State of Bombay vs. Bombay Education Society
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Civil Appeals Nos. 64 to 66 of 1954
Decision Date: 26 May, 1954
Coram: Mehar Chand Mahajan, Ghulam Hasan, Natwarlal H. Bhagwati, B. Jagannadhadas, DAS, Sudhi Ranjan
In this matter, the Supreme Court of India delivered its judgment on 26 May 1954 concerning the dispute between the State of Bombay as petitioner and the Bombay Education Society together with other respondents. The judgment was pronounced by a bench comprising Justice Mehar Chand Mahajan, Justice Ghulam Hasan, Justice Natwarlal H. Bhagwati, and Justice B. Jagannadhadas, with the bench also identified in the record as Das and Sudhi Ranjan. The case is reported in the official law reports as 1954 AIR 561 and 1955 SCR 568, and it has been cited in numerous subsequent decisions, including citations such as R 1958 SC 956, R 1963 SC 996, R 1970 SC 2079, F 1971 SC 1731, R 1974 SC 1389, R 1979 SC 83, and RF 1988 SC 305. The constitutional issues addressed involved Articles 29 and 30(1) of the Constitution of India, the second proviso to Article 337, and a government circular that prohibited admission to schools that are maintained or aided by the State on the basis of the language of the citizens. The central question was whether the circular was ultra vires of Articles 29(2) and the second proviso to Article 337, and how the terms “namely” and “word” should be interpreted in this context.
The factual background disclosed that the Bombay Education Society, identified as respondent No. 1, operated a recognised Anglo‑Indian school called Barnes High School at Deolali. This school received financial aid from the State of Bombay, and its directors, referred to as J and G, employed English as the medium of instruction. The mother‑tongue of the Anglo‑Indian community attending the school was English. On 6 January 1954, the State of Bombay issued a circular titled “Admission to Schools teaching through the medium of English.” The operative clause of that order stipulated that, from the date of its issuance, no primary or secondary school using English as the medium of instruction could admit any pupil whose mother‑tongue was not English. The circular specifically limited admission to members of the Anglo‑Indian community and to citizens of non‑Asiatic descent whose language was English. Two separate applications for admission, however, were denied under this order. The first applicant, designated as P, was an Indian citizen belonging to the Indian Christian community who claimed that English was the mother‑tongue of his daughter. The second applicant, designated as M, was an Indian citizen belonging to the Gujarati Hindu community who asserted that Gujarati was the mother‑tongue of his son. Both were refused admission to Barnes High School on the ground that they did not satisfy the language requirement imposed by the circular.
In response to these refusals, the Bombay Education Society together with its two directors filed a petition under Article 226 of the Constitution in the High Court of Bombay. The petition sought a writ of mandamus directing the State of Bombay and its officers to refrain from enforcing the circular and to permit the school to admit children of non‑Anglo‑Indian citizens or citizens of Asiatic descent for instruction in English. Similar writ applications were filed by P on behalf of his daughter and by M on behalf of his son. The High Court consolidated the three applications, heard them together, and granted the relief sought, issuing an order that restrained the State from enforcing the circular and allowed the school to admit the plaintiffs’ children. Dissatisfied with the High Court’s decision, the State of Bombay appealed the order before the Supreme Court, setting the stage for the constitutional examination that follows.
The Court held that the order under review, which refused admission to students who were neither Anglo‑Indians nor of Asiatic descent to the recognised Anglo‑Indian school known as Barnes High School—a school that received State aid and provided instruction in English, was void and could not be enforced. The Court explained that the order violated the fundamental right guaranteed to every citizen by article 29 (2) of the Constitution. It observed that the wording of article 29 (2) is broad and unqualified, applying equally to citizens belonging to majority or minority groups. The protection afforded by that article extended not only against the State but also against any person who denied the right it confers. The provision therefore gave a special entitlement to citizens to gain admission to educational institutions that are maintained or aided by the State. The Court further noted that the marginal note referring to minorities did not control the plain meaning of the provision, and that the term “namely” in the article served to enumerate the matters described in the preceding clause, effectively equating the enumeration with the clause itself.
