RT. REV. BISHOP S. K. PATRO & ORS. versus STATE OF BIHAR & ORS.

RT. REV. BISHOPS. K. PATRO & ORS.

STATE OF BDIAR Ii: ORS.

April 2, 1969

(M. HIDAYATULLAH, C.1., 1. C. SHAH, V. RAMASWAMI, G. K. MITTER AND A. N. GROVER, 11.]

Constitution of India, Arts. 29 and 30-Educatlonal institution fou11dtd at Bhagalpur by Christians in 1854 with htlp of funds rect/ved from London ,Missionary Soci•ty-lnstltution claiming bt~tfit of Art. 30 wlitn mktd by State Educational Atllhorlties to constitUlt its managing com-mitttt according to thtir directions-For claiming btne/it of Article w/ze. ther an institution founded before adoplion of Constitution has to pro1·e that it was established by members of n1inority who were residc11.·s <Jr ri1j. :•ns of lndia--DiOertnce bttwten Arts. 29 and 30.

The Government of the State of Bibar framed certain rules under the Bihar Hish School (Control and Regulation of Administration) Act 13 of 1960. Rule 41 provided that the said rules will not apply to schools esta· blished and administered by minorities whether based on religion or lan· guaae. school founded in 1854 at Bbagalpur and managed bv the National Christian Council of India was asked by the Bihar Government Educational authorities to con<;titute ibl manaaing committee accordir.~ to the directions given in the order of tee Secretary to th• Government dated May 22, 1967 This order was challenged before the Hiah Court in ~t petition. The High Court dism~ the writ petition holding that tbOu1f1 the institution was administered by the Christian minority in India it had been established by the Church Missionary Society of London, and therefore not having been established by members of minority ''·ho were raidcnts of India or citizens of India it could not claim the benefit of Art. 30. Against he High Court's judgment appeals were filtd in this C-Ourt and petitions under Art. 32 were also filed by persons interested.

HELD: (i) There was ample evidence on record, which showed that although assistance was undoubtedly obtained from other bodies iucluding · the Clmrch Missionary Society London, the school was set up by the Otristian Missionaries and the local resideni. of Bhagalpur with the aid of funds part of which were contributed by them. (178 F]

(ii) The Oiristian Misslonariea who had settled in India alld the local Chrishan reaidents of Bhagalpur formed minority community. It is true that the minority compcllcnt to claim the protection of Art. 30(!) and on that account the privilege of establishing and maintaining educational institutions of ii. choice must be minority of person• residinR in India. It does not confer on foreigners not residing in. India the right to 51et up educational institutions of their choic.e. Persons setting up educational imtitutions must he resident in India and they must form well defined reliJiom and linguistic minority. It is however not predicated that pro-tection of the right guaranteed under Art. 30 may be availed of only, in respect elf an institution established before the Constitution, by persons born and resident in British India. [I 79 DJ

Therefore the fact that the funds were obtained from the United Kinadom for usistin~ in settin& up and developing the School or that the manaaement of the Ulstitution was carried on by some pernms who may not have been horn in India was not ground for denying the pro~tion of Art. 30(1). (180 CD]

United that the

(iii) The High Coun was also wrong in holding that for c~ the beDefit of Art. 30(1) all persons or majority of them who established the institution should have been "Indian Citizens" in the year 1854. There being no Indian ·citizenship in the year 1854 independently of the citizen-ship of the British Empire, to incorporate in the interpretatio.n of Art. 30 in respect of an institution established by minority the condition that it must in addition be proved to have been established by persons who would if the institution had been set up after the Constitution have claimed Indian citizenship, is to whittle down the protection of Art. 30 in manner not warranted by the provisions of the Constitution. (180 B-F]

The J>fOtection of the righ\S under Art. 29 may be claimed only by Indian citizens. Article 30 guarantees the right <if minorities to establish and administer educational institutions : the article does not expressly refer to citizenship as qualification for the members of the minorities. (179 F-G]

(iv) On. the above findings the order passed by the Educational autho-rities requiring the Secretary of the School to take steps to constitute managing committee in accordance with the order dated May 22, 1967 must be declared invalid. [180-G]

In re : The Kerala Education Bill, 1957 [1959] S.C.R. 995, Rev. Fath•r W. Proost & Ors. v. The State of Bihar & Ors. (1969] 2 S.C.R. 73 and Rev. Sidhajbhai Sabhal & Ors. v. State of Bombay & Anr. [1963] 3 S.C.R. • 83 7, applied.

