Ahmedabad St. Xavier's College Society v.

State of Gujarat, (1974) 1 SCC 717

Facts: The petitioners, was administering the St. Xavier’s College at Ahmadabad with the
objective of providing higher education to Christian students. The St Xavier’s College
Society filed the writ against the sections 33-A, 40, 41, 51-A and 52-A of Gujarat University
(Amendment) Act, 1972. The amendment provided for university nominees in the governing
and selection bodies of all colleges, conversion of all affiliated colleges to constituent
colleges, approval of Vice Chancellor for disciplinary action against members of teaching
staff, and reference of dispute between the staff and management to arbitration in which the
umpire has to be Vice Chancellor’s nominee. The crux of the matter was the autonomy of the
educational institutions and what were the limits of governmental interference, especially in
the matter of appointment and dismissal of teachers and admission of students of the minority
community.

This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 781
89. A liberal, generous and sympathetic approach is reflected in the Constitution in the matter
of the preservation of the right of minorities so far as their educational institutions are
concerned. Although attempts have been made in the past to whittle down the rights of the
minorities in this respect, the vigilant sections of the minorities have resisted such attempts.
Disputes have consequently arisen and come up before this Court for determining whether
the impugned measures violate the provisions of the Constitution embodied in Articles 29
and 30. This Court has consistently upheld the rights of the minorities embodied in those
articles and has ensured that the ambit and scope of the minority rights is not narrowed down.
The broad approach has been to see that nothing is done to impair the rights of the minorities
in the matter of their educational institutions and that the width and scope of the provisions of
the Constitution dealing with those rights are not circumscribed. The principle which can be
discerned in the various decisions of this Court is that the catholic approach which led to the
drafting of the provisions relating to minority rights should not be set at naught by narrow
judicial interpretation. The minorities are as much children of the soil as the majority and the
approach has been to ensure that nothing should be done as might deprive the minorities of a
sense of belonging, of a feeling of security, of a consciousness of equality and of the
awareness that the conservation of their religion, culture, language and script as also the
protection of their educational institutions is a fundamental right enshrined in the
Constitution. The same generous, liberal and sympathetic approach should weigh with the
courts in construing Articles 29 and 30 as marked the deliberations of the Constitution-
makers in drafting those articles and making them part of the fundamental rights. The
safeguarding of the interest of the minorities amongst sections of population is as important
as the protection of the interest amongst individuals of persons who are below the age of
majority or are otherwise suffering from some kind of infirmity. The Constitution and the
laws made by civilised nations, therefore, generally contain provisions for the protection of
those interests. It can, indeed, be said to be an index of the level of civilisation and catholicity
of a nation as to how far their minorities feel secure and are not subject to any discrimination
or suppression.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 781
90. We may now deal with the scope and ambit of the right guaranteed by clause (1) of
Article 30. The clause confers a right on all minorities, whether they are based on religion or
language, to establish and administer educational instructions of their choice. The right con
ferred by the clause is in absolute terms and is not subject to restrictions, as in the case of
rights conferred by Article 19 of the Constitution. The right of the minorities to administer
educational institutions does not, however, prevent the making of reasonable regulations in
respect of those institutions. The regulations have necessarily to be made in the interest of the
institution as a minority educational institution. They have to be so designed as to make it an
effective vehicle for imparting education. The right to administer educational institutions can
plainly not include the right to maladminister. Regulations can be made to prevent the
housing of an educational institution in unhealthy surroundings as also to prevent the setting
up or continuation of an educational institution without qualified teachers. The State can
prescribe regulations to ensure the excellence of the institution. Prescription of standards for
educational institutions does not militate against the right of the minority to administer the
institutions. Regulations made in the true interests of efficiency of instruction, discipline,
health, sanitation, morality, public order and the like may undoubtedly be imposed. Such
regulations are not restrictions on the substance of the right which is guaranteed: they secure
the proper functioning of the institution, in matters educational [see observations of Shah, J.