The Court also held that Barnes High School at Deolali and other Anglo‑Indian schools possessed a right to admit non‑Anglo‑Indian and Asiatic‑descent students because article 337, proviso 2 imposed an obligation on Anglo‑Indian schools to reserve at least forty per cent of their annual admissions for non‑Anglo‑Indian pupils as a condition for receiving the Government grant. Consequently, the impugned order was unconstitutional because it prevented the Anglo‑Indian schools from complying with that statutory obligation and exposed them to the danger of losing their special grant. In addition, the Court recognised that the Anglo‑Indian community, as a minority, enjoyed under article 29 (1) the right to preserve its own language, script and culture, and under article 30 (1) the right to establish and administer educational institutions of its own choice. Implicit in those rights was the authority to teach children of the community in its own language, and the State, by virtue of its police power, could not prescribe a different medium of instruction in contradiction to those constitutional guarantees. The Court referred to a range of authorities, including Bhola Prasad v. The King‑Emperor, The Queen v. Burah, The State of Madras v. Srimathi Champakam Dorairajan, Pierce v. Society of Sisters of Holy Names, Yusuf Abdul Aziz v. State, Sm. Anjali Boy v. State of West Bengal, The State of Bombay v. Narasu Appal Mali, Srinivasa Aiyar v. Saraswathi Ammal, Dattatraya Motiram More v. State of Bombay, Punjab Province v. Daulat Singh, Robert V. Meyer v. State of Nebraska, August Bartels v. State of Iowa and Ottawa Separate Schools Trustees v. Mackell.
The Court recorded that the matter before it involved three civil appeals, numbered 64, 65 and 66 of 1954, filed under article 132 (1) of the Constitution of India. These appeals were taken from a judgment and order dated 13 February 1954 pronounced by the High Court of Judicature at Bombay in special applications numbered 259, 288 and 289 of 1954. The State of Bombay acted as the appellant in all three appeals and was represented by the Attorney‑General for India, M C Setalvad, and the Solicitor‑General for India, C K Daphtary, together with counsel G N Joshi, M M Desai, Porus A Mehta and P G Gokhale. The respondents were represented by various senior counsel: N A Palkhivala, J B Dadachanji, J K Munshi and Rajinder Narain appeared for respondents 1 and 2 in appeal 64; Frank Anthony joined them for respondent 3; the same team of Palkhivala, Dadachanji, Munshi and Narain appeared for respondent 1 in appeal 65 together with Frank Anthony and Rajinder Narain for respondent 2; and for appeal 66, Palkhivala, Frank Anthony, Dadachanji, Munshi and Narain represented respondent 1, while Frank Anthony and Rajinder Narain represented respondent 2. The judgment of the Court was delivered by Justice Das on 26 May 1954.
The Court explained that the three appeals, each filed by the State of Bombay and supported by a certificate from the Bombay High Court, sought to overturn a High Court judgment dated 15 February 1954 that had been rendered in three civil applications under article 226. The High Court had held that a circular order numbered SSN 2054 (a), issued by the Education Department of the State of Bombay on 6 January 1954, was unconstitutional because it violated article 29 (2) and article 337 of the Constitution. Consequently, the High Court had issued a writ directing the State not to enforce the circular against the authorities of Barnes High School, which was established and operated by the Education Society of Bombay, referred to as “the Society.” The Society, identified as the first respondent in appeal 64, was a joint‑stock company incorporated under the Indian Companies Act, 1913. The other two respondents in that appeal were Venble Archdeacon A S H Johnson and Mrs Glynne Howell, both of whom were directors of the Society; Archdeacon Johnson also served as the Secretary. Both individuals were Indian citizens belonging to the Anglo‑Indian community, and their mother tongue, like that of other Anglo‑Indian members, was English.
The Court further noted statistical data concerning secondary education in the State of Bombay. At the time, the State had a total of 1 403 secondary schools. Of these, 1 285 schools taught in a language other than English, while 118 schools used English as the medium of instruction. Among the English‑medium schools, 30 were designated as Anglo‑Indian schools. These thirty institutions enrolled approximately three thousand Anglo‑Indian pupils, representing 37 percent of the total student body in those schools, while the remaining 63 percent of students were from non‑Anglo‑Indian communities.
