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S.S. JaIn Sabha (of Rawalpindi), Delhi and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ. No. 96 of 1975
Judge
Reported inILR1976Delhi61
ActsConstitution of India - Article 29
AppellantS.S. JaIn Sabha (of Rawalpindi), Delhi and ors.
RespondentUnion of India and ors.
Advocates: F. Anthony, ; J.S. Arora, ; B.N. Lokur and;
Cases ReferredDwarka Nath Tewari v. State of Bihar. Air
Excerpt:
(i) constitution of india - articles 29 & 30--'minorities based on religion'--rights of 'to establish and administer educational institution of their choice'--extent of--regulation by the state.; that the right to establish and administer schools of their choice under article. 30(1) does not extent to the claim of the petitioners to admit only strudents of their choice to these schools. firstly, though the expression 'any section of the citizens' used in art. 29(1) is not synonymous with the expression 'all minorities whether based on religion or language' used in article 30(1), there is a close connection between the two articles. theoretically, 'any section of the citizens' may refer to either the majority or the minority communities, but in practice, the right given by article.....v.s. deshpande, j.(1) what activities are implied in the right of minorities based on religion 'to establish and administer educational institutions of their choice' under article 30(1) of the constitution and to what extent can the state regulate them without abridging the right ?(2) are 'educational institutions' included in the right of a religious denomination 'to establish and maintain institutions for religious and charitable purposes' under article 26(a) if so, how does this right compare with the right of religious and linguistic minorities to establish and administer educational institutions of their choice under article 30(1)?(3) has a citizen got a right to administer an educational institution under article 19 of the constitution? 2. these three questions have been raised by.....
Judgment:

V.S. Deshpande, J.

(1) What activities are implied in the right of minorities based on religion 'to establish and administer educational institutions of their choice' under Article 30(1) of the Constitution and to what extent can the state regulate them without abridging the right ?

(2) Are 'educational institutions' included in the right of a religious denomination 'to establish and maintain institutions for religious and charitable purposes' under Article 26(a) If so, how does this right compare with the right of religious and linguistic minorities to establish and administer educational institutions of their choice under Article 30(1)?

(3) Has a citizen got a right to administer an educational institution under Article 19 of the Constitution? 2. These three questions have been raised by the challenge of three sets of petitioners to the validity of the certain provisions of the Delhi School Education Act, 1973 and of the Rules and administrative instructions issued there under as being vocative of their fundamental rights, namely, (1) Jains in Civil Writ 96 of 1975, Sikhs in Civil Writ 660 of 1974 and Christians in Civil Writ 1463 of 1974 under Article 30(1); .(2) Arya Samajis in Civil Writs 334 and 1110 of 1974 under Article 26, and (3) two societies who are neither minorities nor religious denominations under Articles 19 and 14 of the Constitution in Civil Writs 1383 and 1518 of 1974. 3. The Jain, Sikh and Christian petitioners give a wide meaning to their right to establish and administer schools under Article 30(1) and impugn the following provisions of the Act and the Rules as vocative of their right : A, Admissions to the schools have to be based on merit and the residence of the candidate in the zone in which the school is situated according to Rules 131 to 133. But the petitioners would like to admit candidates of their choice preferring those who belong to their religion. B. Though anyone is free to establish and administer a school which does not seek recognition [Section 3(3)] schools seeking recognition have to possess adequate funds, accommodation, teachers with prescribed qualifications and other facilities (section 4 and rule 50). C. Grants-in-aid are given to all recognised schools who have a permanent income and reserve fund to run the school when supplemented by grant (section 6 and rule 65). The grants are liable to be stopped, reduced or suspended by the Administrator for non-compliance with the provisions of the Act, the Rules or the instructions issued there under (Rule 69). D. The committees which manage the school, select its employees and discipline them have to contain nominees of the Government. Employees who are dismissed, removed or reduced in rank are given a right of appeal to the School Tribunal (Sections 5 and 8 and rules 59, 64, 96, 105 and 120). Appointment and suspension of an employee as also termination of his service require A approval of the Director [Section 8 and Rules 98(2), 115(5) (e) and 105]. E. Moveable and immovable property of the school cannot be alienated without the sanction of the Government B (Section 7 and rules 93 and 94). A School Fund will contain all the income derived by the school from grant, fees and other sources 'out of which a school Staff Fund is to be constituted for payment of the dues of the employees which would be made jointly by the school and a nominee of the Government. (Sections 18, 10 and Rules 126, 174 and Circular H-l). F. Manager of the school is liable to punishment for failure to comply with orders of the School Tribunal or for presenting any student for any public examination without first securing recognition to the school [Section 27 (a) and(b)]. and; G. New schools and classes cannot be opened and existing schools and classes cannot be closed down without the permission of the Government (Section 3 and rules 45 and 46). Rules Of Construction

(4) Section 3(3) of the Act lays down the basic rule of construction of the provisions of the Act and the Rules, namely, of their being 'subject to the provisions of clause (1) of article 30 of the Constitution'. We may add that they are also subject to the other relevant provisions of the Constitution. Further, the cultural and educational rights guaranteed by Articles 29 and 30 as also the freedom of religion guaranteed by Article 25 to 28 are to be construed in the following background, namely, (a) the Preamble of the Constitution whose objective is to secure to all the citizens, inter aha, equality of status and opportunity and to promote among them all fraternity assuring the dignity of the individual and the unit of the' Nation, (b) to secure the objects embodied in Articles 41, 45 and 46 of the Constitution, (e) provision of facilities for instruction in mothertongue at primary stage as required by Article 350A but also emphasising the duty of the Union of India to promote I the spread of Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for the vocabulary, primarily on Sanskrit and secondarily on other languages (Article 351).

