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IN
RE THE KERALA EDUCATION BILL, 1957 REFERENCE UNDER
ARTICLE 143(1) OF THE CONSTITUTION OF INDIA.
Special Reference. No.1 of 1958,
Date of Decision: 22.5.1958 |
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This reference was made
by the President under Article 143(1) of the Constitution
of India for the opinion of the Court on certain
questions of law of considerable public importance
that had arisen out of or touching certain provisions
of the Kerala Education Bill, 1957, which was
passed by the Legislative Assembly of the State
of Kerala on September 2, 1957, and was, under
Article 200, reserved by the Governor of Kerala
for the consideration of the President. After
reciting the fact of the passing of the said Bill
by the Legislative Assembly of Kerala and of the
reservation thereof by its Governor for the consideration
of the President and after setting out some of
the clauses of the said Bill and specifying the
doubts that may be said to have arisen out of
or touching the said clauses, the President referred
to the Court certain questions for consideration
and report.
The Bill contained many provisions imposing considerable
State control over the management of the educational
institutions in the State, aided or recognised.
The Court Noted:
The provisions, insofar as they affect the aided
institutions, are much more stringent than those
which apply only to recognised institutions. The
width of the power of control thus sought to be
assumed by the State evidently appeared to the
President to be calculated to raise doubts as
to the constitutional validity of some of the
clauses of the said Bill on the ground of apprehended
infringement of some of the fundamental rights
guaranteed to the minority communities by the
Constitution, and accordingly in exercise of the
powers vested in him by Article 143(1) the President
has referred to this Court, for consideration
and report the following questions:
“(1)
Does sub-clause (5) of clause 3 of the Kerala
Education Bill, read with clause 36 thereof or
any of the provisions of the said sub-clause,
offend Article 14 of the Constitution in any particulars
or to any extent?
(2) Do sub-clause (5) of clause 3, sub-clause
(3) of clause 8 and clauses 9 to 13 of the Kerala
Education Bill, or any provisions thereof, offend
clause (1) of Article 30 of the Constitution in
any particulars or to any extent?
(3) Does clause 15 of the Kerala Education Bill,
or any provisions thereof, offend Article 14 of
the Constitution in any particulars or to any
extent?
(4) Does clause 33 of the Kerala Education Bill,
or any provisions thereof, offend Article 226
of the Constitution in any particulars or to any
extent?”
The Court also noted:
Throughout the ages endless inundations of men
of diverse creeds, cultures and races —
Aryans and non-Aryans, Dravidians and Chinese,
Scythians, Huns, Pathans and Mughals — have
come to this ancient land from distant regions
and climes. India has welcomed them all. They
have met and gathered, given and taken and got
mingled, merged and lost in one body. India's
tradition has thus been epitomised in the following
noble lines:
“None shall be turned
away
From the shore of this vast sea of humanity
That is India”
India has sent out to the World her message of
goodwill enshrined and proclaimed in our National
Anthem:
“Day and night, thy voice
goes out from
land to land,
calling Hindus, Buddhists, Sikhs and Jains
round thy throne
and Parsees, Mussalmans and Christians.
Offerings are brought to thy shrine by
the East and the West
to be woven in a garland of love.
Thou bringest the hearts of all peoples
into the harmony of one life,
Thou Dispenser of India's destiny,
Victory, Victory, Victory to thee.”
The genius of India has been able to find unity
in diversity by assimilating the best of all creeds
and cultures.
MAJORITY VIEW:
36. In accordance with the
foregoing opinion we report on the questions as
follows:
Question 1: No.
Question 2: (i) Yes, so far as Anglo-Indian educational
institutions entitled to grant under Article 337
are concerned, (ii) As regards other minorities
not entitled to grant as of right under any express
provision of the Constitution, but are in receipt
of aid or desire such aid and also as regards
Anglo-Indian educational institutions insofar
as they are receiving aid in excess of what are
due to them under Article 337, clauses 8(3), and
9 to 13 do not offend Article 30(1) but clause
3(5) insofar as it makes such educational institutions
subject to clauses 14 and 15 do offend Article
30(1). (iii) Clause 7 (except sub-clause (1) and
(3) which applies only to aided schools) clause
10 insofar as they apply to recognised schools
to be established after the said Bill comes into
force do not offend Article 30(1) but clause 3(5)
insofar as it makes the new schools established
after the commencement of the Bill subject to
clause 20 does offend Article 30(1).
Question 3: No.
Question 4: No; clause 33 is subject to Article
226 of the Constitution.
REGARDING QUESTION NO.2 – Hon’ble
Mr. Justice Venkatarama Aiyar gave his separate
opinion by observing as under:
I agree that the answer to Questions 1, 3 and
4 should be as stated in the judgment of My Lord,
the Chief Justice. But as regards Question 2,
I am unable to concur in the view expressed therein
that Clause (20) of the Bill is, in its application
to educational institutions of minorities, religious
or linguistic, repugnant to Article 30(1) of the
Constitution, and is, in consequence, to that
extent void.
My answer to Question 2 is that, excepting clauses
(14) and (15), the other provisions of the Bill
do not offend Article 30(1) of the Constitution.
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