http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14

PETITIONER:

THE STATE OF BOMBAY

Vs.

RESPONDENT:

BOMBAY EDUCATION SOCIETY AND OTHERS.(With Connected App

DATE OF JUDGMENT:

26/05/1954

BENCH:

DAS, SUDHI RANJAN

BENCH:

DAS, SUDHI RANJAN

MAHAJAN, MEHAR CHAND (CJ)

HASAN, GHULAM

BHAGWATI, NATWARLAL H.

JAGANNADHADAS, B.

CITATION:

1954 AIR 561 1955 SCR 568

CITATOR INFO :

R 1958 SC 956 (26)

R 1963 SC 996 (8)

R 1970 SC2079 (10)

F 1971 SC1731 (10)

R 1974 SC1389 (244)

R 1979 SC 83 (5)

RF 1988 SC 305 (7)

ACT:

Constitution of India-Articles 29, 30(1),337 Second Proviso-

Government Circular-Prohibiting admission into Schools main-

tained or aided by State on the ground of language of

citizens--Such circular whether ultra vires of Articles

29(2) and 337 Second Proviso--Article 29(1) and 30(1) of the

Constitution - Word "Namely " -Meaning of.

HEADNOTE:

The Education Society of Bombay (respondent No. 1) has been

running a recognised Anglo-Indian School called Barnes High

School at Deolali which receives aid from the State of

Bombay. J and G are its Directors. English is used in the

said school as the medium of instruction. The mother tongue

of the Anglo-Indians is English. The State of Bombay issued

a circular order on 6th January, 1954, headed " Admission to

Schools teaching through the medium of English." The

operative portion of the order enjoined that no primary or

secondary school shall from the date of the order admit to a

class where English is used as the medium

569

of instruction any pupil other than a pupil belonging to a

section of citizens the language of which is English namely,

Anglo-Indians and citizens of non-Asiatic descent. One P, a

citizen of India and member of Indian Christian Community

alleging English to be the mother tongue of his daughter,

and one M, a citizen of India and member of Gujrati Hindu

Community alleging Gujrati to be the mother tongue of his

son, were refused admission to the school for their

respective wards on the basis of the aforesaid order dated

6th January, 1964. The Society and its two Directors

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14

presented an application under article 226 of the

Constitution in the High Court of Bombay praying for the

issue of a Writ in the nature of Mandamus restraining the

State of Bombay and its officers from enforcing the said

order and to allow the petitioners to admit in the school

any children of non-Anglo-Indian citizens or citizens of the

Asiatic descent and to educate them through the medium of

English. Similar applications were made by P and his

daughter and by M and his son. All these applications were

consolidated, heard together and accepted by the High Court

which made an order as prayed. The State of Bombay came in

appeal before the Supreme Court. Held: (1) that the

impugned order denying the right of students who are not

Anglo-Indians or are of Asiatic descent to be admitted to a

recognised Anglo-Indian School (in this case the Barnes High

School) which receives aid from the State and which imparts

education through the medium of English is void and

unenforceable as it offends against the fundamental right

guaranteed to all citizens by article 29(2) of the

Constitution, because

(a)The language of article 29(2) of the Constitution is wide

and unqualified and covers all citizens whether they belong

to the majority or minority group.

(b)The protection given by the said article extends against

the State or anybody who denies the right conferred by it.

(a)The said article confers a special right on citizens for

admission into the educational institutions maintained or

aided by the State.

(d)The marginal note referring to minorities does not

control the plain meaning of the language in which article

29(2) has been couched.

The word " namely " imports enumeration of what is comprised

in the preceding clause. In other words it equates what

follows with the clause described before.

(2)Barnes High School at Deolali and other Anglo-Indian

School shave a right to admit non-Anglo-Indian students and

students of Asiatic descent inasmuch as article 337 proviso

2 imposes an obligation on the Anglo-Indian Schools to make

available at least 40 per cent. of the annual admissions to

non-Anglo-Indian students as a condition precedent of their

receiving grant from the Government and the impugned order

is unconstitutional as it

73

570

prevents the Anglo-Indian schools from performing their

constitutional obligation and exposes them to the risk of

forfeiting their constitutional right to the special grant.

In view of the fundamental right guaranteed to a minority

like the Anglo-Indian community under article 29(1) to

conserve its own language, script and culture and the right

to establish and administer educational institutions of its

own choice under article 30(1) there is implicit therein the

right to impart instruction in its own institutions to the

children of its own community in its own language and the

State by its police power cannot determine the medium of

instruction in opposition to such fundamental right.

