voice of the Legislative Assembly itself. Accordingly, it was contended that no unguided and uncontrolled legislative power had been improperly delegated to the Government. The Court noted that, in the absence of the standing orders and rules of business of the Kerala Legislative Assembly, it could not determine whether the Assembly, in approving the rules, acted as the Legislature of Kerala or as a delegate of the Legislature, which comprises the Assembly and the Governor. Nevertheless, the Court observed that, beyond setting a policy to guide the Government’s exercise of powers under the various provisions of the Bill, including clause 36, the Kerala Legislature had incorporated additional safeguards through clause 15 and clause 37.

In this connection, the judgment recalled earlier decisions of the Court, emphasizing that discretionary power is not automatically a discriminatory power and that allegations of governmental abuse of power are not to be lightly accepted. On the basis of this principle, the Court concluded that the allegation of unconstitutionality of the clauses raised under Article 14 could not be sustained. The position became clearer when examining clause 15(1). Apart from the policy and principle derived from the Bill’s long title, preamble and the sub‑clause itself, the proviso to clause 15(1) makes clear that the Legislature has not abdicated its function. While the Legislature has conferred a broad power on the Government to acquire certain categories of schools, that power is limited to the specific purposes enumerated in the clause and is subject to further effective control by the Legislature.

In the present case the Court observed that the Kerala Education Bill stipulated that the power to acquire schools could be exercised only after the Legislative Assembly passed a resolution specifically authorising the Government to do so. The Court held that, contrary to the submission of Shri G. S. Pathak, the Bill did not fall within category (iii) as discussed in Ram Krishna Dalmia (1959) S.C.R. 279, but rather fell within category (iv). The Court further explained that if the Government were to apply the provisions of the Bill in a manner that violated the policy and principle articulated in the Bill itself, such executive action would be placed in category (v) and would not be protected by the Bill; consequently, that action would have to be declared void. As a result, the Court concluded that the allegation of unconstitutionality of the various clauses of the Bill, which were challenged on the ground of a breach of Article 14, could not be sustained. Accordingly, the Court rejected the claims of invalidity concerning the clauses that fell within the scope of Questions 1 and 3, and answered both of those questions in the negative. Turning to Question 2, the Court explained that Articles 29 and 30 are part of Part III of the Constitution, which guarantees fundamental rights and is grouped under the heading “Cultural and Educational Rights”. The text and marginal notes of these articles demonstrate that their purpose is to confer rights upon sections of the community that constitute minority groups. Article 29(1) provides that any section of citizens residing in any part of India that possesses a distinct language, script, or culture has the right to preserve that distinctiveness. The Court observed that a minority community can effectively preserve its language, script, or culture through educational institutions; therefore, the right to establish and maintain educational institutions of its own choice is a necessary accompaniment to the right to preserve its distinctive language, script, or culture, and this right is expressly conferred on all minorities by Article 30(1), which has been quoted in full earlier. However, the Court noted that this right is subject to Article 29(2), which prohibits the denial of admission to any educational institution maintained by the State or receiving State aid on grounds solely of religion, race, caste, language, or any of these. When the Court examined Article 30(1), counsel for the State of Kerala raised the question of the meaning of “minority”, a term that is not defined in the Constitution. The Court remarked that it is easy to describe a minority community as one that is numerically less than fifty percent, but the enquiry then turns on what the fifty percent is measured against—whether it is fifty percent of the total population of India or fifty percent of the population of a particular State. The State of Kerala, in its statement of case, had taken a position on this issue, which the Court considered in the subsequent discussion.

The matter before the Court required an answer to the question of what constitutes a “minority” for the purposes of Article 30(1). The State of Kerala advanced the position that Christians, a segment of whom had loudly opposed the Bill on the ground that it infringed Article 30(1), could not be described as a minority within the State. The State acknowledged that Christians do not constitute a numerical majority in the State as a whole, noting that they account for roughly one‑fourth of the State’s population. However, the State argued that this fact alone did not automatically place Christians within the meaning of a minority under Article 30(1). The State warned that accepting such a view would, if taken to its logical end, require that any community comprising less than fifty per cent of the population be labeled a minority and be treated as such. The State observed that Christians are the second‑largest community in Kerala, yet they constitute a majority in certain localized areas of the State. Similarly, Muslims, who make up about one‑seventh of the total State population and are the third‑largest community, also constitute a majority in other specific areas. The State cited the decision in I.L.R. (1951) 3 Assam 384, where it was held that a person alleged to be a minority must be a minority in the particular region where the institution in question is situated. Consequently, the State contended that to claim the fundamental rights guaranteed to minorities by Articles 29(1) and 30(1), a group must be numerically a minority in the specific region where the educational institution is located or intended to be located. The Court noted that a brief reflection reveals this test to be unsatisfactory because it raises the problem of determining the appropriate geographical unit for the assessment. The Court questioned whether the unit should be a district, a sub‑division, a taluk, a town, its suburbs, a municipality, or even a municipal ward. It is common in many towns for members of a particular community to cluster together in a suburb or municipal ward, thereby forming a local majority. Under the State’s argument, Anglo‑Indians, Christians, or Muslims residing in such a locality, if taken as the relevant unit, would not be considered a “minority” within the meaning of the Articles and would therefore lack the entitlement to establish and maintain educational institutions of their choice in that locality. Conversely, if members of the Anglo‑Indian or Christian community lived in a different suburb or ward of the same town where their numbers were fewer than those of other communities, those members would be a minority within that smaller unit.

In this segment, the Court observed that the interpretation of Articles 29 and 30 requires that a community which is a numerical minority in a particular locality is entitled to establish and maintain educational institutions of its own choice in that locality. The Court illustrated the principle by describing a situation involving Tamil‑speaking residents of Karolbagh. If the Tamilian population in Karolbagh outnumbers the members of other communities residing there, those Tamilian residents would not be permitted to set up a Tamilian school in Karolbagh because they would not be a minority within that locality. Conversely, if Tamilian residents settled in an area such as Daryaganj where they are fewer in number than members of other communities, they would constitute a minority or a distinct section under the meaning of Articles 29 and 30 and therefore could establish a Tamilian school. The Court further explained that the same reasoning would apply to Bihari labourers living in industrial zones in or near Calcutta. Even though Biharis might form a majority within those particular industrial localities, they would not be able to claim minority rights or establish Hindi‑medium institutions in those areas, because the minority status must be assessed on the basis of the larger unit—either the whole city of Calcutta or the State of West Bengal—where they are numerically a minority. Similarly, the Court noted that Bengalis residing in a specific ward of a town in Bihar who happen to be the majority in that ward would not be permitted to preserve their language, script, or culture by providing instruction in Bengali, because the majority status in that ward defeats the claim of minority status required under the constitutional provisions.

After presenting these extreme illustrations, the Court stated that they were intended solely to demonstrate the flaw in the argument advanced by counsel for the State of Kerala. The Court acknowledged that the State had relied on Article 350A to argue that a local authority could be treated as a unit for determining minority status. The Court explained that applying the same illustrative logic to Article 350A would necessitate inserting the words “within their jurisdiction” after the phrase “minority groups,” and that the final sentence of Article 350A appears to run contrary to such a narrow construction. Nevertheless, the Court declined to engage in a detailed discussion on whether education, being a State subject listed in item 11 of List II of the Seventh Schedule and subject only to entries 62, 63, 64 and 66 of List I and entry 25 of List III, requires that the existence of a minority community be determined uniformly for all State laws, or whether the determination should vary depending on whether the law in question applies to the entire State or only to a particular locality. The Court observed that, because the present Bill extends to the whole of the State of Kerala, the determination of minority status must be made with reference to the total population of the State. Applying this test, the Court concluded that Christians, Muslims and Anglo‑Indians are undoubtedly minorities in Kerala. The Court also recorded the admitted figures that, out of Kerala’s total population of 1,42,00,000, there are 34,00,000 Christians and 25,00,000 Muslims, with Anglo‑Indians numbering only 11,990 according to the 1951 Census.

