B.K. Office Needs Private Limited
Vs.
Divya Shakthi Granites Limited, Hyd

J U D G M E N T

G. ROHINI, J.

( 1 ) THESE two Civil Revision Petitions arising out of a common order in two interlocutory applications in O. S. No. 647 of 1996 on the file of the Court of the V Senior Civil Judge, City Civil Court, Hyderabad are heard together and decided by this common order:

( 2 ) THE defendant, who is the petitioner in the said two Interlocutory applications, is the Petitioner in both the Revision Petitions. For the sake of convenience the parties shall be referred as they were arrayed in the suit.

( 3 ) THE facts which are not in dispute are as follows; the plaintiff who is the respondent herein filed OS No. 674 of 1996 as a summary suit for recovery of Rs. 18,46,813. 36 Ps alleged to be due from the defendant. The defendant filed. A. No. 1139 of 1996 seeking leave to defend the suit. The said application was allowed by order dated 4-11-1997 subject to the condition of depositing Rs. 6,80,741. 42 Ps within six weeks. Aggrieved by the said order the defendant filed CRP No. 349 of 1998 but the same was dismissed on 19-6-1998 directing the defendant to deposit the amount within sixty days. However, the defendant failed to deposit the amount within the time granted and consequently. A. No. 1139 of 1996 was dismissed on 10-11-1998. In the meanwhile the defendant filed review CMP No. 20238 of 1998 seeking review of the order of this Court in CRP No. 349 of 1998 by permitting him to deposit the original title deeds of immovable property as security instead of depositing Rs. 6,80,741. 42 Ps to the credit of the suit. The said review petition was dismissed by this Court by order dated 31-12-1998, however, this Court granted time till 21-1-1999 to comply with the earlier order to deposit the amount. In compliance with the said order the defendant deposited the amount by way of demand draft dated 12-1-1999 vide memo dated 18-1-1999. He also filed IA No. 1221 of 1999 to receive the demand draft and the same was allowed on 27-1-2000. Thereafter on 5-4-2000 a notice was issued to the defendant by the Court below to get the demand draft revalidated on or before 10-4-2000. At the request of the defendant the Court below extended the time from time to time till 23-6-2000. At that stage the defendant filed IA No. 997 of 2000 to accept the Bank guarantee for Rs. 6,80,742. 00 in lieu of depositing the amount as per the order dated 4-11-1997 in IA No. 1139 of 1996. The defendant also filed IA No. 998 of 2000 to modify the order dated 4-11-1997 in. A. No. 1139 of 1996 directing deposit of Rs. 6,80,741. 42 Ps to the credit of the suit by receiving bank guarantee No. 2000005 issued by SBI Nungambakam Branch, Chennai for the same amount. In the affidavit filed in support of the said applications the petitioner-defendant stated that as per the notice received by them from the Court the demand draft deposited by them was returned by the Accounts Section of the Court on the ground that it was out of date. In the circumstances the defendant was asked to get the demand draft renewed. When they presented the demand draft for revalidation their Banker informed that revalidation is not possible since the Demand Draft was obtained from them availing credit facility subject to payment of high interest and a sum of about Rs. 30. 00 lakhs was outstanding for the past 1 1/2 years. In the circumstances the Bank cancelled the demand draft and appropriated the proceeds of the same towards the arrears outstanding to their credit as per the Rules of the Bank. However, the bank has agreed to issue bank guarantee for the same amount of Rs. 6,80,742. 00 as an alternative measure. While producing the said bank guarantee the defendant filed the aforesaid two applications seeking permission of the Court to modify the earlier order suitably and to accept the bank guarantee.

( 4 ) THE said applications were contested by the plaintiff by filing a detailed counter. The Court below by order dated 19-7-2000 dismissed both the applications holding that the reliefs sought by the defendant granted would amount to contempt of Court since the order in JA No. 1139 of 1996 directing to deposit the amount was upheld in C. R. P. No. 349 of 1998. Aggrieved by the said common order in IA Nos. 997 and 998 of 2000 the defendant preferred the present two civil revision petitions.

( 5 ) HEARD the learned Counsel for the petitioner as well as the respondent.

( 6 ) SRI V. LN. G. K. Murthy, representing Sri K. Suryanarayana, learned Counsel appearing for the petitioner submitted that admittedly the defendant-petitioner complied with the order in IA No. 1139 of 1996 by depositing the demand draft within the time prescribed by this Court in CRP No. 349 of 1998 and failure of the Court to encash the demand draft in time shall not cause any prejudice to the petitioner, and therefore, the Court below is not justified in dismissing the applications. While quoting the maxim “actus curiae neminem gravabit” the learned Counsel contended that in the facts and circumstances of the case it cannot be held that there is any default on the part of the defendant and therefore the party should not be made to suffer. In support of his contention the learned Counsel placed reliance upon Jung Singh v. Brij Lal, AIR 1966 SC 1631, and Johri Singh v. Sukh Pal Singh, AIR 1989 SC 2073.

( 7 ) THE principle underlying the maxim “actus curiae neminem gravabit” is that the act of Court should harm no one. The said maxim is founded upon the principle of justice and good conscience. Explaining the maxim the Courts have held that where an error was committed by the Court the same must be undone by the Court and the blame cannot be shifted to the party who was expected to rely upon the Court and its officers and to act in accordance with their directions.

( 8 ) IN Jung Singh v. Brij Lal (supra) a suit for pre-emption ended in a compromise decree directing the plaintiff to deposit Rs. 5,951. 00 less Rs. 1,000 already deposited by him by 1-5-1958 failing which the suit stands dismissed with costs. The plaintiff made the deposit in time, but on the basis of a challan prepared by the Clerk of the executing Court a sum of Rs. 4,950. 00 was deposited instead of Rs. 4,951. 00. Thereafter he obtained an order for possession of the land. However, subsequently it came to light that the deposit made by the plaintiff was short of one rupee. On an application of the defendant for dismissal of the suit the Court held that the pre-emptor by his failure to deposit the correct amount incurred the dismissal of the suit under the decree and accordingly directed restoration of possession of the land. On appeal by the plaintiff the appellate Court held that the plaintiff was prevented from depositing the full amount by the act of the Court and therefore the deposit made was sufficient compliance with the terms of the decree and accordingly set aside the order of the executing Court. However the High Court did not agree with the view taken by the appellate Court and restored the order of the executing Court. On an appeal to the Supreme Court while referring to the maxim “actus curiae neminem gravabit” it has been held as under: “it is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court is supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: “adits curiae neminem gravabit”. In the facts and circumstances of the case the Supreme Court held that the appellate Court was right in reversing the decision of the executing Court, but it is not correct to hold that the decree was sufficiently complied with since the decree can only be fully complied with by making the deposit of balance of rupee one. Accordingly the Supreme Court allowed the appeal and granted one month time for depositing the said one rupee.

( 9 ) SRI V. LN. G. K. Murthy also relied upon Johri Singh v. Sukh Pal Singh (supra ). In the said case the decree did not quantify the purchase money. There was an inadvertent error in arithmetic calculation and the application of the appellant together with the challan annexed was allowed by the Court without pointing the mistake. Consequently though the amount payable was deposited within the time fixed, there was a deficit of Rs. 100. 00. The trial Court allowed the application made by the appellant for enlarging the time in exercise of the discretion vested in him, apparently on the view that sufficient cause has been made out for non-deposit of Rs. 100. 00. However the said order was set aside by the High Court in Civil Revision under Section 115 of CPC. The Supreme Court while discussing the scope of Section 148 of CPC regarding extension of time and the scope of revisional jurisdiction under Section 115 of CPC held as follows:”. . . NOTHING has been brought to our notice on the basis of which it could be said that the discretion exercised by the Senior Subordinate Judge was in breach of any provision of law or that he committed any error of procedure which was material and may have affected the ultimate decision. That being so, the High Court had no power to interfere with the order of the Senior Subordinate Judge, however, profoundly it may have differed from the conclusions of that Judge on questions of fact or law. On the facts and circumstances of the case we feel justified in allowing this appeal, setting aside the impugned judgment of the High Court, and in restoring that of the Senior Subordinate Judge allowing 10 days time to deposit the balance of Rs. 100. 00 exercising power under Section 148, C. P. C. on facts of the case. “though the maxim “actus curiae neminem gravabit” was referred to, the principle underlying the said maxim was not applied while adjudicating the issue in question in Johri Singh v. Sukh Pal Singh (supra ). In my considered opinion the said decision is of no assistance to the contention raised by the petitioner.

( 10 ) THE facts in the decision of Jung Singh v. Brij Lal (supra) are also entirely different. In the said case a finding was recorded that the Court and its officers were largely attributed to the error which resulted in depositing lesser amount by the party. In the circumstances it was held that dismissing the suit because the party was also partly negligent does not exonerate the Court from its responsibility for the mistake. The wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for the said error the Court must take full responsibility and the error must be set right by the Court. Accordingly the Supreme Court observed that the case must go back to the stage when the mistake was committed by the Court and the party should be ordered to deposit one rupee which fell short and if he fails to make the deposit within the time specified the suit may be dismissed but not before. The principle laid down is that in view of the mistake of the Court which needs to be righted the parties shall be relegated to the position they occupy when the error was committed by the Court.

( 11 ) IN the instant case the Court below while granting leave to defend directed the defendant to deposit Rs. 6,80,741. 00 within six weeks. By order of this Court in CRP No. 349 of 1998 the time for depositing the amount was granted till 21-1-1999. It is also pertinent to note that the plea of the defendant to permit him to deposit the title deeds of immovable property as security instead of making cash deposit in compliance with the order in IA No. l 139 of 1996 was not accepted by this Court while dismissing the Review Petition in CRP No. 349 of 1998. Admittedly the defendant did not deposit the said amount in cash to the credit of the suit, but a demand draft dated 12-1-1999 was deposited, vide memo dated 18. 1. 3 999. Though the defendant filed IA No. 1221 of 1999 to receive the demand draft on 18-1-1999, the same was pending in the Court for about an year and ultimately it was allowed on 27-1-2000. There is absolutely no plea in the affidavit filed in support of the present applications that the defendant has taken any steps for expeditious disposal of 1a No. 1221 of 1999 nor there is any allegation of inaction on the part of the Court in allowing IA No. 1221 of 1999 inspite of diligent efforts on the part of the petitioner. It may also be pointed out that the defendant/petitioner has not pleaded before the Division Bench that though the demand draft was deposited in time, it was not encashed in time due to default of the staff of the Court. The said contention has been raised for the first time in these Revisions while referring to the maxim “actus curiae neminem gravabit.

( 12 ) I am of the view that the present case cannot be placed on par with the decision in Jung Singh v. Brij Lal (supra), and it cannot be said that failure to encash the demand draft can be attributed to the act of the officers of the Court below. As can be seen IA No. 1221 of 1999 to receive the demand draft was allowed only on 27-1-2000. Even by that time the demand draft dated 12-1-1999 has already lapsed. Even assuming that the pendency of IA No. 1221 of 1999 has resulted in not encashing the demand draft and therefore it shall be treated as an error on the part of the Court, it may be noted that the Court below by notice dated 5-4-2000 called upon the defendant to get the demand draft revalidated and granted sufficient time till 23-6-2000 for revalidating the demand draft. Thus the mistake if any committed by the Court has been set right and the defendant was granted sufficient time to comply with the order in IA No. 1139 of 1996. Since he failed to deposit the revalidated demand draft within the time specified, the Court below refused to grant any relief in IA Nos. 997 and 998 of 2000. It cannot be said that the Court below acted with any illegality or material irregularity in exercise of jurisdiction vested under law in dismissing the said applications.

( 13 ) THAT apart as pointed out by the learned Counsel for the respondent this Court has already dismissed Review CMP No. 20238 of 1998 rejecting the request of the defendant to deposit immoveable property security instead of making cash deposit to the credit of the suit. Allowing IA Nos. 997 and 998 of 2000 would virtually amount to reviewing the order in CRP No. 349 of 1998 which has already become final. The learned Counsel for the respondent has also brought to my notice that since the defendant failed to comply with the conditional order in IA No. 1139 of 1996 the said application was already dismissed on 10-11-1998 and till today the said application has not been restored. As a matter of fact the suit itself was decreed on 26-7-2000 in view of the dismissal of IA Nos. 997 and 998 of 2000. In the circumstances I do not find any justifiable ground to interfere with the order under revision.

( 14 ) ACCORDINGLY, both the revision petitions are dismissed. However, in the circumstances, there shall be no order as to costs.

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J U D G M E N T

ARIJIT PASAYAT, J.

All these cases relate to the establishment and functioning of Courts described as Fast Track Courts and, therefore, are disposed of by this common judgment. The Eleventh Finance Commission (hereinafter referred to as the ’Finance Commission’) allocated Rs.502.90 crores under Article 275 of the Constitution of India, 1950 (in short ’the Constitution’) for the purpose of setting up of 1734 Courts in various States to deal with long pending cases, particularly, Sessions cases. As allocation of funds made by the Finance Commission stipulated time bound utilization within a period of five years, various State Governments were required to take necessary steps to establish such Courts. It appears that the Finance Commission had suggested that the States may consider re-employment of retired judges for limited period, for the disposal of pending cases, since these Courts were to be ad hoc in the sense that they would not be a permanent addition to the number of Courts within a particular State. Challenge was made to the Scheme known as the Fast Track Courts Scheme in various High Courts, primarily on the ground that there was no constitutional sanction for employment of retired judges and effective guidelines were not in operation. It was also highlighted that infrastructural facilities were not available so as to make Scheme a reality. Several such deficiencies were pointed out. A plea was made that instead of retired officers, eligible members of the Bar should be considered for appointment.

Stand of the Union of India on the other hand was that on the recommendations of the Finance Commission, a note was prepared by the Department of Justice, Government of India. There is no mandatory requirement for appointment of retired Sessions/Additional Sessions Judges or other officers. Ad hoc promotion of judicial officers was also contemplated. It was pointed out that consequential vacancies created on account of ad hoc promotions can be filled up by a special drive so that there is no shortfall in the personnel of the lower Courts.

Learned counsel appearing for the various parties were unanimous on one important aspect i.e. the problems created by long pendency of cases in different Courts all over the country. It was also conceded that any effort for reducing the pendency is a welcome step. Keeping in view the importance of the matter, learned counsel for the parties were asked to give their suggestions. Mr. Harish N. Salve, learned Solicitor General has given several suggestions with which we shall deal later. Learned counsel for the other parties have more or less agreed to the suggestions, except to the suggestion regarding appointment of retired judges, more particularly, those with adverse service records.

The anxiety of all concerned about quick dispensation of justice has been succinctly stated by one of us (Hon’ble Justice Kirpal) in All India Judges Association & Ors. v. Union of India & Ors. (JT 2002 [3] SC 503) in the following words: “An independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. It is well known that justice delayed is justice denied. Time and again the inadequacy in the number of judges has adversely been commented upon. Not only have the Law Commission and the standing committee of Parliament made observations in this regard, but even the head of the judiciary, namely, the Chief Justice of India has had more occasions than once to make observations in regard thereto. Under the circumstances, we feel it is our constitutional obligation to ensure that the backlog of the cases is decreased and efforts are made to increase the disposal of cases. Apart from the steps which may be necessary for increasing the efficiency of the judicial officers, we are of the opinion that time has now come for protecting one of the pillars of the Constitution, namely, the judicial system, by directing increase, in the first instance, in the judge strength from the existing ratio of 10.5 or 13 per 10 lakhs people to 50 judges for 10 lakh people. We are conscious of the fact that overnight these vacancies cannot be filled. In order to have additional judges, not only the posts will have to be created but infrastructure required in the form of additional court rooms, building, staff, etc., would also have to be made available. We are also aware of the fact that a large number of vacancies as of today from amongst the sanctioned strength remain to be filled. We, therefore, first direct that the existing vacancies in the subordinate courts at all levels should be filled, if possible, latest by 31st March, 2003, in all the States. The increase in the judge strength to 50 judges per 10 lakh people should be effected and implemented with the filling up of the posts in a phased manner to be determined and directed by the Union Ministry of Law, but this process should be completed and the increased vacancies and posts filled within a period of five years from today. Perhaps increasing the judge strength by 10 per 10 lakh people every year could be one of the methods which may be adopted thereby completing the first stage within five years before embarking on further increase if necessary.”The following observations of a Seven Judge Bench in a recent decision [P. Ramachandra Rao v. State of Karnataka (JT 2002 (4) SC 92)] are also relevant:

“A perception of the cause for delay at the trial and in conclusion of criminal proceedings is necessary so as to appreciate whether setting up bars of limitation entailing termination of trial or proceedings can be justified. The root cause for delay in dispensation of justice in our country is poor judge-population ratio. Law Commission of India in its 120th report on man power planning in Judiciary (July 1987), based on its survey, regretted that in spite of Article 39A added as a major Directive Principle in the Constitution by 42nd amendment (1976), obliging the State to secure such operation of legal system as it promotes justice and to ensure that opportunities for securing justice are not denied to any citizen. Several reorganization proposals in the field of administration of justice in India have been basically patch work, ad hoc and unsystematic solutions to the problem. The judge-population-ratio in India (based on 1971 census) was only 10.5 judges per million population while such ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and 107 in Unites States. The Law Commission suggested that India required 107 judges per million of Indian population; however to begin with the judge strength needed to be raised to five-fold, i.e. 50 judges per million population in a period of five years but in any case not going beyond ten years. Touch of said sarcasm is difficult to hide when the Law Commission observed (in its 120th report, ibid) that adequate reorganization of the Indian Judiciary is at the one and at the same time everybody’s concern and, therefore, nobody’s concern.”

We find substance in the stand taken by the learned counsel who have highlighted the non-desirability of appointing judicial officers who did not carry good reputation so far as their honesty and integrity is concerned. It is to be noted that in All India Judges’ Association v. Union of India and others [(1992) 1 SCC 119] and in All India Judges’ Association and Ors. v. Union of India and Ors. [(1993) 4 SCC 288], this Court took note of the non-desirability to grant the benefit of two years extension in service i.e. from 58 years to 60 years in the case of officers who were not found to be of continued utility. In each case an evaluation of the service records was directed to be undertaken to find out whether the officer has or lacks potentiality for getting such benefit.

The qualities desired of a judge can be simply stated: ’that if he be a good one and that he be thought to be so’. Such credentials are not easily acquired. The judge needs to have ’the strength to put an end to injustice’ and ’the faculties that are demanded of the historian and the philosopher and the prophet’. A few paragraphs from the book “Judges” by David Pannick which are often quoted need to be set out here:

“The judge has burdensome responsibilities to discharge. He has power over the lives and livelihood of all those litigants who enter his court.His decisions may well affect the interests of individuals and groups who are not present or represented in court. If he is not careful, the judge may precipitate a civil war or he may accelerate a revolution. He may accidentally cause a peaceful but fundamental change in the political complexion of the country.
* * * *

Judges today face tribulations, as well as trials, not contemplated by their predecessors.Parliament has recognized the pressures of the job by providing that before the Lord Chancellor recommends anyone to the Queen for appointment to the Circuit Bench, the Lord Chancellor ’shall take steps to satisfy himself that the person’s health is satisfactory’. This seems essential in the light of the reminiscences of Lord Roskill as to the mental strain which the job can impose. Lord Roskill added that, in his experience, ’the work load is intolerable: seven days a week, 14 hours a day’

* * * *
He [judge] is a symbol of that strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in its familiar shape.”Burger C.J. of the American Supreme Court once observed: “A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it”.

One of the pleas taken by the parties questioning constitutional validity of the Fast Track Courts Scheme is that Constitution does not envisage establishment of Fast Track Courts. This plea is clearly without any substance. As observed by a nine-Judge Bench of this Court in Supreme Court Advocates-on-Record Association and Ors. v. Union of India [(1993) 4 SCC 441], appointment of a person to be a District Judge rests with the Governor, but he cannot make the appointment unless there has been an effective and meaningful consultation with the High Court or the High Court has recommended the appointment. In order that the requirement of consultation does not end up as an empty formality, in the event of difference of opinion, there must be an effective interchange of viewpoints. In cases governed by Article 233(2), as a matter of rule, the High Court’s recommendation must be accepted. Departure from the opinion of the High Court should be a rare event. The Constitution relies on the collective wisdom of the High Court as a body and not that of any single individual. Though the Fast Tract Courts Scheme is envisaged by the Central Government on the basis of the views indicated by the Finance Commission, yet appointments to the Fast Track Courts are to be made by the High Court keeping in view the modalities set out. Therefore, merely because the suggestion has stemmed from the Central Government; it cannot be said that there has been any violation of any constitutional mandate. It is to be noted that Chapter VI of the Constitution deals with Subordinate Courts. While Article 233 relates to the recruitment to the District Judges, Article 234 relates to the recruitment of members of the judicial service of the State other than District Judges. The power of appointment under Article 234 does not include the power to confirm the promotion of judicial officers other than judicial officers which is vested exclusively in the High Court by Article 234. Any rule which provides that the authority belongs to the Governor in consultation with the High Court, shall be void, as observed by this Court in State of Assam and Anr. v. S.N. Sen and Anr. [1971 (2) SCC 889]. While the promotion of District Judges shall be in the hands of the Governor acting in consultation with the High Court in terms of Article 235, the posting and promotion etc. of officers of the State Judicial Services other than the District Judges lie exclusively in the hands of the High Court. The word “control” referred to in Article 235 is used in a comprehensive sense to include general superintendence of the working of the Subordinate Courts. In other words the control vested in the High Court under this Article is complete control, subject only to the power of the Governor in the matter of appointment and promotion of District Judges. The provision under this Article is to ensure independence of judiciary. Above being the position there is nothing constitutionally improper in the scheme. It is the High Court which has to play a pivotal role in the implementation of the scheme for its effective implementation and achievement of the above objectives, of course, complying with the constitutional requirements embodied in relevant provisions of Chapter VI of the Constitution. Keeping in view the laudable objectives with which the Fast Tract Courts Scheme has been conceived and introduced, we feel the following directions, for the present, would be sufficient to take care of initial teething problems highlighted by the parties:

Directions by the Court:

1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad-hoc promotions from amongst eligible judicial officers. While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services.

2. The second preference in appointments to Fast Track Courts shall be given to retired judges who have good service records with no adverse comments in their ACRs, so far as judicial acumen, reputation regarding honesty, integrity and character are concerned. Those who were not given the benefit of two years extension of the age of superannuation, shall not be considered for appointment. It should be ensured that they satisfy the conditions laid down in Article 233(2) and 309 of the Constitution. The concerned High Court shall take a decision with regard to the minimummaximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts.

3. No Judicial Officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. Judicial Officers who have sought voluntary retirement after initiation of Departmental proceedings/inquiry shall not be considered for appointment.

4. The third preference shall be given to members of the Bar for direct appointment in these Courts. They should be preferably in the age group of 35-45 years, so that they could aspire to continue against the regular posts if the Fast Track Courts cease to function. The question of their continuance in service shall be reviewed periodically by the High Court based on their performance. They may be absorbed in regular vacancies, if subsequent recruitment takes place and their performance in the Fast Track Courts is found satisfactory. For the initial selection, the High Court shall adopt such methods of selection as are normally followed for selection of members of the Bar as direct recruits to the Superior/Higher Judicial Services.

5. Overall preference for appointment in Fast Track Courts shall be given to eligible officers who are on the verge of retirement subject to they being physically fit.

6. The recommendation for selection shall be made by a Committee of at least three Judges of the High Court, constituted by the Chief Justice of the concerned High Court in this regard. The final decision in the matter shall be taken by the Full Court of the High Court.

7. After ad-hoc promotion of judicial officers to the Fast Track Courts, the consequential vacancies shall be filled up immediately by organizing a special recruitment drive. Steps should be taken in advance to initiate process for selection to fill up these vacancies much before the judicial officers are promoted to the Fast Track Courts, so that vacancies may not be generated at the lower levels of the subordinate judiciary. The High Court and the State Government concerned shall take prompt steps to fill up the consequential as well as existing vacancies in the subordinate Courts on priority basis. Concerned State Government shall take necessary decisions within a month from the receipt of the recommendations made by the High Court.

8. Priority shall be given by the Fast Track Courts for disposal of those Sessions cases which are pending for the longest period of time, and/or those involving under-trials. Similar shall be the approach for Civil cases i.e. old cases shall be given priority.

9. While the staff of a regular Court of Additional District and Sessions Judge includes a Sessions Clerk and an office Peon, work in Fast Track Courts is reported to be adversely affected due to shortage of staff as compared to regular Courts performing same or similar functions. When single Orderly or Clerk proceeds on leave, work in Fast Track Courts gets held up. The staff earmarked for each such Court are a Peshkar/Superintendent, a Stenographer and an Orderly. If the staff is inadequate, High Court and the State Government shall take appropriate decision to appoint additional staff who can be accommodated within the savings out of the existing allocations by the Central Government.

10. Provisions for the appointment of Public Prosecutor and Process Server have not been made under the Fast Track Courts Scheme. A Public Prosecutor is necessary for effective functioning of the Fast Track Courts. Therefore, a Public Prosecutor may be earmarked for each such Court and the expenses for the same shall be borne out of the allocation under the head ’Fast Track Courts’. Process service shall be done through the existing mechanism.

11. A State Level Empowered Committee headed by the Chief Secretary of the State shall monitor the setting up of earmarked number of Fast Track Courts and smooth functioning of such Courts in each State, as per the guidelines already issued by the Government of India.

12. The State Governments shall utilize the funds allocated under the Fast Track Courts Scheme promptly and will not withhold any such funds or divert them to other uses. They shall send the utilization certificates from time to time to the Central Government; who shall ensure immediate release of funds to the State Governments on receipt of required utilization certificates.

13. At least one Administrative Judge shall be nominated in each High Court to monitor the disposal of cases by Fast Track Courts and to resolve the difficulties and shortcomings, if any, with the administrative support and cooperation of the concerned State Government. State Government shall ensure requisite cooperation to the Administrative Judge.

14. No right will be conferred on Judicial Officers in service for claiming any regular promotion on the basis of his/her appointment on ad-hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any Judicial Officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.

15. The retired Judicial Officers who are appointed under the Scheme shall be entitled to pay and allowances equivalent to the pay and allowance they were drawing at the time of their retirement, minus total amount of pension drawn/payable as per rules.

16. Persons appointed under the Scheme shall be governed, for the purpose of leave, reimbursement of medical expenses, TA/DA and conduct rules and such other service benefits, by the rules and regulations which are applicable to the members of the Judicial Services of the State of equivalent status.

17. The concerned High Court shall periodically review the functioning of the Fast Track Courts and in case of any deficiencies and/or shortcoming, take immediate remedial measures, taking into account views of the Administrative Judge nominated.

18.The High Court and the State Government shall ensure that there exists no vacancy so far as the Fast Track Courts are concerned, and necessary steps in that regard shall be taken within three months from today. In other words, steps should be taken to set up all the Fast Track Courts within the stipulated time.

It was submitted by learned counsel appearing for some of the parties that officers with tainted images have been appointed as Fast Track Courts. It is for the High Court of the concerned State to see if any undesirable person not fulfilling the requirements indicated in our directions above has been appointed, and to take immediate steps for terminating the appointment.

Copies of the judgment be sent by the Registry of this Court to each High Court and the concerned State Government for ensuring compliance with our directions.

Though these petitions are to be treated as closed, Quarterly Status Reports shall be submitted by each High Court and the State Government. First such report shall be submitted by the end of August, 2002. The reports shall be placed for consideration before the Bench to be fixed by Hon’ble the Chief Justice of India.

….J.
(B.N. KIRPAL)

….J.
(K.G. BALAKRISHNAN)
.J.
(ARIJIT PASAYAT)

May 6, 2002

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ARUN KUMAR, J.

Eight accused persons were charged for offences under Sections 302, 147, 148 and 149 of the Indian Penal Code. Out of the 8 accused persons, 2 had been released on temporary bail on different occasions during trial. They did not surrender and could not be arrested. Therefore, their trial had to be separated. They are Rafique s/o Chand Khan and Aslam alias Mangole s/o Salim. The remaining 6 accused viz. Yunis alias Karri alias Kariya, Ballu alias Abdul Nayeem, Abdul Rauf, Daggi alias Rafique, Liyaquatullah and Mohammad Javid were tried and convicted for offences under Sections 302/149 IPC. Abdul Nayeem one of the accused was also convicted and sentenced to one year rigorous imprisonment under Section 147 IPC while each one of the remaining five was additionally convicted and sentenced to two years’ rigorous imprisonment. These convictions were as per the judgment of the Sessions Judge, Jabalpur in Sessions Trial No.274/1985 decided on 3rd December, 1987. The six convicted accused filed appeals against the judgment of the Sessions Court in the High Court of Madhya Pradesh. The High Court was pleased to dismiss all the appeals. These 4 appeals arising from the common judgment of the High Court have been filed by the 4 convicts.

Briefly, the facts are that on 23.6.1985 at about 6.15 p.m., the complainant Abdul Jabbar s/o Sheikh Munir was going to purchase medicine from Kumar Medical Store, Miloniganj, Jabalpur. As soon as he reached near the shop he heard noise and saw that his nephew Zuber was surrounded by Rafique, Daggi, Yunus alias Karri, Javed, Mangole, Liyaquat, Rauf Kunjda and Ballu alias Nayeem. These accused persons were armed with Gupti, Chhuris (knives), Sword, Baka etc.etc. One of them Rauf Kunjda had a bomb. The other accused Rafique who had a Gupti in his hands gave two blows with the Gupti on the chest of Zuber while Liyaquat inflicted a knife blow on the left side of the waist. One of them inflicted a sword blow which Zuber tried to stop with his hand which resulted in the injury on his little finger of the right hand, a portion whereof was chopped off. Zuber shouted and started running but he was stopped by Ballu (Nayeem) and Rauf Kunjda when Daggi inflicted a knife blow on the left side of the back of the buttock. On hearing the noise Saleem Quadir, Sharif and other persons collected. On seeing them, the accused persons left Zuber and ran away. Zuber was bleeding profusely and he was taken in a Rickshaw to the Victoria Hospital where he died soon thereafter. According to the prosecution case, Zuber died on account of injury received by him at the hands of the accused persons. FIR (Ex.P.10) was lodged by Abdul Jabbar. Inquest (P.13) was held, thereafter the autopsy was conducted on the body of Zuber by Dr. D.K. Sakalley (P.W.14). Zuber was aged about 18 years. Dr. Sakalley gave details of injuries suffered by the deceased which are as under:

“(i) Stab wound, 2 c.m. long, oblique with clean cut margins and pointed ends situated on right side of chest, 6 c.m. above right nipple. The width was c.m., would was elliptical in shape. The wound was going slightly upwards anad laterally, in the muscles of chest up 7 c.m. depth, but not penetrating the thoracic cage. The wound was gradually diminishing in dimentions and track was filled with clotted sticky blood. The wound was slightly in-wards also;
(ii) Stab wound, transverse, situated on left side of chest, 15 cm. Below medical end of clavicle, 2 cm left to mid-line on pericardial area, elliptical, 2 cm. X cm., lower marging shows slight beveling underneath 5th rib costal cartilage is cut; the direction of wound is inwards slightly upwards and medially. On further exploration, there is slit like cut in pericardium, clots of blood present. In pericardial cavity also, about 10 c.c. of blood with clots were present. There was a transverse cut in the track on anterior wall of right ventricle of heart near upper margine in whole thickness, which is 0.3 cm. It is not penetrating the post side. This injury to heart is 0.8 cm. Broad with clean-cut margins and pointed ends. Upto this level, depth is 9 cm. (iii) Incised wound on lateral side of base of right little finger extending to postero lateral aspect also oblique, 2 cm. X cm. X cm.”

According to Dr. Sakalley these injuries were anti-mortem and could be caused by sharp edged weapons. The cause of death was injury to the heart. During investigation the weapons of offence were seized including a country-made bomb recovered from Abdul Rauf. The seized articles were got examined through the Chemical Examiner and the Serologist, Calcutta.