in Rev. Sidhajbhai Sabhai p. 850]. Further as observed by Hidyatullah, C.J. in the case
of Very Rev. Mother Provincial the standards concern the body politic and are dictated by
considerations of the advancement of the country and its people. Therefore, if universities
establish 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.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 782
91. It is, in my opinion, permissible to make regulations for ensuring the regular payment of
salaries before a particular date of the month. Regulations may well provide that the funds of
the institution should be spent for the purposes of education or for the betterment of the
institution and not for extraneous purposes. Regulations may also contain provisions to
prevent the diversion of funds of institutions to the pockets of those incharge of management
or their embezzlement in any other manner. Provisions for audit of the accounts of the
institution would be permissible regulation. Likewise, regulations may provide that no anti-
national activity would be permitted in the educational institutions and that those employed
as members of the staff should not have been guilty of any activities against the national
interest. Minorities are as much part of the nation as the majority, and anything that impinges
upon national interest must necessarily in its ultimate operation affect the interests of all those
who inhabit this vast land irrespective of the fact whether they belong to the majority or
minority sections of the population. It is, therefore, as much in the interest of minorities as
that of the majority to ensure that the protection afforded to minority institutions is not used
as a cloak for doing something which is subversive of national interests. Regulations to
prevent anti-national activities in educational institutions can, therefore, be considered to be
reasonable.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 783
92. A regulation which is designed to prevent maladministration of an educational institution
cannot be said to offend clause (1) of Article 30. At the same time it has to be ensured that
under the power of making regulations nothing is done as would detract from the character of
the institution as a minority educational institution or which would impinge upon the rights of
the minorities to establish and administer educational institutions of their choice. The right
conferred by Article 30(1) is intended to be real and effective and not a mere pious and
abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be
allowed to be whittled down by any measure masquerading as a regulation. As observed by
this Court in the case of Rev. Sidhajbhai Sabhai, 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 minority institution
effective as an educational institution. Such regulation must satisfy a 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.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 784
94. If a request is made for the affiliation or recognition of an educational institution, it is
implicit in the request that the educational institution would abide by the regulations which
are made by the authority granting affiliation or recognition. The said authority can always
prescribe regulations and insist that they should be complied with before it would grant
affiliation or recognition to an educational institution. To deny the power of making
regulations to the authority concerned would result in robbing the concept of affiliation or
recognition of its real essence. No institution can claim affiliation or recognition until it
conforms to a certain standard. The fact that the institution is of the prescribed standard
indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for
the authority concerned to prescribe regulations which must be complied with before an
institution can seek and retain affiliation and recognition. Question then arises whether there
is any limitation on the prescription of regulations for minority educational institutions. So far
as this aspect is concerned, the authority prescribing the regulations must bear in mind that
the Constitution has guaranteed a fundamental right to the minorities for establishing and
administering their educational institutions. Regulations made by the authority concerned
should not impinge upon that right. Balance has, therefore, to be kept between the two
objectives, that of ensuring the standard of excellence of the institution and that of preserving
the right of the minorities to establish and administer their educational institutions.
Regulations which embrace and reconcile the two objectives can be considered to be
reasonable.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 785
96. Question has been posed during the course of arguments whether the educational
institutions referred to in clause (1) of Article 30 must only be those institutions which have
been established with a view to conserve language, script or culture of a minority. To put it in
other words, the question is whether clause (1) of Article 30 is subject to the provisions of
clause (1) of Article 29. In this respect I am of the view that clause (1) of Article 29 and
clause (1) of Article 30 deal with distinct matters, and it is not permissible to circumscribe or
restrict the right conferred by clause (1) of Article 30 by reading in it any limitation imported
from clause (1) of Article 29. Article 29(1) confers a right on any section of citizens having a
distinct language, script or culture of its own to conserve the same. It is not necessary, as
mentioned earlier, for invoking this clause that the section of citizens should constitute a
minority. As against that, the right conferred by Article 30(1) is only upon minorities which
are based either on religion or language. The right conferred by Article 29(1) is for the
conservation of language, script or culture, while that guaranteed by Article 30(1) is for the
establishment and administration of educational institutions of the choice of minorities. Had
it been the intention of the Constitution-makers that the educational institutions which can be
established and administered by minorities should be only those for conservation of their
language, script or culture, they would not have failed to use words to that effect in Article
30(1). In the absence of those words, it is difficult to subscribe to the view that educational
institutions mentioned in Article 30(1)are only those which are intended to conserve
language, script or culture of the minority. Clause (1) of Article 30 also contains the words
“of their choice”. These words which qualify “educational institutions” show the vast
discretion and option which the minorities have in selecting the type of institutions which
they want to establish. In case an educational institution is established by a minority to
conserve its distinct language, script or culture, the right to establish and administer such
institution would fall both under Article 29(1) as well as under Article 30(1). The minorities
can, however, choose to establish an educational institution which is purely of a general
secular character and is not designed to conserve their distinct language, script or culture. The
right to establish and administer such an institution is guaranteed by Article 30(1) and the fact
that such an institution does not conserve the distinct language, script or culture of a minority
would not take it out of the ambit of Article 30(1).
