October 2, 2022

President Dr. Rajendra Prasad, who made the reference

Re: The Kerala Education Bill- A full case analysis

The ‘Kerala education Bill’ case is a landmark case under Article 29 of the constitution, an article that guarantees the cultural rights to the citizens of India. The judgment of the court was delivered on the reference made by president under 143 for advice of supreme court on the question. The ‘Kerala education bill’ reference was second reference under Art. 143, the first was made in Re Delhi Laws Act, 1912  by president.

The nature and scope of the reference under Art. 143(1) was not discussed in the In Re Delhi Laws Act case, ([1951] S.C.R. 747) but in the present reference, the court discussed the scope of advisory jurisdiction and then set out its opinion.

Why the reference had been made to the Court?

This was a reference that was made by the President of India, under Art. 143(1) of the Constitution of India for the opinion of Supreme Court,

  • on certain questions of law of considerable public importance that had arisen due to certain provisions of the Kerala Education Bill, 1957,
  • which was passed by the Legislative Assembly of the State of Kerala on September 2, 1957, and was,
  • under Art. 200, reserved by the Governor of Kerala for the consideration of the President.
  • After reservation thereof by Governor for the consideration of the President, the President referred to supreme Court certain questions for consideration and report.

Certain questions arose due to this reference

  • When the bill was referred by the president to the supreme court, Bill had not received the assent of the President, accordingly the questions that have been referred to the Court for its consideration were necessarily of an abstract or hypothetical nature and were not like specific issues raised in a particular case brought before a court by a party aggrieved by the operation of a particular law which he impugns.
  • Further, this reference was characterised as incomplete and unsatisfactory in that, according to counsel appearing for some of the institutions, it does not clearly bring out all the constitutional defects attaching to the provisions of the Bill and serious apprehension had been expressed by counsel before court that opinion on these isolated abstract or hypothetical questions may very positively prejudice the interests, if not completely destroy the very existence, of the institutions they represent and, in the circumstances, the court was been asked not to entertain this reference or give any advisory opinion on the question put to us.

Concerns for which the bill was referred

  • It was intended to serve as showing that the said Bill contains many provisions imposing considerable State control over the management of the educational institutions in the State, aided or recognised.
  • The provisions, in so far as they affect the aided institutions, are much more stringent than those which apply only to recognised institutions.
  • The width of the power of control appeared to the President to be calculated to raise doubts as to the constitutional validity of some of the clauses of the said Bill on the ground of apprehended infringement of some of the fundamental rights guaranteed to the minority communities by the Constitution.

Questions referred by the court for Consideration

“(1) Does sub-clause (5) of clause 3 of the Kerala Education Bill, read with clause 36 thereof or any of the provisions of the said sub-clause, offend article 14 of the Constitution in any particulars or to any extent?

(“3(5) After the commencement of this Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of this Act and the rules made thereunder and any school or higher class established or opened otherwise than in accordance with such provisions shall not be entitled to be recognised by the Government.”)

(2) Do sub-clause (5) of clause 3, sub-clause (3) of clause 8 and clauses 9 to 13 of the Kerala Education Bill, or any provisions thereof, offend clause (1) of article 30 of the Constitution in any particulars or to any extent?

(“8(3) All fees and other dues, other than special fees, collected from the students in an aided school after the commencement of this section shall, notwithstanding anything contained in any agreement, scheme or arrangement, be made over to the Government in such manner as may be prescribed.”

Clause 9 makes it obligatory on the Government to pay the salary of all teachers in aided schools direct or through the headmaster of the school and also to pay the salary of the non-teaching staff of the aided schools.

Clause 10 requires Government to prescribe the qualifications to be possessed by persons for appointment as teachers in Government schools and in private schools which, by the definition, means aided or recognised schools.

The State Public Service Commission is empowered to select candidates for appointment as teachers in Government and aided schools according to the procedure laid down in clause 11. In selecting candidates, the Commission is to have regard to the provisions made by the Government under clause (4) of Art. 16 of the Constitution, that is to say, give representation in the educational service to persons belonging to the Scheduled Castes or Tribes – a provision which has been severely criticised by learned counsel appearing for the Anglo-Indian and Muslim communities.