CIVIL APPELLATE JuR.ISD!CTION : Civil Appeal No. 2346 of 1968.

Appeal from the judgment and order dated September 10,

1968 of the Patna High Court in Civil Writ Jurisdiction Case No. 503 of 196l? ·and Writ Petitions Nos. 43.0 and 431of1968.

Petitions under Art. 32 of the Constitution of India for the enforcemC111t of fundamental rights.

M. _C. Sefalvad and R. Gopalakrishnan; for the :i,ppellants (in

C.A. No .. 2346 of 1968).

R. Gopolakrishrum, for the petitioners (in W.P. Nos. 430 and 431 of 1968). '

D. Goburdhun, for the respondents (in C.A. No. 2346 of 1968).

B. P. Iha for the respondents (in W.Ps. Nos. 430 and 431 of 1968).

The Judgment ol the Court was delivered by

Shah, J. primary school started in J854 at Bhagalpur was later converted into Higher Secondaiy School.

The Legislature of the State of Bihar enacted the Bihar HiJh Schools (Control and Regulation of Administration) Act 13 al 1960 which by s. 8 invested. the State GoYernment With power to frame rules. Section 8(1)Jlfovides :

''The State Government may, after previous publi-cation and subject to the provisions of articles 29, 30 and 337 of the Constitution of India, make rules not in-consistent with this Act for carrying out the purposes of this Act."

In 1964 rules were framed under the Act by the State Govern-ment of Bihar. Rule 41 provides:

"These rules shall not apply to the schools estab-lished and administered by the minorities whether based on religion or language."

By order dated September 4, 1963, the President of the Board of Secondary Education approved the election of Bishop Parmar as President and Rev. Chest as Secreiary of the Church Missionary Society Higher Secondary School. This order wa> set aside by the Secretary to the Government, Education Departm~nt, by order dated May 22, 1967. On June 21, 1967, the Regional Deputy Director of Education, Bhagalpur, addressed letter to the Secretary, Church Missionary Society School, Bhagalpur. in-viting his attention to the order dated May 22, 1967. and re-quested him to take steps to constitute Managing Committee of the School "in accordance with_ that order''. petition was then filed in the High Court of Patna by four petitioners (who are appellants in Appeal No. 2346 of 1968) for writ quashing the order dated May 22, 1967, and for an order restraining the respondents-the State of Bihai, -the Secre-tary to the Government of Bihar, Government of Education and the educational authorities of the State-from interferin2 with the right of the petitioners to control, administer and manage the affairs of the School. The High Court of Patna dismissed the petition. The High Court held that the primary School at Bha-galpur was established by the Church Missionary Society of Lon-don; that the School had developed into the present Church Mis-sionary Society Higher Secondary School; and that the School was administered in recent times by the Church Missionary· Society of the Bhagalpur Diocese; and that the School not being an educa-tion institution established by minority, protection t>a> not afforded thereto by Art. 30 of the Constitution. Against the order dismissing the petition, Civil Appeal No. 2346 of 1968 has been filed in this Court.

Two other petitions are filed in this Court claiming relief on the footing that by the order dated May 22, 1967, of the Gov-ernment of Bihar the fundamental right of the Christian minority to maintain an educational institution of its choice and guaran-teed by Art. 30(1) is infringed. Writ Petition No. 430 of 1968

is filed by the Principal, Church Missionary Society Higher Secon-dary School, Bhagalpur, the Secretary, Bihar Christian Council, Gaya, the Secretary, Santhali& Christian Council, Bhagalpur, and the Secretary National Christian Council of India, Nagpur. Writ Petition No. 431 of 1968 has been filed by Rev. M. P. Hembrom, Parish Priest, Church Missionary Society, Bhagalpur, two of whose children are being educated at the School. These petitions are heard with Civil Appeal No. 2346 of 1968.