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 786
98. It has been argued on behalf of the respondents that there is no fundamental right to
affiliation or recognition and that a minority educational institution seeking affiliation or
recognition must conform to the conditions which are prescribed for recognition or
affiliation. So far as this aspect is concerned, I am of the view that it is permissible for the
State to prescribe reasonable regulations like the one to which I have referred earlier and
make it a condition precedent to the according of recognition or affiliation to a minority
institution. It is not, however, permissible to prescribe conditions for recognition or affiliation
which have the effect of impairing the right of the minority to establish and administer their
educational institutions. Affiliation and recognition are, no doubt, not mentioned in Article
30(1), the position all the same remains that refusal to recognize or affiliate minority
institutions unless they (the minorities) surrender the right to administer those institutions
would have the effect of rendering the right guaranteed by Article 30(1) to be wholly illusory
and indeed a teasing illusion. It is, in our opinion, not permissible to exact from the minorities
in lieu of the recognition or affiliation of their institutions a price which would entail the
abridgement or extinguishment of the right under Article 30(1). An educational institution
can hardly serve any purpose or be of any practical utility unless it is affiliated to a University
or is otherwise recognised like other educational institutions. The right conferred by Article
30 is a real and meaningful right. It is neither an abstract right nor is it to be exercised in
vacuum. Article 30(1) was intended to have a real significance and it is not permissible to
construe it in such a manner as would rob it of that significance. It may be appropriate in this
context to refer to the observations of Das, C.J. in the case of Re Kerala Education Bill on p.
1067-68:
“Without recognition, therefore, the educational institutions established or to be established
by the minority communities cannot fulfil the real objects of their choice and the rights under
Article 30(1) cannot be effectively exercised. The right to establish educational institutions of
their choice must, therefore, mean the right to establish real institutions which will effectively
serve the needs of their community and the scholars who resort to their educational
institutions. There is, no doubt, no such thing as fundamental right to recognition by the State
but to deny recognition to the educational institutions except upon terms tantamount to the
surrender of their constitutional right of administration of the educational institutions of their
choice is in truth and in effect to deprive them of their rights under Article 30(1). We repeat
that the legislative power is subject to the fundamental rights and the legislature cannot
indirectly take away or abridge the fundamental rights which it could not do directly and yet
that will be the result if the said Bill containing any offending clause becomes law.”
Similar view was expressed in the case of Rev. Sidhajbhai Sabhai wherein it was observed:
(SCR p. 846)
“The Government also holds examinations for granting certificates to successful candidates
as trained primary teachers, and scholars receiving training in recognised institutions alone
are entitled to appear at the examination. Manifestly, in the absence or recognition by the
Government training in the College will have little practical utility. The College is a non-
profit making institution and depends primarily upon donations and Government grant for
meeting its expenses. Without such grant, it would be extremely difficult if not impossible for
the institution to function.”
What is said above with regard to aid or recognition applied equally to affiliation of a college
to the University because but for such affiliation the student will not be able to obtain a
University degree which is recognised as a passport to several professions and future
employment in public services.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 788
100. It is, no doubt, true that on p. 1065 of the case of Re Kerala Education Bill, Das, C.J.
while dealing with clauses 14 and 15 of the Bill observed that the provisions of those clauses
might be totally destructive of the rights under Article 30(1). These observations were
intended to describe the effect of those clauses. There is, however, nothing in those
observations to indicate that this Court would have upheld those clauses if those clauses had
abridged or partially destroyed the right under Article 30(1) and not totally destroyed that
right.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 788
101. In the light of the above principles, it can be stated that law which interferes with the
minorities choice of a governing body or management council would be violative of the right
guaranteed by Article 30(1). This view has been consistently taken by this Court in the cases
of Rt. Rev. Bishop S.K. Patro, Mother Provincial and D.A.V. College (affiliated to the Guru
Nanak University).