In 1925 the Society founded and has continuously operated a school called Barnes High School at Deolali in the Nasik District of the State of Bombay. The school is a recognized Anglo‑Indian institution that provides primary, secondary and high school education. It receives a considerable amount of financial assistance from the State. In December 1953 the school had a total enrolment of four hundred fifteen pupils, of whom two hundred twelve were Anglo‑Indians and the remaining two hundred three belonged to other Indian communities. Instruction in every class has been given in English since the school’s inception, and the whole teaching staff consists of seventeen teachers. Sixteen of those teachers are trained and qualified to teach only in English, while a single teacher is employed to teach Hindi, which is the second language offered by the school.
On 16 December 1953 the Inspector of Anglo‑Indian Schools for Bombay State, together with the Educational Inspector for Greater Bombay, sent a circular letter to the headmaster of Barnes High School. The letter informed the headmaster that the Government was considering issuing orders that would regulate admissions to schools where English is the medium of instruction. The proposed orders were described as containing two main provisions: first, that from the next school year admission to English‑medium schools would be limited to children belonging to the Anglo‑Indian and European communities; second, that pupils who were already studying in recognized primary or secondary English‑medium schools prior to the issuance of the orders would be allowed to continue their studies. The circular concluded by advising the headmaster not to admit any pupils other than Anglo‑Indians or Europeans for the academic year beginning in January 1954, pending the forthcoming orders, which the inspectors said would be issued shortly.
The contemplated order was issued on 6 January 1954 in the form of circular No SSN 2054(a) entitled “Admissions to Schools teaching through the medium of English”. Paragraphs 1, 2 and 3 of this circular referred to the development of Government policy concerning the medium of instruction at the primary and secondary levels. The circular noted that since the academic year 1926‑27 the University of Bombay had permitted pupils to answer examination questions in modern Indian languages at the Matriculation examination in all subjects except English and other foreign languages. This policy change had resulted in one thousand two hundred eighty‑five of the total one thousand four hundred three schools in the State ceasing to use English as the medium of instruction. The circular further observed that in 1948 instructions had been issued to all English‑teaching schools directing that admissions 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 then stated that in 1951, after a review of the situation, a general policy had been laid down to the effect that admission to such
In the circular, the Government limited admission to schools that taught in English to only four categories of children that had been specified in the document. The circular also cited the recommendations of the Secondary Education Commission, which advised that the mother tongue or regional language should ordinarily be used as the medium of instruction throughout the secondary stage, while allowing special facilities for linguistic minorities. Paragraph four of the circular stated that the Government considered the time appropriate to discontinue English as a medium of instruction. Accordingly, the Government resolved that, subject to the facilities to be provided to linguistic minorities, all special and interim concessions concerning admission to schools—including Anglo‑Indian schools—that used English as the medium of instruction would be withdrawn. The operative part of the order then followed. It provided that, subject to the exceptions that would be listed later, no primary or secondary school could, from the date of the order, admit to a class where English was the medium of instruction any pupil except those belonging to a section of citizens whose language was English, namely Anglo‑Indians and citizens of non‑Asiatic descent. The order set out three specific exceptions to this general rule in favour of three categories of students who, before the order, had been studying through the medium of English. One exception permitted the admission of foreign pupils, other than those of Asiatic descent, who belonged to foreign possessions in India, to schools using English as the medium of instruction or to any other school of their choice. The concluding paragraph of the order directed that all schools—including Anglo‑Indian schools—using English as the medium of instruction should regulate admissions in accordance with the circular. To facilitate the admission of pupils who under the new rules would not be educated through English, the schools were advised to progressively open divisions of standards using Hindi or another Indian language as the medium of instruction, beginning with Standard I in 1954. The Government also indicated its willingness to consider, on merit, the payment of additional grants for this purpose. On the same day, another circular, No. SSN 2054(b), was issued. That circular drew the attention of the heads of all Anglo‑Indian schools to circular No. SSN 2054(a) and requested that they thereafter regulate admissions to their schools in accordance with that circular. It further clarified that the orders in the circular were not intended to affect the total grant available for distribution to Anglo‑Indian schools under the Constitution. However, the Government expressed readiness to consult with the State Board of Anglo‑Indian Education to determine whether any alteration to the existing procedure for the equitable distribution of the total grant among individual Anglo‑Indian schools was warranted as a consequence of the order.