The main thrust of argument advanced on behalf of the appellants by the learned counsel appearing for them was that the injuries mentioned by the eye-witnesses did not tally with the injuries mentioned by the Autopsy Surgeon. While the eye-witnesses referred to five injuries on the body of the deceased, the autopsy surgeon had mentioned only three. From this, the learned counsel sought to urge that the eye-witnesses were giving false evidence which showed that they were really not eye-witnesses and they had not witnessed the crime. An attempt was also made to suggest that the place of occurrence had been changed by the prosecution. Another argument sought to be raised was that the prosecution has failed to prove the motive of the crime. We do not find any merit whatsoever in any of the contentions raised on behalf of the appellants. In our view, the evidence i.e. oral testimony of the eye-witnesses as well as medical and other evidence on record clearly establishes the commission of crime, the manner in which it was committed and the place where it was committed. A glaring fact in the present case is that the crime took place in broad day light (in the summer month of June sunlight is still there at 6.15 p.m. – which is given as the time of occurrence of crime). The crime was witnessed by so many persons since it was in a market area, three of them have appeared as eye-witnesses. One of the eye-witnesses is the uncle of the deceased whose presence on the spot appears to be natural. Spot maps prepared during investigation have been proved on record to show the place of occurrence. Abdul Jabbar one of the eye-witnesses had also described the place of crime which tallies with the rest of the evidences on record. The appellants have tried to create confusion about the place of occurrence by picking up portions from the evidence of eye-witnesses. One of the witness said that place of occurrence may be near Oil Mill shop. As a matter of fact the Oil Mill Shop, Kumar Medical Store and watch repairing shop mentioned by another eye-witness as landmarks where the incident took place happen to be in the same market and in the vicinity of each other. Therefore, different references to landmarks made by different eyewitnesses do not really change the place of occurrence. There is no scope for confusion, the moment reference is made to the spot maps proved on record.

A doubt was thrown about the veracity of evidence of the eyewitnesses on the ground that the entire incident took place within half a minute and the witnesses could not have seen what was happening in such a short time. This argument, in our view, is wholly misconceived. Eight persons, each armed with weapons, attacked a single individual in broad day light in a market place. Even if the incident took place in a very short span of time, it does not mean that the eye-witnesses could not have observed the same. The evidence of the eye-witnesses tallies with each other and we have no reason to doubt the same.

Coming to the alleged discrepancy between medical evidence and evidence of the eye-witnesses, it is to be noted that at least three injuries referred to by the autopsy Surgeon and forming part of the medical evidence and as stated by the eye-witnesses are common. These three injuries are by themselves sufficient to cause death. Autopsy surgeon has not mentioned the knife injury on the back side of the buttock and another injury. The mere non-mention of the two injuries by the autopsy Surgeon does not and cannot lead to rejection of the prosecution case. The two injuries might have escaped the notice of the doctor. Both the courts below have found the prosecution case to be fully established and proved beyond any doubt whatsoever and we see no reason to take a different view.

The prosecution in the present case has failed to prove motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is settled law that establishment of motive is not a sine qua non for proving the prosecution case. For all these reasons, we find no merits in these appeals.

It was also argued that inquest report is not substantive evidence and therefore, on its basis alone the prosecution could not succeed. For this reliance was placed in the case of Munish Prasad and others vs. State of Bihar [2002 (1) SCC 351]. This case is of no relevance to the present case. Here the prosecution has the whole lot of other convincing evidence which has led to the conviction of the accused persons. It is not the inquest report alone which forms basis for conviction

The learned counsel appearing for appellant – Liyaquat argued that no overt act is imputed to his client and he was being implicated only on the basis of Section 149 IPC. This argument, in our view, has no merit. Even if no overt act is imputed to a particular person, when the charge is under Section 149 IPC, the presence of the accused as part of unlawful assembly is sufficient for conviction. The fact that Liyaquat was a member of the unlawful assembly is sufficient to hold him guilty. The presence of Liyaquat has not been disputed.

All the appeals are accordingly dismissed.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 317 of 1993

T.M.A. Pai Foundation & Ors. ….PETITIONER
Vs
State of Karnataka & Ors. ….RESPONDENT
DATE OF JUDGMENT: 31/10/2002
BENCH: C.J.I., G.B. Pattanaik, S. Rajendra Babu, K.G. Balakrishnan, P. Venkatarama Reddi & Arijit Pasayat.

J U D G M E N T

W I T H

Writ Petition (Civil) Nos. 252 of 1979, 54-57, 2228 of 1981, 2460, 2582, 2583-84, 3362, 3517, 3602, 3603, 3634, 3635, 3636, 8398, 8391, 5621, 5035, 3701, 3702, 3703, 3704, 3715, 3728, 4648, 4649, 2479, 2480, 2547 and 3475 of 1982, 7610, 4810, 9839 and 9683-84 of 1983, 12622-24 of 1984, 119 and 133 of 1987, 620 of 1989, 133 of 1992, 746, 327, 350, 613, 597, 536, 626, 444, 417, 523, 474, 485, 484, 355, 525, 469, 392, 629, 399, 531, 603, 702, 628, 663, 284, 555, 343, 596, 407, 737, 738, 747, 479, 610, 627, 685, 706, 726, 598, 482 and 571 of 1993, 295, 764 and D. No. 1741 of 1994, 331, 446 and 447 of 1995, 364 and 435 of 1996, 456, 454, 447 and 485 of 1997, 356, 357 and 328 of 1998, 199, 294, 279, 35, 181, 373, 487 and 23 of 1999, 561 of 2000, 6 and 132 of 2002, Civil Appeal Nos. 1236-1241 and 2392 of 1977, 687 of 1976, 3179, 3180, 3181, 3182, 1521-56, 3042-91 of 1979, 2929-31, 1464 of 1980, 2271 and 2443-46 of 1981, 4020, 290 and 10766 of 1983, 5042 and 5043 of 1989, 6147 and 5381 of 1990, 71, 72 and 73 of 1991, 1890-91, 2414 and 2625 of 1992, 4695-4746, 4754-4866 of 1993, 5543-5544 of 1994, 8098- 8100 and 11321 of 1995, 4654-4658 of 1997, 608, 3543 and 3584-3585 of 1998, 5053-5054 of 2000, 5647, 5648-5649, 5650, 5651, 5652, 5653-5654, 5655, 5656 of 2001 and 2334 of 2002, S.L.P. (C) Nos. 9950 and 9951 of 1979, 11526 and 863 of 1980, 12408 of 1985, 8844 of 1986, 12320 of 1987, 14437, 18061-62 of 1993, 904-05 and 11620 of 1994, 23421 of 1995, 4372 of 1996, 10360 and 10664 of 1997, 1216, 9779-9786, 6472-6474 and 9793 of 1998, 5101, 4480 and 4486 of 2002 T.C. (Civil) No. 26 of 1990 and T.P. (Civil) Nos. 1013-14 of 1993.

KIRPAL, C.J.I.

1. India is a land of diversity of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slow-moving machinery, is unable to fully develop the genius of the Indian people. Very often, the impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant, only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.

2. It is in this scenario where there is a lack of quality education and adequate number of schools and colleges that private educational institutions have been established by educationists, philanthropists and religious and linguistic minorities. Their grievance is that the unnecessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education. It is their contention that the government must get off their back, and that they should be allowed to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own self-importance. The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking to impart quality education for the benefit of the community for whom they were established, and others, have filed the present writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy.

3. The hearing of these cases has had a chequered history. Writ Petition No.350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of 5 Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St. Stephen’s College vs. University of Delhi [(1992) 1 SCC 558] was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench. These cases were then placed before a Bench of 7 Judges. The questions framed were recast and on 6th February, 1997, the Court directed that the matter be placed before a Bench of at least 11 Judges, as it was felt that in view of the Forty-Second Amendment to the Constitution, whereby “education” had been included in Entry 25 of List III of the Seventh Schedule, the question of who would be regarded as a “minority” was required to be considered because the earlier case laws related to the pre-amendment era, when education was only in the State List. When the cases came up for hearing before an eleven Judge Bench, during the course of hearing on 19th March, 1997, the following order was passed:-
“Since a doubt has arisen during the course of our arguments as to whether this Bench would feel itself bound by the ratio propounded in In Re Kerala Education Bill, 1957 (1959 SCR 955) and the Ahmedabad St. Xaviers College Society vs. State of Gujarat, 1975(1) SCR 173, it is clarified that this sized Bench would not feel itself inhibited by the views expressed in those cases since the present endeavour is to discern the true scope and interpretation of Article 30(1) of the Constitution, which being the dominant question would require examination in its pristine purity. The factum is recorded.”

4. When the hearing of these cases commenced, some questions out of the eleven referred for consideration were reframed. We propose to give answers to these questions after examining the rival contentions on the issues arising therein.

5. On behalf of all these institutions, the learned counsels have submitted that the Constitution provides a fundamental right to establish and administer educational institutions. With regard to non-minorities, the right was stated to be contained in Article 19(1)(g) and/or Article 26, while in the case of linguistic and religious minorities, the submission was that this right was enshrined and protected by Article 30. It was further their case that private educational institutions should have full autonomy in their administration. While it is necessary for an educational institution to secure recognition or affiliation, and for which purpose rules and regulations or conditions could be prescribed pertaining to the requirement of the quality of education to be provided, e.g., qualifications of teachers, curriculum to be taught and the minimum facilities which should be available for the students, it was submitted that the state should not have a right to interfere or lay down conditions with regard to the administration of those institutions. In particular, objection was taken to the nominations by the state on the governing bodies of the private institutions, as well as to provisions with regard to the manner of admitting students, the fixing of the fee structure and recruitment of teachers through state channels.

6. The counsels for these educational institutions, as well as the Solicitor General of India, appearing on behalf of the Union of India, urged that the decision of this Court in Unni Krishnan, J.P. and Others vs. State of Andhra Pradesh and Others [(1993) 1 SCC 645] case required reconsideration. It was submitted that the scheme that had been framed in Unni Krishnan’s case had imposed unreasonable restrictions on the administration of the private educational institutions, and that especially in the case of minority institutions, the right guaranteed to them under Article 30(1) stood infringed. It was also urged that the object that was sought to be achieved by the scheme was, in fact, not achieved.

7. On behalf of the private minority institutions, it was submitted that on the correct interpretation of the various provisions of the Constitution, and Articles 29 and 30 in particular, the minority institutions have a right to establish and administer educational institutions of their choice. The use of the phrase “of their choice” in Article 30(1) clearly postulated that the religious and linguistic minorities could establish and administer any type of educational institution, whether it was a school, a degree college or a professional college; it was argued that such an educational institution is invariably established primarily for the benefit of the religious and linguistic minority, and it should be open to such institutions to admit students of their choice. While Article 30(2) was meant to ensure that these minority institutions would not be denied aid on the ground that they were managed by minority institutions, it was submitted that no condition which curtailed or took away the minority character of the institution while granting aid could be imposed. In particular, it was submitted that Article 29(2) could not be applied or so interpreted as to completely obliterate the right of the minority institution to grant admission to the students of its own religion or language. It was also submitted that while secular laws relating to health, town planning, etc., would be applicable, no other rules and regulations could be framed that would in any way curtail or interfere with the administration of the minority educational institution. It was emphasized by the learned counsel that the right to administer an educational institution included the right to constitute a governing body, appoint teachers and admit students. It was further submitted that these were the essential ingredients of the administration of an educational institution, and no fetter could be put on the exercise of the right to administer. It was conceded that for the purpose of seeking recognition, qualifications of teachers could be stipulated, as also the qualifications of the students who could be admitted; at the same time, it was argued that the manner and mode of appointment of teachers and selection of students had to be within the exclusive domain of the educational institution.

8. On behalf of the private non-minority unaided educational institutions, it was contended that since secularism and equality were part of the basic structure of the Constitution, the provisions of the Constitution should be interpreted so that the rights of the private non-minority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under Article 19(6), such private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions.

9. The learned Solicitor General did not dispute the contention that the right to establish an institution had been conferred on the non-minorities by Articles 19 and 26, and on the religious and linguistic minorities by Article 30. He agreed with the submission of the counsels for the appellants that the Unni Krishnan decision required reconsideration, and that the private unaided educational institutions were entitled to greater autonomy. He, however, contended that Article 29(2) was applicable to minority institutions, and the claim of the minority institutions that they could preferably admit students of their own religion or language to the exclusion of the other communities was impermissible. In other words, he submitted that Article 29(2) made it obligatory even on the minority institutions not to deny admission on the ground of religion, race, caste, language or any of them.

10. Several States have totally disagreed with the arguments advanced by the learned Solicitor General with regard to the applicability of Article 29(2) and 30(1). The States of Madhya Pradesh, Chattisgarh and Rajasthan have submitted that the words “their choice” in Article 30(1) enabled the minority institutions to admit members of the minority community, and that the inability of the minority institutions to admit others as a result of the exercise of “their choice” would not amount to a denial as contemplated under Article 29(2). The State of Andhra Pradesh has not expressly referred to the inter-play between Article 29(2) and Article 30(1), but has stated that “as the minority educational institutions are intended to benefit the minorities, a restriction that at least 50 per cent of the students admitted should come from the particular minority, which has established the institution, should be stipulated as a working rule”, and that an institution which fulfilled the following conditions should be regarded as minority educational institutions:

1. All the office bearers, members of the executive committee of the society must necessarily belong to the concerned religious/linguistic minority without exception.

2. The institution should admit only the concerned minority candidates to the extent of sanctioned intake permitted to be filed by the respective managements.

and that the Court “ought to permit the State to regulate the intake in minority educational institutions with due regard to the need of the community in the area which the institution is intended to serve. In no case should such intake exceed 50% of the total admissions every year.”

11. The State of Kerala has submitted, again without express reference to Article 29(2), “that the constitutional right of the minorities should be extended to professional education also, but while limiting the right of the minorities to admit students belonging to their community to 50% of the total intake of each minority institution”.

12. The State of Karnataka has submitted that “aid is not a matter of right but receipt thereof does not in any way dilute the minority character of the institution. Aid can be distributed on non-discriminatory conditions but in so far as minority institutions are concerned, their core rights will have to be protected.

13. On the other hand, the States of Tamil Nadu, Punjab, Maharashtra, West Bengal, Bihar and Uttar Pradesh have submitted that Article 30(1) is subject to Article 29(2), arguing that a minority institution availing of state aid loses the right to admit members of its community on the basis of the need of the community.

14. The Attorney General, pursuant to the request made by the court, made submissions on the constitutional issues in a fair and objective manner. We record our appreciation for the assistance rendered by him and the other learned counsel.

15. We may observe here that the counsels were informed that it was not necessary for this Bench to decide four of the questions framed, relating to the issue of who could be regarded as religious minorities; no arguments were addressed in respect thereto.

16. From the arguments aforesaid, five main issues arise for consideration in these cases, which would encompass all the eleven questions framed that are required to be answered.

17. We will first consider the arguments of the learned counsels under these heads before dealing with the questions now remaining to be answered.

1. IS THERE A FUNDAMENTAL RIGHT TO SET UP EDUCATIONAL INSTITUTIONS AND IF SO, UNDER WHICH PROVISION?

18. With regard to the establishment of educational institutions, three Articles of the Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions. There was no serious dispute that the majority community as well as linguistic and religious minorities would have a right under Articles 19(1)(g) and 26 to establish educational institutions. In addition, Article 30(1), in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice.

19. We will first consider the right to establish and administer an educational institution under Article 19(1)(g) of the Constitution, and deal with the right to establish educational institutions under Article 26 and 30 in the next part of the judgment while considering the rights of the minorities.

20. Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [See The State of Bombay vs. R.M.D. Chamarbaugwala, (1957) SCR 874: AIR (1957) SC 699]. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression “occupation”. Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). In Webster’s Third New International Dictionary at page 1650, “occupation” is, inter alia, defined as “an activity in which one engages” or “a craft, trade, profession or other means of earning a living”.

21. In Corpus Juris Secundum, Volume LXVII, the word “occupation” is defined as under:-
“The word “occupation” also is employed as referring to that which occupies time and attention; a calling; or a trade; and it is only as employed in this sense that the word is discussed in the following paragraphs.

There is nothing ambiguous about the word “occupation” as it is used in the sense of employing one’s time. It is a relative term, in common use with a well-understood meaning, and very broad in its scope and significance. It is described as a generic and very comprehensive term, which includes every species of the genus, and compasses the incidental, as well as the main, requirements of one’s vocation, calling, or business. The word “occupation” is variously defined as meaning the principal business of one’s life; the principal or usual business in which a man engages; that which principally takes up one’s time, thought, and energies; that which occupies or engages the time and attention; that particular business, profession, trade, or calling which engages the time and efforts of an individual; the employment in which one engages, or the vocation of one’s life; the state of being occupied or employed in any way; that activity in which a person, natural or artificial, is engaged with the element of a degree of permanency attached.”

22. A Five Judge Bench in Sodan Singh and Others vs. New Delhi Municipal Committee and Others [(1989) 4 SCC 155] at page 174, para 28, observed as follows:
“The word occupation has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged.The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. In a nutshell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living.”.

23. In Unni Krishnan’s case, at page 687, para 63, while referring to education, it was observed as follows:-
“.It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the University is asked on the basis that it is a fundamental right.”

24. While the conclusion that “occupation” comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerned university is, with the utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation. The exercise of a fundamental right may be controlled in a variety of ways. For example, the right to carry on a business does not entail the right to carry on a business at a particular place. The right to carry on a business may be subject to licensing laws so that a denial of the licence prevents a person from carrying on that particular business. The question of whether there is a fundamental right or not cannot be dependent upon whether it can be made the subject matter of controls.

25. The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g). “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh’s case correctly interpret the expression “occupation” in Article 19(1)(g).

26. The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Article 29(1) and 30(1), have the right to establish and maintain religious and educational institutions. This would allow members belonging to any religious denomination, including the majority religious community, to set up an educational institution. Given this, the phrase “private educational institution” as used in this judgment would include not only those educational institutions set up by secular persons or bodies, but also educational institutions set up by religious denominations; the word “private” is used in contradistinction to government institutions.

2. DOES UNNIKRISHNAN’S CASE REQUIRE RECONSIDERATION?

27. In the case of Mohini Jain (Miss) vs. State of Karnataka and Others [(1992) 3 SCC 666], the challenge was to a notification of June 1989, which provided for a fee structure, whereby for government seats, the tuition fee was Rs.2,000 per annum, and for students from Karnataka, the fee was Rs.25,000 per annum, while the fee for Indian students from outside Karnataka, under the payment category, was Rs.60,000 per annum. It had been contended that charging such a discriminatory and high fee violated constitutional guarantees and rights. This attack was sustained, and it was held that there was a fundamental right to education in every citizen, and that the state was duty bound to provide the education, and that the private institutions that discharge the state’s duties were equally bound not to charge a higher fee than the government institutions. The Court then held that any prescription of fee in excess of what was payable in government colleges was a capitation fee and would, therefore, be illegal. The correctness of this decision was challenged in Unni Krishnan’s case, where it was contended that if Mohini Jain’s ratio was applied, the educational institutions would have to be closed down, as they would be wholly unviable without appropriate funds, by way of tuition fees, from their students.

28. We will now examine the decision in Unni Krishnan’s case. In this case, this Court considered the conditions and regulations, if any, which the state could impose in the running of private unaided/aided recognized or affiliated educational institutions conducting professional courses such as medicine, engineering, etc. The extent to which the fee could be charged by such an institution, and the manner in which admissions could be granted was also considered. This Court held that private unaided recognized/affiliated educational institutions running professional courses were entitled to charge a fee higher than that charged by government institutions for similar courses, but that such a fee could not exceed the maximum limit fixed by the state. It held that commercialization of education was not permissible, and “was opposed to public policy and Indian tradition and therefore charging capitation fee was illegal.”With regard to private aided recognized/affiliated educational institutions, the Court upheld the power of the government to frame rules and regulations in matters of admission and fees, as well as in matters such as recruitment and conditions of service of teachers and staff. Though a question was raised as to whether the setting up of an educational institution could be regarded as a business, profession or vocation under Article 19(1)(g), this question was not answered. Jeevan Reddy, J., however, at page 751, para 197, observed as follows:- “.While we do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any “occupation” within the meaning of Article 19(1)(g), – perhaps, it is we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country.”

29. Reliance was placed on a decision of this Court in Bangalore Water Supply and Sewerage Board vs. A. Rajappa and Others [(1978) 2 SCC 213], wherein it had been held that educational institutions would come within the expression “industry” in the Industrial Disputes Act, and that, therefore, education would come under Article 19(1)(g). But the applicability of this decision was distinguished by Jeevan Reddy, J., observing that “we do not think the said observation (that education as industry) in a different context has any application here”. While holding, on an interpretation of Articles 21, 41, 45 and 46, that a citizen who had not completed the age of 14 years had a right to free education, it was held that such a right was not available to citizens who were beyond the age of 14 years. It was further held that private educational institutions merely supplemented the effort of the state in educating the people. No private educational institution could survive or subsist without recognition and/or affiliation granted by bodies that were the authorities of the state. In such a situation, the Court held that it was obligatory upon the authority granting recognition/affiliation to insist upon such conditions as were appropriate to ensure not only an education of requisite standard, but also fairness and equal treatment in matters of admission of students. The Court then formulated a scheme and directed every authority granting recognition/affiliation to impose that scheme upon institutions seeking recognition/affiliation, even if they were unaided institutions. The scheme that was framed, inter alia, postulated (a) that a professional college should be established and/or administered only by a Society registered under the Societies Registration Act, 1860, or the corresponding Act of a State, or by a Public Trust registered under the Trusts‘ Act, or under the Wakfs Act, and that no individual, firm, company or other body of individuals would be permitted to establish and/or administer a professional college (b) that 50% of the seats in every professional college should be filled by the nominees of the Government or University, selected on the basis of merit determined by a common entrance examination, which will be referred to as “free seats”; the remaining 50% seats (“payment seats”) should be filled by those candidates who pay the fee prescribed therefor, and the allotment of students against payment seats should be done on the basis of inter se merit determined on the same basis as in the case of free seats (c) that there should be no quota reserved for the management or for any family, caste or community, which may have established such a college (d) that it should be open to the professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating university (e) that the fee chargeable in each professional college should be subject to such a ceiling as may be prescribed by the appropriate authority or by a competent court (f) that every state government should constitute a committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. This committee should, after hearing the professional colleges, fix the fee once every three years or at such longer intervals, as it may think appropriate (g) that it would be appropriate for the University Grants Commission to frame regulations under its Act regulating the fees that the affiliated colleges operating on a no grant-in-aid basis were entitled to charge. The AICTE, the Indian Medical Council and the Central Government were also given similar advice. The manner in which the seats were to be filled on the basis of the common entrance test was also indicated.

30. The counsel for the minority institutions, as well as the Solicitor General, have contended that the scheme framed by this Court in Unni Krishnan’s case was not warranted. It was represented to us that the cost incurred on educating a student in an unaided professional college was more than the total fee, which is realized on the basis of the formula fixed in the scheme. This had resulted in revenue shortfalls. This Court, by interim orders subsequent to the decision in Unni Krishnan’s case, had permitted, within the payment seats, some percentage of seats to be allotted to Non-Resident Indians, against payment of a higher amount as determined by the authorities. Even thereafter, sufficient funds were not available for the development of those educational institutions. Another infirmity which was pointed out was that experience has shown that most of the “free seats”were generally occupied by students from affluent families, while students from less affluent families were required to pay much more to secure admission to “payment seats”. This was for the reason that students from affluent families had had better school education and the benefit of professional coaching facilities and were, therefore, able to secure higher merit positions in the common entrance test, and thereby secured the free seats. The education of these more affluent students was in a way being cross-subsidized by the financially poorer students who, because of their lower position in the merit list, could secure only “payment seats”. It was also submitted by the counsel for the minority institutions that Unni Krishnan’s case was not applicable to the minority institutions, but that notwithstanding this, the scheme so evolved had been made applicable to them as well.

31. Counsel for the institutions, as well as the Solicitor General, submitted that the decision in Unni Krishnan’s case, insofar as it had framed the scheme relating to the grant of admission and the fixing of the fee, was unreasonable and invalid. However, its conclusion that children below the age of 14 had a fundamental right to free education did not call for any interference.

32. It has been submitted by the learned counsel for the parties that the implementation of the scheme by the States, which have amended their rules and regulations, has shown a number of anomalies. As already noticed, 50% of the seats are to be given on the basis of merit determined after the conduct of a common entrance test, the rate of fee being minimal. The “payment seats” which represent the balance number, therefore, cross-subsidize the “free seats”. The experience of the educational institutions has been that students who come from private schools, and who belong to more affluent families, are able to secure higher positions in the merit list of the common entrance test, and are thus able to seek admission to the “free seats”. Paradoxically, it is the students who come from less affluent families, who are normally able to secure, on the basis of the merit list prepared after the common entrance test, only “payment seats”.

33. It was contended by petitioners’ counsel that the implementation of the Unni Krishnan scheme has in fact (1) helped the privileged from richer urban families, even after they ceased to be comparatively meritorious, and (2) resulted in economic losses for the educational institutions concerned, and made them financially unviable. Data in support of this contention was placed on record in an effort to persuade this Court to hold that the scheme had failed to achieve its object.

34. Material has also been placed on the record in an effort to show that the total fee realized from the fee fixed for “free seats” and the “payment seats” is actually less than the amount of expense that is incurred on each student admitted to the professional college. It is because there was a revenue shortfall that this Court had permitted an NRI quota to be carved out of the 50% payment seats for which charging higher fee was permitted. Directions were given to UGC, AICTE, Medical Council of India and Central and State governments to regulate or fix a ceiling on fees, and to enforce the same by imposing conditions of affiliation/permission to establish and run the institutions.

35. It appears to us that the scheme framed by this Court and thereafter followed by the governments was one that cannot be called a reasonable restriction under Article 19(6) of the Constitution. Normally, the reason for establishing an educational institution is to impart education. The institution thus needs qualified and experienced teachers and proper facilities and equipment, all of which require capital investment. The teachers are required to be paid properly. As pointed out above, the restrictions imposed by the scheme, in Unni Krishnan’s case, made it difficult, if not impossible, for the educational institutions to run efficiently. Thus, such restrictions cannot be said to be reasonable restrictions.

36. The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfills the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution.

37. The Unni Krishnan judgment has created certain problems, and raised thorny issues. In its anxiety to check the commercialization of education, a scheme of “free” and “payment” seats was evolved on the assumption that the economic capacity of the first 50% of admitted students would be greater than the remaining 50%, whereas the converse has proved to be the reality. In this scheme, the “payment seat” student would not only pay for his own seat, but also finance the cost of a “free seat” classmate. When one considers the Constitution Bench’s earlier statement that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained, where the urban students always have an edge over the rural students. In practice, it has been the case of the marginally less merited rural or poor student bearing the burden of a rich and well-exposed urban student.

38. The scheme in Unni Krishnan’s case has the effect of nationalizing education in respect of important features, viz., the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair or reasonable. Even in the decision in Unni Krishnan’s case, it has been observed by Jeevan Reddy, J., at page 749, para 194, as follows:
“The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand – particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions – including minority educational institutions – too have a role to play.”

39. That private educational institutions are a necessity becomes evident from the fact that the number of government-maintained professional colleges has more or less remained stationary, while more private institutions have been established. For example, in the State of Karnataka there are 19 medical colleges out of which there are only 4 government-maintained medical colleges. Similarly, out of 14 Dental Colleges in Karnataka, only one has been established by the government, while in the same State, out of 51 Engineering Colleges, only 12 have been established by the government. The aforesaid figures clearly indicate the important role played by private unaided educational institutions, both minority and non-minority, which cater to the needs of students seeking professional education.

40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.

41. Surrendering the total process of selection to the state is unreasonable, as was sought to be done in the Unni Krishnan scheme. Apart from the decision in St. Stephen’s College vs. University of Delhi [(1992) 1 SCC 558], which recognized and upheld the right of a minority aided institution to have a rational admission procedure of its own, earlier Constitution Bench decisions of this Court have, in effect, upheld such a right of an institution devising a rational manner of selecting and admitting students.

42. In R. Chitralekha & Anr. vs. State of Mysore & Ors. [(1964) 6 SCR 368], while considering the validity of a viva-voce test for admission to a government medical college, it was observed at page 380 that colleges run by the government, having regard to financial commitments and other relevant considerations, would only admit a specific number of students. It had devised a method for screening the applicants for admission. While upholding the order so issued, it was observed that “once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a power which every private owner of a College will have, and the Government which runs its own Colleges cannot be denied that power”. (emphasis added)

43. Again, in Minor P. Rajendran vs. State of Madras & Ors. [(1968) 2 SCR 786], it was observed at page 795 that “so far as admission is concerned, it has to be made by those who are in control of the Colleges, and in this case the Government, because the medical colleges are Government colleges affiliated to the University. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qualifications.” The aforesaid observations clearly underscore the right of the colleges to frame rules for admission and to admit students. The only requirement or control is that the rules for admission must be subject to the rules of the university as to eligibility and qualifications. The Court did not say that the university could provide the manner in which the students were to be selected.

44. In Kumari Chitra Ghosh and Another vs. Union of India and Others [(1969) 2 SCC 228], dealing with a government run medical college at pages 232- 33, para 9, it was observed as follows:
“It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility…”

45. In view of the discussion hereinabove, we hold that the decision in Unni Krishnan’s case, insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, Medical Council of India, Central and State governments, etc., are overruled.

3. IN CASE OF PRIVATE INSTITUTIONS, CAN THERE BE GOVERNMENT REGULATIONS AND, IF SO, TO WHAT EXTENT?
46. We will now examine the nature and extent of the regulations that can be framed by the State, University or any affiliating body, while granting recognition or affiliation to a private educational institution.

47. Private educational institutions, both aided and unaided, are established and administered by religious and linguistic minorities, as well as by non-minorities. Such private educational institutions provide education at three levels, viz., school, college and professional level. It is appropriate to first deal with the case of private unaided institutions and private aided institutions that are not administered by linguistic or religious minorities. Regulations that can be framed relating to minority institutions will be considered while examining the merit and effect of Article 30 of the Constitution. Private Unaided Non-Minority Educational Institutions

48. Private education is one of the most dynamic and fastest growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.

49. Not only has demand overwhelmed the ability of the governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a “private good” that benefits the individual rather than a “public good” for society is now widely accepted. The logic of today’s economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.

50. The right to establish and administer broadly comprises of the following rights:-
(a) to admit students:
(b) to set up a reasonable fee structure:
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of any employees

51. A University Education Commission was appointed on 4th November, 1948, having Dr. S. Radhakrishanan as its Chairman and nine other renowned educationists as its members. The terms of reference, inter alia, included matters relating to means and objects of university education and research in India and maintenance of higher standards of teaching and examination in universities and colleges under their control. In the report submitted by this Commission, in paras 29 and 31, it referred to autonomy in education which reads as follows:- “University Autonomy. Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such States institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their populations and supply them with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process.

Higher education is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices. Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of the dying Goethe: “More light.” or that of Ajax in the mist “Light, though I perish in the light.

The respect in which the universities of Great Britain are held is due to the freedom from governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics.

Liberal Education. All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness. To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.”

52. There cannot be a better exposition than what has been observed by these renowned educationists with regard to autonomy in education. The aforesaid passage clearly shows that the governmental domination of the educational process must be resisted. Another pithy observation of the Commission was that state aid was not to be confused with state control over academic policies and practices. The observations referred to hereinabove clearly contemplate educational institutions soaring to great heights in pursuit of intellectual excellence and being free from unnecessary governmental controls.

53. With regard to the core components of the rights under Articles 19 and 26(a), it must be held that while the state has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance of conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the state or the concerned university. It will, however, be objectionable if the state retains the power to nominate specific individuals on governing bodies. Nomination by the state, which could be on a political basis, will be an inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restriction on the autonomy of the private unaided educational institution.

54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.

55. The Constitution recognizes the right of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. If aid or financial assistance is not sought, then such institution will be a private unaided institution. Although, in Unni Krishnan’s case, the Court emphasized the important role played by private unaided institutions and the need for private funding, in the scheme that was framed, restrictions were placed on some of the important ingredients relating to the functioning of an educational institution. There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a pre-requisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged.

56. An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government.

57. We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition “charitable”, it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.

58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.

59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.

60. Education is taught at different levels from primary to professional. It is, therefore, obvious that government regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or regulation could be greater vis-a-vis aided institutions.

61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admissions on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that state-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtailing the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the state has to provide the difference which, therefore, brings us back in a vicious circle to the original problem, viz., the lack of state funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and non-regulation of the school administration in the right of appointment, admission of the students and the fee to be charged will ensure that more such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be “purchasable” is an unfounded one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations.

62. There is a need for private enterprise in non-professional college education as well. At present, insufficient number of undergraduate colleges are being and have been established, one of the inhibiting factors being that there is a lack of autonomy due to government regulations. It will not be wrong to presume that the numbers of professional colleges are growing at a faster rate than the number of undergraduate and non-professional colleges. While it is desirable that there should be a sufficient number of professional colleges, it should also be possible for private unaided undergraduate colleges that are non-technical in nature to have maximum autonomy similar to a school.