(5) Further, the construction of Article 30 and the other relevant articles of the Constitution is to be governed firstly by the relevant decisions of the Supreme Court and secondly by their interpretation in the context of the other relevant provisions of the Constitution. In doing so, we must remember that the Constitution is the product of careful thinking by the Members of the Constituent Assembly spreadnig over a period of three years. The Debates of the Constituent Assembly and the other contemporary material as, for instance, has been edited by Shri B. Shiva Rao in 'The Framing of India's Constitution' five volumes and is used by Granville Austin in 'The Indian Constitution ; Cornerstone of a Nation' are not to be excluded from consideration. The English rule of interpretation of excluding the material contemporary to the framing of the statutes arose out of two accidental circumstances pointed out in an original study by Professor Kilgour of toronto University in 30, Canadian Bar Review, 769 (1962). Firstly, the searches into Parliamentary intentions as found in their proceedings were disallowed by Parliament who attained supremacy after the Revolution of 1688. According to Professor Kilgour this suited the judges who could thereby 'assert their own ideas of the social purposes underlying the legislation which it was their lot to interpret. To this extent a policy of liberal interpretation amounted to an assertion of judicial freedom' (Ibid., 785-86). Secondly, the reporting of debates in the House of Commons was forbidden from 1628 to 1908 and the courts had, thereforee, to interpret legislation without being able to look into the debates. The Courts in India have now come to discard the exclusionary rule and have taken the view that due importance should be given to the Debates of the Constituent Assembly in the interpretation of the Cons-titution [State of Mysore v. R. V. Bidap, : (1973)IILLJ418SC . Articles 29 And 30 Of The Constitution

(6) These were articles 23(1) on the one hand and 23(3)(a) and 23(3)(b) on the other hand in the Draft Constitution. They were the direct result of the Debate of leaders of thought among the members of the Constituent Assembly. Firstly, Dr. B. R. Ambedkar said in relation to draft article 23(2) corresponding to the present article 28 of the Constitution that even in relation to articles 30 and 29 the State was completely free to give or not to give aid to the educational institutions of the religious or linguistic minorities. He said : 'Now, with regard to the second clause I think it has not been sufficiently well-understood. We have tried to reconcile the 69 Others v. Union Of India And Others claim of a community which has started educational institutions for the advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions, notwithstanding the fact that it receives certain aid from the State. The Sate. of course, is free to give aid. is free not to give aid; the only limitation we have placed is this. that the State shall not debar the institution from claiming aid under its grant-in-aid code merely on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a 'further qualification, tint while it is free to give religious instruction in the institution and the grant made by the State shall not be a bar to the giving of such instruction, it shall not give instruction to, or make it compulsory upon, the children belonging to other communities unless and until they obtain the consent of the parents of those children. That, I think, is a 'salutary provision. It performs two functions . . . Shri H. V. Kamath : On a point of clarification, what about institutions and schools run by a community or a minority for its own pupils not a school where all communities are mixed but a school run by the community for its own pupils The Hon'ble Dr. B. R. Ambedkar : If my friend Mr. Kamath will read the other article he will see that once an institution, whether maintained by the community of not, gets a grant, the condition is that it shall keep the school open to all communities. That provision he has not read.' (VII. C.A.D. 884) He reaffirmed the complete freedom of the State to give or not to give aid to these schools when directly referring to draft article 23 which is the precursor of the present articles 29 and 30 as follows :- 'I think another thing which has to be borne in mind in reading article 23 is that it does not impose any obligation or burden upon the State. It does not say that, when for instance the Madras people come to Bombay, the Bombay Government shall be required by law to finance any project of giving education either in Tamil 'language or in Andhra language or any other language'. There is no burden cast upon the State. The only limitation that is imposed by article 23 is that if there is a cultural minority which wants to preserve its language, its script and its culture, the State shall not by law impose upon it any other culture which may be either local or otherwise.'

(7) Secondly, the true object of draft article 23 now corresponding to articles 29 and 30 was brought out by Shri K. Santhanam, acknowledged to be one of the best informed and learned members of the Cons- tituent Assembly. He said : 'Sir. You will remember that throughout Europe, after the first world war, all that the minorities wanted was the right to have their own schools, and to conserve their own cultures whcih the Fascist and the Nazis refused them. In fact, they did not want even the State schools. They did not want State aid, or State assistance. They simply wanted that they should be allowed to pursue their own custoins and to follow their own cultures and to establish and conduct their own schools. thereforee. I do not think it is right on the part of any minority to depreciate the rights given in article 23(1). ...........In this connection we have to hold the balance even between two different trends. First of all, we have to give to large linguistic minorities their right to be educated especially in the primary stages in their own 'language'. At the same time we should not interfere with the historical process of assimilation. We ought not to think that for hundreds and thousands of years to come these linguistic minorities will perpetuate themselves as they are. The historical processes should be allowed free play. These minorities should be helped to become assimilated with the people of the locality. They should gradually absorb the language of the locality and become merged with the people there, otherwise they will be aliens, as it were, in those provinces. thereforee, we should not have rigid provisions by which every child is automatically protected in what may be called his mother-tongue. On the other hand, this process should not be sudden, it should not be forced. Wherever there are large numbers of children, they should be given education-primary education -in their mother-tongue. At the same time, they should be encouraged and assisted to go to ordinary schools of the provinces and to imbide the local tongue and get assimilated with the people. I feel this clause does pro- vide for these contingencies in the most practicable fashion.' Two Kinds Of Judicial Approach :

(8) In construing the fundamental right, the Supreme Court has adopted either of the two approaches. One approach is to confine the scope of the fundamental right to the language in which it was framed. The leading example of this approach is All India Bank Employees' Association v. National Industrial Tribunal, : (1961)IILLJ385SC (2), The fundamental right guaranteed by article 19(l)(c) was held to enable only the formation of an association. It did not comprise within itself any of the concomitent rights that an association so formed shall be enabled to achieve the object for which it was formed. The contention that the Employees' Union must be given the right to demand the disclosure of bank documents to give full effect to the right guaranteed by article 19(1)(c) was thereforee, turned down. This approach was followed by the Supreme Court in D.A.V. College, Jullunder v. State of Punjab, : AIR1971SC1737 in repelling the contention that compulsory affiliation of a college to university infringed the fundamental right of association guaranteed to the college by article 19(l)(c).

(9) The other approach was reflected in Sakal Papers (P) Ltd. v. The Union of India, (1962) 3 S.C.R. 942(4), in which even the regulation of the commercial aspect of the activities of newspapers was held to infringe on the right to freedom of the press. The freedom of the press was held not to be only from interference by the State but also for the achievement of its object. It was not only a negative but also a positive freedom. This is similar to the doctrine of 'preferred freedoms' anunciated by certain judges of the U. S. Supreme Court in relation to the freedom of speech. It is also reflected in the majority decision in Bennet Coloman & Co. v. Union of India, : [1973]2SCR757 . The reason for this approach is that freedom of speech is the very matrix of living democracy and the Courts would stretch a point in its favor.