The Court observed that the State of Kerala had a total population of 1,42,00,000, of which only 34,00,000 were Christians and 25,00,000 were Muslims, while the Anglo‑Indians numbered just 11,990 according to the 1951 Census. It further pointed out that question 2 of the reference proceeded on the assumption that minorities existed in Kerala who were entitled to the rights guaranteed by article 30(1); consequently, for the purpose of answering that question, it was unnecessary to examine the definition of a minority community or the method of ascertaining its existence. The Court then turned to the principal issue presented for determination, namely the scope and ambit of the right conferred by article 30(1). Before addressing the main argument, the Court considered a subsidiary point raised by counsel for the State of Kerala. That counsel contended that three conditions must be satisfied before the protection and privileges of article 30(1) could be claimed: first, the existence of a minority community; second, that one or more members of that community, after the commencement of the Constitution, must seek to exercise the right to establish an educational institution of their choice; and third, that the institution must be established for the members of the very same community. The Court recalled that, applying the test previously articulated, it had already determined that Anglo‑Indians, Christians and Muslims constituted minority communities within the State. It held that the protection and privilege under article 30(1) were not limited solely to institutions founded after the Constitution came into force or to those that might be founded in the future. The Court dismissed the hypothesis that pre‑Constitution institutions would be excluded, noting that article 19(1)(g) applied equally to businesses, occupations or professions already in existence as to those commenced after the Constitution’s commencement. Accordingly, there was no rationale for restricting article 30(1) to post‑Constitution establishments. The language of article 30(1) was deemed sufficiently broad to encompass both pre‑ and post‑Constitution institutions. Moreover, the Court emphasized that article 30(1) granted minorities two distinct rights: the right to establish and the right to administer educational institutions of their choice. The second right, the right to administer, clearly covered institutions that had been created before the Constitution, just as article 26 protected the right to maintain pre‑Constitution religious institutions. Regarding the third condition advanced by the State, the Court reasoned that accepting it would lead to the absurd conclusion that the admission of a single member of another community to a school established for a particular minority would destroy the character of the institution as an establishment of that minority. Consequently, the Court rejected the notion that article 30(1) imposed a restriction that the institution must admit only members of the minority community for which it was founded.

In the submissions before the Court, counsel attempted to bolster their argument by invoking Article 29(2). They contended that a school founded by a minority community, which does not accept any financial assistance from the State, is free to refuse admission to any student who does not belong to the community for whose benefit the school was created. However, they further asserted that once such a school applies for and receives State aid, Article 29(2) would forbid the school from denying admission to members of other communities on the basis of religion, race, caste, language, or any combination thereof. According to that line of reasoning, the school would thereby lose its status as an institution established by the minority community that chose to set it up. The Court found that this line of reasoning is not supported by the language of Article 29(2) itself. The provision does not contain any explicit limitation that would require the addition of the words “for their own community,” and inserting such words would contravene the well‑established rules of statutory interpretation that prohibit adding words not present in the text. Moreover, it is unreasonable to presume that the purpose of Article 29(2) is to strip minority schools of the State aid they may receive. To hold that a minority school which obtains aid must admit every member of any other community, and that doing so would instantly cause the school to cease being a minority institution, would effectively deny minority schools the benefit of aid while they continue to function as minority institutions. The Court therefore concluded that the true effect of Articles 29(2) and 30(1) is to permit a minority‑run institution to admit a limited number of students from other communities without losing its character as a minority institution. In fact, admitting a few non‑members may further the purpose of preserving the minority’s language, script, and culture by exposing outsiders to those elements. Consequently, the Court held that no such restrictive condition can be read into Article 30(1).

Having resolved that subsidiary point, the Court turned to the principal question posed regarding the scope of Article 30(1). The first observation made was that the constitutional guarantee extends not only to religious minorities but also to linguistic minorities. The right conferred upon these minorities is the right to establish educational institutions of their own choosing. The provision does not prescribe that a religious minority must found schools solely for the purpose of religious instruction, nor does it require a linguistic minority to set up institutions exclusively for teaching its language. Rather, the language of the provision indicates that both religious and linguistic minorities are entitled to create institutions that reflect their overall preferences. In other words, the Constitution authorizes minorities to found schools that may provide a broad curriculum, including secular subjects, while still allowing them to preserve and promote their distinctive religious, linguistic, or cultural heritage. The Court emphasized that the phrase “of their own choice” is pivotal to understanding the true meaning and implications of Article 30(1).

The Constitution placed no limitation on the subjects that such minority‑run educational institutions could teach, leaving the curriculum entirely to the minorities themselves. Consequently, minorities normally wished that their children be raised properly, achieve eligibility for university studies, and acquire the knowledge needed to enter public service. Therefore, institutions of their choice would inevitably include schools that provide a broad, secular education alongside any religious or cultural instruction. In other words, the Article permitted minorities to establish schools that simultaneously preserved their religion, language or culture and delivered a thorough general education to their children. The Article further granted all minorities, whether based on religion or language, two distinct rights: the right to set up and the right to manage educational institutions of their own choosing. The pivotal expression in this provision is “of their own choice,” indicating that the breadth of the right expands as far as the minority community’s preferences allow. Accordingly, the scope of the rights conferred by Article 30(1) must be examined from the standpoint of the educational institutions themselves. These institutions can be grouped into three categories: those that seek neither state aid nor official recognition, those that desire financial assistance, and those that request only formal recognition without aid.

The first category, comprising institutions that do not request aid or recognition, is excluded from the operation of the Bill by virtue of clause 38. Counsel for the State of Kerala argued that, because these schools fall outside the Bill’s purview, the legislation cannot affect them in any manner. According to that submission, the minorities retain their full constitutional right under Article 30(1) and may exercise it without any restriction imposed by the Bill. Counsel for the institutions challenging the Bill, however, pointed to clause 26, asserting that it would compel such schools, if situated in a compulsory area, to close for lack of teachers. Clause 26, together with the penalty provision of clause 28, obliges every guardian residing in the area to enroll their children in government schools or in schools that, by definition, are aided or recognised institutions. The challengers contended that clause 26 therefore diminishes and ultimately removes the fundamental right guaranteed to minorities by Article 30(1), rendering the provision unconstitutional. The discussion then turned to the status of these first‑category institutions under the Bill. The passage concludes with the phrase “The educational institutions” indicating that the argument continues in the following portion. Thus, the Court was required to examine whether the statutory provisions interfered with the constitutional guarantee of minority education rights.

The institutions that belong to the first category and that are neither aided nor recognised fall, by virtue of clause 38, outside the apparent scope of the Bill. Consequently none of the provisions of the Bill, including those specifically referenced in the question, are applicable to these institutions. For that reason the contention raised by them—that clause 26 of the Bill infringes their right under article 30(1)—does not fall within the matter framed as question 2. The Court therefore stated that, on the basis of the material before it, it could not express any opinion on that particular issue. Turning to the institutions that fall within the second category, the Court observed that this group must be split into two distinct classes. The first class consists of those institutions that the Constitution expressly makes eligible to receive grants. The second class comprises institutions that, although not entitled to any grant by any explicit constitutional provision, nevertheless apply for and seek governmental aid.

Anglo‑Indian educational institutions belong to the first class. An Anglo‑Indian, as defined in article 366(2), is a member of a minority community in India distinguished by both religion and language, a status that the Court has previously recognized in The State of Bombay v. Bombay Education Society. According to the statement of case filed on behalf of the two Anglo‑Indian schools represented by Frank Anthony, there is no dispute that India has 268 recognised Anglo‑Indian schools, of which ten are situated in Kerala. Schools of this community that were established before 1948 had historically received grants from the government of that period. Article 337 was enacted, apparently in view of the special circumstances facing the Anglo‑Indian community and to allay their legitimate concerns for future welfare, to preserve this benefit for a ten‑year period. The article provides that all Anglo‑Indian schools receiving grants up to the financial year ending 31 March 1948 shall continue to receive the same grant, subject to a reduction of ten per cent every three years, until the ten‑year term expires, at which point the special concession would cease. The second proviso to the article requires that at least forty per cent of admissions each year be offered to persons who are not members of the Anglo‑Indian community. In addition, article 29(2) states that no citizen shall be denied admission to any institution receiving state aid solely on the grounds of religion, race, caste, language or any of them. These provisions represent the sole constitutional restrictions on the right of Anglo‑Indian institutions to obtain aid. Counsel for the two Anglo‑Indian schools argued that the State of Kerala is obligated to give effect to the provisions of article 337. The State’s own statement of case acknowledges that all Christian schools receive aid from Kerala, and therefore, as Anglo‑Indian schools are also Christian, they have hitherto been receiving the same grant from the State.