The High Court found on consideration of the evidence that the Church Missionary Society Higher Secondary School is "denominational institution", that "scripture classes are held in the School and lessons on the life and teaching of Lord Jesus Christ are taught" and examinations are h~ld in the subject for all students, that every morning, before the classes begin, the prayers from the prescribed Church Books are offered by the stu-dents and the members of the staff, and eaclr meeting of the Managing Committee of the Schools begins and Closes with pra-yers from the "Book of Common Prayer". Correctness of the finding recorded by the High Court is not challenged before us. The finding recorded by the High Court that the School originally started in the year 1854 as primary school h&d since developed into the present Church Missionary Society Higher Secondary School is also not challenged before us.

The only question which falls to be determined is whether the petitioners in the two writ petitions and the appi:llants in .appeal . No. 2346 of 1968 are entitled to claim the protection of Art. 30 of the Constitution on the ground that the Church Missionary So-ciety Higher Secondary School at Bhagalpur is an educafomal institution of their choice established by minority.

Article 30 of the Constitution by CJ. (I) provides :

"All minorities whether based on religion or langu-age, shall have the right to establish and administer educational institutions of their choice."

The guarantee of protection under Art. 30 is not restricted to educational institutions established after the Constitution : institu-G tions which had been established before the Constitution and con-tinued to be administered by minorities either based on religion or language qualify for the protection of the right of minorities dee• lare<.i by Art. 30 of the Constitution. In In Re. The Kera/a Ed11-cation Bill, 1957,(') Das, C.J., observed at p. 1051 :

"There is no reason why the benefit of Art. 30(1) should be limited only to educational institutions estab-lished after the commencement of the Constitution. The

language employed in An. 30(1) is wide enough to cover both pre-Constitution and post-Constitution institutions. It must not be overlooked that An. 30(1) gives the minorities two rights, namely, (a) to establish, and (b) to administer, educational institutions of their choice. The second right clearly covers pre-Constitution schools just as Ar_t. 26 covers the right to maintain pre-Consti-tution religious institutiOllS."

It was the case of the State and the parties intervening in the writ petition before the High Coun that the School was estab-lished by the Church Missionary Society, London, which they claimed was Corporation with an alien domicile and "such Society was not minority based on rCligion or language" within the meaning of An. 30 of the Constitution. On behalf of the appellants in the appeal and the petitioners in the two writ peti-tions filed in this Court it is claimed that the School was started in 1854 by the local Christian residents of Bhaga1pur. They concede that the Church Missionary Society of London did extend financial aid in the establishment of the School, but they contend that on that account, the School did not cease to be an educa-tional institution established by religious minority in India.

There is on the record important evidence about establish-ment in 1854 of the Lower Primary School at Bhagalpur. It is unfonunate that sufficient attention was not directed to that part of the evidence in the High Court. The "Record Book" of the Church Missionary Association at Bhagalpur which is Annewre 'D' to Writ Petition No. 430 of I 968 furnishes evidence of vital importance having bearing on the estab!isliment of the School. It contains copies of letters written from Bhagalpur and minutes of meetings held and the resolutions passed by the Local Council of Bhagalpur. On June 1, 1948, Rev. Vaux informed-the Cal-cutta Corresponding Committee of the Church Missionary Society by letter that if the Calcutta Society were to establish School at Champanagar, "local assistance shall not be wanting to the extent of I 000 or 1200 rupees year, besides providing school house and residence for the master", and that "At first, for break-ing up the fallow ground and setting the school going the pre-sence of Missionary of tact and experience may be necessary". On June 26, 1948, Rev. Vaux by another letter informed the Calcutta Corresponding Committee that special service was held in the Church on June 22, 1848 and thereafter on Friday June 23, 1848, meeting was held and contributions were invited from persons present including Indian residents, that monthly subscriptions of Rs. 202 for the "salary of masters" and other expenses were promised, and that an amount of Rs. 1,647 wa~

donated fo~ building the school and residence for the master; that the general impression made was so favourabl~ to the cause that he felt justified in assuring the Calcutta Committee that !1'.e local Committee were in position to guarantee certain requisites for making commencement such as paymen.t of the salary of th.e .School Master and Mistress and the building of house for their accommodation.which may afterwards be enlarged so as to form suitable' residence for Mission.