63. It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it is required to be done, according to the rules or instructions. There have been cases of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the government or the university are clearly loaded against the Management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the initiation of the disciplinary proceeding, while in other cases, subsequent permission is required before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the Management in the event of some punishment being imposed, it was submitted that there should be no role for the government or the university to play in relation to the imposition of any penalty on the employee.

64. An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster-parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the Management concerning disciplinary action or termination of service.

65. The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. It is for this reason that in the St. Stephen’s College case, this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.

66. In the case of private unaided educational institutions, the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of students and teachers but how the private unaided institutions are to run is a matter of administration to be taken care of by the Management of those institutions.

Private Unaided Professional Colleges
67. We now come to the regulations that can be framed relating to private unaided professional institutions.

68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other nonprofessional but unaided educational institutions viz., graduation and post graduation non-professional colleges or institutes.

69. In such professional unaided institutions, the Management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/University subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers.

70. It is well established all over the world that those who seek professional education must pay for it. The number of seats available in government and government-aided colleges is very small, compared to the number of persons seeking admission to the medical and engineering colleges. All those eligible and deserving candidates who could not be accommodated in government colleges would stand deprived of professional education. This void in the field of medical and technical education has been filled by institutions that are established in different places with the aid of donations and the active part taken by publicminded individuals. The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful, the institution must be recognized. At the school level, the recognition or affiliation has to be sought from the educational authority or the body that conducts the school-leaving examination. It is only on the basis of that examination that a school-leaving certificate is granted, which enables a student to seek admission in further courses of study after school. A college or a professional educational institution has to get recognition from the concerned university, which normally requires certain conditions to be fulfilled before recognition. It has been held that conditions of affiliation or recognition, which pertain to the academic and educational character of the institution and ensure uniformity, efficiency and excellence in educational courses are valid, and that they do not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting recognition should not be such as may lead to governmental control of the administration of the private educational institutions.

Private Aided Professional Institutions (non-minority)

71. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state. The merit may be determined either through a common entrance test conducted by the University or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions the method to be followed is for the university or the government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society.

72. Once aid is granted to a private professional educational institution, the government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the state. The state would also be under an obligation to protect the interest of the teaching and non-teaching staff. In many states, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions. The state, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. Ever since In Re The Kerala Education Bill, 1957 [(1959) SCR 995], this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions. In other words, rules and regulations that promote good administration and prevent maladministration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions. At the same time it has to be ensured that even an aided institution does not become a government-owned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the Management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain that extent of autonomy in relation to management and administration as would be available to a private unaided institution, but at the same time, it cannot also be treated as an educational institution departmentally run by government or as a wholly owned and controlled government institution and interfere with Constitution of the governing bodies or thrusting the staff without reference to Management.

Other Aided Institutions
73. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the state. Although these institutions may have been established by philanthropists or other public-spirited persons, it becomes necessary, in order to provide inexpensive education to the students, to seek aid from the state. In such cases, as those of the professional aided institutions referred to hereinabove, the Government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State as well as admission procedures. Such rules and regulations can also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed. In other words, the autonomy of a private aided institution would be less than that of an unaided institution.

4. IN ORDER TO DETERMINE THE EXISTENCE OF A RELIGIOUS OR LINGUISTIC MINORITY IN RELATION TO ARTICLE 30, WHAT IS TO BE THE UNIT – THE STATE OR THE COUNTRY AS A WHOLE?

74. We now consider the question of the unit for the purpose of determining the definition of “minority” within the meaning of Article 30(1).

75. Article 30(1) deals with religious minorities and linguistic minorities. The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put at par, insofar as that Article is concerned. Therefore, whatever the unit – whether a state or the whole of India – for determining a linguistic minority, it would be the same in relation to a religious minority. India is divided into different linguistic states. The states have been carved out on the basis of the language of the majority of persons of that region. For example, Andhra Pradesh was established on the basis of the language of that region, viz., Telugu. “Linguistic minority” can, therefore, logically only be in relation to a particular State. If the determination of “linguistic minority” for the purpose of Article 30 is to be in relation to the whole of India, then within the State of Andhra Pradesh, Telugu speakers will have to be regarded as a “linguistic minority”. This will clearly be contrary to the concept of linguistic states.

76. If, therefore, the state has to be regarded as the unit for determining “linguistic minority” vis–vis Article 30, then with “religious minority” being on the same footing, it is the state in relation to which the majority or minority status will have to be determined.

77. In the Kerala Education Bill case, the question as to whether the minority community was to be determined on the basis of the entire population of India, or on the basis of the population of the State forming a part of the Union was posed at page 1047. It had been contended by the State of Kerala that for claiming the status of minority, the persons must numerically be a minority in the particular region in which the educational institution was situated, and that the locality or ward or town where the institution was to be situated had to be taken as the unit to determine the minority community. No final opinion on this question was expressed, but it was observed at page 1050 that as the Kerala Education Bill “extends to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of that State.”

78. In two cases pertaining to the DAV College, this Court had to consider whether the Hindus were a religious minority in the State of Punjab. In D.A.V. College vs. State of Punjab & Ors. [1971 (Supp.) SCR 688], the question posed was as to what constituted a religious or linguistic minority, and how it was to be determined. After examining the opinion of this Court in the Kerala Education Bill case, the Court held that the Arya Samajis, who were Hindus, were a religious minority in the State of Punjab, even though they may not have been so in relation to the entire country. In another case, D.A.V. College Bhatinda vs. State of Punjab & Ors. [1971 (Supp.) SCR 677], the observations in the first D.A.V. College case were explained, and at page 681, it was stated that “what constitutes a linguistic or religious minority must be judged in relation to the State inasmuch as the impugned Act was a State Act and not in relation to the whole of India.” The Supreme Court rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the state of Punjab, as it took the state as the unit to determine whether the Hindus were a minority community.

79. There can, therefore, be little doubt that this Court has consistently held that, with regard to a state law, the unit to determine a religious or linguistic minority can only be the state.

80. The Forty-Second Amendment to the Constitution included education in the Concurrent List under Entry 25. Would this in any way change the position with regard to the determination of a “religious” or “linguistic minority” for the purposes of Article 30?

81. As a result of the insertion of Entry 25 into List III, Parliament can now legislate in relation to education, which was only a state subject previously. The jurisdiction of the Parliament is to make laws for the whole or a part of India. It is well recognized that geographical classification is not violative of Article 14. It would, therefore, be possible that, with respect to a particular State or group of States, Parliament may legislate in relation to education. However, Article 30 gives the right to a linguistic or religious minority of a State to establish and administer educational institutions of their choice. The minority for the purpose of Article 30 cannot have different meanings depending upon who is legislating. Language being the basis for the establishment of different states for the purposes of Article 30, a “linguistic minority” will have to be determined in relation to the state in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put at par in Article 30.

5. TO WHAT EXTENT CAN THE RIGHTS OF AIDED PRIVATE MINORITY INSTITUTIONS TO ADMINISTER BE REGULATED?

82. Article 25 gives to all persons the freedom of conscience and the right to freely profess, practice and propagate religion. This right, however, is not absolute. The opening words of Article 25(1) make this right subject to public order, morality and health, and also to the other provisions of Part III of the Constitution. This would mean that the right given to a person under 25(1) can be curtailed or regulated if the exercise of that right would violate other provisions of Part III of the Constitution, or if the exercise thereof is not in consonance with public order, morality and health. The general law made by the government contains provisions relating to public order, morality and health; these would have to be complied with, and cannot be violated by any person in exercise of his freedom of conscience or his freedom to profess, practice and propagate religion. For example, a person cannot propagate his religion in such a manner as to denigrate another religion or bring about dissatisfaction amongst people.

83. Article 25(2) gives specific power to the state to make any law regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice as provided by sub-clause (a) of Article 25(2). This is a further curtailment of the right to profess, practice and propagate religion conferred on the persons under Article 25(1). Article 25(2)(a) covers only a limited area associated with religious practice, in respect of which a law can be made. A careful reading of Article 25(2)(a) indicates that it does not prevent the State from making any law in relation to the religious practice as such. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice.

84. The freedom to manage religious affairs is provided by Article 26. This Article gives the right to every religious denomination, or any section thereof, to exercise the rights that it stipulates. However, this right has to be exercised in a manner that is in conformity with public order, morality and health. Clause (a) of Article 26 gives a religious denomination the right to establish and maintain institutions for religious and charitable purposes. There is no dispute that the establishment of an educational institution comes within the meaning of the expression “charitable purpose”. Therefore, while Article 25(1) grants the freedom of conscience and the right to profess, practice and propagate religion, Article 26 can be said to be complementary to it, and provides for every religious denomination, or any section thereof, to exercise the rights mentioned therein. This is because Article 26 does not deal with the right of an individual, but is confined to a religious denomination. Article 26 refers to a denomination of any religion, whether it is a majority or a minority religion, just as Article 25 refers to all persons, whether they belong to the majority or a minority religion. Article 26 gives the right to majority religious denominations, as well as to minority religious denominations, to exercise the rights contained therein.

85. Secularism being one of the important basic features of our Constitution, Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated for the payment of expenses for the promotion and maintenance of any particular religion or religious denomination. The manner in which the Article has been framed does not prohibit the state from enacting a law to incur expenses for the promotion or maintenance of any particular religion or religious denomination, but specifies that by that law, no person can be compelled to pay any tax, the proceeds of which are to be so utilized. In other words, if there is a tax for the promotion or maintenance of any particular religion or religious denomination, no person can be compelled to pay any such tax.

86. Article 28(1) prohibits any educational institution, which is wholly maintained out of state funds, to provide for religious instruction. Moral education dissociated from any denominational doctrine is not prohibited; but, as the state is intended to be secular, an educational institution wholly maintained out of state funds cannot impart or provide for any religious instruction.

87. The exception to Article 28(1) is contained in Article 28(2). Article 28(2) deals with cases where, by an endowment or trust, an institution is established, and the terms of the endowment or the trust require the imparting of religious instruction, and where that institution is administered by the state. In such a case, the prohibition contained in Article 28(1) does not apply. If the administration of such an institution is voluntarily given to the government, or the government, for a good reason and in accordance with law, assumes or takes over the management of that institution, say on account of mal-administration, then the government, on assuming the administration of the institution, would be obliged to continue with the imparting of religious instruction as provided by the endowment or the trust.

88. While Article 28(1) and Article 28(2) relate to institutions that are wholly maintained out of state funds, Article 28(3) deals with an educational institution that is recognized by the state or receives aid out of state funds. Article 28(3) gives the person attending any educational institution the right not to take part in any religious instruction, which may be imparted by an institution recognized by the state, or receiving aid from the state. Such a person also has the right not to attend any religious worship that may be conducted in such an institution, or in any premises attached thereto, unless such a person, or if he/she is a minor, his/her guardian, has given his/her consent. The reading of Article 28(3) clearly shows that no person attending an educational institution can be required to take part in any religious instruction or any religious worship, unless the person or his/her guardian has given his/her consent thereto, in a case where the educational institution has been recognized by the state or receives aid out of its funds. We have seen that Article 26(a) gives the religious denomination the right to establish an educational institution, the religious denomination being either of the majority community or minority community. In any institution, whether established by the majority or a minority religion, if religious instruction is imparted, no student can be compelled to take part in the said religious instruction or in any religious worship. An individual has the absolute right not to be compelled to take part in any religious instruction or worship. Article 28(3) thereby recognizes the right of an individual to practice or profess his own religion. In other words, in matters relating to religious instruction or worship, there can be no compulsion where the educational institution is either recognized by the state or receives aid from the state.

89. Articles 29 and 30 are a group of articles relating to cultural and educational rights. Article 29(1) gives the right to any section of the citizens residing in India or any part thereof, and having a distinct language, script or culture of its own, to conserve the same. Article 29(1) does not refer to any religion, even though the marginal note of the Article mentions the interests of minorities. Article 29(1) essentially refers to sections of citizens who have a distinct language, script or culture, even though their religion may not be the same.

The common thread that runs through Article 29(1) is language, script or culture, and not religion. For example, if in any part of the country, there is a section of society that has a distinct language, they are entitled to conserve the same, even though the persons having that language may profess different religions. Article 29(1) gives the right to all sections of citizens, whether they are in a minority or the majority religions, to conserve their language, script or culture.

90. In the exercise of this right to conserve the language, script or culture, that section of the society can set up educational institutions. The right to establish and maintain educational institutions of its choice is a necessary concomitant to the right conferred by Article 30. The right under Article 30 is not absolute. Article 29(2) provides that, where any educational institution is maintained by the state or receives aid out of state funds, no citizen shall be denied admission on the grounds only of religion, race, caste, language or any of them. The use of the expression “any educational institution” in Article 29(2) would refer to any educational institution established by anyone, but which is maintained by the state or receives aid out of state funds. In other words, on a plain reading, state-maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language.

91. The right of the minorities to establish and administer educational institutions is provided for by Article 30(1). To some extent, Article 26(1)(a) and Article 30(1) overlap, insofar as they relate to the establishment of educational institutions; but whereas Article 26 gives the right both to the majority as well as minority communites to establish and maintain institutions for charitable purposes, which would, inter alia, include educational institutions, Article 30(1) refers to the right of minorities to establish and maintain educational institutions of their choice. Another difference between Article 26 and Article 30 is that whereas Article 26 refers only to religious denominations, Article 30 contains the right of religious as well as linguistic minorities to establish and administer educational institutions of their choice.

92. Article 30(1) bestows on the minorities, whether based on religion or language, the right to establish and administer educational institution of their choice. Unlike Articles 25 and 26, Article 30(1) does not specifically state that the right under Article 30(1) is subject to public order, morality and health or to other provisions of Part III. This sub-Article also does not specifically mention that the right to establish and administer a minority educational institution would be subject to any rules or regulations.

93. Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law? Does Article 30(1) give the religious or linguistic minorities a right to establish an educational institution that propagates religious or racial bigotry or ill will amongst the people? Can the right under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would the minority while establishing educational institutions not be bound by town planning rules and regulations? Can they construct and maintain buildings in any manner they desire without complying with the provisions of the building by-laws or health regulations?

94. In order to interpret Article 30 and its interplay, if any, with Article 29, our attention was drawn to the Constituent Assembly Debates. While referring to them, the learned Solicitor General submitted that the provisions of Article 29(2) were intended to be applicable to minority institutions seeking protection of Article 30. He argued that if any educational institution sought aid, it could not deny admission only on the ground of religion, race, caste or language and, consequently, giving a preference to the minority over more meritorious nonminority students was impermissible. It is now necessary to refer to some of the decisions of this Court insofar as they interpret Articles 29 and 30, and to examine whether any creases therein need ironing out.

95. In The State of Madras vs. Srimathi Champakam Dorairajan [(1951) SCR 525], the State had issued an order, which provided that admission to students to engineering and medical colleges in the State should be decided by the Selection Committee, strictly on the basis of the number of seats fixed for different communities. While considering the validity of this order, this Court interpreted Article 29(2) and held that if admission was refused only on the grounds of religion, race, caste, language or any of them, then there was a clear breach of the fundamental right under Article 29(2). The said order was construed as being violative of Article 29(2), because students who did not fall in the particular categories were to be denied admission. In this connection it was observed as follows:-

“.so far as those seats are concerned, the petitioners are denied admission into any of them, not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations were made…”

96. This government order was held to be violative of the Constitution and constitutive of a clear breach of Article 29(2). Article 30 did not come up for consideration in that case.

97. In The State of Bombay vs. Bombay Education Society and Others [(1955) 1 SCR 568], the State had issued a circular, the operative portion of which directed that no primary or secondary school could, from the date of that circular admit to a class where English was used as a medium of instruction, any pupil other than pupils belonging to a section of citizens, the language of whom was English, viz., Anglo-Indians and citizens of non-Asiatic descent. The validity of the circular was challenged while admission was refused, inter alia, to a member of the Gujarati Hindu Community. A number of writ petitions were filed and the High Court allowed them. In an application filed by the State of Bombay, this Court had to consider whether the said circular was ultra vires Article 29(2). In deciding this question, the Court analyzed the provisions of Articles 29(2) and 30, and repelled the contention that Article 29(2) guaranteed the right only to the citizens of the minority group. It was observed, in this connection, at page 579, as follows:
“The language of Article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of Article 29(2) extends against the State or anybody who denies the right conferred by it. Further Article 15 protects all citizens against discrimination generally but Article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. In the next place Article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination. The heading under which Articles 29 and 30 are grouped together – namely “Cultural and Educational Rights”- is quite general and does not in terms contemplate such differentiation. If the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens, irrespective of whether they belong to the majority or minority groups; are alike entitled to the protection of this fundamental right.”

98. It is clear from the aforesaid discussion that this Court came to the conclusion that in the case of minority educational institutions to which protection was available under Article 30, the provisions of Article 29(2) were indeed applicable. But, it may be seen that the question in the present form i.e., whether in the matter of admissions into aided minority educational institutions, minority students could be preferred to a reasonable extent, keeping in view the special protection given under Article 30(1), did not arise for consideration in that case.

99. In the Kerala Education Bill case, this Court again had the occasion to consider the interplay of Articles 29 and 30 of the Constitution. This case was a reference under Article 143(1) of the Constitution made by the President of India to obtain the opinion of this Court on certain questions relating to the constitutional validity of some of the provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly, but had been reserved by the Governor for the consideration of the President. Clause 3(5) of the Bill, made the recognition of new schools subject to the other provisions of the Bill and the rules framed by the Government under clause (36); clause (15) authorized the Government to acquire any category of schools; clause 8(3) made it obligatory on all aided schools to hand over the fees to the Government; clauses 9 to 13 made provisions for the regulation and management of the schools, payment of salaries to teachers and the terms and conditions of their appointment, and clause (33) forbade the granting of temporary injunctions and interim orders in restraint of proceedings under the Act.

100. With reference to Article 29(2), the Court observed at page 1055, while dealing with an argument based on Article 337 that “likewise Article 29(2) provides, inter alia, that no citizen shall be denied admission into any educational institution receiving aid out of State funds on grounds only of religion, race, caste, language or any of them”. Referring to Part III of the Constitution and to Articles 19 and 25 to 28 in particular, the Court said:-
“..Under Article 25 all persons are equally entitled, subject to public order, morality and health and to the other provisions of Part III, to freedom of conscience and the right freely to profess, practise and propagate religion. Article 26 confers the fundamental right to every religious denomination or any section thereof, subject to public order, morality and health, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to acquire property and to administer such property in accordance with law. The ideal being to constitute India into a secular State, no religious instruction is, under Article 28(1), to be provided in any educational institution wholly maintained out of State funds and under clause (3) of the same Article no person attending any educational institution recognized by the State or receiving aid out of State funds is to be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Article 29(1) confers on any section of the citizens having a distinct language, script or culture of its own to have the right of conserving the same. Clause (2) of that Article provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”

101. Dealing with Articles 29 and 30 at page 1046, it was observed as follows:-
“Articles 29 and 30 are set out in Part III of our Constitution which guarantees our fundamental rights. They are grouped together under the sub-head “Cultural and Educational Rights”. The text and the marginal notes of both the Articles show that their purpose is to confer those fundamental rights on certain sections of the community which constitute minority communities. Under clause (1) of Article 29 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30(1) which has hereinbefore been quoted in full. This right, however, is subject to clause 2 or Article 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”

102. It had been, inter alia, contended on behalf of the state that if a single member of any other community is admitted in a school established for a particular minority community, then the educational institution would cease to be an educational institution established by that particular minority community. It was contended that because of Article 29(2), when an educational institution established by a minority community gets aid, it would be precluded from denying admission to members of other communities because of Article 29(2), and that as a consequence thereof, it would cease to be an educational institution of the choice of the minority community that established it. Repelling this argument, it was observed at pages 1051-52, as follows:-
“This argument does not appear to us to be warranted by the language of the Article itself. There is no such limitation in Article 30(1) and to accept this limitation will necessarily involve the addition of the words “for their own community” in the Article which is ordinarily not permissible according to well established rules of interpretation. Nor is it reasonable to assume that the purpose of Article 29(2) was to deprive minority educational institutions of the aid they receive from the State. To say that an institution which receives aid on account of its being minority educational institution must not refuse to admit any member of any other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid. The real import of Article 29(2) and Article 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Article 30(1) of the Constitution.”

103. It will be seen that the use of the expression “sprinkling of outsiders”in that case clearly implied the applicability of Article 29(2) to Article 30(1); the Court held that when a minority educational institution received aid, outsiders would have to be admitted. This part of the state’s contention was accepted, but what was rejected was the contention that by taking outsiders, a minority institution would cease to be an educational institution of the choice of the minority community that established it. The Court concluded at page 1062, as follows:-
“.We have already observed that Article 30(1) gives two rights to the minorities, (1) to establish and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided..”

104. While noting that Article 30 referred not only to religious minorities but also to linguistic minorities, it was held that the Article gave those minorities the right to establish educational institutions of their choice, and that no limitation could be placed on the subjects to be taught at such educational institutions and that general secular education is also comprehended within the scope of Article 30(1). It is to be noted that the argument addressed and answered in that case was whether a minority aided institution loses its character as such by admitting nonminority students in terms of Article 29(2). It was observed that the admission of ’sprinkling of outsiders’ will not deprive the institution of its minority status. The opinion expressed therein does not really go counter to the ultimate view taken by us in regard to the inter-play of Articles 30(1) and 29(2)

105. In Rev. Sidhajbhai Sabhai and Others vs. State of Bombay and Another [(1963) 3 SCR 837], this Court had to consider the validity of an order issued by the Government of Bombay whereby from the academic year 1955-56, 80% of the seats in the training colleges for teachers in non-government training colleges were to be reserved for the teachers nominated by the Government. The petitioners, who belonged to the minority community, were, inter alia, running a training college for teachers, as also primary schools. The said primary schools and college were conducted for the benefit of the religious denomination of the United Church of Northern India and Indian Christians generally, though admission was not denied to students belonging to other communities. The petitioners challenged the government order requiring 80% of the seats to be filled by nominees of the government, inter alia, on the ground that the petitioners were members of a religious denomination and that they constituted a religious minority, and that the educational institutions had been established primarily for the benefit of the Christian community. It was the case of the petitioners that the decision of the Government violated their fundamental rights guaranteed by Articles 30(1), 26(a), (b), (c) and (d), and 19(1)(f) and (g). While interpreting Article 30, it was observed by this Court at pages 849-850 as under:-
“.All minorities, linguistic or religious have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions: it is a right to establish and administer what are in truth educational institutions, institutions which cater to the educational needs of the citizens, or sections thereof. Regulation 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.”

106. While coming to the conclusion that the right of the private training colleges to admit students of their choice was severely restricted, this Court referred to the opinion in the Kerala Education Bill case, but distinguished it by observing that the Court did not, in that case, lay down any test of reasonableness of the regulation. No general principle on which the reasonableness of a regulation may be tested was sought to be laid down in the Kerala Education Bill case and, therefore, it was held in Sidhajbhai Sabhai’s case that the opinion in that case was not an authority for the proposition that all regulative measures, which were not destructive or annihilative of the character of the institution established by the minority, provided the regulations were in the national or public interest, were valid. In this connection it was further held at page 856, as follows:-
“The right established by Article 30 (1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Article 30 (1) will be but a “teasing illusion”, a promise of unreality. 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 a 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.”

107. The aforesaid decision does indicate that the right under Article 30(1) is not so absolute as to prevent the government from making any regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai’s case, it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. It will further be seen that in Sidhajbhai Sabhai’s case, no reference was made to Article 29(2) of the Constitution. This decision, therefore, cannot be an authority for the proposition canvassed before us.

108. Our attention was invited to the decision in Rev. Father W. Proost and Ors. vs. The State of Bihar & Ors. [(1969) 2 SCR 73], but the said case has no application here. In that case, it was contended, on behalf of the State of Bihar, that, as the protection to the minority under Article 29(1) was only a right to conserve a distinct language, script or culture of its own, the college did not qualify for the protection of Article 30(1) because it was not founded to conserve them and that consequently, it was open to all sections of the people. The question, therefore, was whether the college could claim the protection of Section 48-B of the Bihar Universities Act read with Article 30(1) of the Constitution, only if it proved that the educational institution was furthering the rights mentioned in Article 29(1). Section 48-B of the Bihar Universities Act exempted a minority educational institution based on religion or language from the operation of some of the other provisions of that Act. This Court, while construing Article 30, held that its width could not be cut down by introducing in it considerations on which Article 29(1) was based. Articles 29(1) and 30(1) were held to create two separate rights, though it was possible that they might meet in a given case. While dealing with the contention of the state that the college would not be entitled to the protection under Article 30(1) because it was open to all sections of the people, the Court referred to the observations in the Kerala Education Bill case, wherein it had been observed that the real import of Article 29(2) and Article 30(1) was that they contemplated a minority institution with a sprinkling of outsiders admitted into it. The Court otherwise had no occasion to deal with the applicability of Article 29(2) to Article 30(1).

109. In State of Kerala, Etc. vs. Very Rev. Mother Provincial, Etc. [(1971) 1 SCR 734], the challenge was to various provisions of the Kerala University Act, 1969, whose provisions affected private colleges, particularly those founded by minority communities in the State of Kerala. The said provisions, inter alia, sought to provide for the manner in which private colleges were to be administered through the constitution of the governing body or managing councils in the manner provided by the Act. Dealing with Article 30, it was observed at pages 739-40 as follows: –
“Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority’s choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.

The next part of the right relates to the administration of such institutions. Administration means ’management of the affairs’ of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.”

The Court, however, pointed out that an exception to the right under Article 30 was the power with the state to regulate education, educational standards and allied matters. It was held that the minority institutions could not be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of the exclusive right of management, allowed to decline to follow the general pattern. The Court stated that while the management must be left to the minority, they may be compelled to keep in step with others.

110. The interplay of Article 29 and Article 30 came up for consideration again before this Court in the D.A.V. College case [1971 (Supp.) SCR 688]. Some of the provisions of the Guru Nanak University Act established after the reorganization of the State of Punjab in 1969 provided for the manner in which the governing body was to be constituted; the body was to include a representative of the University and a member of the College. These and some other provisions were challenged on the ground that they were violative of Article 30. In this connection at page 695, it was observed as follows:-
“It will be observed that Article 29(1) is wider than Article 30(1), in that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29(1), the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. It is not necessary for Article 30(1) that the minority should be both a religious minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them. While this is so these two articles are not inter-linked nor does it permit of their being always read together.”

Though it was observed that Article 30(1) is subject to 29(2), the question whether the preference to minority students is altogether excluded, was not considered.

111. One of the questions that arose in this case was as to whether the petitioner was a minority institution. In this case, it was also observed that the Hindus of Punjab were a religious minority in the State of Punjab and that, therefore, they were entitled to the protection of Article 30(1). Three of the provisions, which were sought to be challenged as being violative of Article 30, were Clauses 2(1), 17 and 18 of the statutes framed by the University under Section 19 of the University Act. Clause 2(1)(a) provided that, for seeking affiliation, the college was to have a governing body of not more than 20 persons approved by the Senate and including, amongst others, two representatives of the University and a member of the College. Clause 17 required the approval of the Vice-Chancellor for the staff initially appointed by the College. The said provision also provided that all subsequent changes in the staff were to be reported to the Vice-Chancellor for his/her approval. Clause 18 provided that non-government colleges were to comply with the requirements laid down in the ordinances governing the service and conduct of teachers in non-government colleges, as may be framed by the University. After referring to Kerala Education Bill, Sidhajbai Sabhai and Rev. Father W. Proost, this Court held that there was no justification for the provisions contained in Clause 2(1)(a) and Clause 17 of the statutes as they interfered with the rights of management of the minority educational institutions. P. Jaganmohan Reddy, J., observed that “these provisions cannot, therefore, be made as conditions of affiliation, the non-compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1).”

112. Clause 18, however, was held not to suffer from the same vice as Clause 17 because the provision, insofar as it was applicable to the minority institutions, empowered the University to prescribe by-regulations governing the service and conduct of teachers, and that this was in the larger interest of the institutions, and in order to ensure their efficiency and excellence. In this connection, it was observed at page 709, that: – “Uniformity in the conditions of service and conduct of teachers in all non-Government Colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of the matters referred to is unexceptional the nature of the infringement of the right, if any, under Article 30(1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicate.”

113. In The Ahmedabad St. Xaviers College Society & Anr. Etc. vs. State of Gujarat & Anr. [(1975) 1 SCR 173], this Court had to consider the constitutional validity of certain provisions of the Gujarat University Act, 1949, insofar as they were made to apply to the minority Christian institution. The impugned provisions, inter alia, provided that the University may determine that all instructions, teaching and training in courses of studies, in respect of which the University was competent to hold examinations, would be conducted by the University and would be imparted by the teachers of the University. Another provision provided that new colleges that may seek affiliation, were to be the constituent colleges of the University. The Court considered the scope and ambit of the rights of the minorities, whether based on religion or language, to establish and administer educational institutions of their choice under Article 30(1) of the Constitution. In dealing with this aspect, Ray, C.J., at page 192, while considering Articles 25 to 30, observed as follows:-
“Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in respect of language, script, culture as contemplated in Article 29. The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.”

114. Elaborating on the meaning and intent of Article 30, the learned Chief Justice further observed as follows:-
“The real reason embodied in Article 30(1) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole.”

115. The Court then considered whether the religious and linguistic minorities, who have the right to establish and administer educational institutions of their choice, had a fundamental right to affiliation. Recognizing that the affiliation to a University consisted of two parts, the first part relating to syllabi, curricula, courses of instruction, the qualifications of teachers, library, laboratories, conditions regarding health and hygiene of students (aspects relating to establishment of educational institutions), and the second part consisting of terms and conditions regarding the management of institutions, it was held that with regard to affiliation, a minority institution must follow the statutory measures regulating educational standards and efficiency, prescribed courses of study, courses of instruction, the principles regarding the qualification of teachers, educational qualifications for entry of students into educational institutions, etc.

116. While considering the right of the religious and linguistic minorities to administer their educational institutions, it was observed by Ray, C.J., at page 194, as follows:-
“The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.”

117. While considering this right to administer, it was held that the same was not an absolute right and that the right was not free from regulation. While referring to the observations of Das, C.J., in the Kerala Education Bill case, it was reiterated in the St. Xaviers College case that the right to administer was not a right to mal-administer. Elaborating the minority’s right to administer at page 196, it was observed as follows:-
“..The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclecticism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character.”

118. Ray, C.J., concluded by observing at page 200, as follows:-
“The ultimate goal of a minority institution too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education.
In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration.”

119. In a concurrent judgment, while noting that “clause (2) of Article 29 forbids the denial of admission to citizens into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of then”, Khanna, J. then examined Article 30, and observed at page 222, as follows:-
“Clause (1) of Article 30 gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Analyzing that clause it would follow that the right which has been conferred by the clause is on two types of minorities. Those minorities may be based either on religion or on language. The right conferred upon the said minorities is to establish and administer educational institutions of their choice. The word “establish” indicates the right to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the affairs of the institution. Administration connotes management of the affairs of the institution. The management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. The words “of their choice” qualify the educational institutions and show that the educational institutions established and administered by the minorities need not be of some particular class; the minorities have the right and freedom to establish and administer such educational institutions as they choose. Clause (2) of Article 30 prevents the State from making discrimination in the matter of grant of aid to any educational institution on the ground that the institution is under the management of a minority whether based on religion or language.

120. Explaining the rationale behind Article 30, it was observed at page 224, as follows:-
“The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact.”

121. While advocating that provisions of the Constitution should be construed according to the liberal, generous and sympathetic approach, and after considering the principles which could be discerned by him from the earlier decisions of this Court, Khanna, J., observed at page 234, as follows:-
“..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 Constitutionmakers 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 civilized nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.”

122. The learned Judge then observed that the right of the minorities to administer educational institutions did not prevent the making of reasonable regulations in respect of these institutions. Recognizing that the right to administer educational institutions could not include the right to mal-administer, it was held that regulations could be lawfully imposed, for the receiving of grants and recognition, while permitting the institution to retain its character as a minority institution. The 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.” It was permissible for the authorities to prescribe regulations, which must be complied with, before a minority institution could seek or retain affiliation and recognition. But it was also stated that the regulations made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has 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 that embraced and reconciled the two objectives could be considered to be reasonable. This, in our view, is the correct approach to the problem.