The Court observed that the Anglo‑Indian schools claimed they were entitled to the grant provided for in Art. 337 and that their grievance arose because the newly introduced Bill appeared to impose, in addition to the constitutional limitations specified in the second proviso to Art. 337 and in Art. 29(2), further and more onerous conditions on that grant. According to the schools, the State of Kerala was attempting to apply the strict provisions of clauses 8(3) and 9 to 13, together with other clauses attracted by clause 3(5) of the Bill, thereby curtailing and, in their view, completely removing their constitutional right to manage their own affairs. They argued that the grant to which they were entitled under Art. 337 was unconditional except for the limitations mentioned in the second proviso to that article and in Art. 29(2). The counsel for the State of Kerala did not seriously dispute the principle that the Anglo‑Indian institutions were entitled to receive the grant without any new conditions, although the counsel suggested, without convincing authority, that the grant under Art. 337 might not strictly fall within the meaning of “aid” as used in the Bill. The Court could not accept that argument, noting that the Bill did not define the term “aid” and therefore the ordinary and natural meaning of the word must be applied. It was noted that although Art. 337 uses the term “grant,” the term “aid” appears in Art. 29(2) and Art. 30(2), and there could be no doubt that “aid” in those articles would encompass the grant referred to in Art. 337. The Court further recorded that before the enactment of the Bill, the Anglo‑Indian institutions had been receiving the grant from the former State of Madras or Travancore‑Cochin and, after the formation of the new State, from Kerala. Consequently, the amount received under Art. 337 had to be construed as “aid” within the meaning of the Bill, and the institutions receiving that grant were therefore “aided schools” as defined in clause 2, sub‑clauses (1) and (6). Imposing fresh or additional stringent conditions as a precedent to the grant would, the Court held, infringe not only the rights guaranteed by Art. 337 but also those guaranteed by Art. 30(1). If the institutions could obtain the grant only by accepting the terms set out in the Bill, then, in order to preserve the right of administration guaranteed by Art. 30(1), they would have to exercise the option provided in the proviso to clause 3(4) and accept mere recognition subject to certain terms, which could amount to an irksome encroachment on their right of administration.

In this case the Court observed that in contemporary circumstances no educational institution can realistically operate efficiently without some assistance from the State. Consequently, if such institutions wish to continue their activities, they must inevitably seek State aid, which in effect requires them to relinquish the constitutional freedom to administer schools of their own choosing. On that basis the Court held that the Anglo‑Indian schools entitled to grants under Article 337 could justifiably claim that the provisions of the Bill referred to in question 2, taken together, effectively impair their fundamental right under Article 30(1) and are therefore void to that extent. The learned counsel for the State of Kerala submitted that the Court should defer any decision until the implementing rules are framed, but the Court rejected that suggestion, stating that if the provisions of the Bill are intrinsically objectionable, no subsequent rule can remedy the defect. The Court also found no merit in the State’s argument that the Bill introduces nothing new and that the Anglo‑Indian schools are not being subjected to conditions beyond those imposed historically by the Education Acts and Codes of Travancore, Cochin or Madras. The Court noted that when those Acts were enacted in 1945 and 1947 there were no constitutional fundamental rights, and a loss of a fundamental right cannot be claimed merely because a right is not exercised. No estoppel could arise against the Constitution. Accordingly, the Court concluded that the Anglo‑Indian institutions entitled to Article 337 assistance are being burdened with onerous conditions, and the questioned provisions of the Bill infringe not only their rights under Article 337 but also violate Article 30(1) by preventing the effective exercise of those rights. The Court emphasized that when assessing the constitutional validity of any measure, the actual effect and impact on the fundamental right must be examined, citing the precedents set in Ra & hid Ahmad v. Municipal Board, Kairana (1950 SCR 566, 571), Mohd Yasin v. Town Area Committee, Jalalabad (1952 SCR 572, 577) and State of Bombay v. Bombay Education Societies.

The learned counsel for the State of Kerala further urged that each Anglo‑Indian educational institution is receiving substantially more assistance than that which is statutorily owed under Article 337. Accordingly, for the portion of aid that exceeds the entitlement, the Court was told that these schools stand on the same footing as Anglo‑Indian institutions established after 1948 and as schools founded by other minority communities, none of which possess any constitutional right to receive State aid. The counsel argued that because the excess assistance places them in a comparable position to those minority schools that have no express constitutional claim to aid, the purportedly onerous conditions in the Bill should not be considered a violation of constitutional rights. The Court noted these submissions but reiterated that the core issue remained the infringement of the guaranteed rights under Article 30(1) and Article 337, irrespective of the amount of aid actually received, and that the real‑world impact of the Bill’s provisions on the autonomy of the Anglo‑Indian schools was the decisive factor in determining their constitutionality.

In this segment the Court turned to educational institutions that fall within sub‑category (b), that is, institutions which are not entitled to any grant of aid under any express constitutional provision yet nonetheless seek financial assistance from the State. The Court first recalled that Article 337 of the Constitution creates a special provision for granting aid only to Anglo‑Indian schools that were established before 1948. No similar constitutional provision exists for schools established by the Anglo‑Indian community after 1948, nor for schools set up by any other minority community at any time. Consequently, minority communities, including the Anglo‑Indian community with respect to post‑1948 schools, possess no constitutional right—whether fundamental or otherwise—to receive a grant from the State. Nevertheless, the Court observed that it is widely recognised that contemporary educational institutions require substantial expenditure in order to operate efficiently and effectively. Such expenditure cannot be fully met by tuition fees and private endowments, which are generally insufficient. Accordingly, no school can be maintained in a condition of efficiency and usefulness without considerable assistance from State funds. The Constitution, through Articles 28(3), 29(2) and 30(2), envisions that educational institutions may receive aid out of State resources. The Kerala Education Bill currently before the Court proposes to extend State aid to educational institutions. While the Bill does contemplate such assistance, it also imposes a series of stringent conditions that must be satisfied before any aid may be granted. The Court noted that the detailed provisions of the Bill had already been summarised earlier and need not be repeated. In brief, if the Bill were to become law, an institution seeking State aid would be required to comply with the conditions laid down in clauses numbered 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 20. Clause 36 authorises the Government to formulate rules governing the provision of aid to private schools. Counsel appearing on behalf of the institutions that oppose the Bill contended that the aforesaid clauses effectively deprive those institutions of the rights guaranteed under Article 30(1). Their specific grievances were set out as follows: the essential element of the right of administration of a school is the authority to appoint, control and dismiss teachers and other staff; however, the Bill, according to the appellants, virtually removes that managerial power. For example, the manager of an aided school would be obliged to submit annual statements under clause 5; the fixed assets of such schools would be frozen and could only be dealt with after obtaining permission from the authorised officer under clause 6; the school would be unable to appoint a manager of its own choosing, as the manager would be placed entirely under the control of the authorised officer, who would dictate the manner of accounting, require periodic inspection and, in the event of closure, demand that the accounts be handed over to the officer.

According to clause 7, when a school is closed the school’s accounts must be transferred to the authorised officer. Clause 8(3) requires that all fees and other monies collected by the school be handed over to the Government. Under clause 9 the Government assumes responsibility for paying the salaries of both teaching and non‑teaching staff, while clause 10 authorises the Government to prescribe the qualifications that teachers must possess. Clause 11 stipulates that the school authorities are not permitted to appoint any teacher of their own choosing; instead they must select teachers from a panel that is established by the Public Service Commission. Clause 12 obliges the school authorities to provide amenities to teachers and prohibits them from dismissing, removing, reducing the remuneration of, or even suspending a teacher without first obtaining the prior sanction of the authorised officer. Clause 14 empowers the Government, when it is satisfied about certain matters, to take over the management of a school and subsequently to acquire the school outright, and clause 15 similarly authorises the Government to acquire an aided school on the basis of its satisfaction with respect to matters on which reasonable disagreement may arise. Clause 20 expressly forbids a private school—meaning an aided or recognised school—from charging any tuition fees in primary classes where the enrolment is highest. The petitioners contend that these provisions infringe the fundamental rights guaranteed to them by Article 30(1) of the Constitution.