By letter dated July 10, 1948 the Secretary, Calcutta Cor-responding Committee, informed Rev. Vaux that they were look-ing out fot prominent person to commence missionary opera-tio~ by opening School "which is indeed common way of begmning MisSfon". In letter dated December 22, 1848, written from Bhagalpur it was stated :

"The Society will provide for the Missionary's salary

and trust that local funds will provide a. residence for him of suitable kind. All other Mission requirements, such as school teachers etc., should be left to be pro-D vided on the spot."

Then there are minutes of the resolutions passed at meeting held on October 24, l 849 by the Parent Committee and another resolution dated October 25, 1851, of the Local Comn:iittee, to raise funds, and to determine upon disbursements with the advice of the Missionary .to promote the objects of the Mission. · In the minutes of the meeting dated October 25, 1851, it is• recorded that statement of account of receipts and disbursements upto September 30, 1851· includbg expenses of boy's ~chool and •salary of masters, "hire of school rooms and furniture" and ex-• penses of girls' school "including cost o'f'working materials upto date" was submitted.

In letter from the Treasurer of the Committee dated May I 0, 1852, it was stated : ·

"One of the cond.itions on which the Church MiS-sionary Sohety consented to send Missionary to this station was that he should be provided by local friends with suitable residence. As this appeared to be sina quq non, subscriptions were raised ·for the purpose of building Mission house; . . . To this end I propose, that, as soon as the balance in hand amounts to Rs. 11,000 that sum be transferred by me as your Trea-surer to the Calcutta Corresponding Committee of the C.M.S.; to be held by them in trust as the "Bhagalpur Mission Fui,{d". The interest of this sum .will be more than sufficient to pay the rent of the present Mission premises, viz. Rs. 45 per month; and · accordingly, as soon as the transfer is effected responsibility. The whole

of our remaining local funds and future collections can then be devoted to the support of schools, orphanage &., and we shall be better able to regulate our expendi-t~re by our means, and increase our efforts in propor-tion to our wants."

At meeting of the Local Committee held on March 22, 185~, it was resolved that the Committee expresses their satis-. faction !II the progress made by Mr. Droese in building the Bun-galow and that the Treasurer be authorised to pay to Mr. Droese out of the Reserve Fund the further sum of Rs. 3,500 required to complete the building.

At meeting of the Local Committee held on August 23, 1856, it was recorded that on an area of 21 bighas of land for which perpetual lease was obained on November 26, 1853, the Association had built Bungalow and offices for the Mis-sionary, houses for native Christians and an orphanage. At meeting held on October 17, 1856, it was resolved that the <::ommittee desired sincerely to thank Mr. Brown for "kind, active · md liberal interest he had taken in the Mission from the first and particularly for making over to the Society mission property which his own exertions had in great measure secured".

It appear~ from this correspondence and the resolutions and 1he discussions at the meetings that permanent home for the Boy's School was set up in 1854 on property acquired by local <llristians and in buildings erected from funds collected by them. The institution along with the land on which it was built and the balance of money from the local fund were handed over to the Church Missionary Society in 1856. It is also true that substan-tial assistance was obtained from the Church Missionaf)'. Society, London. But on that account it cannot be said that the School was not established by the local Christians with their own efforts 8l!ld was not an educational institution established by mino-rity.

The Church Missionary Society Higher Secondary School is an educational institution administered by minority : that was so found by the High Court and is not now in controversy. The High Court held .that the prim'll)' school started in the year 1854 was started by the Church Missionary Society, London, and such Society cannot be said to be citizen of India and that in any event the persons who constituted the Society were aliens and on that account it cannot be said that the Church Missionil!)' Society Higher Secondary School is an educational institution es-tablished by minority. It is unnecessary to dilate upon these matters at le.ngth, for, in our judgment, the conclusion that the School was established not by the local Christians of Bhagalpur,

but by the Church Missionary Society, London, is not justified on the evidence. The extracts from the Record Book clearly show that the local residents of Bhagalpur had taken leading role in establishing and maintaining the school. Assistance was undoub-tedly obtained from other bodies including the Church Missi~n'.'!Y Society, London. But the School was set up by tlie Christian Missionaries and the local residents of Bhagalpur with the aid of funds part of which were contributed by<hem.