Bhola Prasad v. The King-Emperor ([1942] F.C.R. 17, 25), The

Queen v. Burah (L.R. 1878 3 App. Cas. 859), The State of

Madras v. Srimathi Champakam Dorairajan ( [1951] S.C.R.

525), Pierce v. Society of Sisters of Holy Names (268 U.S.

508), Yusuf Abdul Aziz v. State (A.I.R. 1951 Bom. 470), Sm.

Anjali Boy v. State of West Bengal (A.I.R. 1952 Cal. 825),

The State of Bombay v. Narasu Appal Mali (A.I.R. 1952) Bom.

84), Srinivasa Aiyar v. Saraswathi Ammal (A.I.R. 1952 Vad.

193), Dattatraya Motiram More v. State of Bombay (A.I.R.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14

1953 Bom. 311), Punjab Province v. Daulat Singh (1946 L.R.

73 I.A. 59), Robert V. Meyer v. State of Nebraska (262 U.S.

390), August Bartels v. State of Iowa (262 U.S. 404) and

Ottawa Separate Schools Trustees v. Mackell (L.R. 1917 A.C.

62) referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 64 to 66 of

1954.

Appeals under article 132(1) of the Constitution of India

from the Judgment and Order dated the 13th February, 1954,

of the High Court of Judicature at Bombay in Special

Applications Nos. 259, 288 and 289 of 1954 respectively.

M. C. Setalvad, Attorney-General for India, and C. K.

Daphtary, Solicitor-General for India (G. N. Joshi, M. M.

Desai, Porus A. Mehta and P. G. Gokhale, with them) for the

appellant in all the appeals.

N. A. Palkhivala, J. B. Dadachanji, J. K. Munshi and

Rajinder Narain for respondents Nos. 1 and 2 in C. A.

No. 64.

Frank Anthony, J. B. Dadachanji, J. K. Munshi and Rajinder

Narain for respondent No. 3.

N. A. Palkhivala, J. B. Dadachanji, J. K. Munshi and

Rajinder Narain for the respondent No. I in C. A, No. 65.

571

Frank Anthony and Rajinder Narain for respondent No. 2.

N. A. Palkhivala, Frank Anthony, J. B. DadachanjiJ. K.'

Munshi and Rajinder Narain for respondent No. I in C. A.

No. 66.

Frank Anthony, J. B. Dadachanji, J. K. Munshi and Rajinder

Narain for respondent No. 2.

1954. May 26. The Judgment of the Court was delivered by

DAS J.-These three appeals, filed by the State of Bombay,

with a certificate granted by the Bombay High Court, are

directed against the Judgment and Order pronounced by that

High Court on the 15th February, 1954, on three Civil

Applications under article 226. By that Judgment and Order

the High Court held that the circular order No. SSN 2054(a)

issued by the State of Bombay, Education Department, on the

6th January, 1954, was bad in that it contravened the

provisions of article 29(2) and article 337 and directed the

issue of a writ prohibiting the State from enforcing the

order against the authorities of Barnes High School

established and run by the Education Society of Bombay

(hereinafter referred as the Society).

The Society, which is the first respondent in Appeal No. 64

of 1954, is a Joint Stock Company incorporated under the

Indian Companies Act, 1913. The other two respondents in

that appeal Venble Archdeacon A. S. H. Johnson and Mrs.

Glynne Howell are members and Directors of the Society. The

Ven'ble Archdeacon A. S. H. Johnson is also the Secretary of

the Society. Both of them are citizens of India and are

members of the Anglo-Indian Community. The mother tongue of

these respondents as of other members of the Anglo-Indian

Community is English.

In the State of Bombay there are in all 1403 Secondary

Schools. 1285 of these Schools import education through the

medium of some language other than English. The remaining

118 Schools have adopted English as the medium of

instruction. Thirty out of these 118 Schools are Anglo-

Indian Schools. In these thirty Schools there are three

thousand Anglo-Indian

572

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14

students forming 37 per cent. of the total number of

students receiving instruction in those Anglo-Indian

Schools. The rest 63 per cent. consist of non-Anglo-Indian

students.

In furtherance of its object the Society in 1925 established

and since then has been conducting and running a School

known as Barnes High School at Deolali in Nasik District in

the State of Bombay. The School is a recognized Anglo-

Indian School having Primary, Secondary and High School

classes. The School receives considerable aid from the

State. The total number of students in the School in

December, 1953, was 415, out of which 212 were Anglo-Indians

and the remaining 203 belonged to other Indian Communities.