Clause 12 prescribes the conditions of service of the teachers of aided schools obviously intended to afford some security of tenure to the teachers of aided schools.)

(3) Does clause 15 of the Kerala Education Bill, or any provisions thereof, offend article 14 of the Constitution in any particulars or to any extent?

(Clause 15 gives power to the Government to acquire any category of schools. This power can be exercised only if the Government is satisfied that for standardising general education in the State or for improving the level of literacy in any area or for more effectively managing the aided educational institutions in any area or for bringing education of any category under their direct control and if in the public interest it is necessary so to do.

No notification for taking over any school is to be issued unless the proposal for the taking over is supported by a resolution of the Legislative Assembly.)

(4) Does clause 33 of the Kerala Education Bill, or any provisions thereof, offend article 226 of the Constitution in any particulars or to any extent?”

(“33. Courts not to grant injunction – Notwithstanding anything contained in the Code of Civil Procedure, 1908, or in any other law for the time being in force, no court shall grant any temporary injunction or make any interim order restraining any proceedings which is being or about to be taken under this Act.”)

Further discussion done by the Court

  • On receipt of the reference the Court issued notices to persons and institution who appeared to it to be interested in the matter calling upon them to file their respective statements of case concerning the above-mentioned questions.
  • The Union of India, the State of Kerala and all the said persons and institutions have filed their respective statements of case and have appeared by counsel and taken part in the debate.
  • A body called the Crusaders’ League has by post sent its views but has not appeared at the hearing.

ANSWERS BY THE COURT

Re. Questions 1 and 3.

Court took the Question first and three together. Question 1 challenged the constitutional validity of sub-clause (5) of clause 3 of the said Bill read with clause 36 thereof on the ground that the same violates the equal protection of the laws guaranteed to all persons by Art. 14 of the Constitution.

Question 3 attacks clause 15 of the said Bill on the same ground, namely, that it is violative of Art. 14 of the Constitution. As the ground of attack under both the questions was the same, court dealt with both together.

On the question, it was submitted by the counsel that the Bill, represents a deliberate attempt on the part of the party then in power in Kerala to strike at the Christian Church and especially that of the Catholic persuasion, to eliminate religion, to expropriate the minority communities of the properties of their schools established for the purpose of conserving their distinct language, script and culture, so as to bring about a regimentation of education and by and through the educational institutions to propagate the tenets of their political philosophy and indoctrinate the impressionable minds of the rising generation.

It was pointed out that, Anglo-Indian schools are given grants under Art. 337 of the Constitution and educational institution started by all minority communities including the Anglo-Indians are protected by Arts. 29 and 30. The educational institutions of the minorities are thus different from the educational institutions established by the majority communities who require no special privilege or protection and yet the Bill purports to put in the same class all educational institutions although they have not the same characteristics and place equal burdens on unequals.

Answer

On the question, the court decided that,

  • Under clause 15(1), Power can be exercised only if the Government is satisfied that it is necessary to exercise it for “standardising general education in the State or for improving the level of literacy in any area or for more effectively managing the aided educational institutions in any area or for bringing the education of any category under their direct control” and above all the exercise of the power is necessary “in the public interest“. (Policy)

Thus, the clause under consideration does lay down a policy for the guidance of the Government in the matter of the exercise of the very wide power conferred on it by that clause. The exercise of the power is also controlled by the proviso that no notification under that sub-clause shall be issued unless the proposal for the taking over is supported by a resolution of the Legislative Assembly – a proviso which clearly indicates that the power cannot be exercised by the Government at its whim or pleasure. (Reason)

  • The power given to the Government by clause 36 to make rules is expressly stated to be exercised “for the purpose of carrying into effect the provisions of this Act“. In other words, the rules to be framed must implement the policy and purpose laid down in its long title and the preamble and the provisions of the other clauses of the said Bill.

