Case: Rev. Sidhajbhai Sabhai &amp; Others Vs. State of Bombay &amp; Another

their own resources: fundamental right guaranteed by Art. 30(1) did not extend to getting assistance from the coffers of the State; and if the minority institutions desired to obtain aid from the State they must submit to the terms on which the State offered aid to all other institutions established by other persons. 15. The Court rejected the extreme contentions advanced by the managers of the educational institutions and by the State, and observed that the right to administer did not include a right to maladminister, and the minority could not 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 did not maintain even a fair standard of teaching or which taught matters subversive of the welfare of the scholars. The constitutional right to administer an educational institution of their choice, it was observed, does not necessarily militate against the claim of the State to insist than in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of institutions to be aided, but the State could not grant aid in such a manner as to take away fundamental right of the minority community under Art. 30 (1). It was pointed out that under the Directive Principles of State Policy, under Arts. 41 to 46 it was the duty of the State to aid educational institutions and to promote the educational interests of minorities and weaker sections of the people. Again, in the circumstances prevailing in the country, no educational institution could, in actual practice, be maintained without aid from the State and if it could not get it unless it surrendered its rights, it would, because of pressure of financial necesities, be compelled to give up its rights under Art. 30(1). The State could not disregard or override the fundamental right by employing indirect methods of achieving exactly the same result. 16. Even the legislature could not do in directly what it certainly could not do directly, and the effect of the application of some of those provisions of the Bill was substantially to over-ride the provisions of Art. 30(1). The Court then entered upon an examination of Cls.9, 10,11,12, and 13 and observed that they constituted serious inroads on the right of administration and appeared "perilously near violating that right", but considering that those provisions were applicable to all educational institution and that the impugned parts of Cls. 9, 11 and 12 were designed to give protection and security to the ill-paid teachers who were engaged in rendering service to the nation and to protect the backward classes, the Court was prepared to treat Cls.9,11(2) and 12 (4) as permissible regulations which the State might impose on the minorities as a condition for granting aid to their educational institutions. But, it was observed, the clauses which authorised the taking over of management and vested the schools absolutely in the Government, purported, in effect, to annihilate the educational institutions of their choice could not be sustained under Art. 30(1). It was therefore held that notwithstanding the absolute terms in which the fundamental freedom under Art. 30(1) was guaranteed, it was open to the State by legislation or by executive direction to impose reasonable regulations. The Court did not, however, lay down any test of reasonableness of the regulation. The Court did not decide that public or national interest was the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer the educational institution. No general principle on which reasonableness or otherwise of a regulation may be tested was sought to be laid down by the Court. 1959 SCR 995 : (AIR 1958 SC 956 ), therefore, is not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulation are in the national or public interest, are valid. 17. The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institutions destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy an dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. 18. We are, therefore of the view that the R.3(2) of the Rules for Primary Training Colleges, and Rr.11 and 14 for recognition of Private Training institutions, in so far as they relate to reservation of seats therein under orders of Government, and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to withhold rant-in-aid and recognition of the College, infringe the fundamental freedom guaranteed to the petitioners under Art. 30(1).

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

Explanation:
1[ds]7. Article 19(1) (f) on which reliance has been placed on behalf of the society does not come to its aid. By that clause all citizens are declared to have the fundamental freedom to acquire, hold and dispose of property. But by the rules and orders impugned no right to acquire, hold or dispose of property is violated. Interference with the right of bare management of an educational institution does not amount to infringement of the right to property under Art. 19(1) (f). The decision of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005  : (AIR 1954 SC 282  ) on which reliance is placed by the society does not lay down any proposition to the contrary. The Court was dealing in that case with the alleged infringement of the right of a Mahant in a religious institution by the enactment of the Madras Hindu Religious and Charitable Endowments Act, XIX of 1951. It was observed that a Mathadhipati of a Math is not a mere manager and that it would not be right to describe mahantship as a mere office: a superior of a Math has not only duties to dischargeThe word "property" in Art. 19(1) (f) must doubtless be extended to all those recognised types of interest which have the insignia or characteristics of proprietary rights, and a Mathadhipati has those rights, but it cannot be said that the petitioners in this case have any such proprietary rights as are vested in the Mahant of a Math Nor does the principle of Sri Dwarka Nath Tewari v. State of Bihar, AIR 1959 SC 249   apply to this case. In Dwarka Naths case AIR 1959 SC 249   by an executive order the Government of Bihar purported to divest the trustees of a school of their right to land and building belonging to the school. The Court held that the applicants in whom the land and the building of the school were vested as the Managing Committee of the school could not be divested of their rights by the mere fist of an official of the Government. No attempt is made by the order of the State to deprive the petitioners of their right to property, and fundamental freedom guaranteed by Art. 19(1) (f) of the Constitution is therefore not violated. Nor is the right of the petitioners to practice any profession, or to carry on any occupation, trade or business guaranteed under Art. 19(1) (g) of the Constitution infringed by the impugned rules and directions8. Article 26 occurs in a group dealing with freedom of religion and is intended to protect the right "to manage religious affairs". By clause (a) of Art. 26. every religious denomination or any section thereof, has subject to public order, morality and health, the right to establish and maintain institutions for religious and charitable purposes, and in a larger sense an educational institution may be regarded as charitable. But in the view we take of the protection of Art. 30(1), we do not think it necessary to express any opinion on the plea that the right of the petitioners granted by Art. 26 to manage the college is infringed by the impugned rules and orders issued by the Government of BombayIt was therefore held that notwithstanding the absolute terms in which the fundamental freedom under Art. 30(1) was guaranteed, it was open to the State by legislation or by executive direction to impose reasonable regulations. The Court did not, however, lay down any test of reasonableness of the regulation. The Court did not decide that public or national interest was the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer the educational institution. No general principle on which reasonableness or otherwise of a regulation may be tested was sought to be laid down by the Court. 1959 SCR 995  : (AIR 1958 SC 956  ), therefore, is not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulation are in the national or public interest, are valid17. The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institutions destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art. 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy an dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it18. We are, therefore of the view that the R.3(2) of the Rules for Primary Training Colleges, and Rr.11 and 14 for recognition of Private Training institutions, in so far as they relate to reservation of seats therein under orders of Government, and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to withhold rant-in-aid and recognition of the College, infringe the fundamental freedom guaranteed to the petitioners under Art. 30(1).