In all the classes in the said School English is used as the

medium of instruction and has been so used since the

inception of the School. The entire staff of the School

consist of 17 teachers who, with the exception of one, are

trained and qualified to teach only in English, the

exception being the teacher who teaches Hindi which is, the

second language taught in that School.

On the 16th December, 1953, the Inspector of Anglo-Indian

Schools, Bombay State, and Educational Inspector, Greater

Bombay, sent a circular letter to the Headmaster of Barnes

High School intimating that the Government had under

consideration the issue of orders regulating admissions to

Schools in which the medium of instruction was English. The

orders under consideration were stated to be on the

following lines, namely, (1) that from the next School year

admissions to English medium School should only be confined

to children belonging to the Anglo-Indian and European

Communities, and (2) that those pupils who, 'prior to the

issue of the orders, were studying in recognized Primary or

Secondary English medium Schools, could continue to do so.

The letter in conclusion advised the Headmaster not to make

any admission for the academic year beginning from January,

1954, of pupils other than Anglo-Indians or Europeans

pending further orders which, it was said, would issue

shortly.

The contemplated order came on the 6th January, 1954, in the

shape of circular No. SSN 2054(a) headed

573

"Admissions to Schools teaching through the medium of

English". In paragraphs 1, 2 and 3 of this circular

reference was made to the development of the policy of the

Government regarding the medium of instruction at the

Primary and Secondary stages of education. It was pointed

out that since 1926-27 the University of Bombay permitted

pupils to answer questions in modern Indian languages at the

Matriculation examination in all subjects except English and

other foreign languages and that this had resulted in 1285

out of 1403 schools in the State ceasing to use English as

the medium of lnstruction. It was then stated that in 1948

instructions were issued to all English teaching schools

that admissions to such Schools should ordinarily be

restricted to pupils who did not speak any of the regional

languages of the State or whose mother tongue was English.

It was said that in 1951, after a review of the -position, a

general policy had been laid down to the effect that

admission to such schools should be restricted only to four

categories of children therein mentioned. Reference was

then made to the recommendations of the Secondary Education

Commission that the mother tongue or the regional language

should generally be the medium of instruction throughout the

Secondary school stage, subject to the. provision for

special facilities for linguistic minorities. In paragraph

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14

4 of the Circular order it was stated that the Government

felt that the stage had then been reached for the

discontinuance of English as a medium of instruction and

that the Government had decided that subject to the

facilities to be given to linguistic minorities all special

and interim concessions in respect of admission to Schools

(including Anglo-Indian Schools) using English as the medium

of instruction, should thereafter be withdrawn. Then came

the operative part of the order, the relevant portion of

which is set out below:

"5. Government has accordingly decided as follows :

Subject to the exceptions hereinafter provided, no primary

or secondary school shall from the date of these orders

admit to a class where English is used as

574

a medium of instruction any pupil other than a pupil

belonging to a section of citizens the language of which is

English namely, Anglo-Indians and citizens of nonAsiatic

descent."

There were three exceptions made to this general order in

favour of three categories of students who, prior to the

date of the order, were studying through the medium of

English. Provision was made for admission of foreign

pupils, other than those of Asiatic descent, belonging to

foreign possessions in India, to Schools using English as a

medium of instruction or to any other School of their

choice. The concluding paragraph of the Order was in the

following terms :-

"7. All Schools (including Anglo-Indian Schools) using

English as a medium of instruction should regulate

admissions according to this circular. With a view to

facilitating the admission of pupils who under these orders

are not intended to be educated through the medium of

English, these schools are advised to open progressively

divisions of Standards using Hindi or an Indian language as

the medium of instruction, starting from Standard I in 1954.

Government will be prepared to consider the payment of

additional grant on merits for this purpose."

The above order was followed by another Circular No. SSN

2054 (b) issued on the same date drawing the attention of

the heads of all Anglo-Indian Schools to the Circular No.

SSN 2054(a) of the same date, and requesting them to

regulate thereafter admissions to their Schools in

accordance with that circular. It was stated that the

orders in that circular were not intended to affect the

total grant available for distribution to Anglo-Indian

Schools under the Constitution but that the Government would

be prepared to consider, in consultation with the State

Board of Anglo-Indiain Education, whether in consequence of

this order, any change was necessary in the existing

procedure for the equitable distribution of the total grant

among individual Anglo-Indian Schools. In conclusion the

attention of the Headmasters was particularly invited to the

concluding sentence of paragraph 7 of that circular order,

and it was pointed out that

575

the grants contemplated therein were intended to be in

addition to, the grants available under article 337.