123. After referring to the earlier cases in relation to the appointment of teachers, it was noted by Khanna, J., that the conclusion which followed was that a law which interfered with a minority’s choice of qualified teachers, or its disciplinary control over teachers and other members of the staff of the institution, was void, as it was violative of Article 30(1). While it was permissible for the state and its educational authorities to prescribe the qualifications of teachers, it was held that once the teachers possessing the requisite qualifications were 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 was regarded as one of the essential ingredients under Article 30(1). The Court’s attention was drawn to the fact that in the Kerala Education Bill case, this Court had opined that Clauses (11) and (12) made it obligatory for all aided schools to select teachers from a panel selected from each district by the Public Service Commission and that no teacher of an aided school could be dismissed, removed or reduced in rank without the previous sanction of the authorized officer. At page 245, Khanna, J., observed that in cases subsequent to the opinion in the Kerala Education Bill case, this Court had held similar provisions as Clause (11) and Clause (12) to be violative of Article 30(1) of the minority institution. He then observed as follows:-
“..The opinion expressed by this Court in Re Kerala Education Bill (supra) was of an advisory character and though great weight should be attached to it because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases. It is the law declared by this Court in the subsequent contested cases which would have a binding effect. The words “as at present advised” as well as the preceding sentence indicate that the view expressed by this Court in Re Kerala Education Bill in this respect was hesitant and tentative and not a final view in the matter..”

124. In Lilly Kurian vs. Sr. Lewina and Ors. [(1979) 1 SCR 820], this Court struck down the power of the Vice-Chancellor to veto the decision of the management to impose a penalty on a teacher. It was held that the power of the Vice-Chancellor, while hearing an appeal against the imposition of the penalty, was uncanalized and unguided. In Christian Medical College Hospital Employees’ Union & Anr. vs. Christian Medical College Vellore Association & Ors. [(1988) 1 SCR 546], this Court upheld the application of industrial law to minority colleges, and it was held that providing a remedy against unfair dismissals would not infringe Article 30. In Gandhi Faizeam College Shahajhanpur vs. University of Agra and Another [(1975) 3 SCR 810], a law which sought to regulate the working of minority institutions by providing that a broad-based management committee could be re-constituted by including therein the Principal and the senior-most teacher, was valid and not violative of the right under Article 30(1) of the Constitution. In All Saints High School, Hyderabad Etc. Etc. vs. Government of A.P. & Ors. Etc. [(1980) 2 SCR 924], a regulation providing that no teacher would be dismissed, removed or reduced in rank, or terminated otherwise except with the prior approval of the competent authority, was held to be invalid, as it sought to confer an unqualified power upon the competent authority. In Frank Anthony Public School Employees Association vs. Union of India & Ors. [(1987) 1 SCR 238], the regulation providing for prior approval for dismissal was held to be invalid, while the provision for an appeal against the order of dismissal by an employee to a Tribunal was upheld. The regulation requiring prior approval before suspending an employee was held to be valid, but the provision, which exempted unaided minority schools from the regulation that equated the pay and other benefits of employees of recognized schools with those in schools run by the authority, was held to be invalid and violative of the equality clause. It was held by this Court that the regulations regarding pay and allowances for teachers and staff would not violate Article 30.

125. In the St. Stephen’s College case, the right of minorities to administer educational institutions and the applicability of Article 29(2) to an institution to which Article 30(1) was applicable came up for consideration. St. Stephen’s College claimed to be a minority institution, which was affiliated to Delhi University; the College had its own provisions with regard to the admission of students. This provision postulated that applications would be invited by the college by a particular date. The applications were processed and a cut-off percentage for each subject was determined by the Head of the respective Departments and a list of potentially suitable candidates was prepared on the basis of 1:4 and 1:5 ratios for Arts and Science students respectively, and they were then called for an interview (i.e., for every available seat in the Arts Department, four candidates were called for interviews; similarly, for every available seat in the Science Department, five candidates were called for interviews). In respect of Christian students, a relaxation of upto 10% was given in determining the cut-off point. Thereafter, the interviews were conducted and admission was granted. The Delhi University, however, had issued a circular, which provided that admission should be granted to the various courses purely on the basis of merit, i.e., the percentage of marks secured by the students in the qualifying examination. The said circular did not postulate any interview. Thereafter, the admission policy of St. Stephen’s College was challenged by a petition under Article 32. It was contended by the petitioners that the College was bound to follow the University policy, rules and regulations regarding admission, and further argued that it was not a minority institution, and in the alternative, it was not entitled to discriminate against students on the ground of religion, as the college was receiving grant-in-aid from the government, and that such discrimination was violative of Article 29(2). The College had also filed a writ petition in the Supreme Court taking the stand that it was a religious minority institution, and that the circular of the University regarding admission violated its fundamental right under Article 30. This Court held that St. Stephen’s College was a minority institution. With regard to the second question as to whether the college was bound by the University circulars regarding admission, this Court, by a majority of 4-1, upheld the admission procedure used by the College, even though it was different from the one laid down by the University. In this context, the contention of the College was that it had been following its own admission programme for more than a hundred years and that it had built a tradition of excellence in a number of distinctive activities. The College challenged the University circular on the ground that it was not regulatory in nature, and that it violated its right under Article 30. Its submission was that if students were admitted purely on the basis of marks obtained by them in the qualifying examination, it would not be possible for any Christian student to gain admission. The college had also found that unless a concession was afforded, the Christian students could not be brought within the zone of consideration as they generally lacked merit when compared to the other applicants. This Court referred to the earlier decisions, and with regard to Article 30(1), observed at page 596, paragraph 54, as follows:-
“The minorities whether based on religion or language have the right to establish and administer educational institutions of their choice. The administration of educational institutions of their choice under Article 30(1) means ’management of the affairs of the institution’. This management must be free from control so that the founder or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. But the standards of education are not a part of the management as such. The standard concerns the body politic and is governed by considerations of the advancement of the country and its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore has the right to regulate the standard of education and allied matters. Minority institutions cannot be permitted to fall below the standards of excellence expected of educational institutions. They cannot decline to follow the general pattern of education under the guise of exclusive right of management. While the management must be left to them, they may be compelled to keep in step with others…”

126. It was further noticed that the right under Article 30(1) had to be read subject to the power of the state to regulate education, educational standards and allied matters. In this connection, at pages 598-99, paragraph 59, it was observed as follows:-
“The need for a detailed study on this aspect is indeed not necessary. The right to minorities whether religious or linguistic, to administer educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labor relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1).

127. Dealing with the question of the selection of students, it was accepted that the right to select students for admission was a part of administration, and that this power could be regulated, but it was held that the regulation must be reasonable and should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. Bearing this principle in mind, this Court took note of the fact that if the College was to admit students as per the circular issued by the University, it would have to deny admissions to the students belonging to the Christian community because of the prevailing situation that even after the concession, only a small number of minority applicants would gain admission. It was the case of the College that the selection was made on the basis of the candidate’s academic record, and his/her performance at the interview keeping in mind his/her all round competence, his/her capacity to benefit from attendance at the College, as well as his/her potential to contribute to the life of the College. While observing that the oral interview as a supplementary test and not as the exclusive test for assessing the suitability of the candidates for college admission had been recognized by this Court, this Court observed that the admission programme of the college “based on the test of promise and accomplishment of candidates seems to be better than the blind method of selection based on the marks secured in the qualifying examinations.” The Court accordingly held that St. Stephen’s College was not bound by the impugned circulars of the University. This Court then dealt with the question as to whether a preference in favour of, or a reservation of seats for candidates belonging to, its own community by the minority institutions would be invalid under Article 29(2) of the Constitution. After referring to the Constituent Assembly Debates and the proceedings of the Draft Committee that led to the incorporation of Articles 29 and 30, this Court proceeded to examine the question of the true import and effect of Articles 29(2) and 30(1) of the Constitution. On behalf of the institutions, it was argued that a preference given to minority candidates in their own educational institutions, on the ground that those candidates belonged to that minority community, was not violative of Article 29(2), and that in the exercise of Article 30(1), the minorities were entitled to establish and administer educational institutions for the exclusive advantage of their own community’s candidates. This contention was not accepted by this Court on two grounds. Firstly, it was held that institutional preference to minority candidates based on religion was apparently an institutional discrimination on the forbidden ground of religion the Court stated that “if an educational institution says yes to one candidate but says no to other candidate on the ground of religion, it amounts to discrimination on the ground of religion. The mandate of Article 29(2) is that there shall not be any such discrimination.” It further held that, as pointed out in the Kerala Education Bill case, the minorities could not establish educational institutions for the benefit of their own community alone. For if such was the aim, Article 30(1) would have been differently worded and it would have contained the words “for their own community”. In this regard, it would be useful to bear in mind that the Court at page 607, paragraph 81, noticed that:-
“Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have a relatively homogeneous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges, segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a ’melting pot’ in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions.

128. The Court then dealt with the contention on behalf of the University that the minority institutions receiving government aid were bound by the mandate of Article 29(2), and that they could not prefer candidates from their own community. The Court referred to the decision in the case of Champakam Dorairajan (supra), but observed as follows:
“..the fact that Article 29(2) applied to minorities as well as nonminorities did not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1). Article 29(2) deals with non-discrimination and is available only to individuals. General equality by non-discrimination is not the only need of minorities. Minority rights under majority rule implies more than nondiscrimination; indeed, it begins with non-discrimination. Protection of interests and institutions and the advancement of opportunity are just as important. Differential treatment that distinguishes them from the majority is a must to preserve their basic characteristics.”

129. Dealing with the submission that in a secular democracy the government could not be utilized to promote the interest of any particular community, and that the minority institution was not entitled to state aid as of right, this Court, at page 609, paragraph 87, held as follows:-
“It is quite true that there is no entitlement to State grant for minority educational institutions. There was only a stop-gap arrangement under Article 337 for the Anglo-Indian community to receive State grants. There is no similar provision for other minorities to get grant from the State. But under Article 30(2), the State is under an obligation to maintain equality of treatment in granting aid to educational institutions. Minority institutions are not to be treated differently while giving financial assistance. They are entitled to get the financial assistance much the same way as the institutions of the majority communities.”

130. It was further held that the state could lay down reasonable conditions for obtaining grant-in-aid and for its proper utilization, but that the state had no power to compel minority institutions to give up their rights under Article 30(1). After referring to the Kerala Education Bill case and Sidhajbhai Sabhai’s case, the Court observed at page 609, paragraph 88, as follows:-
“In the latter case this court observed at SCR pages 856-57 that the regulation which may lawfully be imposed as a condition of receiving grant must be directed in making the institution an effective minority educational institution. The regulation cannot change the character of the minority institution. Such regulations must satisfy a dual test; the test of reasonableness, and the test that it is regulative of the educational character of the institution. It must be conducive to making the institution and effective vehicle of education for the minority community or other persons who resort to it. It is thus evident that the rights under Article 30(1) remain unaffected even after securing financial assistance from the government.”

131. After referring to the following observations in D.A.V. College case,
“..The right of a religious or linguistic minority to establish and administer educational institutions of its choice under Article 30(1) is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Article 29(2), which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them…”
the learned Judges remarked at page 610 (para 91) that in the said case, the Court was not deciding the question that had arisen before them.

132. According to the learned Judges, the question of the interplay of Article 29(2) with Article 30(1) had arisen in that case (St. Stephen’s case) for the first time, and had not been considered by the Court earlier; they observed that “we are on virgin soil, not on trodden ground”. Dealing with the interplay of these two Articles, it was observed, at page 612, paragraph 96, as follows:-
“The collective minority right is required to be made functional and is not to be reduced to useless lumber. A meaningful right must be shaped, moulded and created under Article 30(1), while at the same time affirming the right of individuals under Article 29(2). There is need to strike a balance between the two competing rights. It is necessary to mediate between Article 29(2) and Article 30(1), between letter and spirit of these articles, between traditions of the past and the convenience of the present, between society’s need for stability and its need for change.”

133. The two competing rights are the right of the citizen not to be denied admission granted under Article 29(2), and right of the religious or linguistic minority to administer and establish an institution of its choice granted under Article 30(1). While treating Article 29(2) as a facet of equality, the Court gave a contextual interpretation to Articles 29(2) and 30(1) while rejecting the extreme contentions on both sides, i.e., on behalf of the institutions that Article 29(2) did not prevent a minority institution to preferably admit only members belonging to the minority community, and the contention on behalf of the State that Article 29(2) prohibited any preference in favour of a minority community for whose benefit the institution was established. The Court concluded, at pages 613-14, para 102, as follows:-
“In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall make available at least 50 per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.”

134. If we keep these basic features, as highlighted in St. Stephen’s case, in view, then the real purposes underlying Articles 29(2) and 30 can be better appreciated.

135. We agree with the contention of the learned Solicitor General that the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. We find it difficult to accept that in the establishment and administration of educational institutions by the religious and linguistic minorities, no law of the land, even the Constitution, is to apply to them.

136. Decisions of this Court have held that the right to administer does not include the right to mal-administer. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.

137. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).

138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis–vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St. Xaviers College case, at page 192, that “the whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection, they will be denied equality.” In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.

139. Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g., method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30.

140. We have now to address the question of whether Article 30 gives a right to ask for a grant or aid from the state, and secondly, if it does get aid, to examine to what extent its autonomy in administration, specifically in the matter of admission to the educational institution established by the community, can be curtailed or regulated.

141. The grant of aid is not a constitutional imperative. Article 337 only gives the right to assistance by way of grant to the Anglo-Indian community for a specified period of time. If no aid is granted to anyone, Article 30(1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. The founding fathers have not incorporated the right to grants in Article 30, whereas they have done so under Article 337; what, then, is the meaning, scope and effect of Article 30(2)? Article 30(2) only means what it states, viz., that a minority institution shall not be discriminated against when aid to educational institutions is granted. In other words the state cannot, when it chooses to grant aid to educational institutions, deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority. We would, however, like to clarify that if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration. If, however, aid were denied on the ground that the educational institution is under the management of a minority, then such a denial would be completely invalid.

142. The implication of Article 30(2) is also that it recognizes that the minority nature of the institution should continue, notwithstanding the grant of aid. In other words, when a grant is given to all institutions for imparting secular education, a minority institution is also entitled to receive it, subject to the fulfillment of the requisite criteria, and the state gives the grant knowing that a linguistic or minority educational institution will also receive the same. Of course, the state cannot be compelled to grant aid, but the receipt of aid cannot be a reason for altering the nature or character of the recipient educational institution.

143. This means that the right under Article 30(1) implies that any grant that is given by the state to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant.

144. It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilization of the grant-inaid by an educational institution can be imposed. All that Article 30(2) states is that on the ground that an institution is under the management of a minority, whether based on religion or language, grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid. The conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minorityrun institution. As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non-minorities. Article 28(3) is the right of a person studying in a state recognized institution or in an educational institution receiving aid from state funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent (or his/her guardian’s consent if such a person is a minor). Just as Article 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the state or receiving aid out of state funds. It was strenuously contended that the right to give admission is one of the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right should not be curtailed in any manner. It is difficult to accept this contention. If Article 28(1) and (3) apply to a minority institution that receives aid out of state funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. Like Article 28(1) and Article 28(3), Article 29(2) refers to “any educational institution maintained by the State or receiving aid out of State funds”. A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students as it chooses or selects subject to what has been clarified before. Out of the various rights that the minority institution has in the administration of the institution, Article 29(2) curtails the right to grant admission to a certain extent. By virtue of Article 29(2), no citizen can be denied admission by an aided minority institution on the grounds only of religion, race, caste, language or any of them. It is no doubt true that Article 29(2) does curtail one of the powers of the minority institution, but on receiving aid, some of the rights that an unaided minority institution has, are also curtailed by Article 28(1) and 28(3). A minority educational institution has a right to impart religious instruction this right is taken away by Article 28(1), if that minority institution is maintained wholly out of state funds. Similarly on receiving aid out of state funds or on being recognized by the state, the absolute right of a minority institution requiring a student to attend religious instruction is curtailed by Article 28(3). If the curtailment of the right to administer a minority institution on receiving aid or being wholly maintained out of state funds as provided by Article 28 is valid, there is no reason why Article 29(2) should not be held to be applicable. There is nothing in the language of Article 28(1) and (3), Article 29(2) and Article 30 to suggest that, on receiving aid, Article 28(1) and (3) will apply, but Article 29(2) will not. Therefore, the contention that the institutions covered by Article 30 are outside the injunction of Article 29(2) cannot be accepted.

145. What is the true scope and effect of Article 29(2)? Article 29(2) is capable of two interpretations one interpretation, which is put forth by the Solicitor General and the other counsel for the different States, is that a minority institution receiving aid cannot deny admission to any citizen on the grounds of religion, race, caste, language or any of them. In other words, the minority institution, once it takes any aid, cannot make any reservation for its own community or show a preference at the time of admission, i.e., if the educational institution was a private unaided minority institution, it is free to admit all students of its own community, but once aid is received, Article 29(2) makes it obligatory on the institution not to deny admission to a citizen just because he does not belong to the minority community that has established the institution.

146. The other interpretation that is put forth is that Article 29(2) is a protection against discrimination on the ground of religion, race, caste or language, and does not in any way come into play where the minority institution prefers students of its choice. To put it differently, denying admission, even though seats are available, on the ground of the applicant’s religion, race, caste or language, is prohibited, but preferring students of minority groups does not violate Article 29(2).

147. It is relevant to note that though Article 29 carries the head note “Protection of interests of minorities” it does not use the expression “minorities” in its text. The original proposal of the Advisory Committee in the Constituent Assembly recommended the following:-
“”(1) Minorities in every unit shall be protected in respect of their language, script and culture and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect.”
[B. Siva Rao, “Select Documents” (1957) Vol. 2 page 281]
But after the clause was considered by the Drafting Committee on 1st November, 1947, it emerged with substitute of ’section of citizens’.[B. Siva Rao, Select Documents (1957) Vol.3, pages 525-26. Clause 23, Draft Constitution]. It was explained that the intention had always been to use ’minority’ in a wide sense, so as to include (for example) Maharashtrians who settled in Bengal. (7 C.A.D. pages 922- 23)”

148. Both Articles 29 and 30 form a part of the fundamental rights Chapter in Part III of the Constitution. Article 30 is confined to minorities, be it religious or linguistic, and unlike Article 29(1), the right available under the said Article cannot be availed by any section of citizens. The main distinction between Article 29(1) and Article 30(1) is that in the former, the right is confined to conservation of language, script or culture. As was observed in the Father W. Proost case, the right given by Article 29(1) is fortified by Article 30(1), insofar as minorities are concerned. In the St. Xaviers College case, it was held that the right to establish an educational institution is not confined to conservation of language, script or culture. When constitutional provisions are interpreted, it has to be borne in mind that the interpretation should be such as to further the object of their incorporation. They cannot be read in isolation and have to be read harmoniously to provide meaning and purpose. They cannot be interpreted in a manner that renders another provision redundant. If necessary, a purposive and harmonious interpretation should be given.

149. Although the right to administer includes within it a right to grant admission to students of their choice under Article 30(1), when such a minority institution is granted the facility of receiving grant-in-aid, Article 29(2) would apply, and necessarily, therefore, one of the rights of administration of the minorities would be eroded to some extent. Article 30(2) is an injunction against the state not to discriminate against the minority educational institution and prevent it from receiving aid on the ground that the institution is under the management of a minority. While, therefore, a minority educational institution receiving grant-inaid would not be completely outside the discipline of Article 29(2) of the Constitution, by no stretch of imagination can the rights guaranteed under Article 30(1) be annihilated. It is in this context that some interplay between Article 29(2) and Article 30(1) is required. As observed quite aptly in St. Stephen’s case “the fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1).” The word “only” used in Article 29(2) is of considerable significance and has been used for some avowed purpose. Denying admission to non-minorities for the purpose of accommodating minority students to a reasonable extent will not be only on grounds of religion etc., but is primarily meant to preserve the minority character of the institution and to effectuate the guarantee under Article 30(1). The best possible way is to hold that as long as the minority educational institution permits admission of citizens belonging to the non-minority class to a reasonable extent based upon merit, it will not be an infraction of Article 29(2), even though the institution admits students of the minority group of its own choice for whom the institution was meant. What would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any specific percentage. The situation would vary according to the type of institution and the nature of education that is being imparted in the institution. Usually, at the school level, although it may be possible to fill up all the seats with students of the minority group, at the higher level, either in colleges or in technical institutions, it may not be possible to fill up all the seats with the students of the minority group. However, even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under Article 29(2) are not subverted. It is for this reason that a variable percentage of admission of minority students depending on the type of institution and education is desirable, and indeed, necessary, to promote the constitutional guarantees enshrined in both Article 29(2) and Article 30.

150. At this stage, it will be appropriate to refer to the following observations of B.P. Jeevan Reddy, J., in Indra Sawhney vs. Union of India and Others [1992 Supp. (3) SCC 215] at page 657, paragraph 683, as follows:-
“Before we proceed to deal with the question, we may be permitted to make a few observations: The questions arising herein are not only of great moment and consequence, they are also extremely delicate and sensitive. They represent complex problems of Indian society, wrapped and presented to us as constitutional and legal questions. On some of these questions, the decisions of this Court have not been uniform. They speak with more than one voice. Several opposing points of view have been pressed upon us with equal force and passion and quite often with great emotion. We recognize that these viewpoints are held genuinely by the respective exponents. Each of them feels his own point of view is the only right one. We cannot, however, agree with all of them. We have to find and we have tried our best to find answers which according to us are the right ones constitutionally and legally. Though, we are sitting in a larger Bench, we have kept in mind the relevance and significance of the principle of stare decisis. We are conscious of the fact that in law certainty, consistency and continuity are highly desirable features. Where a decision has stood the test of time and has never been doubted, we have respected it unless, of course, there are compelling and strong reasons to depart from it. Where, however, such uniformity is not found, we have tried to answer the question on principle keeping in mind the scheme and goal of our Constitution and the material placed before us.”

151. The right of the aided minority institution to preferably admit students of its community, when Article 29(2) was applicable, has been clarified by this Court over a decade ago in the St. Stephen’s College case. While upholding the procedure for admitting students, this Court also held that aided minority educational institutions were entitled to preferably admit their community candidates so as to maintain the minority character of the institution, and that the state may regulate the intake in this category with due regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephen’s endeavoured to strike a balance between the two Articles. Though we accept the ratio of St. Stephen’s, which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that, depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located, the state properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established.

152. At the same time, the admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions. As the regulations to promote academic excellence and standards do not encroach upon the guaranteed rights under Article 30, the aided minority educational institutions can be required to observe inter se merit amongst the eligible minority applicants and passage of common entrance test by the candidates, where there is one, with regard to admissions in professional and non-professional colleges. If there is no such test, a rational method of assessing comparative merit has to be evolved. As regards the non-minority segment, admission may be on the basis of the common entrance test and counselling by a state agency. In the courses for which such a test and counselling are not in vogue, admission can be on the basis of relevant criteria for the determination of merit. It would be open to the state authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats.

153. We would, however, like to clarify one important aspect at this stage. The aided linguistic minority educational institution is given the right to admit students belonging to the linguistic minority to a reasonable extent only to ensure that its minority character is preserved and that the objective of establishing the institution is not defeated. If so, such an institution is under an obligation to admit the bulk of the students fitting into the description of the minority community. Therefore, the students of that group residing in the state in which the institution is located have to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that state is concerned. In other words, the predominance of linguistic students hailing from the state in which the minority educational institution is established should be present. The management bodies of such institutions cannot resort to the device of admitting the linguistic students of the adjoining state in which they are in a majority, under the faade of the protection given under Article 30(1). If not, the very objective of conferring the preferential right of admission by harmoniously constructing Articles 30(1) and 29(2), which we have done above, may be distorted.

154. We are rightly proud of being the largest democracy in the world. The essential ingredient of democracy is the will and the right of the people to elect their representatives from amongst whom a government is formed.

155. It will be wrong to presume that the government or the legislature will act against the Constitution or contrary to the public or national interest at all times. Viewing every action of the government with skepticism, and with the belief that it must be invalid unless proved otherwise, goes against the democratic form of government. It is no doubt true that the Court has the power and the function to see that no one including the government acts contrary to the law, but the cardinal principle of our jurisprudence is that it is for the person who alleges that the law has been violated to prove it to be so. In such an event, the action of the government or the authority may have to be carefully examined, but it is improper to proceed on the assumption that, merely because an allegation is made, the action impugned or taken must be bad in law. Such being the position, when the government frames rules and regulations or lays down norms, especially with regard to education, one must assume that unless shown otherwise, the action taken is in accordance with law. Therefore, it will not be in order to so interpret a Constitution, and Articles 29 and 30 in particular, on the presumption that the state will normally not act in the interest of the general public or in the interests of concerned sections of the society.

CONCLUSION
Equality and Secularism

156. Our country is often depicted as a person in the form of “Bharat Mata Mother India”. The people of India are regarded as her children with their welfare being in her heart. Like any loving mother, the welfare of the family is of paramount importance for her.

157. For a healthy family, it is important that each member is strong and healthy. But then, all members do not have the same constitution, whether physical and/or mental. For harmonious and healthy growth, it is but natural for the parents, and the mother in particular, to give more attention and food to the weaker child so as to help him/her become stronger. Giving extra food and attention and ensuring private tuition to help in his/her studies will, in a sense, amount to giving the weaker child preferential treatment. Just as lending physical support to the aged and the infirm, or providing a special diet, cannot be regarded as unfair or unjust, similarly, conferring certain rights on a special class, for good reasons, cannot be considered inequitable. All the people of India are not alike, and that is why preferential treatment to a special section of the society is not frowned upon. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to instill in them a sense of security and confidence, even though the minorities cannot be per se regarded as weaker sections or underprivileged segments of the society.

158. The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6,400 castes and sub-castes; eighteen major languages and 1,600 minor languages and dialects. The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the small pieces of marble that go into the making of a map. Each person, whatever his/her language, caste, religion has his/her individual identity, which has to be preserved, so that when pieced together it goes to form a depiction with the different geographical features of India. These small pieces of marble, in the form of human beings, which may individually be dissimilar to each other, when placed together in a systematic manner, produce the beautiful map of India. Each piece, like a citizen of India, plays an important part in making of the whole. The variations of the colours as well as different shades of the same colour in a map is the result of these small pieces of different shades and colours of marble, but even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.

159. Each of the people of India has an important place in the formation of the nation. Each piece has to retain its own colour. By itself, it may be an insignificant stone, but when placed in a proper manner, goes into the making of a full picture of India in all its different colours and hues.

160. A citizen of India stands in a similar position. The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of different pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces.

161. The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.

ANSWERS TO ELEVEN QUESTIONS:
Q.1. What is the meaning and content of the expression “minorities” in Article 30 of the Constitution of India?
A. Linguistic and religious minorities are covered by the expression “minority”under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise.

Q.2. What is meant by the expression “religion” in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q.3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q3(b) To what extent can professional education be treated as a matter coming under minorities rights under Article 30?
A. Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words “of their choice” indicates that even professional educational institutions would be covered by Article 30.

Q.4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated?
A. Admission of students to unaided minority educational institutions, viz., schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the concerned State or University, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.
The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
A minority institution does not cease to be so, the moment grant-inaid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens’ rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The concerned State Government has to notify the percentage of the nonminority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the state agency is necessary to seek admission. As regards nonminority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the state agency followed by counselling wherever it exists.

Q5(a) Whether the minority’s rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.

Q5(b) Whether the minority institutions’ right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid?
A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state qua nonminority students. The merit may be determined either through a common entrance test conducted by the concerned University or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions the method to be followed is for the university or the government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society.

Q5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.

Q6(a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State ’A’ establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q6(b) Whether it would be correct to say that only the members of that minority residing in State ’A’ will be treated as the members of the minority vis–vis such institution?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q.7 Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q.8 Whether the ratio laid down by this Court in the St. Stephen’s case (St. Stephen’s College vs. University of Delhi [(1992) 1 SCC 558] is correct? If no, what order?
A. The basic ratio laid down by this Court in the St. Stephen’s College case is correct, as indicated in this judgment. However, rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities.

Q.9 Whether the decision of this Court in Unni Krishnan J.P. vs. State of A.P. [(1993) 1 SCC 645] (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what?
A. The scheme framed by this Court in Unni Krishnan’s case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering.

Q.10 Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions?
and
Q.11 What is the meaning of the expressions “Education” and “Educational Institutions” in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?

A. The expression “education” in the Articles of the Constitution means and includes education at all levels from the primary school level upto the postgraduate level. It includes professional education. The expression “educational institutions” means institutions that impart education, where “education” is as understood hereinabove.
The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 140 of 2002
G.V.N. KAMESWARA RAO …PETITIONER
Vs.
G. JABILLI …RESPONDENT
DATE OF JUDGMENT: 10/01/2002
BENCH: D.P. Mohapatra & K.G. Balakrishnan

J U D G M E N T

K.G. Balakrishnan, J.

Leave granted.

The husband who had been unsuccessfully fighting litigation for the past more than 15 years for snapping his marital ties with the respondent wife is the appellant before us. The appellant is double doctorate holder — one in Mathematics from Andhra University and another from U.S.A., and had been working in United States during the relevant period. The respondent is a post- graduate in Home Science and was working as a lecturer in the year 1979. The appellant came to India in 1979 and gave advertisement in the newspaper seeking matrimonial alliance from a suitable bride. The relatives of the respondent responded to the advertisement and there was mutual consultation between the parties, which led to the marriage of the appellant with the respondent on 30.7.1979. After the marriage, the appellant and respondent stayed together for some period and thereafter, the appellant left India for United States. The respondent was asked to join him after having obtained the visa and completing other formalities. The respondent, after a period of six months, joined the appellant in United States. It appears that the marital life of the appellant and the respondent ran into rough weather from the very beginning of their stay in United States. There used to be occasional quarrel between the parties. A daughter, Sandhya, was born to them on 10.6.1981. In 1982, the appellant, respondent and their daughter Sandhya came to India, but the appellant returned to United States in November 1982 itself and the respondent joined him only in April 1983. In January 1985, the respondent along with her daughter returned to India and it seems that the misunderstandings between the parties deepened and ultimately the appellant filed application for divorce under Section 13 of the Hindu Marriage Act, 1955 alleging that after the solemnization of their marriage, the respondent treated the appellant with cruelty.

The respondent contested the proceedings and denied all the allegations made by the appellant in the petition and also made counter-allegations alleging that the appellant was responsible for wrecking the marriage. Parties on either side examined witnesses to substantiate their allegations. The learned Family Court Judge after assessing the rival contentions and the evidence adduced by the parties, came to the conclusion that the respondent had treated the appellant with mental cruelty and, therefore, the appellant was entitled to get a decree for dissolution of marriage. This was challenged by the respondent before the Hon’ble High Court of Andhra Pradesh and the Division Bench of the High Court reversed the decision of the Family Court holding that the appellant was at fault and he had been trying to take advantage of his own wrongs; hence, he was not entitled to get a decree in his favour in view of Section 23(1)(a) of the Hindu Marriage Act. The Judgment of the Division Bench is challenged before us.

We heard learned Senior Counsel for the appellant, Mr. L. Nageswara Rao and Mr. M.N. Rao, learned Counsel on behalf of the respondent. The learned senior Counsel for the appellant contended that there was complete breakdown of the marriage due to the attitude of the respondent and the appellant was under severe mental agony and that the various acts committed by the respondent amounted to mental cruelty and the High Court was not justified in reversing the finding of the Family Court. The learned Counsel for the respondent, on the other hand, contended that there were differences of opinion between the appellant and the respondent on many matters, but the respondent had not done anything to cause mental pain or agony to the appellant. It was argued that the Family Court Judge passed his decision based on a solitary incident and, therefore, the same had been rightly reversed by the High court.

For proper appreciation of the disputes between the parties, it is necessary to consider the various allegations made by the appellant in his petition and also the counter-allegations made by the respondent in her reply.

The appellant alleged that respondent entered into marriage with the appellant because of the persuasion of her sisters and brother and that the respondent was not taking any interest or co-operating to have a happy married life. The appellant alleged that the respondent joined him in the United States after a period of six months unwillingly, and right from the beginning of her life in United States, she picked up quarrel with the appellant and created scenes on many occasions. The appellant alleged that it was known to the Indian community, mainly to the people of Andhra Pradesh, who had settled down in and around the area where the appellant was residing, that the respondent was not having a good relationship with the appellant. He also alleged that the respondent was not doing any household work and the appellant had to do all the work himself and his brother Ravi, who was staying with him, was helping him. The appellant alleged that the respondent used to insult the appellant in the presence of his friends and guests and that the respondent was taking no interest in sharing bed with the appellant and this caused mental and physical agony to the appellant.