The Court noted that the circular order specifically directed the attention of the headmasters to the final sentence of paragraph seven, emphasizing that the financial grants mentioned in the order were intended to be supplemental to the grants already provided under article 337. Major Pinto, an Indian citizen belonging to the Indian Christian community, asserted that English constituted his mother tongue, as it was the language spoken and used by his entire family. At the time, two of his sons were enrolled at Barnes High School and were receiving education in English. On 2 February 1954, Major Pinto, accompanied by his daughter Brenda, approached the headmaster of Barnes High School to seek admission for her. The headmaster informed him of the State of Bombay order dated 6 January 1954 and explained that, because of that order, he was compelled to refuse Brenda’s admission. The reason given was that Brenda did not belong to the Anglo‑Indian community nor was she of non‑Asiatic descent, even though she possessed all the qualifications required for entry into the school.
Dr Mahadeo Eknath Gujar, also an Indian citizen, belonged to the Gujarati Hindu community and his mother tongue was Gujarati. He desired that his son, Gopal Mahadeo Gujar, become a medical practitioner and pursue higher medical studies abroad, and therefore wanted his son to be educated in the English medium. Finding Barnes High School, which taught through English, suitable for these ambitions, Dr Gujar, together with his son, approached the headmaster on 1 February 1954 seeking admission for the boy. Citing the same government circular, the headmaster felt obliged to decline the request on the ground that the child was not a member of the Anglo‑Indian community and was not of non‑Asiatic descent, despite the boy’s full qualifications. The Court recorded that several other admission applications had similarly been rejected on these grounds. Consequently, in February 1954, the Society, together with the Venerable Archdeacon A.S.H. Johnson and Mrs Glynne Howell, filed Special Civil Application No 259 of 1954 before the Bombay High Court under article 226 of the Constitution. The petition sought a writ of mandamus to restrain the State of Bombay, its officers, servants and agents from enforcing the circular order, to compel the withdrawal or cancellation of that order, and to direct the respondents to admit children of non‑Anglo‑Indian citizens or citizens of Asiatic descent to any standard of the school and to educate them in English. Likewise, Major Pinto with his daughter Brenda and Dr Gujar were parties seeking the same relief.
Major Pinto’s daughter and Dr. Gujar’s son Gopal each filed separate applications, recorded as numbers 288 and 289 of 1954, seeking the same relief as the earlier petition. The three petitions were merged on 11 February 1954, heard together, and disposed of by a single judgment and order issued on 15 February 1954. The High Court accepted the reliefs claimed in the petitions and granted an order accordingly. The State of Bombay has now appealed against those orders. From the factual matrix of the cases, two questions emerge. The first question concerns whether a student who is neither Anglo‑Indian nor of non‑Asiatic descent has any right to be admitted to Barnes High School, a recognised Anglo‑Indian institution that provides education in English. The second question asks whether Barnes High School itself possesses the authority to admit students who are not Anglo‑Indian and who are of Asiatic descent. The questions are limited to the specific circumstances of these petitions, and the Court finds that they can be resolved by a straightforward analysis, as will be explained below.
Regarding the first question, Barnes High School has long been recognised as an Anglo‑Indian school and has consistently taught its pupils in the English language. The school also receives financial assistance from State funds. The daughter of Major Pinto and the son of Dr. Gujar are both Indian citizens who have invoked the fundamental right guaranteed to them by article 29(2) of the Constitution in seeking admission to the school. The school refused to admit either child, relying on a circular issued by the State of Bombay on 6 January 1954. The relevant provisions of that circular have already been summarised, and the operative part is contained in clause five. Clause five expressly prohibits any primary or secondary school where English is the medium of instruction from admitting any pupil who does not belong to a class of citizens whose language is English, specifically limiting admission to Anglo‑Indians and citizens of non‑Asiatic descent. The learned Attorney‑General argues that the clause does not confine admission solely to Anglo‑Indians and non‑Asiatic citizens, but rather permits admission of any pupil whose language is English. He cites the Oxford English Dictionary, Volume VII, page 16, for one meaning of the word “namely” as “that is to say,” and refers to the Federal Court decision in Bhola Prasad v. The King‑Emperor, where the Court described “that is to say” as explanatory or illustrative rather than limiting. However, it must be noted that those observations were made in the context of a legislative head, namely entry 31 of the Provincial Legislative List. The fundamental proposition articulated in The Queen v. Burah was that Indian …
Legislatures possessed plenary legislative authority within their own domain, comparable in scope and character to the powers exercised by Parliament. Consequently, every entry that appears in the legislative schedule must be given its broadest possible meaning in order to preserve legislative intent. In that sense, the phrase “that is to say” was interpreted by the Federal Court in the manner relied upon by the learned Attorney‑General. To adopt any narrower construction would have reduced the generality of the legislative head itself, contrary to the principle of plenary competence. The same reasoning cannot be applied to the construction of the present Government order, because the considerations that governed the earlier case are not relevant here. References to the Federal Court decisions reported in 1942 and 1878 therefore have no application to the matter before this Court. Ordinarily, the word “namely” signals an enumeration of the items that are included in the preceding clause specifically. In other words, it serves to equate what follows with the description given in the earlier clause preceding the enumeration. Thus, there is considerable weight to the argument that the order limits admission exclusively to Anglo‑Indians and to citizens of non‑Asiatic descent whose language is English. That interpretation receives support from the decision cited in clause four, which directed the withdrawal of all special and interim concessions concerning admission to the schools mentioned therein. Consequently, the facilities for linguistic minorities articulated in the circular order may be read as contemplated only for Anglo‑Indians and for citizens of non‑Asiatic descent.