It is unnecessary to enter upon an enquiry whether ~ the persons who took part in es~!!oblishing the School in 1854 were "Indian citizens". Prior to the enactment of the Constitution there was no settled concept of Indian citizenship, and it cannot be said that Christian Missionaries who had settled iii India and . the local Christian residents of Bhagalpur did not form minority community. It is true that the minority competent to claim the . protection of Art. 30 ( 1) and on that account the privelege of estab-lishing and maintaining educational institutions of its choice must be minority of persons residing in India. It does not confer upon foreigners not resident in India the right to set up educa• tional institutions of their choice. Persons setting up educational institutions must be resident in India and they must form well-defined religious or linguistic minority. It is not however predi-cated that protection of the right guaranteed under Art. 30 may_ be availed of only in respect of an institution established before ·· the Constitution by persons born and resident in British India.

It is necessary to bear in mind the difference in the phraseo-logy used in Arts. 29 and 30 of the Constitution. By Art. 29(1) any section of the citizens residing in the territory of India or any part thereof having distinct language, script or culture of its own shall have the right to conserve the same, and cl. (2) guarantees 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, lan-guage or any of them. The protection of the rights under Art. 29 may be claimed only by Indian citizens. Artll:le 30 guarantees the right of minorities to establish and administer educational in-stitutions : the article does not expressly refer to citizenshij) as qualification for the members of the minorities. In Rev. Father W. Proost and Ors. v. The State of Bihar and Ors. (1) this Court observed:

"In qur opinion the width of Art. 30(1) cannot be cut down, by introducing in it considerations on which Article. 29(1) . is ~as~. The ~atte~. article is general protect10n whicl11s given to mmontles to conserve. their

(I) [1969] 2 S.C.R. 7>.

language, script or culture. . . The two articles create two separate rights, although it is possible that they may meet in given case."

The Court then observed, after referring to the judgment in Rev. Sidhajbhai Sabhai and Others v. State of Bombay and 11other(1) that:

" .... the language of Article 30(1) is wide and must receive full meaning. We are dealing with pro-tection of minorities and attempts to whittle down the prote<;tion cannot be allowed. We need not enlarge the protection but we max not reduce protection naturally Bowing from the words. Here the protection clear!J ftows from the words and there is nothing on the basts of which aid can be sought from Article 29(1)."

The fact that funds were obtained from the United Kingdom for assisting in setting up and developin~ the School or that the man-agement of the inshtution was camed on by some persons who may not have been born in India is not ground for denying the prOlection of Art. 30(1).

· We are also unable to agree with the Higli Court that before any protection can be claimed under Art. 30(1) m respect of the Church Missionary Society Higher Secondary School it was re-quired to be proved that all persons or majority of them who established the institution were "Indian citizens" in the year 1854. There being no Indian citizensnip i., the year 1854 independently of the citizenship of the British Empire, to incorporate in the interpretation of Art. 30 in respect of an institution established by minority the condition that it must in addition be proved to have l:een established by persons who would, if the institution had been ~t up after the Constitution, have claimed Indian citi-zenship, is to whittle down the protection of Art. 30 in manner not warranted by the provisions of the Constitution.

The order passed by the Educational authorities requiring the Secretary of the Church Missionary Society Higher Secondary School to take steps to constitute_ Managing Committee in ac-cordance with the order dated May 22, 1 967, is declared in-valid.

The appeal is allowed and the rule in the two writ retitions is made absolute. There will be no order as to costs in the two writ petitions. Since it appears that all the requisite materials were not placed prominently before the High Couri in the writ petitioo out of which Appeal No. 2346 of 1968 has arisen, we direc( that in the appeal the parties shall bear their own costs throughout. G.C. Appeal allowed.

(I) (19631 J S.C.R. 837.