Major Pinto, who is a citizen of India, belongs to the

Indian Christian Community. He claims that his mother

tongue, as that of a section of the Indian Christian

Community, is English and that his entire family speak and

use English at home. Two of his sons were then studying in

the Barnes High School and were being educated through the

medium of English. On 2nd February, 1954, Major Pinto

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14

accompanied by his daughter Brenda approached the Headmaster

of Barnes High School seeking admission for her to the said

School. He was informed by the Headmaster about the order

issued by the State of Bombay on the 6th January, 1954, and

was told that, in view of the said order, the Headmaster was

compelled to refuse admission to her since she did not

belong to the AngloIndian Community nor was she of non-

Asiatic descent, although she had- all the necessary

qualifications for admission to the said School.

Dr. Mahadeo Eknath Gujar is also a citizen of India and is a

member of the Guzrati Hindu Community. His mother tongue is

Guzrati. I-le desires that his son Gopal Mahadeo Gujar

should become a medical practitioner and go abroad for

higher medical studies and qualifications and thought that

his son should be educated through the medium of English.

He found the Barnes High School, which teaches through the

medium of English, as suitable for the needs of his son.

Accordingly on the 1st February, 1954, Dr. Gujar accompanied

by his son approached the Headmaster of Barnes High School

seeking admission for his son to the said School but the

Headmaster, in view of the Government Circular Order, felt

bound to turn down such request as the boy did not belong to

the AngloIndian Community and was not of non-Asiatic

descent, although he had all the necessary qualifications

for admission to the school. There have been similar other

applications for admission which have had to be rejected on

similar grounds,

576

Thereupon the Society and Ven'ble Archdeacon A.S.H. Johnson

and Mrs. Glynne Howell in February, 1954, presented before

the High Court of Bombay the Special Civil Application No'

259 of 1954 under article 226 of the Constitution praying-

for the issue of a writ in the nature of mandamus

restraining the State of Bombay, its Officers, servants and

agents from enforcing the said order and from taking any

steps or proceedings in 'enforcement of the same and

compelling the respondent to withdraw or cancel the said

purported order and to allow the petitioner to admit to any

standard in the said school any children of nonAnglo-Indian

citizens or citizens of Asiatic descent and to educate them

through the medium of English language. Likewise Major

Pinto and his daughter Brenda and Dr. Gujar and his son

Gopal made similar applications, being Nos. 288 and 289 of

1954 respectively, praying for similar reliefs. The three

applications were consolidated on llth February, 1954, and

were heard together and were disposed of by the same Judg-

ment and Order pronounced on the 15th February, 1954. The

High Court accepted the petitions and made an order as

prayed. The State of Bombay has now come up in appeal

against the said Orders.

On the facts of these cases two questions arise namely (1)

as to the right of students who are not Anglo-Indians or who

are of Asiatic descent to be admitted to Barnes High School

which is a recognized Anglo-Indian School which imparts

education through the medium of English, and (2) as to the

right of the said Barnes High School to admit non-Anglo-

Indian students and students of Asiatic descent. The ques-

tions, thus confined to the particular facts of these cases,

appear to us to admit of a very simple solution, as will be

presently explained.

Re (1) : As already indicated Barnes High School is a

recognized Anglo-Indian School which has all along been

imparting education through the medium of English. It

receives aid out of State funds. The daughter of Major

Pinto and the son of Dr. Gujar are citizens of India and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14

they claim admission to Barnes High School in exercise of

the fundamental right said

577

to have been guaranteed to them by article 29(2) of the

Constitution. The School has declined to admit either of

them in view of the circular order of the State of Bombay.

The provisions of the circular order, issued by the State of

Bombay oh the 6th January, 1954, have already been

summarised above. The operative portion of the order, set

forth in clause 5 thereof, clearly forbids all Primary or

Secondary Schools, where English is used as a medium of

instruc. tion, to admit to any class any pupil other than a

pupil belonging to a section of citizens, the language of

which is English namely Anglo-Indians and citizens of non-

Asiatic descent. The learned Attorney-Generalcontends that

this clause does not limit admission only, to Anglo-Indians

and citizens of non-Asiatic descent, but permits admission

of pupils belonging to any other section of citizens the

language of which is English. He points out that, one of

the meanings of the word II namely " as given in Oxford

English Dictionary, Volume VII, p. 16 is " that id to say "

and he then refers us to the decision of the Federal Court

in Bhola Prasad v. The King-Emperor (1), where it was stated

that the words "that is to say " were explanatory or

illustrative words and not words either of amplification or

limitation. It should, however, be remembered that those

observations were made in connection with one of the

-Legislative heads, namely entry No. 31 of the Provincial

Legislative List. The fundamental -proposition enunciated

in The Queen v. Burah (2) was that Indian Legislatures

within their own sphere had plenary powers of legislation as

large and of the same nature as those of Parliament itself.