The respondent had denied all these allegations made by the appellant in the petition and she also made counter-allegations. But it is pertinent to note that the respondent has no case that they were having a happy married life and the attempt of the respondent was to put the blame at the doorstep of the appellant.

She stated that the appellant had no interest to live with the respondent and was all the time attending parties, watching TV and playing cards and the respondent was completely neglected by the appellant. The respondent alleged that the appellant used to treat her as an intruder. The respondent also stated that she was not given proper medical aid when she was in labour pain and had to give pre-mature birth to the baby without any medical assistance.

It is true that the Family Court rightly found that all the allegations made by the appellant in the petition were not satisfactorily substantiated by him. But nevertheless, some glaring facts are to be noted in this case. The married life of the appellant and respondent started in 1979 and right from the very beginning, the parties were under severe mental stress. Both the parties mutually tried to put the blame on each other. In 1982, the appellant, the respondent and their daughter returned to India. The respondent, however, refused to accompany the appellant back to the United States, and according to the appellant, she threw up the visa and other papers at him and joined him in United States only in 1983 and the subsequent evidence shows that the respondent had not willingly joined the appellant. She came back to India with her daughter in 1985. Though the appellant stated that the appellant’s nephew, Ramu received her, she refused to talk to him and left with her own relatives.

The respondent has denied these facts. However, it is important to note that the appellant has alleged that he did not know the whereabouts of the respondent and his child, at least for some period, after they returned to India. This is evident from the fact that the appellant wrote two letters to his daughter and these letters had to be re-directed to the address of the appellant. She was staying at Araku Valley, which was evidently not known to the appellant. The appellant stated that he suffered severe mental torture and, only after some searching inquiry, he could come to know that she was staying with her sister at Araku Valley. The appellant along with his two relatives went to Araku Valley to persuade the respondent to join the society of the appellant, but the very entry of the appellant and his relatives to the house was prevented by the respondent and later, only at the intervention of her sister, Suryakantham, they were permitted to enter the house. It may be noticed that the respondent and her child left United States in January 1985. The nature of the treatment meted out to the appellant by the respondent, even when he was meeting her after an interval of one year, is satisfactorily proved by the evidence of PW4 and his evidence was completely accepted by the Family Court Judge. The appellant being highly educated person having a position in life must have felt serious humiliation. The incident also shows that the respondent did not extend courteous behaviour to the appellant even in the presence of others. The conduct of the respondent assumes importance as this incident happened when they both were meeting each other after a long lapse of time.

Another important incident, which found favour with the Family Court is that the respondent had filed a criminal complaint before the police alleging that she was beaten by the appellant and his mother. The appellant and his mother were called to the police station and they had to be there for more than 10 hours.

The explanation offered by the respondent for this incident is far from satisfactory. According to the respondent, she was being ill-treated by the appellant and his mother, and on one day, while preparing the breakfast when she used the blender for grinding the pulses, her mother-in-law got angry and scolded her saying that she had not brought any article from her house, so she should not have used the blender. Further, the respondent alleged that the appellant and his mother threw away all her bags and clothes and the appellant’s mother asked her son to get the respondent out and the appellant became wild and gave a blow to the respondent with a sharp-edged weapon and it was under those circumstances that with bleeding injuries, she had gone to the police station and filed a complaint before the police. It is important to note that police did not register any case evidently as it was a domestic quarrel and not of a serious nature, and the incident shows the innate lack of self-control which had driven the respondent to this exorable conduct.

But the humiliation and agony suffered by the appellant and his mother, considering their status in life and the social circumstances, was too much.

Under Section 13(1) (ia) of the Hindu Marriage Act, on a petition presented either by the husband or wife, the marriage could be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.

‘Cruelty’ is not defined in the Act. Some of the provisions of the Hindu Marriage Act were amended by Hindu Marriage Laws (Amendment) Act, 1976.

Prior to the amendment, ‘cruelty’ was one of the grounds for judicial separation under Section 10 of the Act. Under that Section, “cruelty” was given an extended meaning by using an adjectival phrase, viz. “as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party”. By the Amendment Act of 1976, “cruelty” was made one of the grounds for divorce under Section 13 and relevant provision reads as follows:- “Divorce (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) .

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty, or (ib) ..

(ii)-(ix) ” The omission of the words, which described ‘cruelty’ in the unamended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English Courts in some of the earlier decisions had attempted to define “cruelty” as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But we do not think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct.

This Court, in Dr. N. G. Dastane vs. Mrs. S. Dastane [1975] INSC 79; AIR 1975 SC 1534 held at page 154, paragraph 34 as follows:- “We do not propose to spend time on the trifles of their married life. Numerous incidents have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored. It is in the context of such trivialities that one says that spouses take each other for better or worse. In many marriages each party can, if it so wills, discover many a cause for complaint but such grievances arise mostly from temperamental disharmony.

Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage. We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas.” The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter- petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.

This Court had an occasion to consider this question in some cases.

In S. Hanumantha Rao vs. S. Ramani 1999 (3) SCC 620, the husband alleged that the respondent wife had no interest in the marriage life and within a period of two months of the marriage, she went back to her parents house and stayed there for two and a half months. After about six months, she took off her mangalsutra and threw it at the appellant. The respondent wife explained that she removed the mangalsutra in privacy and handed over the same to the appellant on his own request. This Court held that removal of mangalsutra would not constitute cruelty within the meaning of Section 13(1)(ia).

In V. Bhagat vs. D. Bhagat(Mrs.) 1994(1) SCC 337, the husband was a practicing lawyer and the respondent wife was working in a television company at the time of marriage. They had a grown up son and a daughter.

The husband alleged adultery on the part of the respondent. Respondent wife denied the allegations and she also suggested that the appellant was suffering from some mental hallucination. This Court, in paragraph 16 at page 347, observed as under:- “The mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.

The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner.

While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must be had to the context in which they were made.” The case of the appellant that he had been subjected to cruelty by the wife is not put as such solely on the basis of one or two incidents. Their marriage life started in 1979 with so many ups and downs. Both of them did not live together for a longer period as happily married couple. The appellant has succeeded in proving that the attitude of the respondent was not cordial and cooperative. The respondent also alleged that their marriage life was not happy and cheerful.

The way in which the appellant was treated by the respondent when he visited her sister’s house at Araku Valley and the subsequent filing of the criminal complaint whereby the appellant was subjected to severe humiliation would go to show that the respondent was not prepared to extend any kind of cooperation to the appellant. The respondent’s allegation that she was physically assaulted by the appellant and his mother is not very convincing. The fact that there was a bleeding injury on her hand was taken note of seriously by the High Court but the question is, in those circumstances, would an ordinary prudent person rush to the police station and file a complaint to see that her husband and his mother be kept in police custody for unduly long hours. These incidents throw an insight into her past conduct when she was staying with the appellant. The mental cruelty faced by the appellant is to be assessed having regard to his status in his life, educational background, the environment in which he lived. The appellant could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. Married life of the appellant with the respondent had never been happy.

The appellant would say that from 1985 onwards, he has not been having conjugal relationship with the respondent and even prior thereto the respondent was not properly discharging her marital obligations.

The High Court has held in the impugned judgment that the appellant himself was responsible for many of the unhappy incidents and therefore, he shall not be allowed to take advantage of his own fault and the decree for dissolution of marriage shall be denied to him in view of Section 23(1)(a) of the Hindu Marriage Act. We do not think that the High Court was justified in holding this view. The decision was based on the fact that the appellant had executed a power of attorney in favour of his brother-in-law, Rama Rao, authorizing him to take steps for seeking divorce in the year 1982.

The appellant admitted having executed that power of attorney. According to the appellant, the respondent, after she came to India in 1982, refused to come back to United States even after much persuasion and under those circumstances, he executed the power of attorney, but later on came to know that power of attorney holder could not file an application. That would only show that right from 1982, the relationship between the appellant and the respondent was not good and the parties thought of divorce. But the appellant did not file any application in 1982. As regards the incident relating to police complaint also, in his statement the appellant had admitted that the respondent had a scratch injury. But there is nothing in the evidence to show that either the appellant or his mother caused any serious injury to the respondent.

We do not think that this is a case, where the appellant could be denied relief by invoking Section 23(1)(a) of the Hindu Marriage Act.

On the other hand, various incidents brought out in the evidence would show that the relationship between the parties was irretrievably broken, and because of the non-cooperation and the hostile attitude of the respondent, the appellant was subjected to serious traumatic experience which can safely be termed as ‘cruelty’ coming within the purview of Section 13(1)(ia) of the Hindu Marriage Act.

Therefore, we hold that the appellant is entitled to the decree for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act. However, we make it clear that any order of maintenance passed in favour of the respondent will stand unaffected by this decree for dissolution of the marriage. We also make it clear that if any rights have been accrued to the respondent in the joint assets of both, she would be at liberty to take appropriate action to enforce such rights.

The appeal is allowed. Parties to bear their respective costs.

…………………..J.
(D.P. MOHAPATRA)
…………………..J.
(K.G. BALAKRISHNAN)

NEW DELHI
January 10, 2002.

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J U D G M E N T

A.P. Shah, J.

1. This is an appeal by the plaintiffs from an order of Deshmukh J. by which he dismissed the Notice of Motion moved by the plaintiffs for arrest of the ship M.V. Mehrab to provide security for payment of an award which they may obtain in arbitration proceedings instituted in London. The learned Judge was of the opinion that a suit of this nature to arrest a ship in order to force security for a future arbitration award is not maintainable in view of the decision of the Supreme Court in M.V. Elizabeth v. Harwan Investment and Trading Pvt. Ltd., .

2. The matter arises as follows. The plaintiffs were the owners of cargo shipped on the second defendant’s vessel M.V BRAVO under charter party dated 19th June 2000. The vessel M. V. BRAVO loaded cargo at the nominated load port. The second defendant and the said vessel M.V. BRAVO were unable to fulfill the voyage as a result of which the plaintiffs had to discharge the cargo and have It transhipped on another vessel called VAHDAT thereby incurring heavy loss and damage. The charter party contains an arbitration clause. The plaintiffs invoked the arbitration clause on 1st March 2001 and the arbitration proceedings are pending in London. The plaintiffs have filed the present suit for arrest of vessel to secure the enforcement of the award that the arbitrator may pass in the arbitration proceedings. The Notice of Motion moved by the plaintiffs was dismissed by the learned Judge holding that the power of the court to order an arrest of the vessel is for providing a security for the decree that the admiralty court may pass against the defendant and not to secure plaintiffs’ claim in arbitration proceedings.

3. Mr. Kotwal, learned Counsel appearing for the plaintiffs submitted that the judgment of the learned trial Judge is based on total misreading of the decision of the Supreme Court in M.V. Elizabeth’s case, that it is wholly contrary to the manner in which it has been read by the judgments of this Court in M.V. Mainer IV v. Videsh Sanchar Nigam Ltd., 1998 (1) Mah LJ 751 and M. V. Sea Success 1 v. Liverpool and London Steamship Protection and Indemnity Association Ltd. (Appeal No. 226 of 2001 decided on 28-11-2001 : (reported in AIR 2002. Bom 151). The learned Judge failed to notice that the question of admiralty court’s jurisdiction to order arrest of a vessel in order to force security for future arbitration award was not in issue in M.V. Elizabeth. The Issue before the Supreme Court as evident from paragraphs 5 and 6 of the judgment In M.V. Elizabeth was whether the admiralty court In India had jurisdiction to arrest a ship on an action in tort in regard to cargo in a outgoing ship. The judgment in M.V. Elizabeth does not in any manner limit admiralty jurisdiction of the High Court. On the other hand the entire endeavour of the Supreme Court in M.V. Elizabeth was to align and modernize the law by inter alia introducing into admiralty jurisdiction the International law including principles underlying Arrest of Sea going Ships, Brussels, 1952. The learned Counsel submitted that Article 7(3) of 1952 Convention clearly confers jurisdiction on the admiralty court to order arrest of a vessel to secure the award that may be passed in arbitration proceedings. He submitted that a vast majority of trading nations that is over 70 in number has given effect to 1952 Convention and, therefore, the said Convention has never universal acceptance and can be regarded as international common law, which includes admiralty court’s power to arrest a vessel for the purpose of obtaining security for the future arbitration award, which the arbitrator may grant. Although India is not a signatory to the numerous international conventions, in view of the dictum in M.V. Elizabeth, principles can be adopted into our local context. The learned Counsel took us through the relevant portions of the judgment in M.V. Elizabeth to show that the Supreme Court has categorically held that 1952 Convention, though not ratified by India, can be the basis for exercise of jurisdiction by admiralty court in India. The learned Counsel urged that In today’s modern shipping context and the expansive jurisdiction trend recommended by the Supreme Court in M.V. Elizabeth the admiralty courts in India can also exercise jurisdiction to arrest ship for the purpose of securing the claim of the plaintiff in future or pending arbitration. The High Court has power to administer general maritime law whether derived by virtue of statute or otherwise. While so administering the maritime law the High Court shall have regard to the International law and comity.

4. Per contra, it was submitted by Ms. Sethna, learned Counsel appearing for the respondents that the decision of the Supreme Court in M.V. Elizabeth cannot be construed as a decision vesting jurisdiction in the High Court to arrest a vessel to secure the claim of the plaintiffs in future or pending arbitration. She submitted that the observations of the Supreme Court concerning the 1952 Convention are neither ratio decidendi nor obiter dicta so as to make these observations binding on this Court. She submitted that the observations in M.V. Elizabeth to the extent of applicability of Brussels Convention of 1952 to India are contrary to the decisions of the Supreme Court in M/s. V/o Tractoro Export Moscow v. Tarapore and Co., Madras, and Jolly George Varghese v. The Bank of Cochin . She submitted that the observations in M.V. Elizabeth in paras 56. 57, 65 and 93 on the other hand clearly suggest that the power of the Court to arrest a ship is to provide security to the plaintiffs for satisfaction of a decree that the Court may pass against the defendant and not to secure the plaintiffs claim in arbitration proceedings. She submitted that though the Merchants Shipping Act was enacted in 1958 that is much after the Brussels Convention of 1952 and although the said Act was amended 14 times, no amended was carried out in the Act to bring it in consonance with the 1952 Convention which clearly shows that the Parliament never Intended to adopt the same. Unless the International Conventions are incorporated by the appropriate legislations by the Indian Parliament, they cannot be applied by Indian Courts and in case of conflict It is always the Act of Parliament which is to be implemented as against the International Conventions.

5. The question that falls for our consideration is whether the admiralty court in exercise of in rem jurisdiction can order arrest of a vessel in order to force security for a future arbitration award which the arbitrator might make. The concept of using court’s In rem Jurisdiction to arrest a vessel in order to force security for future arbitration award has bothered judges from time to time. In the Cap Bon (1967) 1 Lloyd’s Rep 543 (Adm.), Mr. Justice Brandon answered this question in negative pointing out at pages 546 and 547 that :

“In my view, when an action in rem is brought the security thereby obtained is security in respect of any judgment which may be given by the Court after hearing and determining the claim. The security so obtained also covers the payment of any sum which may become due under an agreement whereby the action is settled. But the security so obtained is not in my view available for the purpose of insuring payment of the judgment of some other court or for the purpose of insuring payment of the award of an arbitration tribunal”.

Subsequently in Rena K. (1978) 1 Lloyd’s Rep 545 (QB) (Adm. Ct), Mr. Justice Brandon (at pages 554-555 paraphrased his reasoning in the Cap Bon by saying it was based on two propositions, one positive and one negative. The first and positive proposition is that the purposes of arresting a ship in an action in rem is to provide the plaintiff with security for the payment of any judgment which he may obtain in action. The second and negative proposition is that it is not the purpose of arresting a ship in an action in rem to provide the plaintiff with security for payment of an award which he may obtain in an arbitration of the same claim as that raised in the action and the Court therefore has no jurisdiction to arrest a ship, or keep her under arrest, for some other purpose. In effect, the claimant was put to an election between two courses of action, either pursuing the claim in the Court which the advantage of security, or pursuing the claim through arbitration without the advantage of security. In Rena K. Mr. Justice Brandon considered security in the context of a stay for arbitration and the evolving case law. While he felt that the principles set out in The Cap Bon were correct, he also recognised that the Court had the discretion, on granting a stay in favour of arbitration, to allow existing security to remain in place, depending upon the circumstances in any particular instance.

6. The Court of Appeal in The Vasso (formerly Andria), (1984) 1 Lloyd’s Rep 235 considered the judgments of Brandon J. in the Cap Bon and Rena K. and held that plaintiffs purpose for invoking admiralty jurisdiction was irrelevant to the existence of jurisdiction and therefore, even though that purpose was simply to obtain security in arbitration proceedings the admiralty court had jurisdiction to arrest the relevant ship. However, it was held by the Appeal Court that exercise of power of arrest was discretionary, not mandatory, and could therefore be affected by the manner in which or the purpose for which the plaintiff invoked the admiralty jurisdiction. Since the admiralty Court’s purpose in exercising its power of arrest was to provide security in a plaintiffs action in rem, it followed that where a plaintiff invoked the admiralty jurisdiction to arrest a ship simply to obtain security in other proceedings, such as an arbitration, the Court would exercise its discretion by refusing to issue a warrant of arrest. Furthermore, on an ex parte application for the arrest of a ship a plaintiff was under a duty to make full disclosure to the court of all the material facts. The plaintiffs failure to disclose in their affidavit that arbitration proceedings were being actively pursued and that their purpose in invoking the jurisdiction was, to obtain security for an award in those proceedings was a failure to disclose materia facts that amounted to vexatious conduct and an abuse of the court’s process.

7. In the Tuyuti (1984) 1 QB 838, the Court of Appeal on consideration of the provisions of the Arbitration Act 1950; held that the Court had no power under the said Act to permit or order arrest of a ship for the purpose of obtaining security in arbitration proceedings. However, the Court held that where it was shown by a plaintiff that an arbitration award in his favour was unlikely to be satisfied by a defendant, then the security available in the action in rem could be ordered to stand so as to remain available to enable a plaintiff to pursue his action in rem and there was nothing in Section 1 of the Arbitration Act, 1975 obliging the Court to order its release; that since the evidence disclosed that the defendants might well be unable to satisfy any award made against them, the admiralty Court had power to allow the execution of the warrant of arrest notwithstanding the mandatory stay of the plaintiffs action in rem. The Court of Appeal endorsed its earlier decision in the Andria saying that “….. the mere fact that there is an arbitration agreement does not of itself generally preclude a party to the agreement from bringing an action or, in the case of an action in rem, procuring the arrest of a ship”.

8. In England Section 26 of the Civil Jurisdiction and Judgments Act 1982 was amended allowing existing security to remain in place following stay pending arbitration. This provision is in accord with the 1968 Convention of Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (including the protocol annexed to that Convention), signed at Brussel’s on 27th September 1968. The amended Section 26 of the Civil Jurisdiction and Judgments Act, 1982 fell for consideration before Sheen J. in The Jalamatsya (1987) 2 Lloyds Rep 164. Sheen J. was concerned with a case where disputes had arisen under a charter party. The matter was referred to arbitration. The arbitration commenced. The defendants had not given security for any award the plaintiffs might obtain in the arbitration. The defendants were the owners of Jalamatsya. The plaintiffs learned (sic) that it was coming into territorial waters. They issued a writ in rem against the vessel and it was arrested. The defendants applied to set aside the arrest on the grounds that the issue of writ and the arrest of the vessel were an abuse of the process of the court. Sheen J. said (pages 164-5):

“This action is properly founded upon a claim within the Admiralty jurisdiction. No complaint can be made about the issue of the writ. There is not before me an application to stay the action. But there is an application on behalf of the defendants to set aside the arrest of the ship on the grounds that the issue of the writ, and the arrest of the ship, is ah abuse of the process of the Court. The defendants say that in the light of what was said by Lord Justice Robert Goff in The Vasso, (1984) 1 Lloyd’s Rep 235; (1984) QB 477, the defendants are entitled to the release of the ship. But as was pointed out by Mr. Gaisman, the substance of what was said by Lord Justice Robert Goff was said on the basis of the law as it then stood. But the law has been changed by the bringing into force of Section 26 of the Civil Jurisdiction and Judgments Act 1982”.

The learned Judge then went on to refer to the section and to a submission made to him by counsel for the defendants that the words of the English section were, “the dispute in question should be submitted to arbitration” and not “has been submitted to arbitration”. After referring to the submission of Sheen J. continued (p 165) :

“If that point were valid it would follow that there would be crucial distinctions to be drawn between those cases in which an arbitration had been commenced, and those cases in which, although there was an arbitration agreement, the arbitration had not been commenced. Such a construction would place upon solicitors practicing in this field of litigation an intolerable burden. One does not have to draw very much on one’s imagination to see that it would be vital before nominating an arbitrator to find out whether a ship belonging to the defendants or respondents in the arbitration, was on the verge of coming to this country. Equally, ship owners might be tempted to divert a ship rather than come within the jurisdiction and have their ship arrested, at least until arbitration had been commenced, when they could come in with impunity. To my mind such a construction is entirely contrary to the whole concept which was envisaged when Section 26 was enacted. That section was enacted to enable claimants (I use a neutral expression) to obtain security if they proceeded by way of arbitration rather than by action. In my judgments 26 applies whether or not an arbitration has already been commenced. It follows that if an arbitration has been commenced and if the claimants in the arbitration have not obtained security for any possible award, they can quite properly issue a writ in rem if they know that a ship belonging to the respondents in the arbitration is coming within the jurisdiction, and they may arrest that ship in order to obtain security”.

9. The judgment of Sheen J. was followed by the Federal Court of Australia (Sheppard J.) in The ship “Amanda N” 21 FCR 60. Sheppard J. referred to Section 29 of the Admiralty Act, 1988 which is similar to Section 26 of the UK Act. He held that the Court retains a discretion to decide whether to retain the vessel as security when there is evidence that the second defendant is without means. No abuse of process was involved and the Court should not exercise discretion adversely to the plaintiff so as to release the vessel.

10. The Federal Court of Canada had distinguished the English authorities In Rena K. and The Andria in order to grant security for arbitration awards and to rationalise the continuation of existing security in the face of a stay for arbitration. In Atlantic Lines and Navigation Co. Inc. v. The Ship “Didymi (1985) FC 240 the Court faced with the Invocation of an arrest for the primary purpose of obtaining security for arbitration, refused either to strike out the statement of claim or to release the arrested ship without security. Instead, the Court held that the ship might be released against an undertaking as to security. The decision in Didymi was based on the concept that in rem proceedings flowed from the necessity of allowing a plaintiff to proceed in the jurisdiction in which the ship lay, because that was the place where an award might be satisfied and that the instances where security would be cancelled were limited, but included Instances where the loss of security would prejudice no one. In Pictou Industries Ltd. v. Secunda Marine Services Ltd. et al (1994) 78 FTR 78 (FCTD) the Court held that it is only in very rare cases that to the absence of consent, the Court will order the release of an arrested vessel without the posting of security even where the parties are pursuing arbitration of the dispute.

11. In the United State of America there is a strong federal policy that encourages maritime arbitration the Federal Arbitration Act (Title 9 USC). This Act empowers federal courts to order parties to arbitrate if they have agreed to do so in their maritime contracts. Section 8 of the Act, however, permits an aggrieved parry to use the federal courts to commence a litigation in order to seize property by maritime arrest or attachment for security purposes. After the property is seized, the Court action is stayed while the parties debate the merits of the dispute before arbitration. In Unitramp 1994 AMC 476 the question was as to what happens if a party to an ongoing maritime arbitration commences an action in Federal Court for the purpose of obtaining security under Supplemental Admiralty Rule B? Should the attachment be vacated? In the Unitramp case the foreign defendant who already had appeared in a London maritime arbitration moved to vacate a Rule B attachment that was subsequently commenced by a claimant against Its property in Louisiana. The defendant argued that the primary function of Rule B is to obtain jurisdiction over a defendant through its properly. Furthermore, if attachment is not necessary for jurisdiction, it cannot be maintained solely for the purpose of obtaining security. Rejecting the argument of the defendants the Court denied the defendants motion to vacate attachment. The Court made it patently clear that the Supplemental Admiralty Rule B attachment is not precluded by a prior commencement of arbitration.

12. Apart from U.K. Canada, and USA many other systems of law world over have recognized admiralty courts jurisdiction to arrest a vessel to force security in pending arbitration. Our attention was invited to the Shipping Arrest Handbook of 1997 to show that today a vast majority of trading nations allow arrest of ship when the final relief is not sought for from the same court but from another jurisdiction/arbitration. Our attention was also invited to Article 7(3) of the 1952 Brussels Convention which says, “If the par ties have agreed to submit the dispute to the jurisdiction of a particular court other than that within whose jurisdiction the arrest was made or to arbitration, the Court or other appropriate authority within whose jurisdiction the arrest was made may fix the time within which the claimant shall bring proceedings”. It is stated that Article 7(3) is similar to Section 26 of the Civil Jurisdiction and Judgments Act, 1872 relied upon by Sheen J. in Jalamatsya.

13. There is no decided case by the Court in India on the issue involved in the present case. Both the learned Counsel heavily relied upon the decision in M.V. Elizabeth in support of their respective submissions. Before we examine the decision in M.V. Elizabeth, it would be useful to make a brief reference to the statutory enactments in India concerning admiralty jurisdiction. The admiralty jurisdiction of the High Courts in India can be historically traced to the Charters of 1774 and 1798 as subsequently expanded and clarified by the Letters Patent of 1823, 1862 and 1865 and read with Admiralty Courts Act, 1861, Colonial Courts Admiralty Act, 1890 and Colonial Courts of Admiralty (India) Act, 1891. Section 2(1) of 1890 Act provides that the Colonial Courts of Admiralty shall have the same admiralty jurisdiction which is vested in the High Court of England whether existing by virtue of any statute or otherwise and they shall be entitled to exercise the same jurisdiction in the like manner and to the same extent as the High Court in England. The High Courts in India in general and in particular High Courts of Bombay and Calcutta were of the view that the admiralty jurisdiction of the High Court does not extend beyond the ambit of the provisions of (English) Admiralty Courts Act. 1861. Further expansion of the Jurisdiction of the English High Court under various statutes did not extend jurisdiction of the Indian High Courts. The rationale of these decisions was that the chartered High Courts in India are Colonial Courts of Admiralty under Act 16 of 1891 exercising the same jurisdiction as was vested in the High Court of Admiralty in England under the Admiralty Court Act, 1861 and the subsequent merger of the English High Court of Justice In 1875 and the expansion of jurisdiction of that High Court under subsequent statutes did not expand the admiralty power of the Indian High Court or merge it with the its ordinary original civil jurisdiction. In M.V. Elizabeth the Supreme Court categorically rejected this restrictive construction adopted by the High Courts. The Court observed :

“14…..This restrictive construction is, in our view, not warranted by the provisions of the Constitution. The fact that the High Court continues to enjoy the same jurisdiction as it had immediately before the commencement of the Constitution, as stated in Article 225. does not mean that a matter which is covered by the Admiralty Court Act, 1861 cannot be otherwise dealt with by the High Court, subject to its own Rules, in exercise of its manifold jurisdiction, which is, unless barred, unlimited. To the extent not barred expressly or by necessary Implication, the judicial sovereignly of this country is manifested in the jurisdiction vested in the High Courts as superior courts”.

17. It is true that the Colonial statutes continue to remain in force by reason of Art. 372 of the Constitution of India, but that does not stultify the growth of law or blinker its vision or fetter its arms. Legislation has always marched behind time, but it is the duty of the Court to expound and fashion the law for the present and the future to meet the ends of Justice,

26. Assuming that the admiralty powers of the High Courts in India are limited to what had been derived from the Colonial Courts of Admiralty Act. 1890. that Act, having equated certain Indian High Courts to the High Court of England In regard to admiralty jurisdiction, must be considered to have conferred on the former all such powers which the latter enjoyed in 1890 and thereafter during the period preceding the Indian Independence Act, 1947. What the Act of 1890 did was, as stated earlier, not to incorporate any English statute into Indian Law, but to equate the admiralty Jurisdiction of the Indian High Courts over places, persons, matters and things to that of the English High Court. As the admiralty jurisdiction of the English High Courts expanded with the progress of legislation, and with the repeal of the earlier statutes, including in substance the Admiralty Courts Acts of 1840 and 1861, it would have been reasonable and rational to attribute to the Indian High Courts a corresponding growth and expansion of admiralty jurisdiction during the pre-independence era. But a restrictive view was taken on the question in the decision of the High Courts cited above.

27. There is no reason why the jurisdiction of the Indian High Courts should have-been considered to have frozen and atrophied on the date of the Colonial Courts of Admiralty Act. 1890….”

14. The Supreme Court in M.V. Elizabeth after tracing the history of admiralty jurisdiction and various English statutes on admiralty jurisdiction and the powers exercised by English Courts over foreign ships observed in paragraph 65 that where statutes are silent and remedy has to be sought by recourse to basic principles, it is the duty of the Court to device a procedural rule by analogy and expediency. Actions in rem were resorted to by Courts as a device to overcome the difficulty of personal service on the defendant by compelling him to enter appearance and accept service of summons with a view to furnishing security for the release of res or in his absence, proceed against the res itself by attributing to it a personality for the purpose of entering a decree and executing the same by sale of the res. This is a practical procedure developed by the Courts with a view to rendering justice in accordance with substantive law, not only in cases of collusion and salvage, but also in cases of other maritime Hens and claims arising by reason of breach of contract for the hire of vessels or the carriage of goods or other maritime transactions or tortious acts, such as conversion or negligence occurring in connection with the carriage of goods. Where substantive law demands justice for the party aggrieved and the statute has not provided the remedy, it is the duty of the Court to devise procedure by drawing analogy from other systems of law and practice. In paragraph 66, it is stated that the power of the Courts is plenary and unlimited, unless it is expressly or by necessary implication curtailed. Absent such curtailment of jurisdiction, all remedies which are available to the Courts to administer justice are available to a claimant against a foreign ship and its owner, found within the jurisdiction of the concerned High Court. The Court then went on to observe :

“77. It is true that Indian statutes lag behind the development of international law in comparison to contemporaneous statutes in England and other maritime countries…… India has also not adopted the international convention relating to the arrest of Sea going Ships, Brussels, 1952. Nor has India adopted the Brussels Conventions of 1952 on civil and penal jurisdiction in matters of collision, nor the Brussels Conventions of 1926 and 1967 relating to maritime liens and mortgages. India seems to be lagging behind many other countries in ratifying and adopting the beneficial provisions of various conventions intended to facilitate international trade. Although these conventions have not been adopted by legislation, the principles incorporated in the conventions are themselves derived from the common law of nations as embodying the felt necessities of international trade and are as such part of the common law of India and applicable for the enforcement of maritime claims against foreign ships.

85. No Indian statute defines a maritime claim. The Supreme Court Act, 1981 of England has catalogued maritime claims with reference to the unified rules adopted by the Brussels Convention of 1952 on the Arrest of Seagoing Ships. Although India has not adopted the various Brussels Conventions (see the Conventions listed above), the provisions of these Conventions are the result of international unification and development of the maritime laws of the world and can, therefore, be regarded as the international common law, or transactional law rooted in and evolved out of the general principles of national laws, which in the absence of specific statutory provisions can be adopted and adapted by Courts to supplement and complement national statutes on the subject. In the absence of a general maritime code, these principles aid the Courts in filling up the lacunae in the Merchant Shipping Act and other enactments concerning shipping. “Procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities”. (S.P. Gupta v. Union of India, .

87. The judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the court to render justice according to law. Where statute is silent and judicial intervention is required. Courts strive to redress grievances according to what is perceived to1 be principles of justice, equity and good conscience”.

15. In Trendtex Trading v. Bank of Nigeria (CA), 1977 Appeal Cases p. 548. Lord Denning elaborately discussed the doctrine of incorporation of the rules of international law in the local laws. He said :

“…. It is I think for the courts of this country to define the rule as best they can, seeking guidance from the decisions of the Courts of other countries, from the jurists who have studied the problem, from treaties and conventions and above all, defining the rule in terms which are consonant with justice rather than adverse to it. That is what the Privy Council did in the Philippine Admiral (1977) AC 373 see especially at pp. 402-403, and we may properly do the same.