Counsel for the State of Kerala advanced a stark position, arguing that Article 30(1) confers on minorities only the fundamental right to establish and administer educational institutions of their own choice and nothing beyond that. According to this view, minorities may exercise these rights freely and may do so using only their own resources; the constitutional right does not extend to a claim for financial assistance from the State. The counsel further asserted that if minority institutions wish to receive State aid, they must accept the same conditions that the State imposes on all other educational institutions, likening the requirement to a person paying a prescribed fee for a postal stamp. In contrast, counsel representing two Anglo‑Indian schools and the Jamait‑ul‑Ulema‑i‑Hind advanced an equally uncompromising argument that the fundamental rights under Article 30(1) are absolute. They emphasized that Article 30(1) grants citizens the right to carry on any business, and that clause 6 of the same article permits only reasonable restrictions. Because there is no provision in Article 30(1) that endows the State with a police power to impose social control, the counsel argued that the rights under Article 30(1) must be regarded as absolute and cannot be subject to any restriction. To support this contention, the counsel relied on Articles 28(3), 29(2) and the subsequent provisions cited in the petition.

The learned counsel relied heavily on article 30 (2) of the Constitution, which expressly provides for the grant of aid to educational institutions established by minority communities. They also placed great emphasis on articles 41 and 46, which are included among the directive principles of State policy and which impose upon the State the duty to assist educational institutions and to promote the educational interests of minorities as well as of the weaker sections of society. According to the counsel, the provision of aid to educational institutions represents a normal governmental function, and the Constitution contemplates the existence of institutions that are wholly maintained by the State together with institutions that receive State aid. Consequently, when the State performs the function of granting aid, it must do so in a reasonable manner and must not do so in a way that infringes the fundamental rights of minorities. The counsel observed that there is no fundamental right vested in any individual or body that administers an educational institution to obtain State aid; moreover, if the State lacks sufficient funds, it is under no obligation to make any distribution of aid. Nonetheless, the counsel argued that once the State decides to distribute aid, it may not attach conditions that would deprive minorities of the rights guaranteed to them under article 30 (1). They maintained that imposing stringent conditions, such as those contained in the Bill under consideration and summarised earlier, would violate the rights guaranteed to minorities by article 30 (1). The counsel concluded that it is impermissible for the State to demand the surrender of fundamental rights as a price for receiving aid. The Court recognized that the matter presented a problem of considerable complexity and appeared difficult to resolve. On the one hand, the Constitution protects minority rights under article 30 (1) to establish and administer educational institutions of their choice; on the other hand, the State bears a duty to promote education and is bound by article 45 to strive toward free and compulsory education. The task, therefore, was to reconcile these apparently conflicting interests and, where possible, give effect to both, thereby achieving a synthesis of the two objectives. The Court emphasized that directive principles cannot ignore or override fundamental rights, but must instead serve to support them. It was previously noted that article 30 (1) confers two distinct rights on minorities: the right to establish an institution and the right to administer that institution according to their choice. The Court observed that the right to administer does not extend to the right to mismanage. A minority cannot legitimately seek aid or recognition for an institution that operates in unsanitary conditions, lacks competent teachers, fails to maintain basic standards of instruction, or teaches material that is subversive to the welfare of the pupils. Accordingly, the constitutional right to administer an institution of one’s choice does not automatically preclude the State from imposing reasonable regulations, as a condition for granting aid, to ensure the excellence of the institutions that receive assistance. The Attorney‑General conceded that the State may indeed impose reasonable regulations, provided that they are applied as a condition for the grant of aid or even for the recognition of such institutions.

In this case, the argument was advanced that the State may impose conditions for the grant of aid or even for the recognition of an educational institution, but that no minority, except the Anglo‑Indian community, possesses a statutory entitlement to receive such aid. The counsel for the minority institutions maintained that, if the State decides to provide aid, it must not attach the condition that the minority community must surrender its constitutional right of administration in order to receive the assistance. In other words, the State may not say, “I have funds and I will distribute aid, but I will withhold that aid unless you relinquish your right of administration.” The counsel further contended that the State must not grant aid in a manner that would deprive the minority community of the fundamental right guaranteed by Article 30(1) of the Constitution.

The advocate representing several institutions that opposed the Bill, Shri G. S. Pathak, agreed that the State is entitled to prescribe conditions for the recognition of schools. Such conditions might include requirements concerning a minimum amount of funds, the possession of property, a certain number of students, or a prescribed standard of education. He acknowledged that the State may enact legislation setting out these conditions for recognition or for the provision of aid, provided that any such legislation is constitutionally valid and does not infringe any fundamental right of the minorities. According to Shri Pathak, the act of recognizing institutions and granting aid is a governmental function; therefore, the State cannot impose any pre‑condition for recognition or aid that would violate Article 30(1). He submitted that, as per the statement of case filed by the State of Kerala, every Christian school in the State receives aid from the State. Consequently, the conditions imposed by the Bill on aided institutions that are established and administered by minority communities—including the Christian and Anglo‑Indian communities—would force the closure of all such aided schools unless those schools agree to surrender their fundamental right of management. In practice, no educational institution can continue to operate without State aid, and if aid is withheld unless the institution surrenders its rights, the financial necessity will compel the institution to relinquish its rights under Article 30(1).

The counsel further argued that the legislative powers granted to State legislatures by Articles 245 and 246 of the Constitution are subject to the other provisions of the Constitution, especially the fundamental rights listed in Part III. Those fundamental rights bind the State legislatures, and the legislatures cannot disregard or override them by using indirect methods that achieve the same result. In other words, a legislature may not achieve indirectly what it is expressly prohibited from doing directly. The effect of the provisions of the Bill, as interpreted by earlier decisions of this Court, must be examined to determine the constitutional validity of the measure. Specific clauses of the Bill—namely clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20—relate to the management of aided schools. Some of these provisions, such as clause 7, clause 10, clause 11(1), and clauses 12(1), 12(2) and 12(3), could be viewed as reasonable regulations or conditions that may be attached to the grant of aid. However, clauses 9, clause 11(2) and clause 12(4) were objected to as exceeding the permissible limit.

It was submitted that clauses 9, 11 and 12 of the Bill go far beyond the limits of permissible regulation. The argument stated that when the Government assumes responsibility for collecting fees and other monies and also undertakes to pay the salaries of teachers and other staff, it in effect confiscates the school’s fund and deprives the school of its prestige, because no one else will look after the school authority. Clause 11 was said to remove a clear management function, since the manager would not be able to appoint any teacher except from a panel prepared by the Public Service Commission. Even if the Commission were empowered to perform such a function, it might lack the competence to select teachers who would be acceptable to the religious denominations that run the schools. In particular, sub‑clause (2) of clause 11 was described as objectionable because it would force minority‑run educational institutions to accept teachers belonging to Scheduled Castes who might have no knowledge of the religious tenets of the institution and might be academically weak. Clause 12(4) was said to take away the power of dismissal, removal, reduction in rank or suspension, which is an essential aspect of management authority. These provisions were characterised as serious encroachments on the right of administration and as approaching a violation of that right. However, the Court observed that the provisions in question apply to all educational institutions, and that the impugned parts of clauses 9, 11 and 12 are intended to give protection and security to poorly paid teachers who serve the nation and to protect backward classes. Accordingly, the Court was prepared, on the advice presently before it, to treat clauses 9, 11(2) and 12(4) as permissible regulations that the State may impose on minorities as a condition for granting aid to their educational institutions.

