CONSTITUTIONAL LAW-I

TOPIC:-

SUBMITTED BY:-

SURYYA SHEKHAR DAS

BA LLB SEM-IV

ROLL NO. - 18

GUIDED BY:-

MRS. SHRUTI DAS GUPTA

ASST. PROF OF LAW

Indian Institute of Legal Studies

Dagapur, Matigara Siliguri, Darjeeling, West Bengal 734010

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 IN THE HON’BLE SUPREME COURT OF DELHI

UNDER ARTICLE ARTICLE 32 OF CONSTITUTION OF INDIA

THE AHMEDABAD ST. XAVIERS COLLEGE SOCIETY & ANR. ETC.

Vs

STATE OF GUJARAT & ANR.

MEMORIAL SUBMITTED ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON BEHALF OF

THE AHMEDABAD ST. XAVIERS COLLEGE SOCIETY & ANR. ETC.

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 TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………..04

 LEGISLATION
 CASES REFERRED
 BOOKS REFERRED
 LAW LEXICON AND DICTIONARIES
 LEGAL DATABASES

LIST OF ABBREVIATIONS……………………………………………………………...06

STATEMENT OF JURISDICTION……………………………………………………….07

STATEMENT OF FACTS …………………………………………………………………08

ISSUES RAISED……………………………………………………………………………..10

SUMMARY OF ARGUMENTS………………………………………………………………11

ARGUMENTS ADVANCED…………………………………………………………………..12

PRAYER………………………………………………………………………………………...16

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 INDEX OF AUTHORITIES

LEGISLATION

1. The Constitution of India, 1950.

CASES REFERRED

1. State of Kerala v. Very Rev. Mother Provincial, etc. [1971] 1 S.C.R.734

2. RI. Rev. Bishop S. K. Patro v. State of Bihar [19701] 1 S.C.R. 172
3. D. A. V. College v. State of Punjab[1971] Suppl. S.C.R.
4. State of Kerala v. Very Rev. Mother Provincial case
5. Rev. Sidhajbhai Sabhai v. State of Bombay [1963] 3 S.C.R. 837
6. D. A. V. College etc. v. State of Punjab & Ors

BOOKS REFERRED

1. Justice Rajesh Tandon, The Code of Civil Procedure ,Allahbad Law Agency, (26 th ed.,
2005)
2. Dr. R.K Bangia, Contract I, Allahbad Law Agency, (7th ed., 2017)

LAW LEXICON AND DICTIONARIES

1. B.A. Garner., Black‘s Law Dictionary,6th edition

2.
LEGAL DATABASES

1. www.indiancaselaws.org
2. www.indlaw.com
3. www.indiankanoon.org
4. www.judic.nic.in
5. www.lexisnexis.com

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 LIST OF ABBREVIATIONS

& And

CPC The Code Of Civil Procedure

Hon‘ble Honourable

ICA Indian Contract Act

@ at

Rs. Rupees

Sec. Section

LJ Lord Justice

AC Appeal Cases

AIR All India Reporter

Co. Company

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 STATEMENT OF JURISDICTION

THE APPELLANT HAVE THE HONOUR TO SUBMIT BEFORE THE HON‘BLE SUPREME
COURT OF INDIA, THE MEMORANDUM FOR THE APPELLANT UNDER ARTICLE 32 OF
THE CONSTITUTION OF INDIA, 1950.

ARTICLE 32 IN THE CONSTITUTION OF INDIA 1949

“Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by
this Constitution.”

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 STATEMENT OF FACTS

o The Society of Jesus, the petitioners, was running the St. Xavier‘s College at Ahmadabad
with the objective of providing higher education to Christian students.
o However, children of all classes and creeds were admitted to the college. The college was
affiliated college under the Gujarat University Act, 1949. State legislations encroaching upon
the right of minority educational institutions became frequent.
o That led to St. Xavier‘s College challenging the legislation in the Supreme Court. The crux of
the matter was the autonomy of the educational institutions and what were the limits of
governmental interference, especially in the matter of appointment and dismissal of teachers
and admission of students of the minority community.
o The petitioners challenged sections 33-A, 40, 41, 51-A and 52-A of the Gujarat University
Act, 1972 which provided for university nominees in the governing and selection bodies of
all colleges, conversion of all affiliated colleges to constituent colleges, approval of Vice
Chancellor for disciplinary action against members of teaching staff, and reference of dispute
between the staff and management to arbitration in which the umpire has to be Vice
Chancellor‘s nominee.

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 ISSUES RAISED

ISSUE I

WHETHER WRIT PETITION CAN ENTERTAIN IN THIS COURT OR NOT?

ISSUE II

WHETHER THE MINORITIES BASED ON RELIGION OR LANGUAGE

HAVE THE RIGHT TO ESTABLISH AND ADMINISTER EDUCATIONAL
INSTITUTIONS FOR IMPARTING GENERAL SECULAR EDUCATION
WITHIN THE MEANING OF ARTICLE 30 OF THE CONSTITUTION ?