Even if it were assumed that the impugned order permits admission to any citizen whose first language is English, persons whose language is not English would still be excluded. Such exclusion applies particularly to schools where English serves as the medium of instruction throughout all regular classes. Article 29(2) of the Constitution, on its face, imposes no limitation or qualification on the term “citizen” in any context. Accordingly, the interpretation proposed for clause five does not assist the learned Attorney‑General, because even under that construction the order would conflict with the provisions of article 29(2). The Attorney‑General therefore advanced two further arguments in an attempt to shield the order from the operation of article 29(2). His first contention was that article 29(2) does not create a universal fundamental right for all citizens, but rather safeguards the rights of minority groups. Specifically, it prohibits denial of admission to institutions maintained or aided by the State on the basis of religion, race, caste, language or any combination of these factors. The Attorney‑General cited the marginal note to article 29 as support for this interpretation, presenting it as a novel argument before this Court. The Court noted that this contention had not been raised in the affidavits submitted in opposition before the High Court, nor was it identified as a ground of appeal in the petition for special leave. Moreover, the Court found the argument to be without merit, emphasizing that article 29(1) already protects any linguistic, scriptural or cultural minority by guaranteeing the right to preserve its distinct identity. Consequently, the Court declined to accept the Attorney‑General’s submission and proceeded to examine the order in light of the unqualified language of article 29(2).
Before the High Court, the point had not been raised, and it was also not placed as a ground of appeal in the petition for leave to appeal before this Court. The Court found that the contention lacked merit. It observed that article 29(1) protected any section of the citizens that possessed a distinct language, script or culture by guaranteeing their right to preserve those characteristics. Article 30(1) gave all minorities, whether defined by religion or language, the right to establish and administer educational institutions of their own choice. The Court then considered a hypothetical situation: if the State maintained an educational institution for the purpose of conserving the language, script or culture of a particular section of citizens, or if the State provided aid to an institution founded by a minority community for the same purpose, the question arose as to who could invoke the protection of article 29(2) in relation to admission to such an institution. The Court concluded that the citizens belonging to the very section whose language, script or culture the institution aimed to conserve, as well as the members of the minority group that had established and administered the institution, would not need protection against themselves. Consequently, article 29(2) was not intended to protect those particular sections or minorities.
The Court further held that there was no justification for restricting article 29(2) solely to citizens of minority groups identified in articles 29(1) or 30(1). Citizens who did not belong to any recognized minority might equally require the protection afforded by article 29(2). The argument that majority‑group citizens were already adequately protected by article 15 was rejected. The Court explained that the language of article 29(2) was broad and unqualified, potentially covering all citizens regardless of majority or minority status, and that its protection extended not only against the State but also against any person who denied the right it conferred. While article 15 guarded citizens against discrimination by the State in general terms, article 29(2) specifically safeguarded the right to admission in certain State‑maintained or State‑aided educational institutions. Limiting this right to minority‑group citizens would create a double layer of protection for them and would unjustifiably deny majority‑group citizens a special educational right to be admitted to institutions supported by taxpayer contributions. The Court found no reasonable basis for such discrimination.