In that view of the matter every entry in the legislative

list had to be given the widest connotation and it was in

that context that the words " that is to say," relied upon

by the learned Attorney-General, were interpreted in that

way by the Federal Court. To do otherwise would have been

to cut down the generality of the legislative head itself.

The same reason cannot apply to the construc tion of the

Government order in the present case for the considerations

that applied in the case before the

(1) [1942] F.C.R. 17 at p. 25.

(2) L.R. (1878) 3 App. Cas. 859.

74

578

Federal Court have no application here. Ordinarily the word

" namely " imports enumeration of what is comprised in the

preceding clause. In other words it ordinarily serves the

purpose of equating what follows with the clause described

before. There is good deal of force, therefore, in the

araument that the order restricts admission only to Anglo

Indians and citizens of nonAsiatic descent whose language is

English. This inter. pretation finds support from the

decision mentioned in clause 4 to withdraw all special and

interim concessions in respect of admissioni to Schools

referred to in clause 4. Facilities to linguistic minorities

provided for in the circular order, therefore, may be read

as contem plating facilities to be given only to the Anglo-

Indians and citizens of non-Asiatic descent.

Assuming, however, that under the impugned order a section

of citizens, other than Anglo-Indians and citizens of non

Asiatic descent, whose language is English, may also get

admission, even then citizens,, whose language is not

English, are certainly debarred by the order from admission

to a School where English is used as 'a medium of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14

instruction in all the clases. Article 29(2) ex facie puts

no limitation or qualification on the expression " citizen."

Therefore, the construction sought to be put upon clause 5

does not apparently help the learned Attorney-General, for

even on that construction the order will contravene the

provisions of article 29(2).

The learned Attorney-General then falls back upon two

contentions to avoid the applicability of article 29(2). In

the first place he contends that article 29(2) does not

confer any fundamental right on all citizens generally but

guarantees the rights of citizens of minority groups by

providing that they must not be denied admission to

educational institutions maintained by the State or

receiving aid out of State funds on grounds only of

religion, race, caste, language or any of them and he refers

us to the marginal note to the article. This is certainly a

new contention put forward before us for the first time. It

does not appear to have been specifically taken in the

affidavits in opposition filed in the High Court and there

is no indication in the

579

Judgment under appeal that it was advanced in this form

before the High Court. Nor was this point specifically made

a ground of appeal in the petition for leave to appeal to

this Court. Apart from this, the contention appears to us

to be devoid of merit. Article 29(1) gives protection to

any section of the citizens having a distinct language,

script or culture by guaranteeing their right to conserve

the same. Article 30(1) secures to all minorities, whether

based on religion or language, the right to establish and

administer educational institutions of their choice. Now

suppose the State maintains an educational institution to

help conserving the distinct language, script or culture of

a section of the citizens or makes grants in aid of an

educational institution established by a minority community

based on religion or language to conserve their distinct

language, script or culture, who can claim the protection of

article 29(2) in the matter of admission into any such

institution ? Surely the citizens of the very section whose

language, script or culture is sought to be conserved by the

institution or the citizens who belong to the very minority

group which has established and is administering the

institution, do not need any protection against themselves

and therefore article 29(2) is not designed for the

protection of this section or this minority. Nor do we see

any reason to limit article 29(2) to citizens belonging to a

minority group other than the section or the minorities

referred to in article 29(1) or article 30(1), for the

citizens, who do not belong# to any minority group, may

quite conceivably need this protection just as much as the

citizens of such other minority groups. If it is urged that

the citizens of the majority group are amply protected by

article 15 and do not require the protection of article

29(2), then there are several obvious answers to that

argument. The language of article 29(2) is wide and

unqualified and may well cover all citizens whether they

belong to the majority or minority group. Article 15

protects all citizens against the State whereas the

protection of article 29(2) extends against the State or

anybody who denies the right conferred by it. Further

article 15 protects all citizens against discrimination

generally but article 29(2) is a -protection against a

particular

580

species of wrong namely denial of admission into educational

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14

institutions of the specified kind. In the next place

article 15 is quite general and wide in its terms and

applies to all citizens, whether they belong to the majority

or minority groups, and gives protection to all the citizens

against discrimination by the State on certain specific

grounds. Article 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 ground 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 AttorneyGeneral 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 (1), 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.

(1) [1951] S.C.R. 525 at P. 530.

