Case: State of Bombay Vs. Bombay Education Society and Others

second case both the provisions were declared invalid. The learned Attorney-General informed us that in 29 States in U.S.A. Legislating 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 also relies on the case of - Ottawa Separate Schools Trustees v. Mackell, 1917 AC 62 (M). 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 "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 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, 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 parts 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.18. 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 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 percent, 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 10 per cent, of the annual admission 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 issued as the medium of instruction any pupil other than the children of Anglo-Indian or of citizens of non-Asiatic descent, it quite clearly prevents the Anglo-Indian 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 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 imposed 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 existing procedure for the equitable distribution of the total grant among Anglo-Indian 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 non-compliance 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 clause7 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 Anglo-Indians or citizens of non-Asiatic descent into Anglo-Indian 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, view of Article 337, be answered against the State.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]There is good deal of force, therefore, in the argument that the order restricts admission only to Anglo-Indians and citizens of non-Asiatic descent whose language is English. This interpretation find support from the decision mentioned in clause 4 to withdraw all special and interim concessions in respect of admission to Schools referred to inFacilities to linguistic minorities provided for in the circular order, therefore, may be read as contemplating facilitates to be given only to the Anglo-Indians and citizens of non-Asiatic descent.Assuming, however, thatunder 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 classes. Article 29 (2) ex facie puts no limitation or qualification on the expression "citizen". Therefore, the constructions 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 29from 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 education 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 citizen 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) to 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 minoritylanguage of Article 29(2) is wide and unqualified and any well cover all citizens whether 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 species of wrong namely denial of admission to educational institutions of specific 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) conferred 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 Article 29 and 30 are grouped together-namely "Cultural and Educational Rights"--- is quite general and does not in terms contemplate such differentiation. In 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 their fundamentalthat is sought to be done by denying to all pupils, whose mother tongue is not English, admission into any School where 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. Adopting 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 ofthe 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 thehowever 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, 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 parts 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 tois 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 10 per cent, of the annual admission 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 issued as the medium of instruction any pupil other than the children of Anglo-Indian or of citizens of non-Asiatic descent, it quite clearly prevents the Anglo-Indian including Barnes High School from performing their Constitutional obligations and exposes them to the risk of losing the special grant.Thecovering 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 existing procedure for the equitable distribution of the total grant among Anglo-Indian 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 non-compliance 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 clause7 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 Anglo-Indians or citizens of non-Asiatic descent into Anglo-Indian 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, view of Article 337, be answered against the State.