The Court observed that there is no cogent reason for discriminating against persons who seek admission to an educational institution whose maintenance is funded through taxation. It noted that the heading under which articles 29 and 30 are grouped – namely “Cultural and Educational Rights” – is deliberately broad and does not contemplate a distinction based on majority or minority status. The Court explained that if the very fact that an institution is maintained or aided by State funds forms the basis of the guarantee contained in article 29(2), then every citizen, regardless of whether he belongs to a majority or a minority group, must be entitled to the protection of that fundamental right. In light of these considerations, the Court held that the marginal note cited by the Attorney‑General cannot override the plain meaning of the language used in article 29(2). The Court further referred to the precedent set in The State of Madras v. Srimathi Champakam Dorairajan, where it was held that while clause (1) safeguards the language, script or culture of a particular section of citizens, clause (2) secures a fundamental right of each individual citizen. The Court quoted the earlier decision, stating: “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.” On this basis, the Court concluded that the argument advanced by the learned Attorney‑General could not be sustained. The Court then turned to the second strand of the Attorney‑General’s submission, which relied upon the word “only” in article 29(2). He contended that the impugned order does not refuse admission to any citizen on the sole ground of religion, race, caste, language or any similar criterion, and he stressed that the State has a duty to promote Hindi as the eventual national language, arguing that education in the pupil’s mother‑tongue is both desirable and, in the view of many educators, necessary. Counsel for the respondents responded with equal vigor, describing the circular in question as an unwarranted and reckless intrusion into the parental right to direct the education and upbringing of their children. They relied on the observations of McReynolds J. in Pierce v. Society of Sisters of Holy Names, quoting: “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.” The respondents further argued that the principal, if not the sole, purpose of the impugned order is to discriminate against, and if possible to…
The contention was raised that obliging Anglo‑Indian schools to run parallel classes in any Indian language would not necessarily advance the Hindi language, because the language selected for those parallel sections might be a language other than Hindi. Moreover, the creation of parallel classes taught in an Indian language within a school where other classes continue to use English as the medium of instruction was argued not to further the preservation of the distinct language, script or culture that Article 29(1) guarantees to the Anglo‑Indian community as a segment of the citizenry. It was also pointed out that the well‑known principle favouring education in the pupil’s mother tongue becomes difficult to apply when a child whose mother tongue is, for example, Gujarati, is prevented from gaining admission only to an Anglo‑Indian school where the medium of instruction is English, while the same child would be permitted to enroll in a school that teaches in a regional language, such as Konkani, which is not the child’s mother tongue. The rival arguments therefore brought before the Court concerned questions of State policy on education, matters that the Court considered beyond its jurisdiction. It was observed that American decisions based on the Fourteenth Amendment and its due‑process clause were of limited assistance in interpreting our Article 29. Consequently, the Court resolved to examine the Attorney‑General’s submissions purely on the legal question of how Article 29(2) should be construed. The Attorney‑General submitted that the impugned order did not refuse admission to pupils who were not Anglo‑Indians or who were not of non‑Asiatic descent on the basis of religion, race, caste, language or any similar ground, but rather on the ground that such refusal would promote the advancement of the national language and facilitate education in the pupil’s mother tongue. To support this position, the Attorney‑General relied upon several High Court decisions, namely Yusuf Abdul Aziz v. State (1), Sm. Anjali Roy v. State of West Bengal (2), The State of Bombay v. Narasu Appa Mali (3), Srinivasa Ayyar v. Saraswathi Amma (4) and Dattatraya Motiram More v. State of Bombay (5). It was noted, however, that these cases dealt with discrimination prohibited by Article 15, which addresses discrimination in a general sense, and not with the denial of admission to particular kinds of educational institutions that Article 29(2) forbids. Furthermore, the judgment in the first mentioned Bombay case was upheld on the basis of clause 3 of Article 15 rather than clause 1, indicating that those precedents do not have a direct bearing on the interpretation of Article 29(2).
The Court observed that the submissions made by the Attorney‑General disregarded the essential distinction between the purpose of the challenged order and the manner in which that purpose was pursued. While the Attorney‑General portrayed the purpose of the order as unquestionably commendable, the Court held that the order’s validity had to be assessed in light of the method by which it operated and its impact on the fundamental right protected by article 29(2). The Court then referred to a comparable issue of statutory construction that had arisen in Punjab Province v. Daulat Singh (1). In that earlier case, a central question was whether the newly introduced section 13‑A of the Punjab Alienation of Land Act exceeded the competence of the Provincial Legislature by contravening sub‑section (1) of section 298 of the Government of India Act, 1935, because in certain circumstances the provision would function as a prohibition based solely on descent.