The two schools of thought — A fundamental question arises for decision. What is the place of international law in our English Law? One school of thought holds to the doctrine of incorporation. It says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. The other school of thought holds to the doctrine of transformation. It says that the rules of international law are not to be considered as part of English law, except in so far as they have been already adopted and made part of our law by the decisions of the Judges, or by Act of Parliament or long established custom. The difference is vital when you are faced with a change in the rules of international law. Under the doctrine of incorporation when the rules of international law change, our English law changes with them. But under the doctrine of transformation, the English law does not change. It is bound by precedent. It is bound down to those rules of international law which have been accepted and adopted in the past. It cannot develop as international law develops. ……….”

“(iii) Which is correct? As between these two schools of thought, I now believe that the doctrine of incorporation is correct.

Otherwise I do not see that our courts could ever recognize a change in the rules of international law. It is certain that international law does change. I would use of international law the words which Galileo used of the earth “But it does move.” International law does change, and the Courts have applied the changes without the aid of any Act of Parliament. Thus, when the rules of international law were changed (by the force of public opinion) so as to condemn slavery, the English Courts were justified in applying the modern rules of international law see the “statement of opinion” by Sir R. Phillimore, Mr. M. Bernard and Sir H.S. Maine appended to the report of the Royal Commission on Fugitive Balves (1876) p. 25, paras 4 and 5. Again the extent of territorial waters varies from time to time according to the rules of international law current at the time and the courts will apply it accordingly, see Reg v. Kent Justices Exparte Lye (1967) 2 QB 153, 173, 189. The bounds of sovereign immunity have changed greatly in the last 3 years. The changes have been recognised in many countries, and the Courts of our country and of theirs have given effect to them, without any legislation for the purpose, notably in the decision of the Privy Council in the Philippine Admiral (1977) AC 373.

(iv) Conclusion on this point. Seeing that the rules of international law have changed and do change and that the Courts have given effect to the changes without the aid of any Act of Parliament, it follows to my mind inexorably that the rules of international law as existing from time to time do form part of our English law. It follows too that a decision of this Court as to what was the ruling of international law 50 or 60 years ago is not binding on this Court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 to 60 years ago it can give effect to that change and apply the change in our English law without waiting for the House of Lords to do It.”

16. It will be useful to refer to the judgment of the Division Bench of this Court in M.V. Mariner IV v. V.S.N.L. In that case the issue was whether the Court has power to arrest a sister ship. The Bench after referring to the judgment in M.V. Elizabeth and also the judgments of the Supreme Court in W. O. Tracto Export, Moscow v. M.S. Tarapore and Co., Madras and Jolly George Verghese v. Bank of Cochin which are relied upon by Ms. Sethna, held that in case of a conflict between the Municipal law and the international law on Conventions, the Court will have to apply the Municipal law. However, when there is no conflict between the two, then all just principles of international law or conventions could be legitimately applied unless they are in conflict with the statute or prohibited by any Municipal law. The Bench expressly rejected the argument that the fact that no amendment was carried out in the Merchant Shipping Act to bring it in consonance with the Brussels Convention shows that the Parliament never Intended to adopt the Convention. It was held that the Merchant Shipping Act cannot be construed as a repository of all the admiralty and other jurisdiction of the Court.

17. In a recent judgment of the Division Bench in M.V. Sea Success I v. Liverpool and London Steamship Protection and Indemnity Association Ltd. (AIR 2002 Bom 151) held that the Geneva Arrest of Ship Convention, 1999, although not ratified by a requisite number of nations, would be applicable to the Admiralty Courts in India. The Bench held that what has been observed by the Supreme Court in M.V. Elizabeth regarding the applicability of 1952 Brussels Convention is equally applicable to the Geneva Arrest Convention, 1999. The Bench observed “India had not adopted the Brussels Arrest Convention, 1952 but the Apex Court observed that though India seems to be lagging behind many other countries in ratifying the beneficial provisions of various Conventions in India to facilitate international trade and have not adopted these conventions, yet the principles incorporated in the conference which are themselves derived from the common law of nations as embodying the felt necessities of international trade and are as such part of the common law in India and applicable for the enforcement of maritime claims against foreign ships is equally applicable to the Geneva Arrest Convention, 1999 which embodies also necessities of the international trade and, therefore, is applicable for enforcement of maritime claims against foreign ships and can be regarded as part of our common law.”

18. The observations of the Supreme Court In M.V. Elizabeth, in our opinion, clearly suggest that unless there is any prohibition in the Municipal law, the principles of transnational laws or international conventions could be applied for affording remedy for the satisfaction or realization of maritime claim. To quote the words of Lord Denning at the cost of repetition that”….. . . .the rules of international law have changed and do change and the Courts have given effect of the changes without the aid of any Act or Parliament, it follows that the rules of international law as existing from time to time do form part of our English law” also support the proposition that without specific adoption by the Municipal law, applicable rules of international law could be legitimately adopted by the Court to further the remedy and cause of justice. Although India has not adopted Convention relating to the arrest of sea going Ship, Brussels 1952 and the Convention on jurisdiction and the enforcement of judgments in Civil and Commercial Matters, Brussels, 1968. the principles incorporated in these Conventions are themselves derived from the common law of nations and are as such part of the common law of India and applicable for the enforcement of maritime claims against foreign ships. The development of maritime law has shown that it was not created as a definite all inclusive body of law. It has been developed over a period of many centuries and is still in continuous process of development. The necessities of international trade and commerce have dictated that the development should be along uniform lines in the several maritime nations and the expression admiralty or maritime should be construed in contemporary context. There is nothing in the statutes in India to exclude use of admiralty jurisdiction for the purpose of arresting a ship by way of security in future or pending arbitrations. The countries like USA and Canada recognised the powers of Court to order arrest of ship to force security for a future arbitration award. In England too the world has moved on. In Jalmastya the Court has categorically held that the Court has power to arrest ship to secure claims in future or pending arbitrations. Why should the Court maintain a stance which has been discarded in England and which does not accord with the preferred judicial policy as enunciated in M.V. Elizabeth. We, therefore, hold that the Court in its admiralty jurisdiction has power to arrest a ship to secure a claim in future or pending arbitration.

Accordingly we set aside the impugned order of the learned Judge. Noticed of motion is remitted back to the trial Judge to consider the same afresh on merits in accordance with law. All contentions of the parties on merits are left open.

Certified copy expedited.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 132 of 1988
Ex-Capt. Harish Uppal …PETITIONER
Vs
Union of India & Anr. …RESPONDENT
DATE OF JUDGMENT: 17/12/2002
BENCH: CJI, DORAISWAMY RAJU, S. N. VARIAVA, D. M. DHARMADHIKARI

J U D G M E N T

(WITH W. P. (C) No. 394/93, W. P. (C) No. 821/90, W. P. (C) No. 320/93 and W. P. (C) 406/2000)

S. N. VARIAVA, J.

1) All these Petitions raise the question whether lawyers have a right to strike and/or give a call for boycotts of Court/s. In all these Petitions a declaration is sought that such strikes and/or calls for boycott are illegal. As the questions vitally concerned the legal profession, public notices were issued to Bar Associations and Bar Councils all over the country. Pursuant to those notices some Bar Associations and Bar Councils have filed their responses and have appeared and made submissions before us.

2) In Writ Petition (C) No. 821 of 1990, an interim order came to be passed. This Order is reported in (1995) 1 Scale p.6. The circumstances under which it is passed and the nature of the interim order are set out in the Order. The relevant portion reads as under:

“2. The Officiating Secretary, Bar Council of India, Mr. C.

R. Balaram filed an affidavit on behalf of the Bar Council of India wherein he states that a ‘National Conference’ of members of the Bar Council of India and State Bar Councils was held on 10th and 11th September, 1994 and a working paper was circulated on behalf of the Bar Council of India by Mr. V. C. Misra, Chairman, Bar Council of India, inter alia on the question of strike by lawyers. In that working paper a note was taken that Bar Association had proceeded on strike on several occasions in the past, at times, State-wide or Nationwide, and ‘while the profession does not like it as members of the profession are themselves the losers in the process’ and while it is not necessary to sit in judgment over the wider question whether members of the profession can at all go on strike or boycott of courts, it was felt that even if it is assumed that such a right enures to the members of the profession, the circumstances in which such a steps should be restored should be clearly indicated. Referring to an earlier case before the Delhi High Court it was stated that the Bar Council of India had made its position clear to the effect “(a) Bar Council of India is against resorting to strike excepting in rarest of rare cases involving the dignity and independence of the judiciary as well as of the Bar; and (b) whenever strikes becomes inevitable, efforts shall be made to keep it short and peaceful to avoid causing hardship to the litigant public.” (emphasis supplied). It was in response to the above that a consensus emerged at the Bar at the hearing of the matter that instead of the Court going into the wider question whether or not the members of the legal profession can resort to strike or abstain from appearing in cases in Court in which they are engaged, the Court may see the working of the interim arrangement and if that is found to be satisfactory it may perhaps not be required to go into the wider question at this stage. Pursuant to the discussion that took place at the last hearing on 30th November, 1994, the following suggestions have emerged as an interim measure consistent with the Bar Council of India’s thinking that except in the rarest of rare cases strike should not be resorted to and instead peaceful demonstration may be resorted to avoid causing hardship to the litigant public.

The learned counsel suggested that to begin with the following interim measures may be sufficient for the present:- “(1) In the rare instance where any association of lawyers including statutory Bar Councils considers it imperative to call upon and/or advise members of the legal profession to abstain from appearing in courts on any occasion, it must be left open to any individual member/members of that association to be free to appear without let, fear or hindrance or any other coercive steps.

(2) No such member who appears in court or otherwise practices his legal profession, shall be visited with any adverse or penal consequences whatever, by any association of lawyers, and shall not suffer any expulsion or threat of expulsion therefrom.

(3) The above will not preclude other forms of protest by practising lawyers in court such as, for instance, wearing of arm bands and other forms of protest which in no way interrupt or disrupt the court proceedings or adversely affect the interest of the litigant. Any such form of protest shall not however be derogatory to the court or to the profession.

(4) Office-bearers of a Bar Association (including Bar Council) responsible for taking decisions mentioned in clause (1) above shall ensure that such decisions are implemented in the spirit of what is stated in clauses (1) and (2) and (3) above.” 3: Mr. P. N. Duda, Sr. Advocate representing the Bar Council of India was good enough to state that he will suggest to the Bar Council of India to incorporate Clauses (1), (2) and (3) and (4) in the Bar Council of India (Conduct & Disciplinary) Rules, so that it can have statutory support should there be any violation or contravention of the aforementioned four clauses. The suggestion that we defer the hearing and decision on the larger question whether or not members of the profession can abstain from work commends to us. We also agree with the suggestion that we see the working of the suggestions in clauses (1) to (4) above for a period of at least six months by making the said clauses the rule of the Court. Accordingly we make clauses (1) to (4) mentioned above the order of this Court and direct further course of action in terms thereof. The same will operate prospectively. We also suggest to the Bar Councils and Bar Associations that in order to clear the pitch and to uphold the high traditions of the profession as well as to maintain the unity and integrity of the Bar they consider dropping action already initiated against their members who had appeared in Court notwithstanding strike calls given by the Bar Council or Bar Association. Besides, members of the legal profession should be alive to the possibility of Judge of different Courts refusing adjournments merely on the ground of their being a strike call and insisting on proceeding with cases.” The above interim Order was passed in the hope that better sense could prevail and lawyers would exercise self restraint. In spite of the above interim directions and the statement of Mr. P. N. Duda the Bar Council of India has not incorporated clauses (1) to (4) in the Bar Council of India (Conduct & Disciplinary) Rules. The phenomenon of going on strike at the slightest provocation is on the increase. Strikes and calls for boycott have paralysed the functioning of Courts for a number of days. It is now necessary to decide whether lawyers have a right to strike and/or give a call for boycott of Court/s.

3) We have heard Mr. Dipanker Gupta, learned Amicus Curie. We have heard the Petitioner in person and Advocates for the various Writ Petitioners. We have heard the Bar Councils and Bar Associations who desired to be heard.

4) Mr. Dipanker Gupta referred to various authorities of this Court and submitted that the reasons why strikes have been called by the Bar Associations and/or Bar Councils are :

(a) confrontation with the police and/or the legal administration;

(b) grievances against the Presiding Officer;

(c) grievances against Judgments of Courts;

(d) clash of interest between groups of lawyers and (e) grievances against the legislature or a legislation.

Mr. Gupta submitted that the law was well established. He pointed out that this Court has declared that strikes are illegal. He submitted that even a call for strike is bad. He submitted that it is time that the Bar Council of India as well as various State Bar Councils monitor strikes within their jurisdiction and ensure that there are no call for strikes and/or boycotts. He submitted that in all cases where redressal can be obtained by going to a Court of law there should be no strike.

5) Mr. Nigam, on behalf of Petitioner in Writ Petition (C) No. 406 of 2000, submitted that strike as a mean for collective bargaining is recognised only in industrial disputes. He submitted that lawyers who are officers of the Court cannot use strikes as a means to blackmail the Courts or the clients. He submitted that the call for strike by lawyers is in effect a call to breach the contract which lawyers have with their clients. He submitted that it has already been declared by Courts that a strike is illegal. He submitted that it is now time that Courts cast responsibility on the Bar Councils and the Bar Associations to see that there is no strike and/or call for boycott. He submitted that now the Executive Committee of any Bar Council or Bar Association which calls for a strike or boycott should be held responsible by the Courts. He submitted that the Courts must take action against the Committee members for giving such calls on the basis that they have committed contempt of court. He submitted that the law is that a lawyer who has accepted a Vakalat on behalf of a client must attend Court and if he does not attend Court it would amount to professional misconduct and also contempt of court. He submitted that Court should now frame rules whereby the Courts regulate the right of lawyers to appear before the Court. He submitted that Courts should frame rules whereby any lawyer who mis-conducts himself and commits contempt of court by going on strike or boycotting a Court will not be allowed to practice in that Court. He submitted that it should now be held that even if a requisition for a meeting to consider a strike is received, the Committee members of a Bar Association or the Bar Council should refuse to call a meeting for that purpose. He submitted that no Association or Bar Councils can have any legal or moral right to call a meeting to consider a call for an illegal act. He submitted that this Court should now issue a mandamus to the Bar Councils to frame rules in consonance with the interim directions which have been passed by this Court.

6) Mr. Prashant Bhushan, for the Petitioner in W. P. (C) No. 821 of 1990, supported Mr. Dipanker Gupta and Mr. Nigam. He further submitted that the Court should also declare that lawyers who do not want to participate in a strike should not be coerced by other lawyers or Committee members. He submitted that such coercion amounts to interference with the administration of justice and is therefore clearly contempt of court. He submitted that this coercion need not necessarily be by physical prevention from appearance but could also be by a threat to withdraw facility or to terminate the membership of the Associations. He submitted that if any such threats are given or any such coercion is used then the Court must punish for contempt the party so coercing.

7) Submissions were made before us by the Bar Councils of Delhi, U.P., Maharashtra, Goa, West Bengal, Andhra Pradesh and Tamil Nadu. Submissions were also made before us on behalf of Bar Associations of Madras, Kerala, Calcutta, Nainital and the Supreme Court Bar Association. Counsels for the Bar Councils and Bar Associations submitted that they were not in favour of strikes and/or call for strikes. Many of them stated that their Associations had not gone on strike at all and/or only on token strikes of not more than one day. The consensus at the Bar was that lawyers cannot and should not resort to strike in order to vent their grievances where a legal remedy was available. The consensus at the Bar was that even where a legal remedy was not available strike should be resorted to in the rarest of rare cases like when the dignity of the Court or the Bar was at stake. The consensus was that even in such cases only a token strike of one day may be resorted to. The consensus was that other methods of protests must be resorted to, viz. passing of resolutions, making representations, taking out silent processions without causing disturbance to Court work, holding dharnas or relay fast and wearing white ribbons. The consensus of the Bar was that there must be a mechanism for redressing the grievances of the lawyers. It was suggested that the Committees be set up to whom grievances can be submitted.

8) It must however be mentioned that counsel on behalf of U. P.

Bar Council struck a discordant note. He submitted that lawyers had a right to go on strike or give a call for boycott. He submitted that Courts had no power of supervision over the conduct of lawyers. He submitted that Section 50 of the Advocates Act, 1950 repealed earlier provisions which had permitted Courts to control rights of Advocates to practice in Courts. He submitted that there are many occasions when lawyers require to go on strike or gave a call for boycott. He submitted that this Court laying down that going on strike amounts to misconduct is of no consequence as the Bar Councils have been vested with the power to decide whether or not an Advocate has committed misconduct. He submitted that this Court cannot penalise any Advocate for misconduct as the power to discipline is now exclusively with the Bar Councils. He submitted that it is for the Bar Councils to decide whether strike should be resorted to or not.

9) The learned Attorney General submitted that strike by lawyers cannot be equated with strikes resorted to by other sections of society.

He submitted that the basic difference is that members of the legal profession are officers of the Court. He submitted that they are obliged by the very nature of their calling to aid and assist in the dispensation of justice. He submitted that strike or abstention from work impaired the administration of justice and that the same was thus inconsistent with the calling and position of lawyers. He submitted that abstention from work, by lawyers, may be resorted to in the rarest of rare cases, namely, where the action protested against is detrimental to free and fair administration of justice such as there being a direct assault on the independence of the judiciary or a provision is enacted nullifying a judgment of a Court by an executive order or in case of supersession of judges by departure from the settled policy and convention of seniority. He submitted that even in cases where the action eroded the autonomy of the legal profession, e.g. dissolution of Bar Councils and recognized Bar Associations or packing them with government nominees a token strike of one day may be resorted to. He submitted even in the above situations the duration of abstention from work should be limited to a couple of hours or at the maximum one day. He submitted that the purpose should be to register a protest and not to paralyse the system. He suggested that alternative forms of protest can be explored, e.g., giving press statements, TV interviews, carrying banners and/or placards, wearing black arm-bands, peaceful protest marches outside court premises etc.

He submitted that abstention from work for the redressal of a grievance should never be resorted to where other remedies for seeking redressal are available. He submitted that all attempts should be made to seek redressal from the concerned authorities. He submitted that where such redressal is not available or not forthcoming, the direction of the protest can be against that authority and should not be misdirected, e.g., in cases of alleged police brutalities Courts and litigants should not be targeted in respect of actions for which they are in no way responsible. He agreed that no force or coercion should be employed against lawyers who are not in agreement with the “strike call” and want to discharge their professional duties. The learned Attorney General relied upon the following observations of a Full Bench of the Kerala High Court in the case of Bharat Kumar K. Paricha & Anr. V. State of Kerala & Ors. which are reproduced below:

“No political party or organization can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent the citizens not in sympathy with its viewpoint, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the nation.” [See (1998) 1 SCC 201 at 204, para 17] [emphasis added] 10) He pointed out that the judgment of the Kerala High Court has been approved by this Hon’ble Court in the case of Communist Party of India (M) v. Bharat Kumar & Ors. (1998) 1 SCC 201 at 202.

11) Before considering the question raised it is necessary to keep in mind the role of lawyers in the administration of justice and also their duties and obligations as officers of this Court. In the case of Lt. Col.

S. J. Chaudhary vs. State (Delhi Administration) reported in (1984) 1 SCC 722, the High Court had directed that a criminal trial go on from day to day. Before this Court it was urged that the Advocates were not willing to attend day to day as the trial was likely to be prolonged.

It was held that it is the duty of every advocate who accepts a brief in a criminal case to attend the trial day to day. It was held that a lawyer would be committing breach of professional duties if he fails to so attend.

12) In the case of K. John Koshy & Ors. vs. Dr. Tarakeshwar Prasad Shaw reported in (1998) 8 SCC 624, one of the questions was whether the Court should refuse to hear a matter and pass an Order when counsel for both the sides were absent because of a strike call by the Bar Association. This Court held that the Court could not refuse to hear the matter as otherwise it would tantamount to Court becoming a privy to the strike.

13) In the case of Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd.

reported in (1999) 1 SCC page 37, an application had been made to the trial Court to suo moto transfer the case to some other Court as the Bar Association had passed a resolution to boycott that Court. It was stated that the lawyers could not thus appear before that Court.

The trial Court rightly rejected the application. In a revision petition the High Court stayed the proceedings before the trial Court. This Court held that the High Court had committed grave error in entertaining the revision petition and passing an Order of stay.

Following the ratio laid down in Lt. Col. S.J. Chaudhary’s case, this Court held as follows:

“15. This is not a case where the respondent was prevented by the Additional District Judge from addressing oral arguments, but the respondent’s counsel prevented the Additional District Judge from hearing his oral arguments on the stated cause that he decided to boycott that Court for ever as the Delhi Bar Association took such a decision. Here the counsel did not want a case to be decided by that Court. By such conduct, the counsel prevented the judicial process to have flowed on its even course.

The respondent has no justification to approach the High Court as it was the respondent who contributed to such a situation.

16. If any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No Court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating.” 14) In the case of Koluttumottil Razak vs. State of Kerala reported in (2000) 4 SCC 465, counsel did not appear in Court as advocates had called for a strike. As the appellant was languishing in jail this Court held that an adjournment would not be justified. This Court held that it is the duty of the Court to look into the matter itself.

15) In the case of U.P. Sales Tax Service Association vs. Taxation Bar Association reported in [1995] INSC 453; (1995) 5 SCC 716, the question was whether the High Court could issue a writ or direction prohibiting a statutory authority from discharging quasi judicial functions i.e. direct the State Government to withdraw all powers from it and transfer all pending cases before the officer to any other officer and whether advocates would be justified to go on strike as a pressure group. In that context this Court observed as follows:

“11. It is fundamental that if rule of law is to have any meaning and content, the authority of the court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour, affection or ill-will. Casting defamatory aspersions upon the character, ability or integrity of the judge/judicial officer/authority undermines the dignity of the court/authority and tends to create distrust in the popular mind and impedes the confidence of the people in the courts/tribunals which is of prime importance to the litigants in the protection of their rights and liberties. The protection to the judges/judicial officer/authority is not personal but accorded to protect the institution of the judiciary from undermining the public confidence in the efficacy of judicial process. The protection, therefore, is for fearless curial process. Any scurrilous, offensive, intimidatory or malicious attack on the judicial officer/authority beyond condonable limits, amounts to scandalising the court/tribunal amenable to not only conviction for its contempt but also liable to libel or defamation and damages personally or group libel.

Maintenance of dignity of the court/judicial officer or quasi- judicial authority is, therefore, one of the cardinal principles of rule of law embedded in judicial review. Any uncalled for statement or allegation against the judicial officer/statutory authorities, casting aspersions of court’s integrity or corruption would justify initiation of appropriate action for scandalising the court or tribunal or vindication of authority or majesty of the court/tribunal.

The accusation of the judicial officer or authority or arbitrary and corrupt conduct undermines their authority and rudely shakes them and the public confidence in proper dispensation of justice. It is of necessity to protect dignity or authority of the judicial officer to maintain the stream of justice pure and unobstructed. The judicial officer/authority needs protection personally. Therefore, making wild allegations of corruption against the presiding officer amounts to scandalising the court/statutory authority. Imputation of motives of corruption to the judicial officer/authority by any person or group of persons is a serious inroad into the efficacy of judicial process and threat to judicial independence and needs to be dealt with the strong arm of law.” 16) It was held that the High Court did not have power to issue a writ of direction prohibiting a statutory authority from discharging quasi judicial functions. The question whether lawyers had a right to strike was not gone into.

17) In the case of B. L. Wadehra vs. State (NCT of Delhi) & Ors.

reported in AIR (2000) Delhi 266, one of the questions was whether a direction should be issued to the lawyers to call off a strike. The Delhi High Court noted certain observations of this Court which are worth reproducing:

“In Indian Council of Legal Aid and Advice v. Bar Council of India reported in (1995) 1 SCC 732 : (AIR 1995 SC 691), the Supreme Court observed thus :

“It is generally believed that members of the legal profession have certain social obligations, e.g., to render “pro bono publico” service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession.” In Re: Sanjeev Datta, reported in [1995] INSC 227; (1995) 3 SCC 619 :

(1995 AIR SCW 2203) the Supreme Court has stated thus:

“20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life.

The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practise it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.” The Delhi High Court then considered various other authorities of this Court, including some set out above, and concluded as follows:

“30. In the light of the above-mentioned views expressed by the Supreme Court, lawyers have no right to strike i.e.

to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. In our view, in exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case. On the other hand a litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar, [1979] INSC 35; (1980) 1 SCC 81: (AIR 1979 SC 1360) is an integral and essential part of the fundamental right to life and liberty enshrined in article 21 of the Constitution.

Strike by lawyers will infringe the above-mentioned fundamental right of the litigants and such infringement cannot be permitted. Assuming that the lawyers are trying to convey their feelings or sentiments and ideas through the strike in exercise of their fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. We are of the view that the exercise of the right under Article 19(1)(a) will come to an end when such exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial. The right to practise any profession or to carry on any occupation guaranteed by Article 19(1)(g) may include the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in Court while holding a vakalat in the case. Similarly, the exercise of the right to protest by the lawyers cannot be allowed to infract the litigant’s fundamental right for speedy trial or to interfere with the administration of justice. The lawyer has a duty and obligation to cooperate with the Court in the orderly and pure administration of justice. Members of the legal profession have certain social obligations also and the practice of law has a public utility flavour. According to the Bar Council of India Rules, 1975 “an Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non- professional capacity, may still be improper for an Advocate”. It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nobility and tradition of the legal profession, the status of the lawyer as an officer of the court and the fiduciary character of the relationship between a lawyer and his client and since strike interferes with the administration of justice and infringes the fundamental right of litigants for speedy trial of their cases, strike by lawyers cannot be approved as an acceptable mode of protest, irrespective of the gravity of the provocation and the genuineness of the cause.

Lawyers should adopt other modes of protest which will not interrupt or disrupt court proceedings or adversely affect the interest of the litigant. Thereby lawyers can also set an example to other sections of the society in the matter of protest and agitations.

31. Every Court has a solemn duty to proceed with the judicial business during Court hours and the Court is not obliged to adjourn a case because of a strike call. The Court is under an obligation to hear and decide cases brought before it and it cannot shirk that obligation on the ground that the advocates are on strike. If the counsel or/and the party does not appear, the necessary consequences contemplated in law should follow. The Court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike. Even in the Common Cause case the Supreme Court had asked the members of the legal profession to be alive to the possibility of Judges refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with the cases. Strike infringes the litigant’s fundamental right for speedy trial and the Court cannot remain a mute spectator or throw up its hands in helplessness on the face of such continued violation of the fundamental right.

32. Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in Court. If anyone does it, he commits a criminal offence and interferes with the administration of justice and commits contempt of Court and he is liable to be proceeded against on all these counts.

33. In the light of the above discussion we are of the view that the present strike by lawyers is illegal and unethical. Whatever might have been the compelling circumstances earlier, now there is absolutely no justification for the continuance of the strike in view of the appointment of the Commission of Inquiry and the directions being issued in this case.” 18) In our view the conclusions reached are absolutely correct and the same need to be and are hereby approved.

19) Thereafter in the case of Roman Services Pvt. Ltd. vs. Subhash Kapoor reported in (2001) 1 SCC 118, the question was whether a litigant should suffer a penalty because his advocate had boycotted the Court pursuant to a strike call made by the Association of which the advocate was a member. In answer to this question it has been held that when an advocate engaged by a party is on strike there is no obligation on the part of the Court to either wait or adjourn the case on that account. It was held that this Court has time and again set out that an advocate has no right to stall court proceedings on the ground that they have decided to go on a strike. In this case it was noted that in Mahabir Prasad’s case (supra), it has been held that strikes and boycotts are illegal. That the lawyers and the Bar understood that they could not resort to strikes is clear from statement of Senior Counsel Shri. Krishnamani which this Court recorded. The statement is as follows:

“13. Shri Krishamani, however, made the present position as unambiguously clear in the following words:

“Today, if a lawyer participates in a Bar Association’s boycott of a particular court that is ex facie bad in view of the clear declaration of law by this Hon’ble Court. Now, even if there is boycott call, a lawyer can boldly ignore the same in view of the ruling of this Hon’ble Court in Mahabir Prasad Singh (1999) 1 SCC 37.” This Court thereafter directed the concerned advocate to pay the half the amount of the cost imposed on his client. The observations in this behalf are as follows:

“15. Therefore, we permit the appellant to realise half of the said amount of Rs. 5000 from the firm of advocates M/s B.C. Das Gupta & Co. or from any one of its partners. Initially we thought that the appellant could be permitted to realise the whole amount from the said firm of advocates. However, we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them. Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self-imposed dereliction of his advocate.

We may further add that the litigant who suffers entirely on account of his advocate’s non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair play and canons of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.

16. In all cases where the court is satisfied that the ex parte order (passed due to the absence of the advocate pursuant to any strike call) could be set aside on terms, the court can as well permit the party to realise the costs from the advocate concerned without driving such party to initiate another legal action against the advocate.

17. We may also observe that it is open to the court as an alternative course to permit the party (while setting aside the ex parte order or decree earlier passed in his favour) to realise the cost fixed by the court for the purpose, from the counsel of the other party whose absence caused the passing of such ex parte order, if the court is satisfied that such absence was due to that counsel boycotting the court or participating in a strike.” (emphasis supplied) 20) Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers it would amount to scandalising the Courts to undermine its authority and thereby the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh’s case (supra) that if they participate in a boycott or a strike, their action is ex-facie bad in view of the declaration of law by this Court. A lawyer’s duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known, at least since Roman Services’ case, that the Advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.

21) It must also be remembered that an Advocate is an officer of the Court and enjoys special status in society. Advocates have obligations and duties to ensure smooth functioning of the Court. They owe a duty to their client. Strikes interfere with administration of justice.

They cannot thus disrupt Court proceedings and put interest of their clients in jeopardy. In the words of Mr. H. M. Seervai, a distinguished jurist:- “Lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no justification for lawyers to join in an illegal conspiracy to commit a gross, criminal contempt of court, thereby striking at the heart of the liberty conferred on every person by our Constitution. Strike is an attempt to interfere with the administration of justice. The principle is that those who have duties to discharge in a court of justice are protected by the law and are shielded by the law to discharge those duties, the advocates in return have duty to protect the courts. For, once conceded that lawyers are above the law and the law courts, there can be no limit to lawyers taking the law into their hands to paralyse the working of the courts. “In my submission”, he said that “it is high time that the Supreme Court and the High Court make it clear beyond doubt that they will not tolerate any interference from anybody or authority in the daily administration of justice. For in no other way can the Supreme Court and the High Court maintain the high position and exercise the great powers conferred by the Constitution and the law to do justice without fear or favour, affection or ill-will.” 22) It was expected that having known the well-settled law and having seen that repeated strikes and boycotts have shaken the confidence of the public in the legal profession and affected administration of justice, there would be self regulation. The above mentioned interim Order was passed in the hope that with self restraint and self regulation the lawyers would retrieve their profession from lost social respect. The hope has not fructified. Unfortunately strikes and boycott calls are becoming a frequent spectacle. Strikes, boycott calls and even unruly and unbecoming conduct are becoming a frequent spectacle. On the slightest pretense strikes and/or boycott calls are resorted to. The judicial system is being held to ransom.

Administration of law and justice is threatened. The rule of law is undermined.

23) It is held that submissions made on behalf of Bar Councils of U.

P. merely need to be stated to be rejected. The submissions based on Advocates Act are also without merit. Section 7 of the Advocates Act provides for the functions of the Bar Council of India. None of the functions mentioned therein authorise paralising of the working of Courts in any manner. On the contrary, Bar Council of India is enjoined with the duty of laying down standards of professional conduct and etiquette for advocates. This would mean that the Bar Council of India ensures that Advocates do not behave in unprofessional and unbecoming manner. Section 48A gives a right to Bar Council of India to give directions to State Bar Councils. The Bar Associations may be separate bodies but all Advocates who are members of such Association are under disciplinary jurisdiction of the Bar Councils and thus the Bar Councils can always control their conduct. Further even in respect of disciplinary jurisdiction the final appellate authority is, by virtue of Section 38, the Supreme Court.

24) In the case of Abhay Prakash Sahay Lalan v. High Court of Judicature at Patna reported in AIR 1998 Patna 75, it has been held that Section 34(1) of the Advocates Act empowers High Courts to frame rules laying down conditions subject to which an Advocate shall be permitted to practice in the High Court and Courts subordinate thereto. It has been held that the power under Section 34 of the Advocates Act is similar to the power under Article 145 of the Constitution of India. It is held that other Sections of the Advocates Act cannot be read in a manner which would render Section 34 ineffective.

