Case: State Of Kerala, Etc Vs. Very Rev. Mother Provincial, Etc

33 petitioners belong to different denominations of the Christian community; 8 are Superiors of different Catholic Religious Congregations; 8 are Catholic Bishops representing their dioceses; 3 are Vicars of Catholic parishes; 5 are Boards of Associations constituted by different Catholic denominations for establishing colleges and other educational institutions and 3 are Bishops of the Malankara Orthodox Church. 4 petitioner have been filed by the Metropolitan of the Marthoma Syrian Church and 2 by the Madhya Kerala Diocese of the Church of South India. The remaining 3 petitions are respectively by private colleges founded and administered by Sri Sankara College Association Kalady, Sree Narayana Trusts, Quilon and the Nair Service Society, Changannacherry. The petitioners in the 33 petitions specially invoke the provisions of Art. 30 of the Constitution which protects and right of the minorities to establish and administer educational institutions of their choice.High Court had declared that sub-section (2) and (4) of Section 48, sub-sections (2) and (4) of Section 49, sub-sections (1), (2), (3) and (9) of Section 53, sub-sections (2) and (4) of Section 56, Section 58 (except to some extent) are offensive to Art. 19 (1) (f) in so far as citizen petitioners are concerned and additionally, in so far as the minority institutions are concerned, offensive to Art. 30 (1), and therefore void. The petitions were, therefore, allowed except two petitions (O. P. S. No. 2339 and 2796 of 1969) filed by Sree Sankara College Association and the Nair Service Seciety since the petitioners were companies and were not entitled to the benefit of Art. 30 (1) not being minority institutions and not entitled to Art. 19 (1) (f) not being citizens. Section 63 was, however, held to offend Art. 31 (2) and not saved by Art. 31A (1) (b) and this declaration was in favour of all the petitioners. It was also declared void as offending Art. 30 (1) in so far as the minority institutions were concerned. The rest of the Act was declared to be valid and the challenge to it was rejected. There was no order about costs.       High Court had declared that sub-section (2) and (4) of Section 48, sub-sections (2) and (4) of Section 49, sub-sections (1), (2), (3) and (9) of Section 53, sub-sections (2) and (4) of Section 56, Section 58 (except to some extent) are offensive to Art. 19 (1) (f) in so far as citizen petitioners are concerned and additionally, in so far as the minority institutions are concerned, offensive to Art. 30 (1), and therefore void. The petitions were, therefore, allowed except two petitions (O. P. S. No. 2339 and 2796 of 1969) filed by Sree Sankara College Association and the Nair Service Seciety since the petitioners were companies and were not entitled to the benefit of Art. 30 (1) not being minority institutions and not entitled to Art. 19 (1) (f) not being citizens. Section 63 was, however, held to offend Art. 31 (2) and not saved by Art. 31A (1) (b) and this declaration was in favour of all the petitioners. It was also declared void as offending Art. 30 (1) in so far as the minority institutions were concerned. The rest of the Act was declared to be valid and the challenge to it was rejected. There was no order about costs.

Reasoning: is not a case of giving some benefits to minority communities which in reason must also go to the majority community institutions but a special kind of protection for which the Constitution singles out the minority communities. This question, however, does not fall within our purview as the State, at the hearing announced that it was not intended to enforce the provisions of the law relating to administration against the majority institutions only, if they could not be enforced against the minority institutions.8. Article 30 (1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time.The first right is the initial right to establish institutions of the minoritys choice.Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community.It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.9. The next part of the right relates to the administration of such institutions.Administration means management of the affairs of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served.No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right10. There is, however, an exception to this and it is that the standards of education are not a part of management as such.These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if Universities establish the syllabi for examinations, they must be followed subject, however, to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied.The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern.While the management must be left to them, they may be compelled to keep in step with others. These propositions have been firmly established in the State of Bombay v. Bombay Education Society, (1955) 1 SCR 568   = (AIR 1954 SC 561  ); State of Madras v. S. C. Dorairajan, 1951 SCR 525   = (AIR 1951 SC 226  ); In re the Kerala Education Bill, 1957, 1959 SCR 995   = (AIR 1958 SC 956  ); Sidharajbhai v. State of Gujarat, 1963-3 SCR 837   = (AIR 1963 SC 540  ); Katra Education Society v. State of U. P., 1966-3 SCR 328   = (AIR 1966 SC 1307  ); Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar, 1963 Supp (1) SCR 112 = (AIR 1963 SC 703  ); and Rev. Father W. Proost v. State of Bihar, 1969 SC 465)  . In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority institutions and no more. Applying these principles we now consider the provisions of the Act.14. These sections were partly declared ultra vires of Art. 30 (1) by the High Court as they took away from the founders the right to administer their own institution. It is obvious that after the election of the governing body or the managing council the founders or even the community has no hand in the administration. The two bodies are vested with the complete administration of