Appeals Nos 64 to 66 of 1954
Appeals under article 1321 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 2054a issued by the State of Bombay Education Department on the 6th January 1954 was bad in that it contravened the provisions of article 292 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 section H Johnson and Mrs Glynne Howell are members and Directors of the Society
The Ven ble Archdeacon A section 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 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 2054a 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 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 2054a 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 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 ASH 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 they claim admission to Barnes High School in exercise of the fundamental right said 577 to have been guaranteed to them by article 292 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 vs 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 vs 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 at p 25
2 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 instruction in all the clases
Article 292 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 292
The learned Attorney General then falls back upon two contentions to avoid the applicability of article 292
In the first place he contends that article 292 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 291 gives protection to any section of the citizens having a distinct language script or culture by guaranteeing their right to conserve the same
Article 301 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 292 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 292 is not designed for the protection of this section or this minority
Nor do we see any reason to limit article 292 to citizens belonging to a minority group other than the section or the minorities referred to in article 291 or article 301 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 292 then there are several obvious answers to that argument
The language of article 292 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 292 extends against the State or anybody who denies the right conferred by it
Further article 15 protects all citizens against discrimination generally but article 292 is a protection against a particular 580 species of wrong namely denial of admission into educational 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 292 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 292 has been couched
Indeed in The State of Madras vs 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  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 292
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 vs Society of Sisters of Holy Names1   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 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 US 508 at p 1078
582 is guaranteed by article 291 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 292
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 eg Yusuf Abdul Aziz vs State 1 Sm
Anjali Roy vs State of West Bengal  The State of Bombay vs Narasu AppaMali 3 Srinivasa Ayyar vs
Saraswathi Ammaland Dattatraraya Motiram More vs 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 292
It may also be mentioned that this 1 AIR 1951 Bom 470
2 AIR 1952 Cal
3 AIR 1952 Bom
4 AIR 1952 Mad 193
5 AIR 1953 Bom
583 Court upheld the actual decision in the first mentioned Bombay case not on clause 1 but on clause3 of article 15
These cases therefore have no direct bearing on article 292
The arguments advanced by the learned Attorney General overlook the distinction between the object or motive underlying the impugned order and the mode and 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 292
A similar question of construction arose in the case of Punjab Province vs 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 LR 73 IA 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 292 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 vs Srimathi Champakam Dorairajan 1
There also the object of the impugned communal GO 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 guaranteed to all citizens by article 292
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 ownhas under article 291 the right to conserve the same and although all minorities whether based on religion or language have under article 301 the right 1  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 vs 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 1That no person should teach any subject to any person in any language other than the English language and 2That 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 USA 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   2    75 586 also relies on the case of Ottawa Separate Schools Trustees vs Mackell1
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 section
8 of section 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 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 291 and has the right to establish and administer educational institutions of their choice under article 301 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 291 and article 301 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  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 2054b 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 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 uponthen 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


Summary:
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 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 292 of the Constitution because aThe language of article 292 of the Constitution is wide and unqualified and covers all citizens whether they belong to the majority or minority group
bThe protection given by the said article extends against the State or anybody who denies the right conferred by it
aThe said article confers a special right on citizens for admission into the educational institutions maintained or aided by the State
dThe marginal note referring to minorities does not control the plain meaning of the language in which article 292 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
2Barnes 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 291 to conserve its own language script and culture and the right to establish and administer educational institutions of its own choice under article 301 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 vs The King Emperor 1942 FCR 17 25 The Queen vs Burah  The State of Madras vs Srimathi Champakam Dorairajan  1951 SCR 525 Pierce vs Society of Sisters of Holy Names 268 US 508 Yusuf Abdul Aziz vs State AIR  Sm
Anjali Boy vs State of West Bengal AIR  The State of Bombay vs Narasu Appal Mali AIR 1952 Bom
84 Srinivasa Aiyar vs Saraswathi Ammal AIR 1952 Vad 193 Dattatraya Motiram More vs State of Bombay AIR  Punjab Province vs Daulat Singh 1946 LR 73 IA 59 Robert V Meyer vs State of Nebraska 262 US 390 August Bartels vs State of Iowa  and Ottawa Separate Schools Trustees vs Mackell LR 1917 AC 62 referred to