25) In the case of Supreme Court Bar Association v. Union of India reported in (1998) 4 SCC 409, it has been held that professional misconduct may also amount to Contempt of Court (para 21). It has further been held as follows:

“79. An advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for “professional misconduct”, on the basis of his having been found guilty of committing contempt of court.

We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution “all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court”. The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act “in aid of the Supreme Court”. It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate.

It must act in accordance with the prescribed procedure, whenever its attention is drawn by this court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner prescribed b the Act and the Rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of law and prevent any interference in the administration justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record records its findings about the conduct of an advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar Council concerned in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette. Nothing is more destructive of public confidence in the administration of justice than incivility, rudeness or disrespectful conduct on the part of a counsel towards the court or disregard by the court of the privileges of the Bar. In case the Bar council, even after receiving “reference” from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers under Section 38 would be available to this Court only and not to the High Courts. We, however, hope that such a situation would not arise.

80. In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practice as an Advocate-on- Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts of tribunals.” Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of Courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct.

This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott.

Such requisitions should be consigned to the place where they belong viz. the waste paper basket. In case any Association calls for a strike or a call for boycott the concerned State Bar Council and on their failure the Bar Council of India must immediately take disciplinary action against the Advocates who give a call for strike and if the Committee Members permit calling of a meeting for such purpose against the Committee Members. Further it is the duty of every Advocate to boldly ignore a call for strike or boycott.

26) It must also be noted that Courts are not powerless or helpless.

Section 38 of the Advocates Act provides that even in disciplinary matters the final Appellate Authority is the Supreme Court. Thus even if the Bar Councils do not rise to the occasion and perform their duties by taking disciplinary action on a complaint from a client against an advocate for non-appearance by reason of a call for strike or boycott, on an Appeal the Supreme Court can and will. Apart from this, as set out in Roman Services’ case, every Court now should and must mulct Advocates who hold Vakalats but still refrain from attending Courts in pursuance of a strike call with costs. Such costs would be in addition to the damages which the Advocate may have to pay for the loss suffered by his client by reason of his non-appearance.

27) During hearing nobody, except on behalf of U. P. Bar Council, could deny that the above legal position was well settled. On behalf of Bar Council of India a request was made not to sign judgment as a meeting had been called to formulate guidelines through consensual process. We had therefore deferred delivery of Judgment.

28) The Bar Council of India has since filed an affidavit wherein extracts of a Joint meeting of the Chairman of various State Bar Councils and members of the Bar Council of India, held on 28th and 29th September, 2002, have been annexed. The minutes set out that some of the causes which result in lawyers abstaining from work are:

I. LOCAL ISSUES

1. Disputes between lawyer / lawyers and the police and other authorities

2. Issues regarding corruption / misbehaviour of Judicial Officers and other authorities.

3. Non filling of vacancies arising in Courts or non appointment of Judicial Officers for a long period.

4. Absence of infrastructure in courts.

II. ISSUES RELATING TO ONE SECTION OF THE BAR AND ANOTHER SECTION

1. Withdrawal of jurisdiction and conferring it to other courts (both pecuniary and territorial).

2. Constitution of Benches of High Courts. Disputes between the competing District and other Bar Associations.

III) ISSUES INVOLVING DIGNITY, INTEGRITY, INDEPENDENCE OF THE BAR AND JUDICIARY.

IV) LEGISLATION WITHOUT CONSULTATION WITH THE BAR
COUNCILS.

V) NATIONAL ISSUES AND REGIONAL ISSUES AFFECTING THE PUBLIC AT LARGE/THE INSENSITIVITY OF ALL CONCERNED.

29) At the meeting it is then resolved as follows:

“RESOLVED to constitute Grievances Redressal Committes at the Taluk/Sub Division or Tehsil level, at the District level, High Court and Supreme Court levels as follows: – I) (a) A committee consisting of the Hon’ble Chief Justice of India or his nomineee, Chairman, Bar Council of India, President, Supreme Court Bar Association, Attorney General of India.

(b) At the High Court level a Committee consisting of the Hon’ble Chief Justice of the State High Court or His nominee, Chairman, Bar Council of the State, President or Presidents High Court Bar Association, Advocate General, Member, Bar Council of India from the State.

(C)At the District level, District Judge, President or Presidents of the District Bar Association, District Government Pleader, Member of the Bar Council from the District, if any, and if there are more than one, then senior out of the two.

(d) At taluka/Tehsil/Sub Divn, Senior most Judge, President or Presidents of the Bar Association, Government Pleader, representative of the State Bar Council, if any.

II)Another reason for abstention at the District and Taluka level is arrest of an advocate or advocates by police in matters in which the arrest is not justified. Practice may be adopted that before arrest of an advocate or advocates, President, Bar Association, the District Judge or the Senior most Judge at the place be consulted. This will avoid many instances or abstentions from court.

III) IT IS FURTHER RESOLVED that in the past abstention of work by Advocates for more than a day was due to inaction of the authorities to solve the problems that the advocates placed.

(IV)IT IS FURTHER RESOLVED that in all cases of legislation affecting the legal profession which includes enactment of new laws or amendments of existing laws, matters relating to jurisdiction and creation of Tribunal the Government both Central and State should initiate the consultative process with the Representatives of the profession and take into consideration the views of the Bar and give utmost weight to the same and the State Government should instruct their officers to react positively to the issues involving the profession when they are raised and take all steps to avoid confrontation and inaction and in such an event of indifference, confrontation etc. to initiate appropriate disciplinary action against the erring officials and including but not limited to transfer.

V) The Councils are of the view that abstentions of work in courts should not be resorted to except in exceptional circumstances. Even in exceptional circumstances, the abstention should not be resorted to normally for more than one day in the first instance. The decision for going on abstention will be taken by the General Body of the Bar Association by a majority of two-thirds members present.

VI) It is further resolved that in all issues as far as possible legal and constitutional methods should be pursued such as representation to authorities, holding demonstrations and mobilising public opinion etc.

VII) It is resolved further that in case the Bar Associations deviate from the above resolutions and proceed on cessation of work inspite or without the decision of the concerned Grievances Redressal Committee except in the case of emergency the Bar Council of the State will take such action as it may deem fit and proper the discretion being left to the Bar Council of the State concerned as to enforcement of such decisions and in the case of an emergency the Bar Association concerned will inform the State Bar Council.

The Bar Council of India resolves that this resolution will be implemented strictly and the Bar Associations and the individual members of the Bar Associations should take all steps to comply with the same and avoid cessation of the work except in the manner and to the extent indicated above.” 30) Whilst we appreciate the efforts made, in view of the endemic situation prevailing in the country, in our view, the above resolutions are not enough. It was expected that the Bar Council of India would have incorporated clauses as those suggested in the interim Order of this Court in their disciplinary rules. This they have failed to do even now. What is at stake is the administration of justice and the reputation of the legal profession. It is the duty and obligation of the Bar Council of India to now incorporate clauses as suggested in the interim Order. No body or authority, statutory or not, vested with powers can abstain from exercising the powers when an occasion warranting such exercise arises. Every power vested in a public authority is coupled with a duty to exercise it, when a situation calls for such exercise. The authority cannot refuse to act at its will or pleasure. It must be remembered that if such omission continues, particularly when there is an apparent threat to the administration of justice and fundamental rights of citizens, i.e. the litigating public, Courts will always have authority to compel or enforce the exercise of the power by the statutory authority. The Courts would then be compelled to issue directions as are necessary to compel the authority to do what it should have done on its own.

31) It must immediately be mentioned that one understands and sympathisises with the Bar wanting to vent their grievances. But as has been pointed out there are other methods e.g. giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts etc. More importantly in many instances legal remedies are always available. A lawyer being part and parcel of the legal system is instrumental in upholding the rule of law. A person casts with the legal and moral obligation of upholding law can hardly be heard to say that he will take law in his own hands.

It is therefore time that self restraint be exercised.

32) Now let us consider whether any of the reasons set out in the affidavit of Bar Council of India justify a strike or call for boycott. The reasons given are:

1) Local Issues: A dispute between a lawyer/lawyers and police or other authorities can never be a reason for going on even a token strike. It can never justify giving a call for boycott. In such cases an adequate legal remedy is available and it must be resorted to. The other reasons given under the item “Local Issues” and even items (IV) and (V) are all matters which are exclusive within the domain of Courts and/or Legislatures. Of course the Bar may be concerned about such things but there can be no justification to paralyse administration of justice. In such cases representations can and should be made. It will be for the appropriate authority to consider those representations. We are sure that a representation by the Bar will always be seriously considered. However, the ultimate decision in such matters has to be that of the concerned authority. Beyond making representations no illegal method can be adopted. At the most, provided it is permissible or feasible to do so, recourse can be had by way of legal remedy. So far as problems concerning Courts are concerned we see no harm in setting up Grievance Redressal Committees as suggested. However, it must be clear that the purpose of such Committees would only be to set up a forum where grievance can be ventilated. It must be clearly understood that recommendations or suggestions of such Committees can never be binding. The deliberations and/or suggestions and/or recommendations of such Committee will necessarily have to be placed before the appropriate authority viz. the concerned Chief Justice or the District Judge. The final decision can only be of the concerned Chief Justice or the concerned District Judge. Such final decision, whatever it be, would then have to be accepted by all and no question then arises of any further agitation. Lawyers must also accept the fact that one cannot have everything to be the way that one wants it to be.

Realities of life are such that, in certain situations, after one has made all legal efforts to cure what one perceives as an ill, one has to accept the situation. So far as legislation, national and regional issues are concerned, the Bar always has recourse to legal remedies. Either the demand of the Bar on such issues is legally valid or it is not. If it is legally valid, of all the persons in society, the Bar is most competent and capable of getting it enforced in a Court of law. If the demand is not legally valid and cannot be enforced in a Court of law or is not upheld by a Court of law, then such a demand cannot be pursued any further.

33) The only exception to the general rule set out above appears to be item (III). We accept that in such cases a strong protest must be lodged. We remain of the view that strikes are illegal and that Courts must now take a very serious view of strikes and calls for boycott.

However, as stated above, lawyers are part and parcel of the system of administration of justice. A protest on an issue involving dignity, integrity and independence of the Bar and judiciary, provided it does not exceed one day, may be overlooked by Courts, who may turn a blind eye for that one day.

34) One last thing which must be mentioned is that the right of appearance in Courts is still within the control and jurisdiction of Courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in Court can only be within the domain of Courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an Advocate) can practice in the Supreme Court and/or in the High Court and Courts subordinate thereto. Many Courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self restraint is exercised, Courts may now have to consider framing specific rules debarring Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and controlling power. Hence Courts cannot be and are not divested of control or supervision of conduct in Court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of Court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in Courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of Court proceedings. On the contrary it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the Court. Proceedings inside the Courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of Court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the Court and even corrode the majesty of it besides impairing the confidence of the public in the efficacy of the institution of the Courts. The power to frame such rules should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the Courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an Advocate shall have a right to practice i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the Court including inter-alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter-alia to lay down conditions on which an Advocate shall be permitted to practice in Courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an Advocate to appear in a Court. An Advocate appears in a Court subject to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court. Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.

35) In conclusion it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc.

It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott.

No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts.

It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him.

36) It is now hoped that with the above clarifications, there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self restraint will be exercised. The Petitions stand disposed off accordingly.

…CJI.

.J.

(DORAISWAMY RAJU) .J.

(S. N. VARIAVA) .J.

(D. M. DHARMADHIKARI) New Delhi, December 17, 2002.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 7178 of 2001
Writ Petition (civil) 294 of 2001
UNION OF INDIA …PETITIONER
Vs.
AS&SOACNIOATTHIEORN FOR DEMOCRATIC REFORMS …RESPONDENT
DATE OF JUDGMENT: 02/05/2002
BENCH: M.B. Shah, Bisheshwar Prasad Singh & H.K. Sema

J U D G M E N T

Shah, J.

Short but important question involved in these matters isin a nation wedded to republican and democratic form of government, where election as a Member of Parliament or as a Member of Legislative Assembly is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates? Further connected question iswhether the High Court had jurisdiction to issue directions, as stated below, in a writ petition filed under Article 226 of the Constitution of India? Before dealing with the aforesaid questions, we would refer to the brief facts as alleged by the Petitioner-Association for Democratic Reforms in Writ Petition No.7257 of 1999 filed before the High Court of Delhi for direction to implement the recommendations made by the Law Commission in its 170th Report and to make necessary changes under Rule 4 of the Conduct of Election Rules, 1961. It has been pointed out that Law Commission of India had, at the request of Government of India, undertaken comprehensive study of the measures required to expedite hearing of election petitions and to have a thorough review of the Representation of the People Act, 1951 (hereinafter referred to as “the Act”) so as to make the electoral process more fair, transparent and equitable and to reduce the distortions and evils that have crept into the Indian electoral system and to identify the areas where the legal provisions required strengthening and improvement. It is pointed out that Law Commission has made recommendation for debarring a candidate from contesting an election if charges have been framed against him by a Court in respect of certain offences and necessity for a candidate seeking to contest election to furnish details regarding criminal cases, if any, pending against him. It has also suggested that true and correct statement of assets owned by the candidate, his/her spouse and dependant relations should also be disclosed. Petitioner has also referred Para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of Home Affairs, which reads as follows:

“6.2 Like the Director CBI, the DIB has also stated that there has been a rapid spread and growth of criminal gangs, armed senas, drug Mafias, smuggling gang, drug peddlers and economic lobbies in the country which have, over the years, developed an extensive network of contacts with the bureaucrats/Government functionaries at the local levels, politicians, media persons and strategically located individuals in the non State sector. Some of these Syndicates also have international linkages, including the foreign intelligence agencies. In this context the DIB has given the following examples (i) In certain States like Bihar, Haryana and UP, these gangs enjoy the patronage of local level politicians, cutting across party lines and the protection of Governmental functionaries. Some political leaders become the leaders of these gangs, armed senas and over the years get themselves elected to local bodies, State Assemblies and the national Parliament. Resultantly, such elements have acquired considerable political clout seriously jeopardising the smooth functioning of the administration and the safety of life and property of the common man causing a sense of despair and alienation among the people;

(ii) The big smuggling Syndicates having international linkages have spread into and infected the various economic and financial activities, including havala transactions, circulation of black money and operations of a vicious parallel economy causing serious damage to the economic fibre of the country. These Syndicates have acquired substantial financial and muscle power and social respectability and have successfully corrupted the Government machinery at all levels and yield enough influence to make the task of Investigating and Prosecuting agencies extremely difficult; even the members of the Judicial system have not escaped the embrace of the Mafia;

(iii) Certain elements of the Mafia have shifted to narcotics, drugs and weapon smuggling and established narco-terrorism networks specially in the States of J&K, Punjab, Gujarat and Maharashtra. The cost of contesting elections has thrown the politician into the lap of these elements and led to a grave compromise by officials of the preventive/detective systems. The virus has spread to almost all the centres in the country, the coastal and the border States have been particularly affected;

(iv) The Bombay bomb blast case and the communal riots in Surat and Ahmedabad have demonstrated how the India underworld has been exploited by the Pak ISI and the latter’s network in UAE to cause sabotage subversion and communal tension in various parts of the country. The investigations into the Bombay bomb blast cases have revealed expensive linkages of the underworld in the various governmental agencies, political circles, business sector and the film world.” It is also contended that despite the Reports of the Law Commission and Vohra Committee, successive governments have failed to take any action and, therefore, petition was filed for implementation of the said reports and for a direction to the Election Commission to make mandatory for every candidate to provide information by amending Form 2-A to 2-E prescribed under the Conduct of Election Rules, 1961. After hearing the parties, the High Court by judgment and order dated 2nd November, 2000, held that it is the function of the Parliament to make necessary amendments in the Representation of the People Act, 1951 or the Election Rules and, therefore, Court cannot pass any order, as prayed, for amending the Act or the Rules.

However, the Court consideredwhether or not an elector, a citizen of the country has a fundamental right to receive the information regarding the criminal activities of a candidate to the Lok Sabha or Legislative Assembly for making an estimate for himself as to whether the person who is contesting the election has a background making him worthy of his vote, by peeping into the past of the candidate. After considering the relevant submissions and the reports as well as the say of Election Commission, the High Court held that for making a right choice, it is essential that the past of the candidate should not be kept in the dark as it is not in the interest of the democracy and well being of the country. The Court directed the Election Commission to secure to voters the following information pertaining to each of the candidates contesting election to the Parliament and to the State Legislature and the parties they represent:

1. Whether the candidate is accused of any offence(s) punishable with imprisonment? If so, the details thereof.

2. Assets possessed by a candidate, his or her spouse and dependant relations?

3. Facts giving insight to candidate’s competence, capacity and suitability for acting as parliamentarian or legislator including details of his/her educational qualifications;

4. Information which the election commission considers necessary for judging the capacity and capability of the political party fielding the candidate for election to Parliament or the State Legislature.

That order is challenged by Union of India by filing the present appeal.

On behalf of Indian National Congress I.A. No.2 of 2001 is also filed for impleadment/intervention in the appeal filed by the Union of India by inter alia contending that the High Court ought to have directed the writ petitioners to approach the Parliament for appropriate amendments to the Act instead of directing the Election Commission of India to implement the same. I.A. for intervention is granted.

Further, People’s Union for Civil Liberties (PUCL) has filed Writ Petition No.294 of 2001 under Article 32 of the Constitution praying that writ, order or direction be issued to the respondents (a) to bring in such measures which provide for declaration of assets by the candidate for the elections and for such mandatory declaration every year during the tenure as an elected representative as MP/MLA;

(b) to bring in such measures which provide for declaration by the candidate contesting election whether any charge in respect of any offence has been framed against him/her; and (c) to frame such guidelines under Article 141 of the Constitution by taking into consideration 170th Report of Law Commission of India.

SUBMISSIONS:

We have heard the learned counsel for the parties at length. Mr.

Harish N. Salve, learned Solicitor General appearing for Union of India submitted that till suitable amendments are made in the Act and Rules thereunder, the High Court should not have given any direction to the Election Commission. He referred to various Sections of the Act and submitted that Section 8 provides for disqualification on conviction for certain offences and Section 8A provides for disqualification on ground of corrupt practices. Section 32 provides nomination of candidate for election if he is qualified to be chosen to fill that seat under the provisions of the Constitution and the Act or under the provisions of the Government of Union Territories Act, 1963. Thereafter, elaborate procedure is prescribed for presentation of nomination paper and requirements for a valid nomination. Finally, Section 36 provides for scrutiny of nominations and empowers the returning officer to reject any nomination on the following grounds (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely Articles 84, 102, 173 and 191, Part II of this Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or (b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine.

It is his submission that it is for the political parties to decide whether such amendments should be brought and carried out in the Act and the Rules. He further submitted that as the Act or the Rules nowhere disqualify a candidate for non-disclosure of the assets or pending charge in a criminal case and, therefore, directions given by the High Court would be of no consequence and such directions ought not to have been issued.

Supplementing the aforesaid submission, Mr. Ashwini Kumar, learned senior counsel appearing on behalf of intervenorIndian National Congress submitted that the Constituent Assembly had discussed and negatived requirement of educational qualification and possession of the assets to contest election. For that purpose, he referred to the Debates in the Constituent Assembly. He submitted that 3/4th of the population is illiterate and providing education as a qualification for contesting election was not accepted by the Constituent Assembly. Similarly, prescribing of property qualification for the candidates to contest election was also negatived by the Constituent Assembly. He, therefore, submitted that furnishing of information regarding assets and educational qualification of a candidate is not at all relevant for contesting election and even for casting votes. Voters are not influenced by the educational qualification or by possession of wealth by a contesting candidate. It is his say that the party whom he represents is interested in purity of election and wants to stop entry of criminals in politics or its criminalisation but it is for the Parliament to decide the said question.

It is submitted that delicate balance is required to be maintained with regard to the jurisdiction of the Parliament and that of Courts and once the Parliament has not amended the Act or the Rules despite the recommendation made by the Law Commission or the report submitted by the Vohra Committee, there was no question of giving any direction by the High Court to the Election Commission.

Mr. K.K. Venugopal, learned senior counsel appearing on behalf of Election Commission exhaustively referred to the counter affidavit filed on behalf of Election Commission. At this stage, we would refer to some part from the said affidavit. It is stated that issue of ‘persons with criminal background’ contesting election has been engaging the attention of the Election Commission of India for quite some time; even Parliament in the debates on 50 years of independence and the resolution passed in its special Session in August, 1997 had shown a great concern about the increasing criminalisation of politics; it is widely believed that there is criminal nexus between the political parties and anti-social elements which is leading to criminalisation of politics; the criminals themselves are now joining election fray and often even getting elected in the process. Some of them have even adorned ministerial berths and, thus, law breakers have become law makers. The Commission has suggested that candidate should be required to furnish information in respect of (a) all cases in which he has been convicted of any offence and punished with any kind of imprisonment or amount of fine, and whether any appeal or application for review is pending in respect of any such cases of conviction, and (b) all pending cases in which he is involved before any court of law in any offence, punishable with imprisonment for two years or more, and where the appropriate court has on prima facie satisfaction framed the charges against him for proceeding with the trial.

For declaration of assets, it has been suggested by the Election Commission that candidate should be asked to disclose his assets, all immovable and movable properties which would include cash, bank balances, fixed deposits and other savings such as shares, stocks, debentures etc. Candidate also should be directed to disclose for voters’ information, not only his assets but his liabilities like over- dues to public financial institutions and government dues and charges on his/her properties.

For other directions issued by the High Court, it has been pointed out that it is for the political parties to project the capacity and capability of a candidate and that directions issued by the High Court are required to be set aside. Finally, the Election Commission has suggested as under:

“I. Each candidate for election to Parliament or a State Legislature should submit, along with his nomination paper, a duly sworn affidavit, for the truth of which he is liable, as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his candidature:

(i) whether the candidate is convicted of any offence in any case in the past, and punished with imprisonment or fine; if so, the details thereof, together with the details of any pending appeals or applications for revision in any such cases of conviction;

(ii) whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charges have been framed against him by the competent court of law, if so, the details thereof, together with the details of any pending appeals or applications for revision in respect of the charges framed in any such cases;

(iii) whether the candidate is an income tax and/or wealth tax assessee and has been paying his tax(es) and filing his returns regularly, wherever he is liable, and if so, the financial year for which the last income tax/wealth tax return has been filed;

(iv) the liabilities of the candidate, his/her spouse and minor children; that is to say, over-dues to any public financial institutions, any government dues, and charges on his/her properties;

(v) the educational qualifications of the candidate.

II. The information by each candidate in respect of all the foregoing aspects shall be furnished by the candidate in a format to be prescribed by the Election Commission and shall be supported by a duly sworn affidavit, making him responsible for the correctness of the information so furnished and liable for any false statement.

III. The information so furnished by each candidate in the prescribed format and supported by a duly sworn affidavit shall be disseminated by the Election Commission, through the respective Returning Officers, by displaying the same on the notice board of the Returning Officer and making the copies thereof available freely and liberally to all other contesting candidates and the representatives of the print and electronic media.

If any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate may also be disseminated alongwith the affidavit of the candidate concerned.

The Court may lay down that it would be mandatory for each candidate for election to Parliament or State Legislature, to file along with his nomination paper, the aforesaid duly sworn affidavit, furnishing therein the information on the aspects detailed above and that the nomination paper of such a candidate who fails or refuges to file the required affidavit or files an incomplete affidavit shall be deemed to be an incomplete nomination paper within the meaning of section 33(1) of the Representation of the People Act, 1951 and shall suffer consequences according to law.

The aforesaid suggestions made by the Election Commission would certainly mean that except certain modifications, Election Commission virtually supports the directions issued by the High Court and that candidates must be directed to furnish necessary information with regard to pending criminal cases as well as assets and educational qualification.

Mr. Rajinder Sachhar, learned senior counsel appearing on behalf of the petitioners relied upon the decision rendered by this Court in Vineet Narain and Others v. Union of India and Another [(1998) 1 SCC 226] and submitted that considering the widespread illiteracy of the voters, and at the same time their overall culture and character, if they are well-informed about the candidates contesting election as M.P. or M.L.A., they would be in a position to decide independantly to cast their votes in favour of a candidate who, according to them, is much more efficient to discharge his functions as M.P. or M.L.A. He, therefore, submitted that presuming that the High Court has no jurisdiction to pass orders to fill in the gaps, this Court can do so by exercising its powers under Article 142 which have the effect of law.

In Vineet Narain’s case (Supra), this Court dealt with the writ petitions under Article 32 of the Constitution of India brought in public interest wherein allegation was against the Central Bureau of Investigation (CBI) of inertia in matters where accusation made was against high dignitaries. Primary question considered waswhether it was within the domain of judicial review and it could be an effective instrument for activating the investigating process which is under the control of the executive? While discussing the powers of this Court, it was observed:

“The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.” [Emphasis supplied] In paragraph 51, the Court pointed out previous precedents for exercise of such power:

“In exercise of the powers of this Court under Article 32 read with Article 142, guidelines and directions have been issued in a large number of cases and a brief reference to a few of them is sufficient. In Erach Sam Kanga v. Union of India [W.P. No. 2632 of 1978 decided on 20.3.1979] the Constitution Bench laid down certain guidelines relating to the Emigration Act.

In Lakshmi Kant Pandey v. Union of India [(1984) 2 SCC 244] (In re, Foreign Adoption), guidelines for adoption of minor children by foreigners were laid down.

Similarly in State of W.B. v. Sampat Lal [(1985) 1 SCC 317], K. Veeraswami v. Union of India [(1991) 3 SCC 655] Union Carbide Corpn. v. Union of India [(1991) 4 SCC 584, Delhi Judicial Service Association v. State of Gujarat (Nadiad Case) [(1991) 4 SCC 406], Delhi Development Authority v. Skipper Construction Co. (P) Ltd. [(1996) 4 SCC 622] and Dinesh Trivedi, M.P. v.

Union of India [(1997) 4 SCC 306] guidelines were laid down having the effect of law, requiring rigid compliance. In Supreme Court Advocates-on-Record Association v. Union of India (IInd Judges case) [(1993) 4 SCC 441], a nine-Judge Bench laid down guidelines and norms for the appointment and transfer of Judges which are being rigidly followed in the matter of appointments of High Court and Supreme Court Judges and transfer of High Court Judges. More recently in Vishaka v. State of Rajasthan [(1997) 6 SCC 241] elaborate guidelines have been laid down for observance in workplaces relating to sexual harassment of working women. In Vishaka (supra) it was said (SCC pp. 249-50, para 11) “11. The obligation of this Court under Article 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of Asia and the Pacific at Beijing in 1995 (As amended at Manila, 28th August, 1997) as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are:

“Objectives of the Judiciary:

10. The objectives and functions of the Judiciary include the following:

(a) to ensure that all persons are able to live securely under the rule of law;

(b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) to administer the law impartially among persons and between persons and the State.” Thus, an exercise of this kind by the court is now a well- settled practice which has taken firm roots in our constitutional jurisprudence. This exercise is essential to fill the void in the absence of suitable legislation to cover the field.” Ms. Kamini Jaiswal, learned counsel appearing on behalf of respondents in support of the decision rendered by the High Court referred to the decision in Kihoto Hollohan v. Zachillhu and Others [1992 Supp (2) SCC 651] wherein while considering the validity of the Tenth Schedule of the Constitution, the Court observed “democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provisions for resolution of election disputes as also adjudication of disputes relating to subsequent dis-qualifications by an independant authority”. She, therefore, contended that for free and fair elections and for survival of democracy, entire history, background and the antecedents of the candidate are required to be disclosed to the voters so that they can judiciously decide in whose favour they should vote;

otherwise, there would not be true reflection of electoral mandate. For interpreting Article 324, she submitted that this provision outlines broad and general principles giving power to the Election Commission and it should be interpreted in a broad perspective as held by this Court in various decisions.

In these matters, questions requiring consideration are

1. Whether Election Commission is empowered to issue directions as ordered by the High Court?

2. Whether a voter a citizen of this country has right to get relevant information, such as, assets, qualification and involvement in offence for being educated and informed for judging the suitability of a candidate contesting election as MP or MLA? For deciding the aforesaid questions, we would proceed on the following accepted legal position.

At the outset, we would say that it is not possible for this Court to give any directions for amending the Act or the statutory Rules. It is for the Parliament to amend the Act and the Rules. It is also established law that no direction can be given, which would be contrary to the Act and the Rules.

However, it is equally settled that in case when the Act or Rules are silent on a particular subject and the Authority implementing the same has constitutional or statutory power to implement it, the Court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted.

Further, it is to be stated that (a) one of the basic structure of our Constitution is ‘republican and democratic form of government’;

(b) the election to the House of People and the Legislative Assembly is on the basis of adults suffrage, that is to say, every person who is citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any Law made by the appropriate Legislature and is not otherwise disqualified under the Constitution or any law on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election (Article 326); and (c) holding of any asset (immovable or movable) or any educational qualification is not the eligibility criteria to contest election; and (d) Under Article 324, the superintendence, direction and control of the ‘conduct of all elections’ to Parliament and to the Legislature of every State vests in Election Commission. The phrase ‘conduct of elections’ is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections.

Question No.1 Whether Election Commission is empowered to issue directions as ordered by the High Court? For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be illiterate, so that they can decide intelligently, whom to vote? In our opinion, the decision of even illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizensvoters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case. For maintaining purity of elections and healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decidedits result, if pending whether charge is framed or cognizance is taken by the Court? There is no necessity of suppressing the relevant facts from the voters.

The Constitution Bench of this Court in Mohinder Singh Gill v.

The Chief Election Commissioner, New Delhi [(1978) 1 SCC 405] while dealing with a contention that Election Commission has no power to cancel the election and direct re-poll, referred to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless word:

“At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paperno amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.

If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men ‘dressed in little, brief authority’. For ‘be you ever so high, the law is above you’.

The moral may be stated with telling terseness in the words of William Pitt: ‘Where laws end, tyranny begins’. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed by Benjamin Disraeli [Vivian Grey, BK VI Ch 7]:

I repeat . . . that all power is a trust that we are accountable for its exercise that, from the people and for the people, all springs, and all must exist.” Further, the Court in (para 23) observed thus:

“Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. ‘The right of election is the very essence of the constitution’ (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.” Thereafter, the Court dealt with the scope of Article 324 and observed (in para 39) thus:

“.Article 324, in our view, operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control, as well as ‘conduct of all elections’, are the broadest terms..” The Court further held:

“Our conclusion on this limb of the contention is that Article 324 is wide enough to supplement the powers under the Act, as here, but subject to the several conditions on its exercise we have set out.” The Court also held (in para 77) thus:

“We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specificated it is otiose. There is no such sequitur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidate emanates from its exercise we must read this functional obligation.” In concluding portion of paragraph 92, the Court inter alia observed thus:

“1(b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.

2(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission.

This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.

(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition” In concurring judgment, Goswami, J. with regard to Article 324 observed (in para 113) thus:

“.Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324 (1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen, or anticipated with precision. That is why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules.” [Emphasis supplied] The aforesaid decision of the Constitution Bench unreservedly lays down that in democracy the little man voter has overwhelming importance on the point and the little-large Indian (voter) should not be hijacked from the course of free and fair elections by subtle perversion of discretion of casting votes. In a continual participative operation of periodical election, the voter does a social audit of his candidate and for such audit he must be well informed about the past of his candidate. Further, Article 324 operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms. The silence of statute has no exclusionary effect except where it flows from necessary implication. Therefore, in our view, it would be difficult to accept the contention raised by Mr. Salve, learned Solicitor General and Mr. Ashwini Kumar, learned senior counsel appearing on behalf of Intervenor that if there is no provision in the Act or the Rules, the High Court ought not to have issued such directions to the Election Commission. It is settled that the power of the Commission is plenary in character in exercise thereof. In a statutory provisions or rules, it is known that every contingency could not be foreseen or anticipated with precision, therefore, Commission can cope with situation where the field is unoccupied by issuing necessary orders.

Further, this Court in Kanhiya Lal Omar v. R.K. Trivedi and others [(1985) 4 SCC 628] dealt with the Constitutional validity of the Election Symbols (Reservation and Allotment) Order, 1968 which was issued by the Election Commission in its plenary exercise of power under Article 324 of the Constitution read with Rules 5 and 10 of the Conduct of Election Rules, 1961. The challenge was on the ground that Symbols Order which is legislative in character could not be issued by the Commission because the Commission is not entrusted by law the power to issue such an order regarding the specification, reservation and allotment of symbol that may be chosen by the candidates at elections in parliamentary and Assembly constituencies.