Justice Beaumont, in a dissenting opinion, argued that the proper approach required an examination of the scope and aim of the impugned legislation to determine the basis on which it rested. He maintained that if the legislation’s sole foundation was discrimination on any of the grounds enumerated in section 298 sub‑section (1), the law would be invalid; however, if the true foundation lay elsewhere, the legislation should not be struck down merely because one of its consequences might involve prohibited discrimination. The Board’s judgment, delivered by Lord Thankerton, rejected Justice Beaumont’s test. Lord Thankerton stated that the correct inquiry was not whether the impugned Act was founded exclusively on the prohibited grounds, but whether its operation could lead to a prohibition on those grounds. He explained that the proper test for a breach of sub‑section (1) was to consider the effect of the Act on the personal right conferred by that sub‑section. While the Act’s scope and purpose might assist in interpreting its provisions, if the determined effect infringed the personal right, the laudable purpose could not excuse the violation of sub‑section (1). Accepting that the order’s asserted purpose was as the Attorney‑General described, the Court noted that the crucial question remained how that purpose was being implemented. It was evident that the order sought to achieve its aim by refusing admission to every pupil whose mother tongue was not English to any school where English was the medium of instruction. Consequently, the immediate and direct reason for the denial was the pupil’s mother tongue being other than English.
The Court observed that the pupil’s mother‑tongue was not English. It adapted the language of Lord Thankerton to state that, although the purpose of the impugned order was commendable, that purpose did not remove the bar created by article 29(2) of the Constitution. The order’s effect, according to the Court, was to infringe the fundamental right protected by that article because it denied admission to a school solely on the basis of language. The Court noted that the same principle had been applied in its earlier decision in State of Madras v. Srimathi Champakam Dorairajan. In that case, the order in question was also aimed at advancing the interests of educationally backward classes, yet the Court declared it unconstitutional because the method of achieving the goal relied directly on a prohibited ground enumerated in article 29(2). In the present case, the Court held that the impugned order likewise violated the fundamental right guaranteed to every citizen by article 29(2). Turning to the second question, the Court considered whether the order infringed any constitutional right of Barnes High School. The learned Attorney‑General argued that while any community possessing a distinct language, script or culture enjoyed, under article 29(1), the right to preserve that heritage, and while minorities, whether defined by religion or language, possessed, under article 30(1), the right to establish and administer educational institutions of their choice, such rights did not permit them to challenge the State’s authority to make reasonable regulations for all schools. The Attorney‑General further contended that the State could require instruction in a language regarded as the national language and could prescribe a curriculum for institutions it supported, provided that the State’s exercise of power was not inconsistent with or contrary to the fundamental rights guaranteed to citizens.
The Court affirmed that the State’s powers in this area could not be lightly questioned, especially when exercised in a manner consistent with constitutional guarantees. It referred to the United States cases of Robert T. Meyer v. State of Nebraska and August Bartels v. State of Iowa, noting that the United States Supreme Court had held that the State’s police power in education could not override the liberty protected by the Fourteenth Amendment. The Court explained that scholars of American constitutional law understood these decisions as limiting State authority over education. The statutes examined in those American cases prohibited teaching any subject in any language other than English and allowed the teaching of non‑English languages only after a pupil had completed the eighth grade, making violations of these provisions punishable. In the first case, the Court struck down the prohibition on teaching in languages other than English; in the second case, it declared both provisions invalid. The learned Attorney‑General informed the Court that legislation in twenty‑nine states of the United States had mandated English as the medium of instruction, although such statutes had not been tested in court. The Court noted this information but found it insufficient to justify the impugned order.