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 SUMMARY OF ARGUMENTS

1. WHETHER WRIT PETITION CAN ENTERTAIN IN THIS COURT OR

NOT?
It is contended that as religious and Linguistic minorities they had a fundamental
right to establish and administer educational institutions of their choice as also the right to
affiliation.

2. WHETHER THE MINORITIES BASED ON RELIGION OR

LANGUAGE HAVE THE RIGHT TO ESTABLISH AND ADMINISTER
EDUCATIONAL INSTITUTIONS FOR IMPARTING GENERAL
SECULAR EDUCATION WITHIN THE MEANING OF ARTICLE 30 OF
THE CONSTITUTION ?
It is humbly Submitted that Article 30(1) enacts that all minorities whether based on
religion Dr language-,shalt have the right to establish and administer educational
institutions of their choice.

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 ARGUMENTS ADVANCED

1. WHETHER WRIT PETITION CAN ENTERTAIN IN THIS COURT OR

NOT?
It is contended that as religious and Linguistic minorities they had a
fundamental right to establish and administer educational institutions of their choice as
also the right to affiliation.

1.1 The Appellant Have The Honour To Submit Before The Hon’ble Supreme Court Of India,
The Memorandum For The Appellant Under Article 32 Of The Constitution Of India, 1950.

ARTICLE 32 IN THE CONSTITUTION OF INDIA 1949 states that:-

“Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by
this Constitution.”1

1.2 The agenda that all instructions, teaching and training in courses of studies in
respect of which the University was competent to hold examinations be conducted by the
University and be imparted by the teachers of the University. The petitioners thereupon filed
the present petition under article 32 of the Constitution. According to the petitioners, the St.
Xavier's College Ahmedabad is an educational institution established by a minority and them
provisions of sections 40 and 41 of the amended Act are violative ,of the fundamental rights
of the petitioners guaranteed under articles 14, 19, 26, 29, 30 and 31 of the Constitution. The
petitioners have also, questioned the competence of the Gujarat legislature to pass the
amending Act.
1
https://indiankanoon.org/doc/981147/ [last seem on 10th march]

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 1.3 It is contended on behalf of the petitioners that the right to establish educational
institutions of their- choice will be without any meaning if affiliation is denied. The
respondents pose the question whether educational institutions established and administered
by minorities for imparting general secular education have a fundamental right to be affiliated
to a statutory University on terms of management different from those applicable to other
affiliated colleges.

1.4 The petitioners thereupon approached this Court under article 32 of the
Constitution on the allegation that the directions issued to them were violative of article
30(1) and other provisions of the Constitution. The rules for recognition of private training
institutions, in so far as they related to reservation of seats therein under orders of
Government and directions given pursuant thereto regarding reservation of 80% of the seats
and the threat to withhold grant-in-aid and recognition of the college, infringed the
fundamental freedom under article 30(1).

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 2. WHETHER THE MINORITIES BASED ON RELIGION OR
LANGUAGE HAVE THE RIGHT TO ESTABLISH AND ADMINISTER
EDUCATIONAL INSTITUTIONS FOR IMPARTING GENERAL
SECULAR EDUCATION WITHIN THE MEANING OF ARTICLE 30 OF
THE CONSTITUTION ?
It is humbly submitted that a mere look at art. 29(1)2 and 30(1)3 would be sufficient
to show that art. 29(1) cannot limit the width of art. 30(1). The right guaranteed to a religious
or linguistic minority under art. 30(1) is the right to establish any educational institution of
its choice. Whereas art. 29(1) confers the right not only upon a minority as understood in its
technical sense but also upon a section of the citizens resident in the territory of India, which
may not be a minority in its technical sense, the beneficiary of the right underart. 30 is a
minority, either religious or linguistic. Secondly, whereas art. 29 does not deal with
education as such. art. 30 deals only with the establishment and administration of
educational institutions.
When a linguistic minority establishes an educational institution to conserve its
language, the linguistic minority can invoke the protection of both the articles. When art.
30(1) says that a linguistic minority can establish and administer educational institutions of
its choice, it means that it can establish and administer any educational institution.
2.1 In The Kerala Education Bill this Court pointed out that "no educational
institution can in actual practice be carried on without aid from the State and if they will not
get it unless they surrender their rights, they will, by compulsion of financial necessities. be
compelled to give up their rights under art. 30(1)." The condition which involves surrender
is as effective a deterrent to the exercise of the right under art. 30(1) as a direct prohibition
would be. Thus considered it is apparent that the religious minority does not voluntarily

2
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 shall have the right to conserve the same
3
All minorities, whether based on religion or language, shall have the right to establish and administer educational
institutions of their choice
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established
and administered by a minority, referred to in clause ( 1 ), the State shall ensure that the amount fixed by or determined
under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under
that clause

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 whether its right-it has been coerced because of the basic importance of the privilege
involved, namely, affiliation.

