In Re: The Kerala Education Bill, 1957

Facts

• The Kerala Legislative Assembly passed the Kerala Education Bill, 1957, which provided for extensive State regulation of schools, including provisions relating to the taking over of management, the appointment and conditions of service of teachers, and the payment of salaries.
• The Governor reserved the Bill for the consideration of the President under Art.200 instead of assenting to it.
• Doubts having arisen as to the constitutionality of several of its provisions, the President referred questions to the Supreme Court under Art.143(1).
• The central questions concerned the effect of the Bill on institutions established and administered by religious and linguistic minorities, whose rights are protected by Art.30, and on aided and recognised institutions generally.
• A preliminary question also arose whether the Court was bound to answer a reference relating to a Bill that had not yet become law.

Issue

1. Whether the Court is obliged to answer a reference under Art.143(1); and whether the provisions of the Bill were consistent with Art.30 and the other fundamental rights.

Held

• The Court answered the reference, but made clear the discretionary character of the jurisdiction. Since Art.143(1) says the Court "may" report its opinion, it possesses a discretion and is not bound to answer; it would decline where the questions referred are too vague or general, or are of a purely socio-economic or political character, or where no useful purpose would be served by an answer. Article 143(2), by contrast, uses the word "shall". On the merits, the Court held that the right under Art.30(1) to establish and administer educational institutions of a minority's choice is not lost by seeking recognition or aid, though reasonable regulation in the interest of educational standards is permissible; several provisions of the Bill went beyond regulation and interfered with administration, and were to that extent inconsistent with Art.30.

Ratio Decidendi

The advisory jurisdiction is a facility offered to the executive and not a duty owed to it, which is why the enabling word is permissive. The Court's function is judicial, and it should not be drawn into pronouncing on matters that are not susceptible of legal determination or that would require it to advise on policy. On Art.30, the guarantee protects not merely the establishment of an institution but its administration, so a regulation that transfers the substance of management to the State is not a regulation at all.