The Court further held that it could not accept clauses 14 and 15 of the Bill as mere regulations. The provisions of those clauses were said to be capable of destroying the rights protected by Article 30(1). While it is true that the right to receive aid is not expressly conferred by Article 30(1), the Court noted that if the provisions of clauses 14 and 15 were imposed on the basis of factual necessity as a condition of aid, they could easily violate Article 30(1) of the Constitution. Counsel for the State of Kerala acknowledged that clauses 14 and 15 might annihilate the minority communities’ right to manage educational institutions of their choice, but argued that the validity of those clauses was not the issue in question 2. The Court, however, pointed out that all newly established schools seeking aid or recognition are, by clause 3(5), made subject to every provision of the Act. Consequently, a discussion on the constitutional validity of clause 3(5) necessarily requires an examination of the validity of the other clauses of the Bill, not as a separate matter but in order to determine the validity of clause 3(5). In the Court’s opinion, sub‑clause 3 of clause 8 and clauses 9, 10, 11, 12 and 13 are purely regulatory in nature and do not offend Article 30(1).

The judgment noted that sub‑clause (5) of clause 3, by conditioning aid on compliance with clauses 14 and 15, violated the guarantee of Article 30(1) of the Constitution. The discussion then turned to the final category of institutions, namely those established and run by minority communities that sought only governmental recognition and not financial assistance. Counsel for the State of Kerala and counsel for the two Anglo‑Indian schools and counsel for the Muslim institutions presented parallel arguments concerning recognition, mirroring those they had advanced regarding the grant of aid. According to the State, minority communities possessed the fundamental right under Article 30(1) to establish institutions of their own choosing and to manage them independently, without any requirement to obtain official recognition. However, the State also asserted that if a minority community elected to obtain state recognition, it must first accept the conditions laid down as prerequisites for recognition of every educational institution. The minority institutions, in contrast, contended that their right under Article 30(1) was absolute and could not be subjected to any condition or restriction whatsoever. Counsel for the two Anglo‑Indian schools cited United States Supreme Court decisions, asserting that a child was not the creation of the State and that parents had liberty to educate their children in institutions of their own choosing. The Court observed that those American decisions were based on the due‑process clauses of the Fifth and Fourteenth Amendments and therefore did not apply to the Indian constitutional framework. Consequently, the Court declined to examine the American precedents in detail. Turning to the opposing views presented, the Court reiterated that neither extreme position could be sustained and that an attempt should be made to reconcile the two perspectives. Article 26, the judgment noted, grants freedom to religious denominations or any of their sections, subject to public order, morality and health, to establish and maintain institutions for religious and charitable purposes. Article 29(1) protects any community of citizens residing in India that possesses a distinct language, script or culture, giving them the right to conserve that distinctiveness. The Court recalled that preserving a minority’s distinct language, script or culture is most effectively achieved through educational institutions, because education can embed cultural values in the impressionable minds of children. It further explained that schools serve as the primary means by which a minority community can preserve, improve and strengthen its language and script. Accordingly, Article 30(1) confers on all minorities, whether defined by religion or language, the right to establish and administer educational institutions of their choosing. The Court observed that minorities reasonably consider it essential that the education of

In this case the Court observed that minority communities believe the education of their children should reflect the teachings of their religion and argued that such an education could not be obtained in ordinary schools intended for the general public. They maintained that only schools administered by persons well‑versed in the tenets of their religion and in the traditions of their culture could provide the desired instruction. The Court noted that the minorities evidently wish the education of their children to be delivered in an environment that is conducive to the development of their culture. The framers of the Constitution, the Court said, recognised the legitimacy of this claim and, in order to allay the minorities’ apprehensions, granted them the fundamental rights previously referred to. However, the Court added that preserving a distinct language, script or culture is not the sole purpose of the minorities’ choice. They also seek to ensure that the scholars emerging from their institutions are equipped with the qualifications required for a useful career and for entry into higher education and public service. According to the Education Code presently in operation, which the Court permitted to be consulted for ascertaining the effect of the impugned provisions on the existing situation, scholars of unrecognised schools are barred from accessing university education and are ineligible for public‑service employment. Consequently, without formal recognition, schools established by minority communities cannot fulfil the real objectives of their choice and the rights guaranteed under Article 30(1) cannot be effectively exercised. The Court therefore held that the right to establish educational institutions of their choice must entail the right to create genuine institutions capable of meeting the needs of the community and its scholars. While there is no fundamental right to receive State recognition, the Court warned that denying recognition on conditions that effectively compel the surrender of constitutional administrative rights amounts to depriving the minorities of their Article 30(1) rights. The Court reiterated that legislative power is subject to fundamental rights and that the legislature cannot indirectly diminish those rights even if it does not do so directly, a result that would follow if the challenged Bill containing any offending clause were to become law. Citing earlier decisions of this Court, the judgment emphasized that the validity of any legislation must be judged by its actual intent and effect on the aggrieved parties rather than by its form. The Court observed that the Education Codes prescribe certain conditions—whether legislative or executive—for the grant of recognition, and it noted, as was argued during the discussion on aid, that the Bill does not impose a greater burden than that already placed on minority educational institutions and comparable institutions of other communities.

The Court observed that minority institutions, like those of other communities, already faced certain regulatory conditions. It noted that a fundamental right could not be said to be lost simply because it was not exercised, and it rejected any suggestion that an estoppel could arise against the Constitution. Consequently, the Court held that the challenged provisions of the Bill needed to be examined on their own merits. By virtue of clause 19, the Bill extended the application of clauses 7 (except sub‑clauses 1 and 3, which applied only to aided schools), 10 and 20 to schools that had received recognition. The Court was prepared to accept sub‑clauses 2 and 4 to 9 of clause 7, as well as the entirety of clause 10, as permissible regulatory measures. However, it found it difficult to regard clause 20 merely as a regulation, because that clause categorically prohibited the charging of tuition fees in primary classes.

The Court then turned to the factual context of school attendance and fee revenue. It noted that reliable statistics for the academic year 1955‑1956 showed that, in the age group of six to eleven years, approximately ninety‑one percent of girls and a comparable proportion of boys attended primary classes, while attendance fell markedly in the eleven‑to‑fourteen age group, with only thirty‑six point two percent of boys and twenty‑nine percent of girls remaining in school. Although the fee rates in primary classes were lower than those in higher classes, the large number of pupils meant that the total amount collected from primary‑class scholars constituted a significant portion of a school’s overall income. The Court warned that, if the Bill were to become law, schools would be forced to forgo this substantial source of revenue, and it observed that the Bill contained no mechanism to compensate schools for the loss of fee income. Unlike clause 9, which provided for state compensation for aided schools, there was no comparable provision for recognised schools. The Court therefore concluded that the prohibition on charging any tuition fees to primary‑class pupils, as a condition for recognition, would effectively prevent minority‑run educational institutions from continuing to operate. While clause 36(2)(c) gave the Government authority to make rules concerning recognition of private schools, the Court held that no rule framed under that clause could remove the constitutional defect in clause 3(5) read with clause 20, which together infringed the fundamental rights of minority communities in relation to recognised schools established after the Bill’s commencement. Finally, counsel for the State of Kerala was noted to have referred the Court to the directive principles embodied in Article 45, which impose a duty on the State to provide free and compulsory primary education.