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 789
103. Another conclusion which follows from what has been discussed above is that a law
which interferes with a minority's choice of qualified teachers or its disciplinary control over
teachers and other members of the staff of the institution is void as being violative of Article
30(1). It is, of course, permissible for the State and its educational authorities to prescribe the
qualifications of teachers, but once the teachers possessing the requisite qualifications are
selected by the minorities for their educational institutions, the State would have no right to
veto the selection of those teachers. The selection and appointment of teachers for an
educational institution is one of the essential ingredients of the right to manage an educational
institution and the minorities can plainly be not denied such right of selection and
appointment without infringing Article 30(1). In the case of Rev. Father W. Proost this Court
while dealing with Section 48-A of the Bihar Universities Act observed that the said
provision completely took away the autonomy of the governing body of the college and
virtually vested the control of the college in the University Service Commission. The
petitioners in that case were, therefore, held entitled to the protection of Article 30(1) of the
Constitution. The provisions of that section have been referred to earlier. According to the
section, subject to the approval of University appointment, dismissals, removals, termination
of service or reduction in rank of teachers of an affiliated college not belonging to the State
Government would have to be made by the governing body of the college on the
recommendation of the University Service Commission. The section further provided that the
said Commission would be consulted by the governing body of a college in all disciplinary
matters affecting teachers of the college and no action would be taken against or any
punishment imposed upon a teacher of a college otherwise than in conformity with the
findings of the Commission.

Concurring Opinion of Justice KK Mathew

This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 791
108. In view of what has been mentioned above, Sections 40 and 41 of the Act would also
have to be struck down so far as the minority colleges are concerned as being violative of
Article 30(1). The effect of Sections 40 and 41 is that in case the University so determines
and the State Government issues the necessary notification under sub-section (2) of Section
40, all instructions, teaching and training in undergraduate courses shall within the University
area be conducted by the University and shall be imparted by the teachers of the University.
The result would be that except in matters mentioned in the proviso to sub-section (4) of
Section 41 no instructions, teaching and training in undergraduate courses of study, which
has hithertofore been conducted by the affiliated colleges, would be conducted by those
colleges, because the same would have to be conducted by the University and would have to
be imparted by the teachers of the University. The affiliated colleges would also as a result of
the above become constituent colleges. A provision which makes it imperative that teaching
in undergraduate courses can be conducted only by the University and can be imparted only
by the teachers of the University plainly violates the rights of minorities to establish and
administer their educational institutions. Such a provision must consequently be held qua
minority institutions to result in contravention of Article 30(1). I would, therefore, strike
down Section 40 so far as minority educational institutions are concerned as being violative
of Article 30(1). Further, once Section 40 is held to be unconstitutional so far as minority
educational institutions are concerned, the same vice would afflict Section 41 because
Section 41 can operate only if Section 40 survives the attack and is held to be not violative of
Article 30(1). I would, therefore, hold Sections 40 and 41 to be void in respect of minority
educational institutions.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 793
111. In a matter like this, one may perhaps have also to take into account the accepted norms
for the imparting of education. So far as post-graduate teaching is concerned, the general
pattern which prevails and has been accepted so far is that the education is imparted by the
University. As against that, the mode for undergraduate teaching has been that it is imparted
by the individual colleges. A very large number of colleges, including minority colleges, have
been established and are in existence for the purpose of imparting undergraduate education.
The impugned provisions are calculated to do away with the present system and in the
process they impinge upon the rights of minorities under Article 30(1). It would not be a
correct approach to the problem to hold that because the imparting of post-graduate teaching
by the Universities has been accepted without objection, the same rule should also hold good
for the undergraduate teaching and the same should not be impermissible. Such a process of
extension, in my opinion, is not very helpful. If it is permissible for the State to prevent the
imparting of education by colleges at undergraduate level because such a course has been
accepted at post-graduate level, there would be no reason why this principle be not extended
further to the school education. The process of extension can thus totally annihilate the right
guaranteed by Article 30(1).