(10) It is in line with the second of the abovementioned two approaches to the understanding of fundamental rights that the minorities petitioners claim to be entitled to admit to their schools under Article 30(1) only students of their choice. It was argued that the right to establish and administer schools of their choice included the right to admit students of their choice to such schools. It was explained that normally their schools would be founded to protect their culture, language and script, a right guaranteed by Article 29(1). Reliance was placed on Sidhaibhai Sabhai v. State of Bombay, : [1963]3SCR837 , followed in The Director of School Education v. Rev. Brother G. A. Arogiasamy, : AIR1971Mad440 .

(11) Our view the right to establish and administer schools of their choice under Article 30(1) does not extend to the claim of the , petitioners to admit only students of their choice to these schools. Firstly, though the expression 'any section of the citizens' used in Article 29(1) is not synonymous with the expression 'all minorities whether based on religion or language' used in Article 30(1) as pointed out in The Ahmedabad St. Xaviers College Society v. State of Gujarat, : [1975]1SCR173 , there is a close connection between the two articles. Theoretically, 'any section of the citizens' may refer to either the majority or the minority communities, but in practice, as was pointed by Pandit G. B. Pant in the Constituent Assembly, the right given by Article 29(1) was needed only by the adherents of a language which was different from the national language in the context of the Union or from the State language in the context of the States. It would not be needed by the adherents of a language which was recognised as the official language of the Union in the All-India context or by the followers of a language which was recognised as an official language of a State in the context of that State (VII C. A. D. 916). Linguistic minorities often coincide with religious minorities. This correlation between Articles 29(1) and 30(1) was recognised in Re The Kerala Education Bill, 1957, Reference Under Article 143(1) of the Constitution of India, (1959) S.C.R. 995 (9) at 1047 and 1053 and it was observed that both of them related to linguistic minorities. In Rev. Father W. Proost v. State of Bihar, : [1969]2SCR73 also the Constitution Bench observed that Articles 29(1) and 30(1) refer to linguistic minorities. If 'minorities whether based on religion or language' had taken the stand that the object of giving them the right under Article 30(1) was to enable them to preserve their language, script and culture thus implementing the connected right given by Article 29(1), it would have been consistent with the petitioners' contention. But the reality is that many educational institutions established by religious and linguistic minorities cater more to the education of students belonging to the majority community rather then of students belonging to the religious or the linguistic minority. So much so that the right given by Article 29(2) to the citizens against possible discrimination by minority schools had to be claimed by a society running a minority school itself against State interference in State of Bombay v. Bombay Education Society, : [1955]1SCR568 . The schools of religious and linguistic minorities have, thereforee, been admitting majority of students belonging to other religions and languages generally. This actuality was clothed into a fundamental right by Article 29(2). It is too late in the day for schools established by religious and linguistic minorities to claim that students belonging to their religion and language should have preference for admission to their schools. It would necessarily and automatically mean that other students seeking admission but not belonging to the particular religion or language would be discriminated against even though they had better merit. Such discrimination would be directly contrary to Article 29(2). The right not to be discriminated against given to the citizens by Article 29(2) was justified by the dependence of the schools of linguistic and religious minorities on grants-in-aid from the State. This may be contrasted with schools run by linguistic minorities in Europe referred to in the speech of Shri K. Santhanam, quoted above, who did not want the grants-in-aid. The Catholics are a religious minority in the United States. Their schools also do not receive grants-in-aid from the State because the First Amendment of the U. S. Constitution has been construed to bring about a complete separation between religion and the State which prevents the State from making grants-in-aid to a school run by a religious minority.

(12) In State of Bombay v. Bombay Education Society, : [1955]1SCR568 , S. R. Das J. speaking for the Constitution Bench observed as follows : 'Artcle 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination. The heading under which articles 29 and. 30 are grouped together namely. 'Cultural and Educational Rights' is quite general and does not in terms contemplate such differentiation. If the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens, irrespective of whether they belong to the majority or minority groups, are alike entitled to the protection of this fundamental right. In view of all these considerations the marginal note alone. on which the Attorney-General relies, cannot be read as controlling the plain meaning of the language in which article 29(2) has been couched. Indeed in The State of Madras v. Srimathi Champakam Dorairajan, : [1951]2SCR525 (12) at 530 this Court has already held as follows : 'It will be noticed that while clause (1) protects the language, script or culture of a section of the citizens, clause (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens.' In our judgment this part of the contention of the learned Attorney-General cannot be sustained.'

(13) Secondly, the decision in Sidhajbhai Sabhai v. State of Bombay, : [1963]3SCR837 , is based on the assumption that the religious minority institution was free to choose its students provided that they had the minimum qualifications prescribed by the State or the university. The State Government did not have any legal right in that case to nominate arbitrarily 80 per cent of the students to the school run by a religious minority. The decision is not an authority for the proposition that irrespective of the minimum qualifications a religious minority school can choose its own students, the preference being based on religion and/or language. Such a view would have been contrary to Article 29(2).

(14) Thirdly, in The Director of School Education v. Rev. Brother G. Arogiasamy, : AIR1971Mad440 , only the minimum qualifications for admission were prescribed by rule 132 of the Madras Educational Rules. The selection out of the qualified candidates was left to the school. In view of this legal position, the impugned order of the Madras Government laying down that a list of candidates selected by the management should be approved by the concerned officer of the Government was held to contravene the fundamental right guaranteed by article 30(1). No question of discrimination prohibited by Article 29(2) could, thereforee, arise.

(15) The aim of our Constitution is unity in diversity. It is to enrich the unity by making it assimilate the diversities. It is not to encourage fissiparous tendencies. The fundamental right guaranteed by article 30(1) is not, thereforee, to be extended so as to encroach upon other fundamental rights or to go contrary to the intentions of the founding fathers. In this respect, the first of the abovementioned two approaches would give us a better understanding of the scope of Article 30(1). The regulation of admission to recognised schools by rules 131 and 132 of the Delhi School Education Rules is based not on minimum qualifications but on merit as shown by the marks obtained by a candidate in the results of his previous class. The decision in Sidhajbhai (6) and the Madras case, referred to above, are distinguishable because the basis of admission in them was different. Rule 133 requires admissions to be made according to the zones in which the candidates reside. Both the principle of merit, as well as the principle of zones are subject to just exceptions to avoid hardship to any particular school or to any particular student. The Director is given the discretion to ascess the particular circumstances justifying the exceptions. The twin principles of merit and residence in a zone are entirely in accordance with the right given to all citizens by Article 29(2) to be admitted to all State aided educational institutions without being discriminated against on the ground of religion and/or language. These rules are, thereforee, valid. Recognition of Schools :

(16) Recognition is not a fundamental right though it cannot be made a condition precedent for abridging the fundamental rights guaranteed by Articles 30 and 29 or in any other provision of the Constitution. The conditions of recognition embodied in section 4(1) of the Act are eminently reasonable. The school must have adequate funds to bear the liability for such expenses as are not covered by the grant-in-aid by the State. The other conditions of recognition are also reasonable and no argument was addressed that they are not reasonable. It is commendable that reasons for refusing recognition are required to be given by sub-section (2) and an appeal against the refusal to recognise is provided by sub-section (3) of section 4. Withdrawal of recognition for non-satisfaction of these reasonable conditions of recognition contemplated in the proviso to sub-section (6) is also, thereforee, justifiable.'