The counsel for the State argued that the Constitution obliges the State to strive, within ten years of its commencement, to provide free and compulsory education to every child until the child reaches fourteen years of age. He expressed, with great feeling and indignation, the view that no minority community should be allowed to obstruct the fulfilment of this sacred duty, which requires the State to supply free and compulsory primary education to all children of the country so that they may be properly raised and become fit to discharge the duties and responsibilities of good citizens. The counsel further maintained that indulging the selfish claims of these minorities would set back the progress of the nation. He asked whether the minorities should be permitted to perpetuate sectarian division, to keep people permanently segregated in separate and isolated cultural enclaves, and thereby hinder national unity. The counsel representing the minority institutions responded with equal eloquence, emphasizing the sacred obligation of the State toward minority communities. He asserted that it is not for the Court to question the wisdom of the supreme law of the land. He reminded that the people of India have adopted a Constitution that is not intended for any particular community or section but for all citizens, and that its provisions are meant to protect both minority and majority communities. He stated that there is no doubt that the Constitution guarantees certain cherished rights to minorities concerning their language, culture and religion, and that these concessions have been made for sound and valid reasons. While acknowledging that Article 45 certainly requires the State to provide free and compulsory education for all children, he argued that nothing prevents the State from meeting this solemn obligation through Government and aided schools, and that Article 45 does not require the State to bear this obligation at the expense of minority communities. He concluded that, so long as the Constitution remains unchanged, it is the duty of the Court to uphold fundamental rights and to honour the sacred obligations owed to the minority communities that are part of the nation. He then recalled the long history of India, noting that over the ages countless peoples of diverse creeds, cultures and races—Aryans and non‑Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals—have arrived from distant lands and climates. He observed that India has welcomed all of them, that they have met, exchanged, mingled, merged and become part of a single body, and that this tradition is captured in the poetic line, “None shall be turned away From the shore of this vast sea of humanity That is India,” a verse by Rabindranath Tagore. He further noted that India has projected to the world a message of goodwill embodied in the National Anthem, which calls out day and night to Hindus, Buddhists, Sikhs, Jains and all others.

In the passage quoted from Rabindranath Tagore, the poet speaks of a throne that welcomes Parsees, Mussalmans, Christians and other faiths, describing how offerings from the East and the West are woven together in a garland of love. He says that this divine presence brings the hearts of all peoples into a single harmonious life, acting as the dispenser of India’s destiny and proclaiming victory to the nation. The Court observed that this vision of universal love and inclusion explains how India has historically achieved unity in diversity by absorbing the finest elements of all religions and cultures. Accordingly, the Constitution acknowledges the nation’s solemn obligations toward minority communities. Viewing the constitutional guarantees afforded to minorities through this inclusive lens, the Court held that clause 7—except for sub‑clauses 1 and 3, which are limited to aided schools—and clause 10 may be considered permissible regulations that the State may impose as conditions for recognising any educational institution. However, the Court found that clause 20, as extended by clause 3(5) to newly recognised schools, infringes article 30(1) when it affects schools established and administered by minority communities.

Paragraph 52 addresses the fourth question, which concerns the constitutional validity of clause 33 of the Bill. Clause 33, set out in full earlier, declares that regardless of any provision in the Code of Civil Procedure, 1908, or any other law then in force, no court shall grant a temporary injunction or make an interim order restraining any proceeding that is underway or about to be initiated under the provisions of the Bill once it becomes law. The Court noted that article 226 of the Constitution grants extensive jurisdiction and powers to the High Courts in each State, powers that extend throughout the territories over which the High Court has authority. Under article 226, a High Court may issue directions, orders or writs to any person, authority or even a government within its territory for the enforcement of fundamental rights or for any other purpose. The Court affirmed that, so long as article 226 remains effective, no State legislation may diminish or abridge the jurisdiction and powers conferred on the High Court by that article. The central issue, therefore, is whether clause 33 encroaches upon those powers. The Court recorded that doubts concerning clause 33 have been framed in the order of reference, stating: “and whereas clause 33 of the Bill provides that, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law then in force, no courts can grant any temporary injunction or make any interim order restraining any proceeding that is being or about to be taken under the Act; and whereas a doubt has arisen whether the provisions of clause 33, insofar as they affect the jurisdiction of the High Courts, would offend article 226 of the Constitution.” In paragraph 53, the Court noted that the State of Kerala, in its statement of case, raised these concerns.

Kerala State submitted that the fourth reference question should be answered in the negative because the authority granted to High Courts by Article 226 of the Constitution was not diminished by clause 33 of the Bill. The State further maintained that the contention that clause 33 impinged upon the jurisdiction of the High Courts under Article 226 lacked any substantive foundation. It emphasized that the Constitution represented the supreme law of the land and that only a constitutional amendment, as contemplated by the Constitution itself, could modify any of its provisions, including the power conferred by Article 226. According to the State, the power under Article 226 was an overriding authority that permitted High Courts, under appropriate conditions, to issue writs, orders and directions to subordinate courts, tribunals and other authorities even when a rule or statute provided otherwise.

Counsel representing Kerala State argued that clause 33 must be interpreted subject to Articles 226 and 32 of the Constitution. He invoked the well‑known rule of construction that, when a statutory provision is susceptible to two plausible meanings, the interpretation that preserves the provision’s validity should be preferred over one that renders it invalid. He pointed to the expression “other law for the time being in force” in clause 33 and asserted that this wording deliberately excluded the Constitution, since it would be inappropriate to describe the Constitution as a “law for the time being in force.” Counsel further examined the term “Law” as used in Articles 2, 4, 32(3) and 367(1) of the Constitution, interpreting it to signify legislation enacted by a legislature. He also relied on the definition of “Indian Law” in section 3(29) of the General Clauses Act, arguing that the word “Law” in clause 33 should be understood to refer to statutes of the same character as the Civil Procedure Code of 1908—namely, statutes made by a competent legislature in the exercise of its legislative function—and therefore could not be read as encompassing the Constitution. The Court concurred with this line of reasoning, finding no difficulty, and no argument was presented, in construing clause 33 as a provision that remained subject to the overriding authority of Article 226. Consequently, the Court determined that the answer to the fourth question was to be given in the negative.

Following this conclusion, the Court proceeded to record its findings on the remaining reference questions. It answered Question 1 in the negative. Regarding Question 2, the Court held that the answer was affirmative with respect to Anglo‑Indian educational institutions that were entitled to grants under Article 337. The Court also answered affirmatively for other minority educational institutions that, although not specifically granted aid by any express constitutional provision, were either presently receiving aid or sought such assistance, as well as for Anglo‑Indian institutions that were receiving assistance exceeding the amount due to them under Article 337.

In this part of the judgment, the Court examined several clauses of the Bill to determine whether they were inconsistent with article 30(1) of the Constitution. The Court observed that clauses eight sub‑paragraph three, and clauses nine through thirteen, did not conflict with article 30(1). However, the Court held that clause three sub‑paragraph five, to the extent that it subjected the educational institutions covered by those earlier clauses to the requirements of clauses fourteen and fifteen, did contravene article 30(1). The Court then considered clause seven, except for sub‑clauses one and three which relate only to aided schools, and clause ten, insofar as they applied to recognised schools that would be established after the Bill became operative. The Court found that those provisions did not offend article 30(1). Yet the Court again found that clause three sub‑paragraph five, when it made the new schools created after the commencement of the Bill subject to clause twenty, was inconsistent with article 30(1). The Court answered question number three in the negative and also answered question number four in the negative, holding that clause thirty‑three was subordinate to article two hundred twenty‑six of the Constitution. Justice Venkatarama Aiyar concurred with the reasoning of the Chief Justice on questions one, three and four. However, he expressed dissent on question two. He could not accept the view that clause twenty of the Bill, as applied to minority educational institutions that are religious or linguistic in character, was repugnant to article 30(1) and therefore void. Clause twenty states that no fee shall be payable by any pupil for any tuition in the primary classes in any government or private school. The Justice considered whether this provision infringed the right guaranteed by article 30(1) to minorities to establish and administer educational institutions of their choice. He noted that, on its face, clause twenty does not prohibit minorities from establishing or managing such institutions; it merely provides that in private schools no fee may be charged for primary‑class tuition. Consequently, it is difficult to see how the provision offends article 30(1). Counsel for the minorities argued that, in practice, a school cannot operate without collecting fees, and therefore the effect of clause twenty, if enforced, would be to extinguish minority educational institutions, constituting a direct invasion of their constitutional right to establish and maintain them. The Justice acknowledged that when assessing the constitutionality of a statutory provision, the court must consider not only the literal wording but also its practical effect on the rights of the parties. Nonetheless, he found it hard to conclude that clause twenty infringed article 30(1). He observed that the clause applies only to government and private schools, and that clause two sub‑paragraph six defines a private school as an aided or recognised school. Furthermore, clause thirty‑eight declares that nothing in the Act shall apply to any school which is not a government or a private school. As a result, there is no prohibition on minorities—whether religious or linguistic—establishing their own institutions and charging fees, provided they do not seek aid or recognition from the State.