2.2 The provisions of sub-section 1 (a) and 1 (b) of s. 33A4 abridge the right of the religious
minority to administer educational institutions and therefore their choice. The requirement that the
College should have a governing body including persons other than those who constitute the
'governing body of the society of Jesus has the effect of divesting that body of its exclusive right to
manage the educational institution. Under the guise of preventing maladministration, the right of the
governing body of the College constituted by the religious minority to administer the institution
cannot be taken away. The effect of the provision is that the religious minority virtually loses its right
to administer the institution it has founded.

2.3 It is contended on behalf of the petitioners that the right to establish educational
institutions of their- choice will be without any meaning if affiliation is denied. The respondents pose
the question whether educational institutions established and administered by minorities for
imparting general secular education have a fundamental right to be affiliated to a statutory University
on terms of management different from those applicable to other affiliated colleges.

2.4 The expression ―minority‖ has been derived from the Latin word ‗minor‘ and the suffix
‗ity‘ which means ―small in number‖. The word minority has not been defined in the Constitution.
The Motilal Nehru Report (1928) showed a prominent desire to afford protection to minorities, but
did not define the expression. The Sapru Report (1945) also proposed, inter alia, a Minorities
Commission but did not define Minority. The U.N. Sub-Commission on Prevention of
Discrimination and Protection of Minorities has described minority as non dominant groups having
different religion or linguistic traditions than the majority population. J.A. Laponee in his book ―The
Protection to Minority‖ describes ―Minority‖ as a group of persons having different race, language or
religion from that of majority of inhabitants Article 30(1) uses the terms ‗linguistic‘ or ‗religious‘
minorities. The word ‗or‘ means that a minority may either be linguistic or religious and that it does
not have to be both – a religious minority as well as linguistic minority. It is sufficient of it is one or
the other or both. The constitution uses the term ‗minority‘ without defining it. In re The Kerala

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Power to appoint staff.—The 1[***] 2[Authority] may appoint such staff, and at such places at it or he may consider
necessary, for the scrutiny of the returns, statements and information furnished by insurers under this Act and generally to
ensure the efficient performance of the functions of the 2[Authority] under this Act.]

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Education Bill, the Supreme Court opined that while it is easy to say that minority means a
community which is numerically less than 50 per cent, the important question is 50 % of what?
Should it be of the entire population of India, or of a state, or a part thereof?

2.4.1 “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 disfavored or, for that matter,
receive more favorable 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.”5

2.5 In RI. Rev. Bishop S. K. Patro v. State of Bihar 6the State of Bihar requested the Church
Missionary Society School, Bhagalpur to constitute a managing committee of the school in
accordance with an order of the State. This Court held that the State authorities could not require the
school to constitute a managing committee in accordance with their order. In D. A. V. College v.
State of Punjab7clause 17 of the impugned statute in that case which provided that the staff initially
appointed shall be approved by the Vice-Chancellor and subsequent changes would be reported to
the University for the Vice-Chancellor's approval, was found to interfere with the right of manage-
ment.

2.5.1 In Rev. Sidhajbhai Sabhai v. State of Bombay8illustrates as to how the right of the
minority institution is violated by the State order requiring the minority institution to reserve under
orders of Government 80 per cent of the seats on threat of withholding grant in aid for non-
compliance with the order. This Court in Kerala Education Bill case (supra) said that the State cannot
do indirectly what it cannot do directly. Withholding aid on terms which demand the surrender of the
right of the minority to administer the institution is an infringement of the right under Article 30.
Educational institutions are temples of learning.

2.6 On behalf of, the petitioners, it is said that the right to administer means authority in
administration Emphasis is placed on' the minority's claim to the institution as, it thinks fit. It is, said
that the' regulatory should not restrict the right of administration but facilitate the, same through- the
instrumentality of the, management of the minority institutions. it is said that the management: of the

5
https://lexquest.in/st-xaviers-case-critical-analysis/ [last seen on 11th mar,2019]
6
[19701] 1 S.C.R. 172,
7
[1971] Suppl. S.C.R.
8
[1963] 3 S.C.R. 837

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minority institution should not be displaced because that will amount to violation of the right to
administer.

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 PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES

CITED, THE COUNSEL FOR PETITIONER HUMBLY PRAYS THAT THE HON‘BLE COURT
BE PLEASED:

o TO ALLOW THE WRIT PETITION

o THERE IS A VIOLATION OF FUNDAMENTAL RIGHTS.

AND/OR

PASS ANY ORDER THAT THIS HON‘BLE COURT MAY DEEM FIT IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE PETITIONER AS IN DUTY BOUND

SHALL EVER PRAY.

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