(17) Shri C. L. Joseph pointed out that rule 50(i) contemplates only registered societies and public trusts. He says that the Christian school represented by him is governed by a Diocese. He, however, said that a charitable company contemplated by section 25 of the Companies Act existed in the organisation. We think, this should suffice. The purpose of rule 50(i) is to ensure that the organisation managing the school should be governed by some law. This would be satisfied if it adopts any constitution permissible under the law. Shri Joseph then pointed out that the word 'communal' in rule 50(ix) would prevent a religious or linguistic minority school building for being used exclusively for the purposes of that community. In the order which we already passed in Civil Writ 334 of 1974 on 17th November 1975, however, we have pointed out that the words 'communal', 'communalism' etc., are used in India with a particular meaning, that is to say, a kind of fanaticism which favors the isolation of one community from the main stream of national life. The association of the word 'communal' with 'political or non-educational' would seem to confirm that it was used in this sense. We are of the view that it does not prevent the school building being used for its own purposes including the purpose of the linguistic or religious minority which are also served by the school provided that it does not show separatism or a fanatically fissiparous tendency.

(18) On this view, rule 56 providing for suspension or withdrawal of recognition for failure of a school to fulfill the requirements of the Rules or the Act or rule 50 or rule 51 is not open to any Constitutional objection particularly when provision is made for the restoration of the recognition in rule 57 and hearing of the appeals in rule 58.

(19) SUB-SECTION (2) of section 3 of the Act was also objected to as being contrary to Article 30(1) inasmuch as it contemplates the permission of the Administrator for the establishment and maintenance of any school in Delhi. This objection ignores sub-section (3) which expressly says that a school opened without such permission would not be recognised by the appropriate authority. This would mean that no permission is necessary if no recognition is sought. If recognition is sought then compliance with the Act and the Rules made there under becomes necessary and the permission by the Administrator is bound to be granted on such compliance. If not, granted, the action of the Administrator would be contrary to the Act and the Constitution and would be assailable in a court of law.' Grant-in-aid

(20) Why are grants-in-aid given by the State to all the recognised schools? The reason is to be found in the Directive Principles embodied in Articles 41, 45 and 46. Everyone has been given a right to education by Article 41. The State is placed under a duty to provide for free and compulsory education to all children up to the age of fourteen by Article 45. The State has to take special care of the educational interests of the weaker sections of the people under Article 46. This is why the grants-in-aid are universally given to all recognised schools. It is only Article 337 which conferred on the Anglo-Indians the right Others v. Union Of India And Others to obtain grants for their education. As contrasted with this. None-else has been given a Constitutional or a statutory right to obtain a grant for any educational institution. 'Article 30(2) shows awareness of the policy of the State to made grants-in-aid to all the schools and reinforces the policy by staling that in granting such aid to educational institutions, the State shall not discriminate against any educational institution on the ground that it is under the management of a minority whether based on religion or language. This right not to be discriminated against is not to be construed as a right to obtain grant from the State. The State can refuse to make a grant to a particular educational institution for reasons other than those connected with the school being managed by a religious or linguistic minority. Such a denial of grant would not be contrary to Article 30(2).'

(21) Shri Anthony for the Jain petitioners argued that aid was not a bounty. We can only understand this to mean that aid is given by the State to all schools because of the obligations placed in the State by Articles 41, 45 and 46. We do not understand this to mean that the State has no discretion in denying the grant to a particular school when such denial is not illegal and does not amount to discrimination on the ground of religion or language.

(22) In Sidhajbhai Sabhai v. State of Bombay, : [1963]3SCR837 , the Supreme Court pointed out that the State cannot discriminate against schools of religious and linguistic minorities so as to impose restrictions upon the substance of the right guaranteed by article 30(1). The common ratio of the various judgments in The Ahmedabad St. Xaviers College Society v. State of Gujarat, : [1975]1SCR173 , also is that the right guaranteed by Article 30(1) cannot be abridged by restrictions which must be accepted by a minority educational institution as condition precedent to receiving the grant-in-aid. To this extent, the advisory opinion expressed by the Court in Re : The Kerala Education Bill, 1957, Reference Under Article 143(1) of the Constitution of India : [1959]1SCR995 (9) at 1064-65 approving certain restrictions placed on this right as conditions for granting aid was modified as pointed out by Reddy J. at the end of paragraph 52 of the decision in St. Xaviers College Society case, referred to above.

(23) The true nature of regulation which can be imposed by the State as the authority making grants was also indicated in the majority judgments in St. Xaviers College Society case as follows : (1) 'The right to administer is subject to permissible regulatory measures. Permissible regulatory measures are those which do not restrict the right of administration but facilitate it and ensure better and more effective exercise of the right for the benefit of the institution and through the instrumentality of the management of the educational institutions and without displacing the management. If the administration has to be improved it should be done through the agency or instrumentality of the existing 'management and not by displacing it ........If there is mal-adminis-tratiton, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conductive to the interest of the minority or to the requirements of the teachers and the students.' (Per Ray, C. J., in paras 40-41). (2) 'It is, in my opinion, permissible to make regulations for ensuring the regular payment of salaries before a particular date of the month. Regulations may well provide that the funds of the institution should be spent for the purposes of education or for the betterment of the institution and not for extraneous purposes. Regulations may also contain provisions to prevent the diversion of funds of institutions to the pockets of those in charge of management or their embezzlement in any other manner. Provisions for audit of the accounts of the institution would be permissible regulation. Likewise, regulations may provide that no anti-national activity would be permitted in the educational institutions and that those employed as members of the staff should not have been guilty of any activities against the national interest.' (Per Khanna, J. in Para 91). (3) 'If besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further 'regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible.' (Per Mathew J. in para 177). and (4) 'This article [Article 30(1)] meant to serve as a shield of minority educational institutions against the invasion of certain rights protected by it and declared fundamental so that they are not discriminated against, cannot be converted by them into a weapon to exact unjustifiable preferential or discriminatory treatment for minority institutions so as to obtain the benefit but to reject the obligations of statutory rights. It is only when the terms of the statute necessarily compel a minority institution to abandon the core of its fundamental rights under Article 30(1) that it could amount to taking away or abridgement of a fundamental right within the meaning of Article 13(2) of the Constitution. It is only then that the principle could apply that what cannot be done directly cannot be achieved by indirect means.' (Per Beg J- in para 210). Section 6 and Rules 65 and 69 are, thereforee, valid. D. Right to Administer a school :