Further, under clause 37 the rules have to be laid for not less than 14 days before the Legislative Assembly as soon as possible after they are made and are to be subject to such modifications as the Legislative Assembly may make during the session in which they are so laid. (policy)

Thus, apart from laying down a policy for the guidance of the Government in the matter of the exercise of powers conferred on it under the different provisions of the Bill including clause 36, the Kerala Legislature has, by clause 15 and clause 37 provided further safeguards. (Reason)

For reasons stated above the court held that the charge of unconstitutionality of the several clauses which come within the two questions now under consideration founded on Art. 14 cannot be sustained. And therefore, the answers to both the questions 1 and 3, was in negative.

Re Question 2- Question related to Article 30

Articles 29 and 30 are set out in Part III of our Constitution which guarantees our fundamental rights. They are grouped together under the sub-head “Cultural and Educational Rights”. The text and the marginal notes of both the Articles show that their purpose is to confer those fundamental rights on certain sections of the community which constitute minority communities.

On this, a natural question arises that who are minorities under these articles. In the present case, it was admitted by the State government that out of the total population of 1,42,00,000 in Kerala there are only 34,00,000 Christians and 25,00,000 Muslims. The Anglo-Indians in the State of Travancore-Cochin before the re-organisation of the States numbered only 11,990 according to the 1951 Census.

The court emphasised that question 2 itself proceeds on the footing that there are minorities in Kerala who are entitled to the rights conferred by Art. 30(1) and, therefore, for answering question 2, the court did not enquire as to what a minority community means or how it is to be ascertained.

Answer of the Court

In answering to the question, the court said that,

“We are thus faced with a problem of considerable complexity apparently difficult of solution. There is, on the one hand the minority rights under Art. 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Art. 45 to endeavour to introduce free and compulsory education. We have to reconcile between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two.

The directive principles cannot ignore or override the fundamental rights but must, as we have said, subserve the fundamental rights. We have already observed that Art. 30(1) gives two rights to the minorities, (1) to establish and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister.

The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.

In our opinion, sub-clause 3 of clause 8 and cls. 9, 10, 11, 12 and 13 being merely regulatory do not offend Art. 30(1), but the provisions of sub-clause (5) of clause 3 by making the aided educational institutions subject to cls. 14 and 15 as conditions for the grant of aid do offend against Art. 30(1) of the Constitution.”

The court further said that,

“It is thus that the genius of India has been able to find unity in diversity by assimilating the best of all creeds and cultures. Our Constitution accordingly recognises our sacred obligations to the minorities. Looking at the rights guaranteed to the minorities by our Constitution from the angle of vision indicated above, we are of opinion that clause 7 (except sub-cls. 1 and 3 which apply only to aided schools) and clause 10 may well be regarded as permissible regulation which the State is entitled to impose as a condition for according its recognition to any educational institution but that clause 20 which has been extended by clause 3(5) to newly established recognised schools, in so far as it affects educational institutions established and administered by minority communities, is violative of Art. 30(1).”

Re Question 4- Bar to the jurisdiction of the court

In answering to the question posed under fourth reference, the court agreed with the contention of the counsel appearing for the state of Kerala. The court opined that,

“Learned counsel for the State of Kerala submits that clause 33 must be read subject to Arts. 226 and 32 of the Constitution. He relies on the well-known principle of construction that if a provision in a statute is capable of two interpretations then that interpretation should be adopted which will make the provision valid rather than the one which will make it invalid. He relies on the words “other law for the time being in force” as positively indicating that the clause has not the constitution in contemplation, for it will be inapt to speak of the Constitution as a “law for the time being in force”.

He relies on the meaning of the word “Law” appearing in Arts. 2, 4, 32(3) and 367(1) of the Constitution where it must mean law enacted by a legislature. He also relies on the definition of “Indian Law” in section 3(29) of the General Clauses Act and submits that the word “Law” in clause 33 must mean a law of the same kind as the Civil Procedure Code of 1908, that is to say, a law made by an appropriate Legislature in exercise of its legislative function and cannot refer to the Constitution. We find ourselves in agreement with this contention of learned counsel for the State of Kerala. We are not aware of any difficulty – and none has been shown to us – in construing clause 33 as a provision subject to the over-riding provisions of Art. 226 of the Constitution and our answer to question No. 4 must be in the negative.”

Reference

The Kerala Education Bill: 1959 1 SCR 995