The Revival of Ray XXX

It is settled law that the fundamental right under Article 30 cannot be waived.

The historical reasons for enacting Article 30(1) have been set out in some detail in the Judgment of Shelat, J. and Grover, J. in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. This was further fleshed out in the Judgment of Khanna, J. in Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1975) 1 SCR 173. This was reiterated in the concurring Judgment of Quadri, J. in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481.

The Nine Judge Bench in St. Xavier’s [7:2] held that Section 33-A(1)(b) of The Gujarat University Act, 1949 as amended by The Gujarat University (Amendment) Act, 1972, would not apply to minority institutions. Ray, C.J. stated that at the core of the fundamental right of Article 30 is the right to administer which includes the right of the minority institutions to choose its teachers.

The view was concurred in by Khanna, J.; likewise, Jaganmohan Reddy, J. also held Section 33-A(1)(b) inapplicable to minority institutions. The concurring Judgment of Mathew, J. and Chandrachud, J. agreed with the Learned Chief Justice that the aforesaid provision could not possibly apply.” 

Hon’ble Justice R.F. Nariman, Chandana Das v. The State of West Bengal, [Civil Appeal No. 2858 of 2007].

Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1975) 1 SCR 173 was N.A. Palkhivala v. F.S. Nariman.

On the question, ‘whether the rights guaranteed by Article 30 are in any way circumscribed by Article 29’, M.H. Beg, J. had ‘nothing significant to add to what has fallen from My Lord, The Chief Justice’. Khanna, J. described that in the matter of preservation of the right of minorities, so fas as educational institutions are concerned, a ‘liberal, generous and sympathetic approach is reflected in the Constitution’.

Educational institutions are temples of learning; the virtues of human intelligence are mastered and harmonized by education. The qualifications and the character of the teachers are really important. The teachers and the taught form a world of their own where everybody is a votary of learning. They should not be made to know any distinction. Their harmony rests on dedicated and disciplined pursuit of learning.”

– Hon’ble Chief Justice of India, Hon’ble Justice A.N. Ray.