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 799
134. Over one and a half decades ago, Chief Judge Das led this Court in holding that without
recognition, the educational institutions established or to be established by the minority
communities cannot fulfil the real objects of their choice and that the right under Article
30(1) cannot be effectively exercised. He said that the right to establish educational
institutions of their choice means the right to establish real institutions which will effectively
serve the needs of their community and the scholars who resort to their educational
institutions and that though there is no such thing as a fundamental right to recognition by the
State, yet to deny recognition to the educational institutions except upon terms tantamount to
the surrender of their constitutional right of administration of the educational institutions of
their choice is in truth and in effect to deprive them of their rights under Article 30(1) [see In
re The Kerala Education Bill, 1957].
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 799
135. The reason why the Constitution-makers were at pains to grant religious minorities the
fundamental right to establish and administer educational institutions of their choice is to give
the parents in those communities an opportunity to educate their children in institutions
having an atmosphere which is congenial to their religion. Whatever be one's own
predilections those who think that man does not live by bread alone but also by the word that
comes from God cannot remain indifferent to the problem of religion in relation to and as part
of education.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 799
136. As a matter of fact, according to several religious minorities, the State maintains a
system of schools and colleges which is not completely satisfactory to them, inasmuch as no
place is given to religion and morality. The sheer omission of religion from curriculum is
itself a pressure against religion. Since they realize that the teaching of religion and
instruction in the secular branches cannot rightfully or successfully be separated one from the
other, they are compelled to maintain their own system of schools and colleges for general
education as well as for religious instruction.
“It is important to examine the raison d'etre of educational institutions administered by
religious groups. Clearly, their establishment does not come about because of a deep
conviction that such institutions will be able to reach the facts of literature, geography or
mathematics better than state schools. Rather, such schools are started with a primarily
religious objective — to secure the opportunity for direct religious instruction and to develop
a religious atmosphere and viewpoint even for the study of literature, geography and
mathematics. In other words, religious body establishes and maintains schools in order to
create a total environment which will be favourable to the promotion of its particular
religious values.” [ See “India as a Secular State” by Donald Eugene Smith, p. 361.]
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 800
138. The State cannot insist that the children belonging to the religious minority community
should be educated in State-maintained educational institutions or in educational institutions
conducted by the majority. The State's interest in education, so far as religious minorities are
concerned, would be served sufficiently by reliance on secular education accompanied by
optional religious training in minority schools and colleges, if the secular education is
conducted there according to the prescribed curriculum and standard. Article 28(3) implies
that a religious minority administering an educational institution imparting general secular
education has the liberty to provide for religious education in the institution. The continued
willingness to rely on colleges conducted by religious or linguistic minorities for imparting
secular education strongly suggests that a wide segment of informed opinion has found that
these colleges do an acceptable job of providing secular education. The State, concededly,
has power to regulate and control the education of its children, but it cannot, by a general law
compelling attendance at public school or college, preclude attendance at the school or
college established by the religious minority, when the parents seek to secure the benefit of
religious instruction not provided in public schools. The parents have the right to determine
to which school or college their children should be sent for education.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 800
139. We fail to see how affiliation of an educational institution imparting religious instruction
in addition to secular education to pupils as visualized in Article 28(3) would derogate from
the secular character of the state. Our Constitution has not erected a rigid wall of separation
between church and state. We have grave doubts whether the expression “secular state” as it
denotes a definite pattern of church and state relationship can with propriety be applied to
India. It is only in a qualified sense that India can be said to be a secular state. There are
provisions in the Constitution which make one hesitate to characterize our state as secular. Dr
Radhakrishnan has said:
“The religious impartiality of the Indian State is not to be confused with secularism or
atheism. Secularism as here defined is in accordance with the ancient religious tradition of
India. It tries to build up a fellowship of believers, not by subordinating individual qualities to
the group mind but by bringing them into harmony with each other. This dynamic fellowship
is based on the principle of diversity in unity which alone has the quality of creativeness.
[ Recovery of Faith, p. 202 (Italic ours.)] Secularism here does not mean irreligion or atheism
or even stress on material comforts. It proclaims that it lays stress on the universality of
spiritual values which may be attained by a variety of ways.” [ Dr Radhakrishnan's Foreword
to Dr S. Abid Hussain's, The National Culture of India, p. (vii)]
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 801
140. In short secularism in the context of our Constitution means only “an attitude of live and
let live developing into the attitude of live and help live” [ Hoarace M. Kallen, Secularism is
the Will of God, pp. 11, 12, 13] .