581

The second part of the arguments of the learned Attorney-

General hinges upon the word "I only " to be found in

article 29(2). His contention is that the impugned order

does not deny admission to any citizen on the ground only of

religion, race, caste, language or any of them. He

maintains with considerable emphasis. that it is incumbent

on the State to secure the advancement of Hindi which is

ultimately to be our National language and he stresses the

desirability of or even the necessity, generally

acknowledged by educationists, for imparting education

through the medium of the pupil's mother tongue. We have

had equally emphatic rejoinder from learned counsel

appearing for the different respondents. Characterising the

impugned circular as an unwarranted and wanton encroachment

on the liberty of the parents and guardians to direct the

education and upbringing of their children and wards

reliance has been placed on the following observations of

McReynolds J. in Pierce v. Society of Sisters of Holy

Names(1) :-

" The fundamental theory of liberty upon which all

Governments in this Union repose excludes any general power

of the state to standardize its children by forcing them to

accept instruction from public teachers only. The child is

not the mere creature of the state; those who nurture him

and direct his destiny have the right, coupled with the high

duty, to recognize and prepare him for additional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14

obligations."

It is also urged that the main, if not the sole, object of

the impugned order is to discriminate against, and if

possible to stifle the language of the Anglo-Indian

Community in utter disregard of the constitutional

inhibition. It is pointed out that to compel the Anglo-

Indian Schools to open parallel classes in any Indian

language will not necessarily facilitate the advancement of

the Hindi language for the language adopted for such

parallel classes may not be Hindi. Further the opening of

parallel classes in the same School with an Indian language

as the medium of instruction while the pupils in the other

classes are taught in English will certainly not be

conducive to or promote the conservation of the distinct

language, script or culture which

(1) 268 U.S. 508; 69 L. Ed. 1070 at p. 1078.

582

is guaranteed by article 29(1) to the Anglo-Indian Community

as a section of the citizens. It is equally difficult, it

is said, to appreciate why the salutory principle of

imparting education through the medium of the pupil's mother

tongue should require that a pupil whose mother tongue is

not English but is, say, Guzrati, should be debarred from

getting admission only into an Anglo-Indian School where the

medium of instruction is English but not from being admitted

into a School where the medium of instruction is a regional

language, say Konkani, which is not the mother tongue of the

pupil. The rival arguments thus formulated on both sides

involve questions of State policy on education with which

the Court has no concern. The American decisions founded on

the 14th amendment which refers to due process of law may

not be quite helpful in interpretation of our article 29.

We must, therefore, evaluate the argument of the learned

Attorney -General on purely legal considerations bearing. on

the question of construction of article 29(2).

The learned Attorney-General submits that the impugned order

does not deny to pupils who are not Anglo-Indians or

citizens of non-Asiatic descent, admission into an Anglo-

Indian School only on the ground of religion, race, caste,

language or any of them but on the ground that such denial

will promote the advancement of the national language and

facilitate the imparting of education through the medium of

the pupil's mother tongue. He relies on a number of

decisions of the High Courts, e.g., Yusuf Abdul Aziz v.

State (1), Sm. Anjali Roy v. State of West Bengal (), The

State of Bombay v. Narasu AppaMali (3), Srinivasa Ayyar

v.Saraswathi Ammaland Dattatraraya Motiram More v.

State of BombayThese decisions, it should, be noted, were

concernedwith discrimination prohibited by article 15 which

deals with discrimina. tion generally and not with denial of

admission into educational institutions of certain kinds

prohibited by article 29(2). It may also be mentioned that

this

(1) A.I.R 1951 Bom, 470.

(2) A.I.R 1952 Cal. 825.

(3) A.I.R. 1952 Bom. 84.

(4) A.I.R. 1952 Mad. 193.

(5) A.I.R. 1953 Bom. 311.

583

Court upheld the actual decision in the first mentioned

Bombay case not on clause (1) but on clause(3) of article

15. These cases, therefore, have no direct bearing on

article 29(2). The arguments advanced by the learned

Attorney-General overlook the distinction between the object

or motive underlying the impugned -order and the mode and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14

manner adopted therein for achieving that object. The

object or motive attributed by the learned Attorney-General

to the impugned order is. undoubtedly a laudable one but its

validity has to be judged by the method of Its operation and

its effect on the fundamental right guaranteed by article

29(2). A similar question of construction arose in the case

of Punjab Province v. Daulat Singh (1). One of the ques-

tions in that case was whether the provision of the new

section 13-A of the Punjab Alienation of Land Act was ultra

vires the Provincial Legislature as contravening sub-section

(1) of section 298 of the Government of India Act, 1935, in

that in some cases that section would operate as a

prohibition on the ground of descent alone. Beaumont J. in

his dissenting judgment took the view that it was necessary

for the Court to consider the scope and object of the Act

which was impugned so as to determine the ground on which

such Act was based, and that if the only basis for the Act

was discrimination on one or more of the grounds specified

in section 298 sub-section (1) then the Act was bad but that

if the true basis of the Act was something different the Act

was not invalidated because one of its effects might be to

invoke such discrimination In delivering the Judgment of the

Board Lord Thankerton at page 74 rejected this view in the

words following:

" Their Lordships are unable to accept this as the correct

test. In their view, it is not a question of whether the

impugned Act is based only on one or more of the grounds

specified in section 298 sub-section (1), ,but whether its

operation may result in a prohibition only on these grounds.

The proper test as to whether there is a contravention of

the sub-section is to ascertain the reaction of the impugned

Act on the personal right conferred by the subsection, and,

while the scope

(1) (1916) L.R. 73 I.A. 59,

584

and object of the Act may be of assistance in deter. mining

the effect of the operation of the Act on a proper

construction of its provisions, if the effect of the Act so

determined involves an infringement of such personal right,

the object of the Act, however laudable, will not obviate

the prohibition of sub-section (1)."

Granting that the object of the impugned order before us was

what is claimed for it by the learned Attorney-General, the

question still remains as to how that object has been sought

to be achieved. Obviously that is sought to be done by

denying to all pupils, whose mother tongue is not English,

admission into any School were the medium of instruction is

English. Whatever the object, the immediate ground and

direct cause for the denial is that the. mother tongue of

the pupil is not English. Adapting the language of Lord

Thankerton, it may be said that the laudable object of the

impugned order does not obviate the prohibition of article

29(2) because the effect of the order involves an

infringement of this fundamental right, and that effect is

brought about by denying admission only on the ground of

language. The same principle is implicit in the decision of

this Court in The State, of Madras v. Srimathi Champakam

Dorairajan (1). There also the object of the impugned

communal G.O. was to advance the interest of educationally

backward classes of citizens but, that object

notwithstanding, this Court struck down the order as

unconstitutional because the modus operandi to achieve that

object was directly based only on one of the forbidden

grounds specified in the article. In our opinion the

impugned order offends against the fundamental right

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14

guaranteed to all citizens by article 29(2).

Re. 2:-Coming to the second question as to whether the

impugned order infringes any constitutional right of Barnes

High School, the learned AttorneyGeneral contends that

although any section of the citizens having distinct

language, script or culture of its own,has under article

29(1) the right to conserve the same and although all

minorities, whether based on religion or language, have,

under article 30(1), the right

(1) [1951] S.C.R. 525 at p. 530.

585

to establish and administer educational institutions of

their choice, nevertheless such sections. or minorities

cannot question the power of the State to make reasonable

regulations for all Schools including a requirement that

they should give instruction in a particular language which

is regarded as the national language or to prescribe a

curriculum for institutions which it supports. Undoubtedly

the powers of the State in this behalf cannot be lightly

questioned and certainly not in so far as their exercise is

not inconsistent with or contrary to the fundamental rights

guaranteed to the citizens. Indeed in the cases of Robert

T. Meyer v. State of Nebraska (1) and August Bartels V.

State of Iowa (2) the Supreme Court of the United States

definitely held that the State's police power in regard to

education could not be permitted to override the liberty

protected by the 14th amendment to the Federal Constitution.

That is how those cases have been understood by writers on

American Constitutional Law. [See Cooley's Constitutional

Limitations, Volume 11, page 1345, and Willis, page 64.] The

statutes impugned in these cases provided:

(1)That no person -should teach any subject to any person in

any language other than the English language, and

(2)That languages other than English may be taught only

after the pupil had passed the 8th grade.

A contravention of those two sections was made punishable.

In the first mentioned case only the first part of the

prohibition was challenged and struck down and in the second

case both the provisions were declared invalid. The learned

Attorney-General informed us that in 29 States in U.S.A.

legislation had made compulsory provision for English as the

medium of instruction. Those statutes do not appear to have

been tested in Court and the Attorney-General cannot,

therefore, derive much comfort from the fact that 29 States

have by legislation adopted English as the medium of

instruction. The learned Attorney-General

(1) 262 U.S. 390; 67 Law. Ed. 1042.