The Court observed that a minority‑run school may charge fees provided it does not seek any aid or official recognition from the State; the provisions of the Bill would apply only when the school asks the State for aid or recognition. The Court noted that it has been argued that the minorities’ constitutional right to establish educational institutions would become meaningless if graduates of such schools were unable to sit for public examinations conducted by the State or to be considered for recruitment to State services, and that this consequence is said to arise from the non‑recognition of those institutions.

The Court explained that the argument advanced by counsel for the minorities is that, for the effective exercise of the rights guaranteed under Article 30(1), it is necessary to imply a right for minorities to obtain State recognition of their institutions. The Court identified this as the critical issue that must be resolved. It observed that if no such right to recognition is implied, then the question of whether Clause 20 of the Bill infringes that right does not arise for determination. Conversely, if the Court were to hold that Article 30(1) implicitly includes a right to State recognition, then it would be necessary to examine whether Clause 20 of the Bill encroaches upon that implied right.

The Court further stated that deciding whether religious or linguistic minorities possess a right to obtain State recognition for their institutions depends entirely on the proper construction of Article 30(1). The Court pointed out that the text of Article 30(1) makes no mention of State recognition of minority‑established schools, and that to accept the counsel’s contention would require reading additional words into the provision such as “and it shall be the duty of the State to recognise such institutions.” The Court reiterated the well‑settled rule of statutory construction that words are not to be inserted into a statute unless such insertion is essential to give effect to an intention already manifest in the text, a principle that is applied with even greater force when interpreting the Constitution.

Finally, the Court examined the relevant constitutional provisions and concluded that none of them implicitly confer a right to State recognition under Article 30(1). The Court cited Article 28(1), which prohibits religious instruction in any institution wholly funded by the State, and Article 28(3), which bars any person attending a State‑recognised or State‑aided institution from being required to partake in religious instruction. The Court also referred to Article 29(2), which forbids denial of admission to any State‑maintained or State‑aided institution on grounds of religion, race, caste, language, or any of them, and to Article 30(2), which expressly provides that in granting aid the State may not discriminate against any institution on the basis that it is managed by a minority. From this series of provisions, the Court found that the Constitution does not implicitly contain a right for minorities to obtain State recognition of their educational institutions.

The Court observed that the Constitution distinctly separates State‑maintained, State‑aided and State‑recognised educational institutions and assigns different rights and duties to each category. It further noted that if the framers had intended to grant minorities mentioned in Article 30(1) a fundamental entitlement to have their educational institutions recognised by the State, they could have expressed that intention explicitly; the absence of such wording suggested a deliberate decision not to impose a recognition obligation on the State. The Court pointed out that the institutions protected by Article 30(1) could be those that provide solely religious instruction, and it seemed probable that the primary purpose of Article 30(1) was to safeguard such religious schools. Requiring the State to recognise those institutions, the Court argued, would clash with the constitutional principle that the State must remain secular. Consequently, the Court asked whether institutions that teach only religion, which lack a right to compel State recognition under Article 30(1), could be distinguished from minority‑run schools offering secular education and still claim such a right. It concluded that the provisions of Article 30(1) must apply uniformly to all institutions within its scope, and that a literal construction of Article 30(1) did not support the inference of a minority right to State recognition. The Court then turned to another constitutional provision that appeared to negate the claimed right. Article 45 obliges the State, within ten years of the Constitution’s commencement, to provide free and compulsory education to all children up to fourteen years of age. The Court explained that this State duty was the basis of clause (20) of the Bill. It reasoned that if the minority right under Article 30(1) included an implied entitlement to State recognition, the State could not be required to admit students free of charge, rendering Article 45 ineffective because Article 45 envisions free education for every child, not merely for those attending institutions excluded from Article 30(1). While acknowledging the argument that directive principles in Part IV cannot override fundamental rights and that Article 45 should not be applied to defeat the rights granted to minorities by Article 30(1), the Court clarified that the real issue was not the hierarchy between directive principles and fundamental rights but whether a fundamental right for minorities to obtain State recognition of their schools existed at all, especially when such a right was not expressly stated in Article 30(1) and could only be inferred.

The Court observed that when a claim is made to infer a right, it must be examined whether such an implied right would conflict with any explicit constitutional provision. In view of this, the Court considered both the wording of Article 30(1) and the principle embodied in Article 45 and concluded that it could not accept the argument that the minority’s entitlement was limited only to establishing educational institutions of their own choosing, without the necessity of obtaining State recognition for those institutions. The Court held that this reasoning was sufficient to resolve the issue. The Court further noted that it had been contended that the purpose underlying Article 30(1) was to empower minorities to set up and run their own institutions, and that this purpose would be frustrated if the State were under no obligation to grant such institutions official recognition. While the Court allowed for a discussion of policy separate from the plain language of the statute, it asked what policy actually underlies Article 30(1). The Court explained that, as it understood it, the policy is to prevent a numerical majority within a State from destroying or impairing the rights of religious or linguistic minorities. This policy, the Court said, is reflected in all modern constitutions and aims to encourage individuals to preserve and develop their distinct cultures. The Court recalled that in the Middle Ages it was commonly accepted that sovereigns could impose their own religion on subjects and treat dissenters as traitors, a belief that contributed to numerous wars and civil conflicts in the sixteenth and seventeenth centuries. Only in later times was it recognised that religious freedom is compatible with good citizenship and loyalty to the State, and that progressive societies must respect the religious beliefs of minorities. The Court stated that this concept is embodied in Articles 25, 26, 29 and 30. Article 25 guarantees every person the right to freely profess, practice and propagate religion. Article 26 recognises the right of religious denominations to establish and maintain religious and charitable institutions. Article 29(1) protects the right of any section of citizens to preserve its own language, script or culture. Article 30(1) falls within the same class as Articles 25, 26 and 29, and confers on religious or linguistic minorities the right to establish and maintain their own educational institutions without any interference or hindrance from the State. In other words, minorities must be permitted to live their cultural life, including religious and linguistic aspects, and the State must allow them to do so. The Court clarified that the true scope of the right under Article 30(1) imposes only a negative duty on the State: the State may not prohibit the creation of such institutions and must not interfere with their administration.

In this case the Court observed that the right of minorities to manage their own affairs was not infringed by Clause 20 of the Bill. The Court explained that the claim advanced by the minorities went beyond a mere freedom to administer their institutions; they sought active State intervention that would confer official State recognition on their schools. The Court held that such a demand did not fall within the scope of Article 30(1). According to the Court, the purpose of Article 30(1) was to provide minorities with a protective shield against any majoritarian oppression, whether religious or linguistic, and not to give them a weapon to compel the majority to make concessions. The Court further noted that the Constitution imposed several separate obligations on the State with respect to minorities apart from those contained in Article 30(1). Under Article 30(2), the State was prohibited from discriminating against minority educational institutions on the basis of language or religion when it chose to grant aid. Moreover, when the State formulated regulations for the recognition of educational institutions, it was required to treat all institutions equally, without discrimination on language or religion. Summarising the constitutional position, the Court said that (1) the State had a positive duty to treat all educational institutions, including those belonging to religious or linguistic minorities, alike for the purposes of aid or recognition, and (2) the State had a negative duty not to prohibit the establishment of such institutions or to interfere with their administration. The Court found that Clause 20 of the Bill violated neither of these duties. By contrast, the Court observed that the minorities’ contention, if accepted, would create discrimination by the State. While institutions of the majority community that were recognised would be subject to Clause 20 and therefore barred from collecting fees, comparable minority institutions covered by Article 30(1) would be exempt from the clause and could continue to collect fees. The Court described this disparity as discrimination. When counsel for the minorities was asked whether their argument would render Article 45 ineffective, the counsel suggested that the State could compensate minority institutions for the loss of fee revenue. The Court interpreted this response as indicating that the minorities were seeking benefits that had not been granted to them under Article 30(2), namely financial aid based on religion or language. Concluding its analysis, the Court stated that there was no justification for interpreting Article 30(1) in a manner that would give minorities a more favourable position than the majority communities. The Court then indicated that it had examined the language and underlying principle of Article 30(1) and would next turn to the authorities previously cited, including the observations in City of Winnipeg v. Barrett and City of Winnipeg v. Logan ([1892] A.C. 445, 457).