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 801
141. The fundamental postulate of personal liberty excludes any power of the State to
standardize and socialize its children by forcing them to attend public schools only. A child is
not a 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
[ See Pierce v. Society of Sisters of Holy Names, 268 US 510, 535] .
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 801
142. The parental right in education is the very pivotal point of a democratic system. It is the
touchstone of difference between democratic education and monolithic system of cultural
totalitarianism. When the modern State with its immense power embarks upon the mission of
educating its children, the whole tendency is towards state monopoly. The fundamental right
of the religious and linguistic minorities to establish and administer educational institutions of
their choice is the only legal barrier to confine the bursting expansionism of the new
Educational Leviathan. Great diversity of opinion exists among the people of this country
concerning the best way to train children for their place in society. Because of these
differences and because of reluctance to permit a single iron cast system of education to be
imposed upon a nation compounded of several strains, the Constitution has provided this
right to religious and linguistic minorities.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 802
145. The State's interest in secular education may be defined broadly as an interest in
ensuring that children within its boundaries acquire a minimum level of competency in skills,
as well as a minimum amount of information and knowledge in certain subjects. Without
such skill and knowledge, an individual will be at a severe disadvantage both in participating
in democratic self-Government and in earning a living. No one can question the constitutional
right of parents to satisfy their State-imposed obligation to educate their children by sending
them to schools or colleges established and administered by their own religious minority so
long as these schools and colleges meet the standards established for secular education.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 802
146. The concept of the common pattern of secular education needs to be brought down to
the earth of reality and divested of its fuzzy mystification. The concept has nothing to do with
an artificial Government-promoted levelling of all differences. The public school is not a
temple in which all children are to be baptized into unity of secular democratic faith, while
those who stand without are faintly heretical.
“In democratic countries therefore the freedom of offering education of different types with
different values within the framework of the constitution should not be needlessly
circumscribed. This is intimately connected with the freedom of thought. The control over
colleges suggested above should be such as to secure ultimately observance of these high
principles by colleges of their own accord and not through fear of action by the university”
[ See Report of the Committee on ‘Model Act for Universities’ Chapter v. Colleges and
Students' Welfare, p. 28] .
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 802
148. The framers of the Constitution were not unaware that under the system which they
created, most of the legislative or Governmental curtailments of the guaranteed fundamental
rights will have the support of legislative judgment that public interest will be served by its
curtailment than by its constitutional protection. There can be no surrender of constitutional
protection of the right of minorities to popular will masquerading as the common pattern of
education. This is the reason why this Court has, time and again pointed to the importance of
a searching judicial enquiry into legislative judgment in situations where prejudice against
discrete and insular minorities may tend to curtail rights intended to protect them. That the
minorities might be unable to find protection in political process and, therefore, the Court
might appropriately regard their interest with special solicitude was suggested by Stone, J. in
his famous foot-note to United States v. Carolene Prod. Code [304 US 144] .
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 803
150. Let us now examine the validity of the argument that as there is no right, fundamental or
otherwise, to recognition or affiliation, the Government may withhold recognition or
affiliation for any reason or impose any condition for the same, and consequently, it may
withhold or revoke it even though the reason for doing so may be the minority's refusal to
surrender its constitutional rights to administer the institution. This argument is phrased in
syllogistic terms: Article 30(1) does not confer a fundamental right upon a religious or
linguistic minority to obtain recognition or affiliation; a State Legislature has no duty or
obligation to set up or establish a university with facilities for affiliation of educational
institutions, let alone those established and administered by the religious or linguistic
minorities; in fact, there are many universities which are only teaching universities and which
do not provide for any facility for affiliation; if the Legislature is competent to establish
universities without providing any facility for affiliation or recognition and thereby withhold
affiliation, it may grant it in a limited form since the greater power of withholding absolutely
must necessarily include the lesser power of granting it with restrictions and conditions and,
therefore, the Legislature has power to impose conditions on affiliated colleges established
and administered by the religious or linguistic minorities which result in their becoming
constituent colleges. And, as a corollary to this argument, it is submitted that the recipient of
the benefit or facility, namely, the religious or linguistic minority, is not deprived of its
fundamental right since it may retain its fundamental right simply by rejecting the proffered
benefit or facility.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 803
151. We think that dangerous consequences will follow if the logic of the argument is
accepted in all cases. The rapid rise in the number of Government regulatory and welfare
programmes, coupled with the multiplication of Government contracts resulting from
expanded budgets, has greatly increased the total number of benefits or privileges which can
be conferred by Government, thus affording the government countless new opportunities to
bargain for the surrender of constitutional rights. With the growth of spending power of the
State — a necessary accompaniment of the modern welfare State — the potentiality of
control through the power of purse has grown apace. [ See “The New Property” by Charles
A. Reich, 73 Yale Law Journal, 733]

This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 835
S.N. Dwivedi, J. (partly dissenting)— Since I partly agree and partly disagree with the
plurality-opinions, it has become necessary for me to write a separate judgment.