(24) This right includes the right of the minority to form its own managing committee, its own committee for the selection of its employees and its own disciplinary authority for taking action against erring employees. The procedure of these bodies can be regulated in the interests of the efficiency of their functioning. But the autonomy of these bodies cannot be abridged. In the light of this legal position, the following conclusions emerge: (1) Rule 59 :

(25) Scheme of management of recognised schools will not apply to educational institutions established and administered by minorities based on religion and language in the following respects : (A) The managing committee may consist of as many members as the minority reasonably thinks necessary. The limitation on the numerical strength of the managing com-mittee will not apply to the minority institutions which are protected by Article 30(1). (B) The composition of the Committee (i) The head of the school has to be there for reasons stated by the majority in the Gandhi Faiz-e-am College v. University of Agra. : [1975]3SCR810 . (ii) An education institution consists not only of the management but also of the teachers and the students- All these three are the inside elements of the institution. They may be contrasted with outside elements such as the Government or the university or their nominees. This is why the presence of the seniormost teacher on the managing committee was also justified by the Court in the Gandhi Faize-e-am College (11 A) case. It is because the students and teachers are inside parts of an educational institution that Parent-Teachers' Associations are functioning in Delhi for every school. There has been no complaint from the petitioners about the Parent-Teachers' Association. On the other hand, it was recognised to be very helpful in the administration of the school. If so, the presence of one parent on the managing committee of the school is also desirable firstly because he is an insider and secondly because it is through him that the managing committee will know the points of view of the students. Under rule 59(1)(b)(ii) he has to be elected by the Parent Teachers' Association. Since the principle of election is objected to by the petitioners, we hold that it will not apply to the minority institutions. We suggest that the parent should, if he be the Chairman of the Parent-Teachers' Association, be a member. If the Chairman is a teacher, then he should be given the right to nominate a parent on the managing committee under this rule insofar as the minority schools are concerned. (iii) Again the presence of two teachers of the school on the managing committee is justified for the reasons given by the majority in the Gandhi Faiz-e-am College (IIA) case. But the petitioners have merit in objecting to their being elected. The principle of election will not, thereforee, apply to the minority schools. We suggest that the management of minority school should co-opt the seniormost two teachers out of a field of choice consisting of the seniormost ten teachers of the school by rotation. If the school works in shifts then the seniormost teacher should be selected from a panel of five teachers in each shift by rotation. (iv) In our view, the teachers of the minority schools are insiders and should be on the managing committee. But the same justification cannot be applied to the presence of others to be nominated by the Advisory Board. We hold, thereforee, that rule 59(1)(b)(iv) will not apply to minority schools. (v) The Director, that is, the State, as the grantor has a right and also a duty to see that the grants-in-aid are utilised for the purpose for which they are granted, that the policies pursued by the minority educational institutions Others v. Union Of India And Others are in tune with national policies and that the administration of the school is conducted fairly and impartially without discrimination against teachers or students who do not belong to the minority which administers the particular school. The presence of two members nominated by the Director under rule 59(1)(b)(v) is, thereforee, justified. They will watch the functioning of the management and not actually take part in the management. Their position will thus be of advisers and observers to put forward the views of the State. We suggest that rule 59(1)(b)(v) be modified accordingly in respect of minority educational institutions and that it will not apply to them in its present form.

(26) Rule 59(2) only states what particulars shall be provided for in the scheme of management and is as such unobjectionable. Rule 59(3). The approval of the appropriate authority and its power to make alterations and modifications in the scheme of management will be only advisory. These provisions will not, thereforee, apply to the minority school. Its scheme of management will, thereforee, be valid. It may be noted, however, that if the scheme of management is contrary to the letter and spirit of rule 59(2) or if the management practises nepotism or discrimination in making admissions or appointments or is conducted countrary to the national policies or objecives and to the best educational interests of the institution itself or amounts to mismanagement or maladministration, then the State would have the right to stop, reduce or suspend the grant-in-aid after giving a hearing to the management. We suggest that such a provision in respect of the minority schools may be made in rule 69 in addition to its existing provisions. (2) Rule 64. In respect of the schools of religious minorities, this rule would be construed to require compliance only with those provisions of the Act and the Rules and instructions as are in consonance with the provisions of the Constitution including Article 30(1). It is only on this interpretation that the rule is held to be valid. Any particular action of the Director which seeks to enforce compliance by a minority school contrary to the Constitution would be assailable in a court of law. Recruitment of Employees:

(27) This is also a part of the right of administration. Under rule 96(3) the number of the members of Selection Committee is limited. Any such limitation may be placed only by the management. Rule 96(3)(a)(iii). The presence of two educationists nominated by the Director will be of great help to the Selection Committee. But we hold that in regard to minority schools they will act only as advisers and will not have the power to vote or actually control the selection of employees. The minority schools are not bound to give preference to persons recommended by the Employment Exchange. Rule 96(3)(a)(iv). The nominee of the Director will also act only as an adviser. The advisory capacity of the members nominated by the Director under clauses (iii) and (iv) of rule 96(3) (a) in regard to minority schools may be made clear by appropriate amendment. The same kind of amendment is called for in rule 96(3)(b)(iv) and (v). Clause (iii) of rule 96(3) (b) will not apply to a minority school. Similarly, the nominees of the Director in clauses (iii) and (iv) in rule 96(3) (c) will also act only as advisers. Rule 98(2). Approval of the Director to an appointment made by the managing committee of an aided school will not be required in respect of a minority school. This may be clarified by amendment. Rule 105. Approval of the Director to the termination of the services of a probationer will not be required by the managing committee of a minority school. Similarly, the suspension of an employee shall not be interfered with by the Director under rule 115(5) (c). Disciplinary authorities:

(28) The disciplinary committees of minority schools will not be limited by the number specified in rule 118. The management may fix the number. The nominees of the Director in clauses (iii) and (iv) of rule 118 shall act only as advisers. This may be made clear by amendment. Sub-sections (2) to (5) of Section 8 and Clauses (2) and (3) of Rule 120:

(29) Security of tenure of an employee is essential. But in respect of minority schools, it cannot be achieved by the outside control of the Director. The disciplinary authorities are statutory authorities established under rule 118. Procedure to be followed by them is prescribed by rules 119 and 120. Orders in the nature of disciplinary action against employees would, thereforee, be subject to judicial review by the High Courts under Articles 226 and 227 of the Constitution and also in other courts in accordance with the well-established principles of judicial review of such quasi-judicial decisions. Miss Kusum Khanna v. Mother Acquinas etc. Civil Writ 398 of 1975 decided by a Division Bench of this Court on 19th August 1975(13). Hers v. Union Of India And OTHERS

(30) The approval of the Director for dismissal, removal or reduction in rank or for any other termination of the service of an employee under section 8(2) of the Act will not be required but he may be kept informed. Nor will such an employee be able to appeal to the School Tribunal under sub-section (3) of section 8 if he is an employee of a minority school. The approval of the Director for suspension required by sub-sections (4) and (5) of section 8 will also not be needed in case of a minority school.

(31) Security of tenure may be achieved in various ways. Government employees have it because Government is a very responsible organisation which does not interfere with such security without good reasons and Government employees generally trust the discretion of the Government. Workmen in industry are given the security by the Industrial Disputes Act and the Industrial Employment (Standing Orders) Act. The non-workman employees in industry do not enjoy security of tenure but are compensated by higher emoluments as compared with Government servants. Teachers of all schools subject to the Delhi School Education Act, 1973 will enjoy security of tenure on being confirmed. Once they are confirmed, their service cannot be terminated. Such termination will amount to removal or dismissal as the case may be in accordance with the ratio of the Supreme Court decision in Moti Ram Deka v. General Manager, .North East Frontier Railway, : (1964)IILLJ467SC , and will be actionable as stated in Indian Institute of Technology v. Mangat Singh, 2nd (1973) Ii Delhi 6 (F.B.) (15). The ratio of the above decisions will apply to employees of non-government schools also inasmuch as their confirmation is made under a statutory rule and the termination of their service would amount to a breach of such a statutory rule. The disciplinary control over the employees is thus left entirely to the minority schools. It is hoped that they will exercise it impartially and fairly. If the Administration receives information from its nominees who act as advisers and observers that disciplinary powers are being abused by a particular school, they should have the power to suspend, reduce or stop the grant-in-aid to such a school after giving a hearing to the said school if an amendment to this effect is made in the appropriate rules. E. School Property:

(32) As much of the school property is purchased from the grants- in aid made by the State, the prohibition imposed on the alienation of school property by section 7(2) is valid particularly because such alienation can be made with the previous permission of the appropriate authority and because sub-section (3) gives a right of appeal against refusal of such permission. Rules 93 and 94 are also valid for the same reason.

(33) Section 10(2), rule 126 and Annexure H-1, referred to above, are valid because the Government have the right to see that the grant- in-aid is properly utilised and the dues of the employees of the schools are properly paid. These provisions had to be made because of numerous complaints in the past that certain schools were under-paying the dues of their employees while obtaining the receipts from their employees for full payment. The joinder of the nominee of the Director with the head of the school in making payment of the dues to the employees is in no way an infringement of the right of administration because the State is under a duty to see that dues arc fully paid. Unless a minority school has something to hide and is interested in not paying the full amount of dues it should have no complaint to join with it a representative of the Government in making these payments from the School Staff Account. The constitution of the School Staff Account is also justified by sub-section (2) of section 18 and is valid. For the same reasons, the related provisions in section 17(1) and rules 123(xi), 173 and 174 are also valid, Penalties :

(34) SUB-SECTIONS (a) and (b) of section 27 of the Act make a manager liable to be punished with imprisonment and also fine for failure to comply with orders made by the School Tribunal or for contravention of section 19. Sub-section (a) will not apply to minority schools because the Tribunal will have no jurisdiction over its employees. Sub-section (b) will also not apply to minority schools inasmuch as it is not the manager but quite often the Principal who may put up the students for public examination. Further, if any malpractice is discovered on the part of the minority school consisting of the contravention of section 19, the proper action for the appropriate authority is to suspend, reduce or stop the grant to such a school rather than impose a criminal punishment on the manager. Opening of new schools and new classes in schools and closing down of existing schools and existing classes in schools :

(35) Under sub-sections (2) and (3) of section 3 and Rules 45 and 46, approval of the appropriate authority is necessary for such opening and closing. It was complained that this was an infringement of Article 30(1). As stated above, no such approval is necessary by schools which do not seek recognition. The Government is bound to give grants-in-aid to the recognised schools not because they have any right to the grant but the Government has a duty to make the grants. The Government would have, thereforee, the discretion to regulate the opening and closing down of schools and classes receiving Thers v. Union Of India And Others

(36) GRANTS. Government will have to see that a school is not opened in an area or for a purpose for which it is not required. The Government cannot be compelled to recognise a school and make grant-in-aid to it when the opening of such a school or classes is not necessary. The fundamental right conferred by Article 30(1) will, of course, enable the opening of such a school if recognition and grant are not sought. Similarly, the closing down of a school or classes will throw out of employment the school teachers and impose hardship on the students. This should also be controlled in their interest by the Government. If, of course, the minority is unable to continue the running of a school or class, then it will fade out of the picture and the school will cease to be a minority school. In that event, some other arrangement may be validly made for the running of such a school. Other impugned provisions:These included sections 12, 19, 20 and Chapter Iv of the Act and Chapter Xv of the Rules but no arguments were advanced regarding them. Conclusion:

(37) The writ petitions by the Jains, Sikhs and the Christians (i.e., Civil Writs 96 of 1975, 660 of 1974 and 1463 of 1974) are allowed in the above terms, that is to say, the abovementioned provisions will not apply to them or would apply only with the interpretation placed on them by us or after the amendments suggested by us. Civil writs 334 and 1110 of 1974 :

(38) In our order of 17th November 1975 we held that the Arya Samaj was a religious denomination. The expression 'religious denomination' was used in a general sense in the Debates of the Constituent Assembly (VII C.A.D. 861 to 863). It applied not only to sections and sects in the Hindu community but also to Hindus as a whole as also to other religious minorities and sects of such minorities. (Ram Chandra Deb v. The State of Orissa, : AIR1959Ori5 and K. Eranna v. Commissioner for Hindu Religious and Charitable En-dowments, Air 1970 Mys 191)(14).