The Court noted that the authorities previously cited by the State of Kerala were intended to demonstrate that Clause 20 of the Kerala Education Bill did not conflict with Article 30(1) of the Constitution. The authorities referred to a decision concerning section 22 of the Manitoba Act 1870, which provides that the provincial legislature may make laws relating to education, but that no such law shall prejudice any right or privilege concerning denominational schools that any class of persons possesses by law or custom in the province at the Union. The Court reproduced the exact wording of that provision, emphasizing its relevance to the matter before it. The Court then set out the historical facts of the Manitoba case. In the province of Manitoba there existed denominational schools that were operated by Roman Catholics and were financially supported by fees paid by their pupils together with contributions from the Church. In the year 1890 the Manitoba Legislature enacted the Public Schools Act, which provided that both Protestant and Roman Catholic school districts were to be governed by the provisions of that Act and that all public schools were to be “free schools.” A portion of the provincial education grant was earmarked for public schools, and the Act stipulated that any school which failed to comply with all the requirements of the Act or the regulations issued by the Department of Education would not be regarded as a public school within the meaning of the Act and consequently would be excluded from receiving any part of the grant. The Roman Catholic institutions challenged the validity of these provisions on the ground that they violated section 22 of the Manitoba Act and infringed the rights and privileges guaranteed by that section. The Supreme Court of Canada upheld the Roman Catholic challenge, but that decision was subsequently overturned by the Judicial Committee of the Privy Council. The Privy Council held that the provisions of the 1890 Act did not offend section 22 of the Manitoba Act. In delivering the judgment, Lord Macnaghten, speaking for the Board, observed that notwithstanding the Public Schools Act of 1890, Roman Catholics and members of every other religious body in Manitoba were free to establish schools throughout the province, to maintain those schools through school fees or voluntary subscriptions, and to conduct their schools according to their own religious tenets without any molestation or interference. The Court recorded that, as a result, the Act was held not to infringe the rights of the denominational institutions under section 22, and it observed that this reasoning was highly pertinent to the arguments advanced by the State of Kerala.

The Court further explained that the situation of minority educational institutions that rely on Article 30(1) is not fundamentally different from the position of the Roman Catholic schools in Manitoba that were protected by section 22 of the 1870 Act. The Court observed that Clause 20 of the Kerala Education Bill creates a legal position that is substantially the same as the one created by the Manitoba Public Schools Act of 1890. In other words, the effect of Clause 20 on minority institutions is analogous to the effect of the Manitoban legislation on Roman Catholic schools, and therefore the precedents cited by the State of Kerala support the view that Clause 20 does not violate Article 30(1). The Court also noted the argument advanced by Mr Pritt, who contended that the minority counsel’s claim—that students graduating from unrecognised institutions faced a disadvantage when seeking eligibility to sit for public examinations or to obtain employment in the State—was without foundation. The Court recorded this observation as part of its overall assessment of the issues raised before it.

In this case, the Court observed that the argument that the contention itself lacked any foundation was unfounded, and even if a substantial distinction existed in the way students graduating from unrecognised schools were treated compared with those graduating from Government or recognised schools, such a difference arose solely from the provisions of the Education Codes that were then operative in the State. The Court noted that those provisions might indeed be defective insofar as they could be said to infringe Article 30(1) of the Constitution, but that any such defect did not undermine the validity of Clause (20). The Court explained that Clause (20) was rendered inapplicable to unrecognised institutions by virtue of Clause (38), and therefore, the Bill contained no provision that could be said to offend Article 30(1). The Court further clarified that the regulations of the Education Code were not the subject of the present reference and were not before the Court for determination. It was expressed that, while there was ample ground to argue that if any infringement of Article 30(1) occurred it would be through the rules of the Education Code rather than through Clause (20), it was unnecessary to pursue that line of reasoning. The Court concluded that, irrespective of any such considerations, the constitutional validity of Clause (20) was not open to question; the clause did not contravene Article 30(1) and was therefore intra‑vires.

The Court further held that Clauses (14) and (15) were constitutionally invalid, and it explained the basis of that determination. It observed that, without dispute, whenever the State furnishes financial assistance to an educational institution, it must possess the authority to ensure that the institution is properly and efficiently administered, that the education delivered meets acceptable standards, that the teaching staff hold the necessary qualifications, and that the funds are applied strictly for the intended educational purposes. Accordingly, the State must enjoy extensive powers of regulation and control over institutions that receive State aid, and those powers must be interpreted liberally. The Court stressed that the Legislature’s decisions concerning the scope of such powers should not be lightly interfered with, because the Legislature is presumed to be best placed to understand the State’s needs, to recognise the nature and extent of prevailing problems, and to determine appropriate remedial measures. However, the Court warned that the power to regulate does not ordinarily include the power to prohibit, and that the State’s right to control an institution’s affairs cannot be exercised in a manner that extinguishes the institution altogether. The Court pointed out that Clauses (14) and (15) effectively sought to terminate the right of private entities to establish and maintain educational institutions, a step that could not be justified as a regulatory measure within the State’s authority. While the State was unquestionably free to withdraw aid or recognition from a mismanaged school, to temporarily operate the school in the interests of its students pending alternative arrangements, or to recover property that had been acquired with State assistance, the State could not compulsorily take over the school and run it as its own under the terms set out in Clauses (14) or (15). Such a power did not flow directly from the grant of aid, because to aid was not intended to destroy the institution’s existence.

In this case, the Court observed that the State could not forcibly assume ownership of a school and operate it as a public institution merely because a clause, either Clause (14) or Clause (15), required such a takeover. The Court held that such power did not arise directly from the grant of aid, and that providing assistance should not lead to the destruction of the school. The Court further expressed the view that the two clauses would breach the constitutional right to establish and maintain educational institutions, whether that right is grounded in Article 19 (1)(g) or in Article 30 (1). The Court then turned to Question No. 2, noting that the specific issue of the validity of Clause (20) or of Clauses (14) and (15) had not been expressly referred for its opinion. Nevertheless, the reference to Clause 3 (5) was said to bring all the provisions of the Bill within its ambit because the establishment of new institutions or schools falls under that clause, subject to the Bill and the rules made thereunder. The Court expressed serious doubts as to whether, on the terms of the reference, it was called upon to opine on the validity of every provision of the Bill. It emphasized that the reference was not a general enquiry into the vires of the Bill but was limited to certain specified provisions, namely Clauses 3 (5), 8 (3) and 9 to 13. The Court questioned why, if the intention had been to obtain an opinion on the validity of the entire Bill, Clauses 8 (3) and 9 to 13 had to be expressly mentioned. Moreover, the reference was preceded by detailed recitals of the doubts that had arisen in the President’s mind concerning the validity of particular provisions, and there was no indication of any doubt regarding the vires of provisions other than those expressly cited. The Court invoked the maxim “Expressum facit cessare tacitum,” explaining that if this principle may be applied to the construction of instruments, it should certainly apply to the interpretation of a document carefully prepared by the Union Government. Considering the nature of the advisory jurisdiction under Article 143, the Court held that the reference should be construed narrowly rather than broadly. However, the Court noted that this discussion was largely academic because full arguments on the validity of all the provisions had already been presented, and the Court was now expressing its opinion on those arguments.

The Court concluded its answer to Question No. 2 by stating that, except for Clauses (14) and (15), the remaining provisions of the Bill did not offend Article 30 (1) of the Constitution. With respect to schools belonging to the Anglo‑Indian communities, the Court observed that Article 337 provides for aid to be given to such schools on the conditions and to the extent specified in that article. This provision operates outside Article 30 (1) and is independent of it. The Court agreed with the Chief Justice that, to the extent the Bill’s provisions affect or interfere with the rights conferred by Article 30 (1), they are unconstitutional. Accordingly, the Court recorded that the reference had been answered in accordance with these conclusions.