the institutions These bodies have a legal personality distinct from the educational agency or the corporate management. They are not answerable to the founders in the matter of administration. Their powers and functions are determined by the University laws and even the removal of the members is to be governed by the Statutes of the University. Sub-sections (2), (4), (5) and (6) clearly vest the management and administration in the hands of the two bodies with mandates from the University.15. In attempting to save these provisions Mr. Mohan Kumaramangalam drew attention to two facts only. The first is that the nominees of the educational agencies or the corporate management have the controlling voice and that the defect, if any, must be found in the Statutes, Ordinances, Regulations, Bye-laws and Orders of the University and not in the provisions of the Act. Both these arguments are not acceptable to us. The Constitution contemplates the administration to be in the hands of the particular community. However desirable it might be to associate nominated members of the kind mentioned in Sections 48 and 49 with other members of the governing body or the managing council nominees, it is obvious that their voice must play a considerable part in management. Situations might be conceived when they may have a preponderating voice. In any event, the administration goes to a distinct corporate body with is in no way answerable to the educational agency or the corporate management. The founders have no say in the selection of the members nominated or selected except those to be nominated by them.It is, therefore, clear that by the force of sub-sections (2), (4) and (6) of Sections 48 and 49, the minority community loses the right to administer the institution it has founded.Sub- section (5) also compels the governing body or the managing council to follow the mandates of the University in the administration of the institution. No doubt the Statutes, Ordinances, Regulations, Rules, Byelaws and Orders can also be examined in the light of Art. 30 (1) but the blanket power so given to the University bears adversely upon the right of administration.position is further heightened by the other provisions of the Act16. Section 53, sub-sections (1), (2) and (3) confer on the Syndicate of the University the power to veto even the action of the governing body or the managing council in the selection of the principal.Similarly, sub-section (4) takes away from the educational agency or the corporate management the right to select the teachers. The insistence on merit in sub-section (4) or on seniority-cum-fitness in sub-s. (7) does not save the situation. The power is exercised not by the educational agency or the corporate management but by a distinct and autonomous body under the control of the Syndicate of the University.Indeed, sub-section (9) gives a right of appeal to the Syndicate to any person aggrieved by the action of governing body or the managing council thus making the Syndicate the final and absolute authority in these matters. Coupled with this is the power of Vice-Chancellor and the Syndicate in sub-sections (2) and (4) of Section 56.These provisions clearly take away the disciplinary action from the governing body and the managing council and confer it upon the University.Then comes Section 58This enables political parties to come into the picture of the administration of minority institutions which may not like this interference.When this is coupled with the choice of nominated members left to Government and the University by sub-section (1) (d) of Sections 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence.18. The remaining provisions of this section lay down an elaborate procedure for management in which even the governing body or the managing council have no say.Sub-section 63 (1) involves the transfer of right to possession of the properties to the University. The High Court rightly pointed out that this section provides for compulsory requisition of the properties within Art. 31 (2) and (2A). To be effective the section required the assent of the President under clause (3) and it was not obtained. Therefore the saving in Art. 31A (1) (b) is not available.We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary cannot stand in the face of the constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports20. The result of the above analysis of the provisions which have been successfully challenged discloses that the High Court was right in its appreciation of the true position in the light of the Constitution. We agree with the High Court that sub-sections (2) and (4) of Sections 48 and 49 are ultra vires Art. 30 (1). Indeed we think that sub-section (6) of these two sections is also ultra vires. They offend more than the other two of which they are a part and parcel. We also agree that sub-sections (1), (2), (3) and (9) of Sec. 53, sub-sections (2) and (4) of Sec. 56, Sec. 58 (in so far as it removes disqualification which the founders may not like to agree to), and Sec. 63 are ultra vires Article 30 (1) in respect of the minority institutions. The High Court has held that the provisions (except Sec. 63) are also offensive to Art. 19 (1) (f) in so far as the petitioners are citizens of India both in respect of majority as well as minority institutions. This was at first debated at least in so far as majority institutions were concerned. The majority institutions invoked Art. 14 and complained of discrimination. However at a later stage of proceedings Mr. Mohan Kumarmangalam stated that he had instructions to say that any provision held inapplicable to minority institutions would not be enforced against the majority institutions also. Hence it relieves us of the task of considering the matter under Art. 19 (1) (f) not only in respect of minority institutions but in respect of majority institutions also. The provisions of Sec. 63 affect both kinds of institutions alike and must be declared ultra vires in respect of both.