(39) The question is whether the right of a religious denomination under Article 26(a) 'to establish and maintain institutions for religious and charitable purposes' includes the right to establish and maintain an educational institution. On the one hand, it was observed in Sidhajbhai Sabhai v. State of Bombay, : [1963]3SCR837 , that 'in a larger sense an educational institution may be regarded as charitable' for the purpose of Article 26. On the other hand, in Azeez Basha v.. Union of India, : [1968]1SCR833 , a contrary view was indicated in the following words :

'A question was raised whether Article 26 would take in its sweep educational institutions on the ground that such institutions are institutions for charitable purposes. It was urged that Article 26 will not apply to educational institutions for there is specific provision in Article 30(1) with respect to educational institutions and thereforee institutions for charitable purposes in clause (a) of Article 26 refer to institutions other than educational ones. There is much to be said in favor of this contention.'

In our view, educational institutions may be of two kinds, namely, (1) institutions visualized by Article 30(1), and (2) institutions for purely religious purposes. Article 26(a) may conceivably include an institution for purely religious instruction but will not include an institution for general education. The reasons for our view are as follows: (1) It is only the autonomy of minorities based on religion or language which had to be protected in respect of educational institutions of their choice. Hence Article 30(1). No such autonomy was ever intended to be given to nonminority educational institutions. This is clear from the proceedings of the Constituent Assembly. (2) The expression 'religious denomination' under Article 26(a) includes not only the minorities but even the majority community. If institutions of general education were to be included in the expression 'institutions for religious and charitable purposes' then the members of the majority as well as of a minority community would both have the fundamental right to establish and maintain autonomous institutions of general education under Article 26(a) which is not the case here. That would make Article 30(1) redundant. (3) The only restrictions on the right guaranteed by Article 26 is imposed by the words 'subject to public order, morality and health'. Only in that respect, the right lo establish and maintain institutions for religious and charitable purposes will be lesser than the right to establish and administer educational institutions guaranteed by Article 30(1). But this is not a material distinction. In the management of ordinary schools or colleges of general Others v. Union Of India And Others education restrictions in the nature of public order, morality and health would not be so relevant as to make these two rights distinct. The only way to avoid such overlapping of these two rights and making Article 30(1) redundant is to differeniate between the scope of Article 26(a) and that of Article 30(1). (4) There is a basic difference between the scope and object of Article 26(a) on the one hand and Articles 29 and 30(1) on the other hand. The former is exclusive and confined to the members of the religious denomination while the latter are open to persons who are not members of the minority based on religion or language. The essence of the right of the religious denomination under Article 26 is to manage its own affairs in matters of religion. Such affairs can include the right to establish and maintain institutions for religious and charitable purposes. Persons other than the members of the religious denomination would have no right to participate in these affairs or to join these institutions. In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, (1962) Supp. 2 S.C.R. 496(17), the majority of the Constitution Bench went so far as to hold that even a dissenting member of the religious denomination can be excommunicated by the religious denomination for his unorthodox views even though such excommunication may deprive him of some civil rights. On the contrary, Article 29(2) expressly gives every citizen the right of admission to an educational institution maintained by the State or receiving aid out of State Funds even though such institution may be established and maintained by the religious and linguistic minority. Every educational institution which is open to all will fall under Articles 29 and 30 but will not fall under Article 26(a).

(40) The writ petitions by the Arya Samaj are in respect of schools for general education. The right to establish and administer these schools under Article 30(1) can be claimed only by a minority based on religion and language. In the Union territory of Delhi the Arya Samaj is not such a minority. It cannot claim the right under Article 30(1) as schools of general education are excluded from the purview of Article 26(a). The Arya Samaj petitioners cannot claim any right in respect of these schools there under.

(41) Further, there is no pleading by the Arya Samaj petitioners that the schools established by them are for charitable purposes. A school may be either a business proposition or may be a charitable institution. The question whether it is a charitable institution is essentially one of fact. It cannot be raised muchless decided without a pleading and evidence. This can best be done by way of a suit in a civil court. (Kakinada Annadana Samajam v. Commissioner of Hindu Religious and Charitable Endowments, : [1971]2SCR878 , the ratio of which was reaffirmed by the Supreme Court in Arya Vyasa Sabha v. The Commissioner of Hndus Charitable and Religious Institutions and Endowments, (Civil Appeal Nos. 1984 1986 and 2115 of 1970 and 106 of 1971, decided on 24th November, 1975) (19).

(42) We hold, thereforee, firstly that the Arya Samaj cannot claim the right to establish and maintain or administer these schools of general education under Article 26(a) and secondly at any rate such a claim may be made by it after a proper pleading and by adducing evidence of the religious and/or charitable nature of the school concerned under Article 26(a) in a civil court. We are thus unable to grant any relief to the Arya Samaj petitioners. Civil Writs 1383 and 1518 of 1974 : -

(43) The bases of these writ petitions are Articles 19 and 14 of the Constitution both of which are presently suspended. The petitioners could have asked for the sine die adjournment of these petitions on the ground of the suspension of Article 14 in view of the Presidential proclamation made under Article 359. They have made no such request. Further we do not see how Article 14 can be invoked by these petitioners. The right given to the minorities based on religion and language is based on Article 30(1) which does not apply to others. These others cannot, thereforee, claim that there is any discrimination against them merely because certain protection is afforded to the minorities based on religion and language ( State of Kerala v. Very Rev. Mother Provincial, 0065/1970 : [1971]1SCR734 (20). Lastly, the right under Article 19 claimed by these petitioners can be based only on the possession of the property by them. There is no interference with the right to hold property by any provision of the Delhi School Education Act or the Rules framed there under. The prohibition imposed on the transfer of school property applies only to a recognised school receiving grant from the State. Much of the property would be purchased from the grants made by the State. It is a reasonable restriction, thereforee, on the right to hold property that the permission of the appropriate authority should be obtained before such property is alienated. Provision is also made for the grant of Thers v. Union Of India And OTHERS' such permission and for an appeal if such permission is refused. If the petitioners are bent upon alienating their own property, they can always do so by abendoning the claim to recognition and grant-in-aid from the State. As far as the right to manage a school is concerned. that in itself is not guaranteed by Article 19(l)(f). It was held in Sidhajbhai Sabhai v. State of Bombay, : [1963]3SCR837 that 'interference with the right of bare management of an educational institution does not amount to infringement of the right to property under Art. 19(1)(f)'. The decision in Dwarka Nath Tewari v. State of Bihar. Air 1959 S.C. 249(21), was distinguished on the ground that the Government of Bihar in that case purported to divest the trustees of a school of their land and building belonging to the school. Article 19(1)(f) was, thereforee, attracted. The Delhi School Education Act and the Rules do not divest the petitioners of , their property. As observed by the Supreme Court at page 848 of the Sidhajbhai (6) decision, 'nor is the right of the petitioners to prec-tice any profession, or to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution infringed by the impugned rules and directions'. This observation equally applies to the present case. We are, thereforee, unable to grant any relief to these petitioners.

