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

2. The Society, which is the first respondent in Appeal No. 64 of 1954, is a Joint Stock Company incorporated under the Indian Companies Act,The other two respondents in that appeal - Venble Archdeacon A.S.H. Johnson and Mrs. Glynne Howell are members and Directors of the Society. The Venble Archdeacon A. S. H. Johnson is also the Secretary of the Society. Both of them are citizen Community of India and are members of the Anglo-Indian Community. The mother tongue of these respondents as of other members of the Anglo-Indians community is English.In the State of Bombay there are in all 1403 Secondary Schools 1285 of these Schools impart 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 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 consists 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 School 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 admission to schools in which the medium of instruction was English.The order 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, proper 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 Head master 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 2054 (a) headed "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 instruction.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 has 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 belowGovernment has accordingly decided as follows :Subject to the exception hereinafter provided, no primary or secondary school shall from the date of these orders admit to a class where English is used as a medium of instruction any pupil other that a pupil belonging to a section of citizens the language of which is English namely Anglo-Indians and citizens of non Asiatic 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 followingAll schools (including Anglo-Indian Schools) using English as a medium of instruction should regulate admission according to this circular. With a view to facilitating the admission of pupils who under these redress 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 inGovernment 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 2054 (a) 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-Indian Education. Whether in consequences 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 the grants contemplated therein were intended to be in addition to the grants available under Article 337.8. 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 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 Anglo-Indian 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 Guzarati Hindu Community. His mother tongue is Guzarati. He 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 Anglo-Indian 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.Thereupon the Society and Venble Archdeacon. A. S. H. Johnson and Mrs. Glynee 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 non-Anglo-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 11th February 1954, and were heard together and were disposed of by the same Judgment and order pronounced on the 15th FebruaryThe 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

Court's reasoning:
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.