CONTRAST BETWEEN ARTICLES 25 AND 26
AND 30(1) OF THE CONSTITUTION
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 836
236. While Articles 25 and 26 are concerned with religious freedom, Article 30(1) extends
the right of establishing and administering an educational institution not only to a religious
minority but also to a linguistic minority who may be even atheists. So the scope of Article
30(1), as regards both the content of the right and the beneficiaries of the right, is wider than
that of Articles 25 and 26.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 837
244. Evidently, there is no express grant of the right of affiliation in Article 30(1). In my
view, it is not also necessarily implied in Article 30(1). My reasons are these: (1) the context
does not favour the asserted implication. The framers of the Constitution have taken special
care to dissipate doubts as regards choice by the words “of their choice”. They have also
taken special care to extend a guarantee to a minority educational institution against
discrimination in the matter of aid from the State on the ground that it is under the
management of a minority based on religion or language. [See Article 30(1)]. If they had
intended to elevate the right of affiliation to the status of a fundamental right, they could have
easily expressed their intention in clear words in Article 30. It is obvious that a minority
institution imparting only religious instruction or teaching its own theology would neither
need nor seek affiliation. It would not seek affiliation because affiliation is bound to reduce
its liberty at least to some extent. Again, as our State is secular in character, affiliation of an
institution imparting religious instruction or teaching only theology of a particular religious
minority may not comport with the secular character of the State. As Article 30(1) does not
grant the right of affiliation to such an institution, it cannot confer that right on an institution
imparting secular general education. The content of the right under Article 30(1) must be the
same for both kinds of institutions. [See Re Kerala Education Bill at pp. 1076-1077 per
Venkatarama Iyer, J.]
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 839
249. It is true that Article 30(1) is expressed in spacious and unqualified language. And so is
Article 14: “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.” However, this Court has read the
limitation of classification in the general and unrestricted language of Article 14.
“(T)he general language of Article 14 ... has been greatly qualified by the recognition of the
State's regulating power to make laws operating differently on different classes of persons in
the governance of its subjects, with the result that the principle of equality of civil rights and
of equal protection of the laws is only given effect to as a safeguard against arbitrary State
action.” (State of West Bengal v. Anwar Ali Sakar: [AIR 1952 SC 75 : 1952 SCR 284 at p.
295 : 1952 Cri LJ 510] per Patanjali Sastri, C.J.)
“Article 14 confers a right by enacting a prohibition which in form, at least is absolute ...
but ... Article 14 is not really absolute, for the doctrine of classification has been incorporated
in it by judicial decisions. Article 14, as interpreted by the courts would run in some such
words as these: The State shall not deny to any person equality before the law or equal
protection of the law provided that nothing herein contained shall prevent the State from
making a law based on or involving a classification founded on an intelligible differentia
having a rational relation to the object sought to be achieved by the law.” (Constitutional
Law of India by H.M. Seervai, 1967 Edn. p. 188.)
According to Patanjali Sastri, C.J., the necessity of making special laws to attend particular
ends obliged the Court to read down the wide language of Article 14. (Chiranjit Lal v. Union
of India [AIR 1951 SC 41 : 1950 SCR 869, 890] and Kathi Raning Rawat v. State of
Saurashtra [AIR 1952 SC 123 : 1952 SCR 435, 442] .