(44) Each of the three sets of writ petitions is thus disposed of as stated above with no order as to costs. Pritam Singh Safeer, J.

(45) A significant aspect of the Constitution is the well-conceived scheme categorising various Articles in its parts under different headings. Articles 25 to 28 in Part Iii were framed under a distinct heading 'Right to Freedom of Religion'. Articles 29 and 30 were preceded by the heading 'Cultural and Educational Rights'. The authors of the Constitution decisively enumerated different types of rights having different contents and concepts under the foregoing headings.

(46) In order to arrive at the true meaning of Article 26 one has to appreciate the context in which it stands. It is preceded by Article 25. A very valuable right is given by that Article. The right is subject to public order, morality and health and to the other provisions contained in Part Iii of the Constitution. Subject to those limitations, all persons residing in India were to be equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Even then, Sub-Article (2) in Article 25, while preserving existing laws, gave the State the authority to make laws in terms of lauses (a) and (b). Explanationns I and Ii in Article 25 are indeed significant for the purpose of estimating the context in which Article 26 occurs, and for appreciating the emphasis which is intended to be brought out. Those, who framed the Constitution, were going into minute details as is visible from Explanationn I by which an agitated right of the Sikhs to wear Kirpans was preserved.

(47) With the same carefulness Sub-clause (b) in Sub-Article (2) of Article 25 clarified that the reference to Hindus in that sub-clause would be construed as including a reference to persons professing the Sikh, Jains or Budhist religion.

(48) The words 'Hindu religious institutions' occurring in Article 25, Explanationn Ii, have similarity with the words 'maintain institutions for religious and charitable purposes' found in clause (a) of Article 26. If the Hindus were to establish and maintain institutions for religious and charitable purposes within Article 26(a), Article 25 including Explanationn Ii was to apply to such institutions. While the words 'to establish and maintain institutions for religious and charitable purposes' occur in Article' 26, the words 'educational institution' occur in Article 28, Sub-Articles (1), (2) and (3).

(49) Reserving right to freedom of religion the State by itself was to be independent of all religions and Article 28(1) throws a flood of light on the concept that the State was to be secular. No religious. instruction was to be provided in any educational institution wholly maintained out of State funds. While preserving the freedoms contained in Articles 25 to 28 an imperative impediment was designedly coined to impose an obligation on all educational institutions 'wholly maintained out of the State funds' not to provide any religious instruction. The State was to stand above all religions.

(50) The deliberations in the Constituent Assembly were very careful and while enacting sub-Article (1) in Article 28, a proviso was enacted in the garb of Sub-Article (2). Where an institution .was to stem out of any endowment or trust, which was -to require the imparting of religious instruction, then even though later on the State was to administer it, the original intendment of the endowment or the trust was to be carried out. Sub-Article (3) in Article 28 is significantly relevant to the interpretation of Articles 26(a), 29, and 30. Article 28(3) is : '28. (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any Others v. Union Of India And Others religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

(51) In the course of enacting Article 28, the authors of the Constitution were attending to all possible future contingencies and drawing clear distinction between the maintenance of institutions for religious and charitable purposes and to conduct of educational institutions. Firstly, by Sub-Article (1), it was provided that no religious instruction shall be provided in any educational institution wholly maintained out of State funds. Even then a departure was made in terms of Sub-Article (2) to preserve the consequences of an endowment or trust. Sub-Article (3) in Article 28 made a further distinction inasmuch as even where the institution was merely to be receiving aid out of State funds no person attending it was to be required to take part in any religious instruction or to attend any religious worship except where he was to give his consent or if he was a minor his gardian was to give consent. It is clearly borne out that a distinction was being drawn between the institutions purely religious and charitable' and those which were to be 'educational institutions'. Article 26(a) is : '26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right (a) to establish and maintain institutions for religious and cheritable purposes.' It is obvious that the words 'religious denomination' have been used in a wider sense and would include all religions whether they be in majority or minority in a particular State or a Union Territory.

(52) It is, however, clear that the right given by Article 26(a) is distinctly different than the right given to minorities based on religion or language to establish and administer educational institutions by Article 30, sub-Article (1). The right under Article 30, Sub-Article (1) is to administer educational inatitutions and in that view reguia-tions or rules can necessarily be made which may be preventive in nature and may be ensuring that there will be administration which would be clean and clear but that there will be no mal-administra-tion.

(53) Where the State is to comply with Articles 25 to 28 or Articles 29 and 30 it is its obligation that while it docs not infringe any 'fundamental right', the right is not misunderstood and 'administration' does not become mal-administration and management does not in any sense become mismanagement.

(54) Article 30, Sub-Article (1) is not confined to minorities based on religion alone. It would also cover minorities based on language. In a given area persons belonging to different religions or denominations or different minorities based on religion may constitute a linguistic minority based on a particular langauge. Such a minority would also enjoy the protection of Article 30 Sub-Article (1). In that precise environment the State will have the right to make such laws which may regulate the administration of the institutions so as to ensure that it is in consonance with the intendment contained in Article 30(1) preventing all conflict which could possibly arise on account of diversity in religions.

(55) The cardinal aspect which is often-times forgotten is that on gaining independence India became an independent 'State'. The independent Statehood of India was the occasion for the framing of the Constitution by the Constituent Assembly. The basic concept which overrides all other concepts is that the State has an overall authority to administer its affairs. The fundamental rights guaranteed by the Constitution are subject to the basic concept that there is 'a State' which will enforce those fundamental rights. What do the courts do The courts interpret and apply the law contained in the Constitution as well as all other laws protected by the Constitution. Who enforces the orders passed by the courts It is the State which has to enforce the processes of the court and to safeguard the procedures which the courts follow. The State's authority to make such laws which may regulate the exercise of all fundamental rights remains beyond challenge.

(56) With these observations I agree with the main judgment.


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