It was urged that Article 324 of the Constitution which vests the power of superintendence, direction and control of all elections to Parliament and to the Legislature of a State in the Commission cannot be construed as conferring the power on the Commission to issue the Symbols. The Court negatived the said contention and pertinently observed that “the word ‘elections’ in Article 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process. India is a country which consists of millions of voters. Although they are quite conscious of their duties politically, unfortunately, a large percentage of them are still illiterate.” The Court in paragraph 16 held:

“16. Even if for any reason, it is held that any of the provisions contained in the Symbols Order are not traceable to the Act or the Rules, the power of the Commission under Article 324 (1) of the Constitution which is plenary in character can encompass all such provisions. Article 324 of the Constitution operates in areas left unoccupied by legislation and the words ‘superintendence’, ‘direction’ and ‘control’ as well as “conduct of all elections” are the broadest terms which would include the power to make all such provisions.

{See Mohinder Singh Gill v. Chief Election Commissioner, New Delhi [(1978) 1 SCC 405] and A.C.

Jose v. Sivan Pillai [(1984) 2 SCC 656]}.

The Court further observed:

“..While construing the expression “superintendence, direction and control” in Article 324 (1), one has to remember that every norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legislation. There are some authorities or persons in certain grey areas who may be sources of rules of conduct and who at the same time cannot be equated to authorities or persons who can make law, in the strict sense in which it is understood in jurisprudence. A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order. One has also to remember that the source of power in this case is the Constitution, the highest law of the land, which is the repository and source of all legal powers and any power granted by the Constitution for a specific purpose should be construed liberally so that the object for which the power is granted is effectively achieved. Viewed from this angle it cannot be said that any of the provisions of the Symbols Order suffers from want of authority on the part of the Commission, which has issued it.” Thereafter, this Court in Common Cause (A Registered Society) v. Union of India and others [(1996) 2 SCC 752] dealt with election expenses incurred by political parties and submission of return and the scope of Article 324 of the Constitution, where it was contended that cumulative effect of the three statutory provisions, namely, Section 293-A of the Companies Act, 1956, Section 13-A of the Income Tax Act, 1961 and Section 77 of the Representation of the People Act, 1951, is to bring transparency in the election funding and people of India must know the source of expenditure incurred by the political parties and by the candidates in the process of election. It was contended that election in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election and that this vicious circle has totally polluted the basic democracy in the country. The Court held that purity of election is fundamental to democracy and the Commission can ask the candidates about the expenditure incurred by the candidates and by a political party and for this purpose. The Court also held:

“The political parties in their quest for power spend more than one thousand crore of rupees on the General Election (Parliament alone), yet nobody accounts for the bulk of the money so spent and there is no accountability anywhere. Nobody discloses the source of the money. There are no proper accounts and no audit.

From where does the money come nobody knows. In a democracy where rule of law prevails this type of naked display of black money, by violating the mandatory provisions of law, cannot be permitted.” Thereafter, the Court observed that under Article 324, the Commission can issue suitable directions to maintain the purity of election and in particular to bring transparency in the process of election. The Court also held (paragraph 26) thus:

“Superintendence and control over the conduct of election by the Election Commission include the scrutiny of all expenses incurred by a political party, a candidate or any other association or body of persons or by any individual in the course of the election. The expression “Conduct of election” is wide enough to include in its sweep, the power to issue directionsin the process of the conduct of an electionto the effect that the political parties shall submit to the Election Commission, for its scrutiny, the details of the expenditure incurred or authorised by the parties in connection with the election of their respective candidates.” The Court further observed that Constitution has made comprehensive provision under Article 324 to take care of surprise situations and it operates in areas left unoccupied by legislation.

Question No.2 Right to know about the candidates contesting elections.

Now we would refer to various decisions of this Court dealing with citizens’ right to know which is derived from the concept of ‘freedom of speech and expression’. The people of the country have a right to know every public act, everything that is done in a public way by the public functionaries. MPs or MLAs are undoubtedly public functionaries. Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in decision making process. The decision making process of a voter would include his right to know about public functionaries who are required to be elected by him.

In State of Uttar Pradesh v. Raj Narain and Others [(1975) 4 SCC 428], the Constitution Bench considered a questionwhether privilege can be claimed by the Government of Uttar Pradesh under Section 123 of the Evidence Act in respect of what has been described for the sake of brevity to be the Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh? The Court observed that “the right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security”. The Court pertinently observed as under: – “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.” In Indian Express Newspapers (Bombay) Private Ltd. and Others etc. v. Union of India and others [(1985) 1 SCC 641], this Court dealt with the validity of customs duty on the newsprint in context of Article 19(1)(a). The Court observed (in para 32) thus:

“The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic country cannot make responsible judgments.” The Court further referred (in para 35) the following observations made by this Court in Romesh Thappar v. State of Madras [1950] INSC 16; (1950 SCR 594): – “(The freedom) lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processses of popular government, is possible. A freedom of such amplitude might involve risks of abuse (But) “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits”.

Again in paragraph 68, the Court observed: – “.The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.” (Per Lord Simon of Glaisdale in Attorney-General v.

Times Newspapers Ltd. (1973) 3 All ER 54). Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (I) it helps an individual to attain self-fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration.” From the afore-quoted paragraph, it can be deduced that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate. If there is a disclosure by a candidate as sought for then it would strengthen the voters in taking appropriate decision of casting their votes.

In Secretary, Ministry of Information and Broadcasting, Government of India and Others v. Cricket Association of Bengal and Others [(1995) 2 SCC 161], this Court considered the question of right to telecast sports event and after considering various decisions, the Court referred to Article 10 of the European Convention on Human Rights which inter alia states as follows (para 36):

“10.1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Thereafter, the Court summarised the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2) thus: – “The freedom of speech and expression includes right to acquire information and to disseminate it.

Freedom of speech and expression is necessary, for self- fulfilment. It enables people to contribute to debate on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy.

Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts..” The Court dealt with the right of telecast and [in paragraph 75] held thus: – “In a team event such as cricket, football, hockey etc., there is both individual and collective expression. It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free-speech element is absent from his right.” The Court thereafter (in paragraph 82) held:

“True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non- information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1 per cent of the population has an access to the print media which is not subject to pre- censorship.” The Court also observed”a successful democracy posits an ‘aware’ citizenry.” If right to telecast and right to view to sport games and right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter a little man to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a)? In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce. Therefore, casting of a vote by misinformed and non-informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions. Entertainment is implied in freedom of ‘speech and expression’ and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy.

In Dinesh Trivedi, M.P. and Others v. Union of India and Others [(1997) 4 SCC 306], the Court dealt with a petition for disclosure of a report submitted by a Committee established by the Union of India on 9th July 1993 which was chaired by erstwhile Home Secretary Shri N.N. Vohra which subsequently came to be popularly known as Vohra Committee. During July 1995, a known political activist Naina Sahni was murdered and one of the persons arrested happened to be an active politician who had held important political posts and newspaper report published a series of articles on the criminalisation of politics within the country and the growing links between political leaders and mafia members. The attention of the masses was drawn towards the existence of the Vohra Committee Report. It was suspected that the contents of the Report were such that the Union Government was reluctant to make it public.

In the said case, the Court dealt with citizen’s rights to freedom of information and observed “in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare”. The Court also observed “democracy expects openness and openness is concomitant of a free society and the sunlight is a best disinfectant”.

Mr. Ashwini Kumar, learned senior counsel appearing on behalf of the intervenor submitted that the aforesaid observations are with regard to citizen’s right to know about the affairs of the Government, but this would not mean that citizens have a right to know the personal affairs of MPs or MLAs. In our view, this submission is totally misconceived. There is no question of knowing personal affairs of MPs or MLAs. The limited information is whether the person who is contesting election is involved in any criminal case and if involved what is the result? Further there are widespread allegations of corruption against the persons holding post and power. In such a situation, question is not of knowing personal affairs but to have openness in democracy for attempting to cure cancerous growth of corruption by few rays of light. Hence, citizens who elect MPs or MLAs are entitled to know that their representative has not misconducted himself in collecting wealth after being elected.

This information could be easily gathered only if prior to election, the assets of such person are disclosed. For this purpose, learned counsel Mr. Murlidhar referred to the practice followed in the United States and the form which is required to be filled in by a candidate for Senate which provides that such candidate is required to disclose all his assets and that of his spouse and dependants. The form is required to be re-filled every year. Penalties are also prescribed which include removal from ballot.

Learned counsel Mrs. Kamini Jaiswal referred to All India Service (Conduct) Rules, 1968 and pointed out that a member of All India Service is required to disclose his/her assets including that of spouse and the dependant children. She referred to Rule 16 of the said Rules, which provides for declaration of movable, immovable and valuable property by a person who becomes Member of the Service.

Relevant part of Rule 16 is as under:

“16. (1) Every person shall, where such person is a member of the Service at the commencement of these rules, before such date after such commencement as may be specified by the Government in this behalf, or, where such person becomes a member of the Service after commencement, on his first appointment to the Service submits a return of his assets and liabilities in such form as may be prescribed by the Government giving the full particulars regarding: – (a) the immovable property owned by him, or inherited or acquired by him or held by him on lease or mortgage, either in his own name or in the name of any member of his family or in the name of any other person;

(b) shares, debentures, postal Cumulative Time Deposits and cash including bank deposits inherited by him or similarly owned, acquired or held by him;

(c) other movable property inherited by him or similarly owned, acquired or held by him; and (d) debts and other liabilities incurred by him directly or indirectly” Such officer is also required to submit an annual return giving full particulars regarding the immovable and movable property inherited by him or owned or acquired or held by him on lease or mortgage either in his own name or in the name of any member of his family or in the name of any other person.

It is also submitted that even the Gazetted Officers in all government services are required to disclose their assets and thereafter to furnish details of any acquisition of property annually. In our view, it is rightly submitted that in a democratic form of government, MP or MLA is having higher status and duty to the public. In P.V.

Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626], the Court inter alia considered whether Member of Parliament is a public servant? The Court [in para 162] held thus: – ” public servant is “any person who holds an office by virtue of which he is authorised or required to perform any public duty”. Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty.

Public duty is defined by Section 2(b) of the said Act to mean “a duty in the discharge of which the State, the public or that community at large has an interest”. In a democratic form of government it is the Member of Parliament or a State Legislature who represents the people of his constituency in the highest lawmaking bodies at the Centre and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the Centre and the State shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the public and the community at large would have greater interest.” The aforesaid underlined portion highlights the important status of MP or State Legislature.

Finally, in our view this Court would have ample power to direct the Commission to fill the void, in absence of suitable legislation, covering the field and the voters are required to be well- informed and educated about contesting candidates so that they can elect proper candidate by their own assessment. It is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and where there is inaction by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time the legislature acts to perform its role by enacting proper legislation to cover the field. The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold.

Therefore, if the candidate is directed to declare his/her spouse’s and dependants’ assetsimmovable, moveable and valuable articlesit would have its own effect. This Court in Vishaka v. State of Rajasthan [(1997) 6 SCC 241] dealt with incident of sexual harassment of a woman at work place which resulted in violation of fundamental right of gender equality and the right to life and liberty and laid down that in absence of legislation, it must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of independence of Judiciary in the LAWASIA region. The decision has laid down the guidelines and prescribed the norms to be strictly observed in all work places until suitable legislation is enacted to occupy the field. In the present case also, there is no legislation or rules providing for giving necessary information to the voters. As stated earlier, this case was relied upon in Vineet Narain’s case (supra) where the Court has issued necessary guidelines to the CBI and the Central Vigilance Commission (CVC) as there was no legislation covering the said field to ensure proper implementation of rule of law.

To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that:

1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word ‘elections’ is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.

2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar’s case, the Court construed the expressions “superintendence, direction and control” in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the election commission to issue such orders.

3. The word “elections” includes the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion. As stated earlier, in Common Cause case (supra), the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election. If on affidavit a candidate is required to disclose the assets held by him at the time of election, voter can decide whether he could be re-elected even in case where he has collected tons of money.

Presuming, as contended by the learned senior counsel Mr.

Ashwini Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid and voters may not elect law-breakers as law-makers and some flowers of democracy may blossom.

4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re- election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.

5. The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant of Civil and Political Rights which is as under: – “(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

6. Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.

7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter’s (little mancitizen’s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers.

In this view of the matter, it cannot be said that the directions issued by the High Court are unjustified or beyond its jurisdiction.

However, considering the submissions made by the learned counsel for the parties at the time of hearing of this matter, the said directions are modified as stated below.

The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:

(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the pastif any, whether he is punished with imprisonment or fine? (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law.

If so, the details thereof;

(3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependants.

(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.

(5) The educational qualifications of the candidate.

It is to be stated that the Election Commission has from time to time issued instructions/orders to meet with the situation where the field is unoccupied by the legislation. Hence, the norms and modalities to carry out and give effect to the aforesaid directions should be drawn up properly by the Election Commission as early as possible and in any case within two months.

In the result, Civil Appeal No.7178 of 2001 is partly allowed and the directions issued by the High Court are modified as stated above. Appeal stands disposed of accordingly.

Writ Petition (C) No. 294 of 2001 is allowed to the aforesaid extent.

There shall be no order as to costs.

……..J.

(M.B. SHAH) ……..J.

(BISHESHWAR PRASAD SINGH) ……..J.

(H.K. SEMA) May 2, 2002.

The post Union of India vs. Association for Democratic Reforms appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 1457 of 1995

K. PREMA S. RAO AND ANR. …PETITIONER
Vs
YADLA SRINIVASA RAO AND ORS. …RESPONDENT

DATE OF JUDGMENT: 25/10/2002
BENCH: M.B. SHAH & K.G. BALAKRISHNAN & D.M. DHARMADHIKARI

JUDGMENT

2002 Supp(3) SCR 339

The Judgment of the Court was delivered by

DHARMADHIKARI, J.

“Frailty thy name is woman”, that is how in one his plays Shakespeare described one of the female characters in his play. This description is more and more in evidence particularly in rural Indian society where married women, who are unable to muster courage to fight against cruelty and harassment meted out to them by their spouses and family members, find no escape other than ending their own life. The deceased Krishna Kumari second daughter of PW1 was married to Yadla Srinivasa Rao (hereinafter referred to as accused No.1), on 26.6.1998. Accused No. l was employed as Branch Post Master in the village where the spouses lived jointly with the parents of accused No.1. At the time of marriage father of the deceased, who was a teacher, gave a cash dowry of Rupees fifteen thousand and jewels worth fifteen thousand besides gift of five acres of land and a house site in the course of marriage ritual described as “Pasupukumkuma”. It is explained that this gift of land was in the nature of ’Stridhana’ given to the bride by the father for her maintenance.

After three or four months of the marriage accused No.1, husband of the deceased started demanding in from the deceased execution of a deed in his favour of the land and house site gifted to her. Refusal on the part of the deceased to meet the demand was the cause of her continuous harassment. Taking advantage of his position as the Post Master in the village, accused No.1 never delivered mail sent to the deceased by her father and her sister Nagamani. Her younger sister after passing tenth class examination had to appear for Polytechnic Entrance Test. As a part of harassment of the deceased, accused No.1 did not deliver the Entrance Card received from Kakatiya University addressed to the younger sister of the deceased which resulted in the former losing the admission to the test.

The deceased somehow was able to lay her hands on the letters addressed to her and which had been concealed by accused No. 1. On finding those letters, she handed over the same to her father. This incident led to extreme point of harassment. Accused No. l and his parents, accused Nos. 2-3, drove the deceased out from their house with stern warning to her to restore those letters. This incident of cruelty was so grave and unbearable that she committed suicide by consuming a poisonous insecticide Endo- Sulphan on 22.10.1989. PW4, who had witnessed the incident of the deceased having been driven out of the house the previous day, also saw accused No.1 taking deceased to the hospital at Madhira. PW4 informed about it to father (PW1) of the deceased who rushed to the house of the accused to find Krishna Kumari, dead. The father then lodged a First Information Report, Ex. P1 within eight hours on the same day.

All the three accused were charged in Session Case No. 157 of 1999 by the Court of Assistant Sessions judge, Nuzwid for offence of dowry death under Section 304B, IPC and in the alternative under Section 498A, IPC for cruelty and harassment of such magnitude as to drive the deceased to commit suicide. The prosecution examined the parents of the deceased of PW 1-2. PW3-4 were examined who had seen the deceased being driven out of the house and taken back only on their persuasion.

The trial court by judgment dated 19.8.1991 accepted the evidence led by the prosecution of alleged cruel treatment and harassment of the deceased which drove her to commit suicide. It, however, held that on the evidence only offence under Section 498A, IPC is made out. It acquitted them of the offence under Section 304B, IPC. The three accused on their conviction for offence under Section 498A were sentenced to rigorous imprisonment for two years and a fine of Rs. 500 each. In default of payment of fine, they were sentenced to two months simple imprisonment each.

The appellants i.e. parents of the deceased filed Criminal Revision No. 564/91 in the High Court of Andhra Pradesh against the acquittal of the accused under Section 304B, IPC. The accused preferred Criminal Appeal No. 1291/99 before the High Court of Andhra Pradesh assailing their conviction and sentences.

The learned Single Judge of the High Court of Andhra Pradesh decided the revision preferred by the parents of the deceased and the appeal preferred by the accused by a common Judgment dated 24.8.1994 which is the subject matter of these two separate criminal appeals preferred by the parents of the deceased and the State of Andhra Pradesh.

The learned Single Judge of the High Court of Andhra Pradesh dismissed the Criminal Revision filed by the parents of the deceased and confirmed the verdict of the trial court that the accused are liable to conviction and sentences only under Section 498, IPC and not under Section 304B. IPC. By the same common judgment the High Court allowed the appeal preferred by accused Nos. 2-3 (Parents of accused No.1) and acquitted them of the alleged offences.

Against the common judgment of the High Court, State of Andhra Pradesh has preferred Criminal Appeal Nos. 1458-59 of 1995 challenging the acquittal of accused Nos. 2-3 and the parents of the deceased have preferred connected Criminal Appeal No. 1457 of 1995 seeking conviction of all the accused under Section 304B of the IPC.

The High Court in its common judgment passed in Criminal Appeal and Criminal Revision before it after appreciating the evidence led against accused Nos. 2-3, has found that the allegation against them of their participation with accused No.1 in driving out the deceased from their house was for the first time made by PW-1 father of the deceased only in his deposition in the Court. At no earlier point of time either in the first information report Ex.Pl or in the statements made under Section 161 of Cr.P.C. to the police, such allegation was made against accused No.2 and accused No.3. Apart from the oral testimony of PW1 (the father of the deceased) there is no other evidence on record to prove that the two accused Nos. 2-3 joined accused No.1 in harassing or cruelly treating the deceased. On appreciation of the evidence the conclusion drawn by the High Court in favour of accused No.2 and accused No.3 is reasonable and does not justify interference by us in their acquittal. Consequently, we uphold the acquittal of accused Nos. 2-3 and dismiss the two appeals preferred by the State of Andhra Pradesh which are filed to seek their conviction. We now take up for consideration Criminal Appeal No. 1457 of 1995, preferred by the parents of the deceased seeking conviction of accused No.1 for offence under section 304B of the Indian Penal Code. In its common Judgment after appreciating the evidence on record, the conclusion reached by the High Court that the accused No. 1 cannot be convicted under section 304B, IPC appears to be legally sound. There is no evidence against accused No. 1 that at the time of marriage there was any demand or settlement for giving dowry in cash or by way of transfer of property. The father of the deceased PW1 has not stated that cash, ornaments and the land were given at the time of marriage pursuant to any demand of dowry by the parents of the husband. He merely states that according to the custom of the community declaration was made of gift of five acres of land to the deceased as her “Stridhana” called in the community as pasunukumkuma. As promised and declared in the ritual at the time of marriage the land was transferred in the name of the wife. The couple lived happily thereafter. It is only 2-3 months thereafter that the husband started harassing the wife to force her to transfer the land to him. This harassment of cruel treatment to pressurize her to transfer the land cannot be said to be ’in connection with any alleged dowry demand.’ For the purpose of Section 304B, IPC the legislature has borrowed the definition of ’dowry’ from Section 2 of the Dowry Prohibition Act of 1961. The relevant provisions of the Penal Code, Dowry Prohibition Act and Evidence Act are quoted hereunder:

304-B. Dowry death-(l) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband, for, or in connection with, any demand for dowry, such death shall be called “dowry death,” and such husband or relative shall be deemed to have caused her death.

*Explanation – For the purposes of this sub-section “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”Section 2 of the Dowry Prohibition Act, 1961 defines “dowry” as under : 2. Definition of “dowry”-In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly – (a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to an other person. At or before or any time after the marriage in connection with the marriage of said parties, but does not include Dower or Mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation I-For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II- The expression ’valuable security’ has the same meaning as in section 30 of the Indian Penal Code. Section 113B of Evidence Act raises a presumption against the accused and reads: 113-B Presumption as to dowry death – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such a person had caused the dowry death. Explanation – For the purpose of this section, “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code.”The legal position firmly established is that ’suicidal death’ of a married woman within seven years of her marriage is covered by the expression “death of a woman is caused…………..or occurs otherwise than under normal circumstances” as used in Section 304B of the Indian Penal Code. See Satvir Singh v. State of Punjab, [2000] 8 SCC 663,

The evidence which has been found acceptable by the courts below against accused No. 1 is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death “otherwise than under normal circumstances”. To attract the provisions of Section 304B IPC, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment ’in connection with the demand for dowry’. There is no evidence on record to show that the land was demanded as dowry. It was given by the father to the deceased in marriage ritual as pasupukumuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was ’not in connection with any demand for dowry.’ One of the main ingredients of the offence of “demand of dowry”being absent in this case, the High Court cannot be said to have committed any error in acquitting accused No. 1 for offence under Section 304B, IPC. We however, find that the same evidence on record which was held reliable to convict accused No. 1 for offence of ’cruelty’ under section 498A, IPC, clearly makes out a case for his conviction for offence of abeting suicide under Section 306, IPC read with section 113 A of the Evidence Act. Section 498A makes cruelty by husband to wife as a punishable offence. The word “cruelty” is defined in the Explanation appended to the said Section. Section 498A with Explanation thereunder reads thus:

Section 498A: “Husband or relative of husband of a woman subjecting her to cruelty-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section, “cruelty” means- (a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

[underlining for emphasis]
Clause (a) of the Explanation under Section 498A, IPC defines cruelty to mean a ’wilful conduct of the husband of such nature as is likely to drive the woman to commit suicide.’ In the instant case, the accused pressurised and harassed the deceased to part with the land received by her from her father as “Stridhana.” As a method adopted for harassment the Postal Mail of her relatives sent to her was suppressed by the husband who was in a position to do so being a Branch Post Master in the village. When the letters were discovered by the wife and she handed them over to her father (PW1) she was driven out of the house. This cruel conduct of the husband led the wife to commit suicide. The trial court and the High Court were, therefore, perfectly justified on this evidence to hold accused No. 1 guilty of the offence of ’cruelty’ under Section 498A. As a result of such cruel treatment the wife was driven to commit suicide. Thus offence of abetment of committing suicide punishable under Section 306, IPC is clearly made out against accused No. 1 and for that purpose presumption under Section 113 A of the Evidence Act can be raised against him. Section 306, IPC reads thus:

“306. Abetment of suicide -If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

113A. Presumption as to abetment of suicide by a married woman – When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative or her husband.

Explanation – For the purposes of this section, “cruelty; shall have the same meaning as in section 498A of the Indian Penal Code.”

[emphasis applied]
Both the Courts below have found the husband guilty of cruel treatment of his wife and as a result the wife committed suicide within seven years of their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted suicide. The word “cruelty” as mentioned in the Explanation below Section 113 A of the Evidence Act has been given the same meaning as contained in the Explanation below Section 498A IPC. On the facts found, ’the wilful’ conduct of the husband in forcing the deceased to part with her land which she had received in marriage as “stridhana” and for that purpose concealing her postal mail was so cruel that she was driven to commit suicide. A case of conviction and sentence of accused No. 1 under Section 306, IPC has thus clearly been made out even though his acquittal for commission of the offence of ’dowry death’ punishable under Section 304B, IPC is not found liable to be disturbed.

The learned counsel for the accused has argued that in the absence of a charge framed against the accused under Section 306 IPC, the accused cannot be convicted under the said Section.

From the record we find that although a charge specifically under Section 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the Statement of Charges framed under section 498A and Section 304B of IPC. The statement of charge framed by the trial courts reads thus:

“That on or about the 22nd day of October, 1989, at your house at Tunikipadu of Gampalagudem Mandal Yedla Krishna Kumari, wife of A-l of you and daughter-in-law of A2 and A-3 among you, committed suicide by consuming poison, and that you all subjected her to such cruelty and harassment as did drive her to commit suicide, with the object of extracting Ac. 5-00 of land as dowry to A-l and thereby committed an offence punishable under Section 304-B of the Indian Penal Code and within the cognizance of this Court. That, prior to the 22nd day of October, 1989; at your house at Tunikipadu, you subjected Yedla Krishna Kumari, wife of A-l among you and daughter-inlaw of A-2 and A-3 among you, to such cruelty and harassment as did drive the said Krishna Kumari to commit suicide, and thereby committed an offence punishable under Section 498-A of the Indian Penal Code and within the cognizance of this Court.”

[emphasis applied]
Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 of Cr. P.C. needs reproduction:-

“221. Where it is doubtful what offence has been committed-(l) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged. In the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (12), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

The provision of sub-section (2) of Section 221 read with sub-section (1) of the said Section can be taken aid of in convicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC. Section 215 allows criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 of Cr. P.C. which reads:-

“215. Effect of errors – No error in stating, either the offence or the particulars required to be stated in the charge, and no commission to state the offence or those particulars, shall be regarded any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

As provided in Section 215 of Cr.P.C. commission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing “dowry death” under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498A, IPC. It may be mentioned that against confirmation of this conviction by the High Court under section 498A, IPC, the accused No. 1 has not preferred any special leave to appeal to this Court. The facts found proved for his conviction and sentence under Section 498A, IPC, cannot now be questioned by the accused. Our conclusion, therefore, is that same facts and evidence on which accused No. 1 was charged under Section 498A and Section 304B, the accused can be convicted and sentenced under Section 306 IPC. We find no legal or procedural impediment in doing so.

The legislature has by amending the Penal Code and Evidence Act made Penal Law more strident for dealing with and punishing offences against married women. Such strident laws would have a deterrent effect on the offenders only if they are so stringently implemented by the law courts to achieve the legislative intent. On the facts found and the offence proved to have been committed leading to suicidal death of the wife, imprisonment of two years with fine of Rs. 500 is too light a sentence. For offence under Section 306 IPC the sentence may extend to ten years. In this case the husband is found to have harassad his wife to such an extent as to drive her to commit suicide. Sentence of five years would, in our opinion, be a proper sentence for the crime with the amount of fine increased to Rs. 20,000 to be paid as compensation to the parents of the deceased. On nonpayment of fine the accused No. 1 shall suffer further sentence of one year.

We, thus, allow Criminal Appeal No. 1457 of 1995 preferred by the parents of the deceased. We maintain the conviction and sentence of accused No. 1 under Section 498A, IPC. The accused No. 1 is also convicted under Section 306, IPC and sentenced to five years rigorous imprisonment with a fine of Rs. 20,000 to be paid as compensation to the parents of the deceased. In the event of non-payment of fine, accused No. 1 shall suffer imprisonment for a further period of one year. The sentences imposed under Section 498A, IPC and under Section 306, IPC shall run concurrently. Connected Criminal Appeal Nos. 1458-59 of 1985 preferred by the State against acquittal of accused Nos. 2 & 3 are dismissed.

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IN THE SUPREME COURT OF INDIA

CASE NO.: Appeal (crl.) 2082 of 1996

Avtar Singh & Ors. …PETITIONER
Vs
State of Punjab …RESPONDENT

DATE OF JUDGMENT: 18/09/2002

BENCH: S.Rajendra Babu & P.Venkatarama Reddi.

J U D G M E N T

P. Venkatarama Reddi, J.

Five persons including the three appellants herein were charged under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘Act’) for having conscious possession of 640 Kgs. of poppy husk on 7.8.1989 without valid permit or licence.

According to the prosecution case, they were all travelling in a truck belonging to accused No.5 in the small hours of 7.8.1989. The vehicle was checked at canal bridge near the village Dhange at about 1.30 A.M.

by PW 2 ASI who was on the patrolling duty along with PW 4 (Head Constable) and two other constables. The vehicle was carrying 16 bags of poppy husk. Balbir Chand appellant No.3 herein was driving the vehicle. One person who was sitting in the front seat by the side of the driver and another person sitting on the back side of the truck ran away leaving the vehicle. These two persons are said to be Swarna Ram Accused No.3 and Swatantra Kumar (since deceased). The other two sitting at the back i.e., appellants 1 and 2 and the driver of the vehicle – Appellant No.3 were apprehended on the spot. 16 gunny bags of poppy husk were recovered. 250 gms was taken out as sample from each bag and sealed. The remaining bags were weighed after sealing and each bag was found to contain 39 Kgs and 750 gms. The sealed bags and sample were sent to the concerned Police Station. On the search of person of each of the accused, nothing incriminating was found. PW 5, who was SHO at Police Station Goraya, made further investigation.

According to him, ASI Darbari Lal (PW 2) produced the three appellants herein along with the case property of 16 bags of poppy husk and 16 samples when he was at the bus stand Goraya for patrolling. He affixed the seals on the bags and sent the samples to the chemical examiner. The report of the chemical examiner is Ex. P X, according to which the contents are ‘Poppy head’ containing morphine. The sealed bags were produced in court.

The learned Additional Sessions Judge, Jallandhar, acquitted Swarna Ram for the reason that his identity was not established and also acquitted Amrik Singh the owner of the vehicle on the ground that there was no proof that he knowingly allowed the vehicle to carry the offensive stuff. Each of the appellants was convicted under Section 15 and sentenced to undergo RI for a period of 10 years and to pay a fine of Rs.1 lakh and in default to undergo RI for a further period of two years. On appeal, the High Court confirmed the verdict of the trial court. The contention that Section 50 (1) of the Act has not been complied with was rightly negatived by both the courts on the facts of the case and no contention has been advanced before us in this regard.

The contention that independent witnesses were not examined was also negatived holding that at that hour and place, it was difficult to expect any independent witness to be present there.

The more important contention raised before the High Court was that from the mere fact that the appellants were sitting in the truck, it cannot be held that they were in possession of poppy husk. The High Court observed that the appellants did not come forward with the case that they were merely passengers and that they were unaware of what was contained in the bags. The reason for travelling at that odd hour with the offending goods was not stated by any of the accused.

Therefore, the High Court concluded that “their close connection of being in possession of the poppy husk must be held to have been established”. The High Court also pressed into service the presumption under S. 35 of the Act.

In this appeal, the learned senior counsel, apart from commenting on the artificiality of the prosecution case and the discrepancies in the evidence regarding the police officer to whom the seized bags were handed over, mainly concentrated on the point that the possession, much less conscious possession, of the bags of poppy husk, has not been established and the accused were not even questioned about it. We find force in the contention of the learned counsel.

Section 15 provides for punishment if any person in contravention of any provision of the Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw. Section 8 enacts a prohibition against production, manufacture, possession, sale, purchase, transport, warehousing, use, consumption, import and export or transshipment of any narcotic drug or psychotropic substance except for medical or scientific purposes and to the extent and in the manner permitted by the provision of the Act or Rules or Orders made thereunder or in accordance with the term of licence or permit, if any. We are here concerned with possession and transportation. However, the charge is confined to possession in the instant case.

Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of S. 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps Punjab [1973] INSC 119; (1973 (2) SCC 372) arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW 4 the Head constable, it is seen that appellant No.3 (Accused No.4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods.

The word ‘possession’ no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them.

A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C, not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under S.313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under S.54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal.

Coming to the case of the third appellant who was driving the vehicle, there is one more infirmity in the prosecution case. He would have been charged alternatively for transporting the offensive goods without permit or authorization as required by law; but, such a charge was not laid. There was not even reference to Section 8 of the Act. The result is, he too goes scot free.

For the above reasons, we set aside the conviction and sentence of the appellants and allow the appeal. The appellants shall be set at liberty forthwith, if they are in jail.

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