(2) 262 U.S. 404; 67 Law. Ed. 1047,

75

586

also relies on the case of Ottawa Separate Schools Trustees

v. Mackell(1). That case does not help him either, because

in that case the schools were classified as denominational

purely on the ground of religion. They were not classified

according to race or language. It was contended that the

kind of school that the trustees were authorised to provide

was the school where education was to be given in such

language as the trustees thought fit. Their Lordships of

the Judicial Committee rejected this contention with the

following observations:-

" Their Lordships are unable to agree with this view. The

'kind' of school referred to in sub-s. 8 of s. 79 is, in

their opinion, the grade or character of school, for

example, 'a girls' School,' 'a boys' school,' or 'an

infants' school,' and a I kind' of school, within the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14

meaning of that sub-section, is not a school where any

special language is in common use."

Where, however, a minority like the Anglo-Indian Community,

which is based, inter alia, on religion and language, has

the fundamental right to conserve its language, script and

culture under article 29(1) and has the right to establish

and administer educational institutions of their choice

under article 30(1), surely then there must be implicit in

such fundamental right the right to impart instruction in

their own institutions to the children of their own

Community in their own language. To hold otherwise will be

to deprive article 29(1) and article 30(1) of the greater

part of their contents. Such being the fundamental right,

the police power of the State to determine the medium of

instruction must yield to this fundamental right to the

extent it is necessary to give effect to it and cannot be

permitted to run counter to it.

We now pass on to article 337 which is in Part XVI under the

heading " Special Provisions relating to certain classes."

Article 337 secures to the Anglo-Indian Community certain

special grants made by the Union and by each State in

respect of education. The second paragraph of that article

provides for progressive diminution of such grant until such

special grant

(1) L.R. [1917] A.C. 62,

587

ceases at the end of ten years from the commencement of the

Constitution as mentioned in the first proviso to that

article. The second proviso runs as follows:-

" Provided further that no educational institution shall be

entitled to receive any grant under this article unless at

least forty per cent. of the annual admissions therein are

made available to members of communities other than the

Anglo-Indian community."

It is clear, therefore, that the Constitution has imposed

upon the educational institution run by the Anglo-Indian

Community, as a condition of such special grant, the duty

that at least 40 per cent. of the annual admissions therein

must be made available to members of communities other than

the Anglo-Indian Community. This is undoubtedly a

constitutional obligation. In so far as clause 5 of the

impugned order enjoins that no Primary or Secondary school

shall from the date of this order admit to a class where

English is used as the medium of instruction any pupil other

than the children of Anglo-Indians or of citizens of non

-Asiatic descent, it quite clearly prevents the Anglo-Indian

Schools including Barnes High School from performing their

constitutional obligations and exposes them to the risk of

losing the special grant. The learned Attorney-General

refers to clause 7 of the impugned order and suggests that

the authorities of Anglo-Indian Schools may still discharge

their constitutional obligations by following the advice

given to them in that concluding clause. The proviso to

article 337 does not impose any obligation on the Anglo-

Indian Community as a condition for receipt of the special

grant other than that at least 40 per cent. of the annual

admissions should be made available to non-Anglo-Indian

pupils. The advice, tendered by the State to the Anglo-

Indian Schools by clause 7 of the impugned order, will, if

the same be followed, necessarily impose an additional

burden on the, Anglo-Indian Schools to which they are not

subjected by the Constitution itself. The covering circular

No. SSN 2054(b), which was issued on the same day, throws

out the covert hint of the possibility, in consequence of

the impugned order, of some change becoming necessary in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14

existing procedure for the

588

equitable distribution of the total grant among AngloIndian

Schools, although the impugned order was not intended to

affect the total grant available for distribution to Anglo-

Indian Schools under the Constitution. If, in the light of

the covering circular, clause 7 is to ,be treated as

operative, in the sense that a noncompliance with it will

entail loss of the whole or part of this grant as a result

of the change' in the existing procedure for the equitable

distribution, then it undoubtedly adds to article 337 of the

Constitution a further condition for the receipt by Anglo-

Indian Schools, of the special grant secured to them by that

article. On the other hand if clause 7 is to be treated

merely as advice, which may or may not be accepted or acted

upon,then clause 5 will amount to An absolute prohibition

against the admission of pupils who are not AngloIndians or

citizens of non-Asiatic descent into AngloIndian Schools and

will compel the authorities of such Schools to commit a

breach of their Constitutional obligation under article 337

and thereby forfeit their constitutional right to the

special grants. In either view of the matter the impugned

order cannot but be regarded as unconstitutional. In our

opinion the second question raised in these appeals must

also, in view of article 337, be answered against the State.

The result of the foregoing discussion is that these

appeals must be dismissed and we order accordingly. The

State must pay the costs of the respondents.

Appeals dismissed.