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 842
257. To sum up, Articles 29(2), 15(4) and 28(3) place certain express limitations on the right
in Article 30(1). There are also certain implied limitations on this right. The right should be
read subject to those implied limitations.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 842
258. Part III of the Constitution confers certain rights on individuals, on groups and on
certain minority groups. Those rights constitute a single indivisible balancing system of
Liberty in our Constitution. The system implies order and harmony among the various rights
constituting our Liberty according to the necessities of each case. Obviously, the rights could
never have been intended by the Constitution-makers to be in collision with one another. For
instance, a citizen cannot exercise his right of freedom of speech and expression on another
man's property without his leave, for such exercise of right would violate the latter's right to
hold property conferred on him under Article 19(1)(g). Although the right of a religious
denomination under Article 26 to manage its own affairs is not expressly made subject to
Article 25(2)(b) which protects a law throwing open Hindu religious institutions of a public
character to all classes of Hindus, this Court upheld the validity of a law throwing open
public temples to exclude class of Hindus. Speaking for the Court, Venkatarama Aiyar, J.
said:
“The result then is that there are two provisions of equal authority, neither of them being
subject to the other. The question is how the apparent conflict between them is to be resolved.
The rule of construction is well settled that when there are in an enactment two provisions
which cannot be reconciled with each other, they should be so interpreted that, if possible,
effect could be given to both. This is what is known as the rule of harmonious construction.
Applying this rule, if the contention of the appellants is to be accepted then Article 25(2)(b)
will become wholly nugatory in its application to denominational temples, though, as stated
above, the language of that Article includes them. On the other hand, if the contention of the
respondents is accepted, then full effect can be given to Article 26(b) in all matters of
religion, subject only to this that as regards one aspect of them, entry into a temple for
worship, the rights declared under Article 25(2)(b) will prevail. While, in the former case,
Article 25(2)(b) will be put wholly out of operation, in the latter, effect can be given to both
that provision and Article 25(b). We must accordingly hold that Article 26(b) must be read
subject to Article 25(2)(b).” (Sri Venkataramana Devaru v. State of Mysore) [AIR 1958 SC
255 : 1958 SCR 895, 918]
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 842
259. Accordingly, the right in Article 30(1) cannot, in my view, be so exercised as to violate
a citizen's legal or constitutional rights. Thus the management cannot punish a member of the
teaching or non-teaching staff or a student for legitimate exercise of his freedom of speech
and expression or of forming associations or unions.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 843
260. The Constitution-makers have endeavoured to unite the people of our country in a
democratic Republic. The democratic Republic would not last long if its members were in
constant war among themselves for the ascendancy of their separate rights. It will soon drift
into Absolutism of one kind or another. European history demonstrates that whenever one
group has attempted to deny liberty to another group, it has lost its own liberty. Pagans
persecuted Christians and lost their own liberty. Christians, in their turn, denied religious
freedom to pagans and surrendered their own freedom either to an Absolute Emperor or to an
Infallible Pope. Catholics and Protestants denied religious freedom to one another and
strengthened the absolutism of the monarchy.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 843
261. Absolute rights are possible only in the moon. It is impossible for a member of a
civilized community to have absolute rights. Some regulation of rights is necessary for due
enjoyment by every member of the society of his own rights.
This extract is taken from Ahmedabad St. Xavier's College Society v. State of Gujarat,
(1974) 1 SCC 717 at page 850
291. I do not think that any legitimate objection can be taken to sub-section (1). Merely
because an affiliated college is made a constituent college of the University, would not
necessarily offend Article 30(1). The definition of the expression “constituent college” by
itself is innocuous. After all, someone has said: “What is there in a name!” The concept of a
constituent college is fluid. It is the degree of external control exercised over the
administration of a minority college, and not its statutory name, that is relevant for the
purposes of Article 30(1). For instance, the associate colleges (which are similar to affiliated
colleges) of the Allahabad University are subject to University control in the matter of
appointnmt of teachers. But the Motilal Nehru Medical College, Allahabad, which is a
constituent college of that University, is not subject to such control. While the Selection
Committee selecting teachers to the associate colleges consists of certain University
authorities, the selection of teachers to the constituent college is made wholly by the U.P.
Public Service Commission and the University has no voice whatsoever in the selection of
the teachers. (See Allahabad University Calendar, 1968.) Sub-section (3) cannot also be
objected to. It permits an affiliated college which does not want to be a constituent college to
get affiliated to another University with the permission of the State and the Gujarat
University.