In the Court’s view, the statutes that prescribe English as the sole medium of instruction have not been examined by any judicial decision, and consequently the Attorney‑General could not draw much reassurance from the observation that twenty‑nine states in the United States have enacted legislation mandating English as the language of instruction. The learned Attorney‑General, citing United States cases (1) 262 U.S. 390; 67 Law Ed. 1042 and (2) 262 U.S. 404; 67 Law Ed. 1047, also turned to Ottawa Separate Schools Trustees v. Mackell (1). That decision proved unhelpful because the schools involved were classified solely on a religious basis and not on the grounds of race or language. The trustees had argued that they were authorized to establish schools where instruction could be given in any language they deemed appropriate. The Judicial Committee, however, rejected that premise, observing that the term “kind” of school in subsection 8 of section 79 referred, in their opinion, to the grade or character of the school—such as a girls’ school, a boys’ school, or an infants’ school—and did not denote a school distinguished by the regular use of a special language. The Court then considered the situation of the Anglo‑Indian community, a minority defined, among other criteria, by religion and language, which enjoys the fundamental right under article 29(1) of the Constitution to preserve its language, script and culture, and the right under article 30(1) to establish and manage educational institutions of its own choosing. Accordingly, the Court held that these constitutional guarantees implicitly include the right to impart instruction in the community’s own language to its children within its own schools. To deny such a right would substantially diminish the content of articles 29(1) and 30(1). Consequently, the State’s police power to prescribe the medium of instruction must yield wherever it conflicts with this fundamental right and cannot be allowed to operate contrary to it. The Court then turned to article 337 of Part XVI, which provides special educational grants to the Anglo‑Indian community from the Union and each State. The second paragraph of that article envisions a gradual reduction of such grants, which are to cease ten years after the Constitution’s commencement, as indicated in the first proviso. The second proviso further stipulates that no educational institution may receive a grant under article 337 unless at least forty percent of its annual admissions are offered to members of communities other than the Anglo‑Indian community. Thus, the Constitution imposes upon the educational institution
In this case, the Court explained that the Constitution imposes on any educational institution that is run by the Anglo‑Indian Community a condition attached to the special grant. That condition requires that at least forty percent of the admissions made each year must be offered to persons who belong to communities other than the Anglo‑Indian Community. The Court described this requirement as an unquestionable constitutional obligation. The Court then examined clause five of the order that is being challenged. Clause five directs that, from the date of its issuance, no primary or secondary school may admit to a class in which English is the medium of instruction any pupil who is not either a child of an Anglo‑Indian or a citizen of non‑Asiatic descent. The Court observed that this directive plainly prevents Anglo‑Indian schools, including Barnes High School, from satisfying the constitutional duty mentioned above and therefore places those schools in danger of losing the special grant. The Attorney‑General pointed to clause seven of the same order and argued that the authorities of Anglo‑Indian schools could still fulfil their constitutional duty by following the advice contained in that final clause. The Court noted, however, that the proviso to article 337 does not create any additional requirement on the Anglo‑Indian community beyond the mandate that at least forty percent of annual admissions be made available to non‑Anglo‑Indian pupils. Consequently, any advice issued by the State in clause seven, if it were to be followed, would impose an extra burden on the Anglo‑Indian schools that is not mandated by the Constitution itself. The Court further considered the covering circular numbered SSN 2054(b), issued on the same day as the order. That circular hinted, albeit covertly, that the order might necessitate a change in the existing method for the equitable distribution of the total grant among Anglo‑Indian schools, even though the order was not intended to alter the amount of grant that the Constitution makes available for distribution. The Court held that if, in light of the circular, clause seven is treated as operative—meaning that failure to comply with it could lead to the loss of all or part of the grant because of a change in the distribution procedure—then clause seven would effectively add a further condition to article 337 for the receipt of the special grant by Anglo‑Indian schools. Conversely, if clause seven is regarded merely as non‑binding advice that may be accepted or ignored, then clause five operates as an absolute prohibition against admitting pupils who are not Anglo‑Indians or citizens of non‑Asiatic descent into Anglo‑Indian schools. Such a prohibition would force the schools to breach their constitutional obligation under article 337 and consequently forfeit their right to the special grants. The Court concluded that, under either interpretation, the impugned order must be regarded as unconstitutional. The Court further expressed the view that the second question raised in these appeals must also be answered against the State, given article 337.
Regarding the question that arose under article 337, the Court determined that the answer to that question must be directed against the State. After reviewing the entire discussion presented in the preceding portions of the judgment, the Court found that there was no substantive ground on which the appeals could be sustained. In light of that finding, the Court concluded that the proper result was the dismissal of the appeals. Accordingly, the Court issued an order that required the State to bear the costs incurred by the respondents in these proceedings. The order expressly recorded that the appeals were dismissed, thereby bringing the matter to a final closure.