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ffidavit and the addi tional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who has no connection whatsoever with the passing of the order or dealing with or processing the file at any point of time.
In fact, he could not have got any personal knowledge with the passing of the order of its subsequent proceeding since the order has been passed by the State Government and the subse quent proceedings have been dealt with by the officials of the Secretariat.
It is, therefore, terribly shocking and surprising that a police officer who has no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come for ward to swear about the entire proceedings from the begin ning right up to the rejection of the representation includ ing the holding of the meeting of the Advisory Board on behalf of the appropriate authority.
The affidavit filed by the Deputy Superintendent of Police is, therefore, not worth consideration.
[841D F; 836F G] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 30 1 of 1990.
From the Judgment and Order dated 15.1.1990 of the Rajasthan High Court in H.C.P. No. 2866 of 1989.
Pallave Shishodia, Sandeep Mehta and D. Bhandari for the Appellant.
Chandmal Lodha, S.C. Gupta (N.P.), M.N. Shroff, I. Makwana and Manoj Prasad for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal by grant of special leave is directed against the Order of the High Court of Rajasthan at Jodhpur in Habeas Corpus Petition No. 2866/1989 dismissing the Writ Petition filed by the detenu Gazi Khan @ Chotia.
The order of detention dated 30.5.
1989 under challenge has been passed by the Administrative Secretary and Commis sioner, Home Department, State of Rajasthan in exercise of powers under Section 834 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1989 (for short 'the Act ') on reaching his subjective satisfaction that the detenu has been involved in illegal business of smuggled charas and heroin and other psychotropic substances.
The relevant facts as set out in the grounds of deten tion giving rise to this appeal may be recapitulated as follows: The detenu Gazi Khan @ Chotia was actively involved in illegal and objectionable activities by organising a group of smugglers and financing them in the activities of smug gling without directly involving himself in such activities.
However, the police of Jaisalmer has opened a history sheet showing the indirect involvement of the detenu in such smuggling activities.
The modus operandi of the detenu is revealed in the statements recorded under Section 108 of the Customs Act from a number of smugglers who were apprehended in the course of smuggling.
On 3.11.
1986 the detenu has himself given a statement before the Customs Officer admit ting his involvement in smuggling of readymade garments and bides.
He was suspected in Offence No. 32 dated 30.3.1988 as well in Offence No. 17 dated 17.4.88 under the provisions of the Act as well under Section 25 of the Arms Act.
But since no evidence was available incriminating the detenu with those offences no action could be taken.
Further the detenu is said to have been involved along with his associates in certain criminal cases registered under the provisions of the Indian Penal Code.
The detaining authority on the above materials placed before him has passed this impugned order.
The High Court before which he challenged the impugned order of detention on various grounds has dismissed the Writ Petition holding that all the contentions did not merit consideration.
Hence this appeal.
The learned counsel appearing on behalf of the appel lant, raised several contentions, the main thrust of which being that the representation made by the detenu was not decided within.
a reasonable time and hence the delay is fatal to the detention.
This point has been taken even before the High Court.
But the High Court accepting the explanation given by the Deputy Superintendent of Police, Jaisalmer in his additional affidavit filed on behalf of the respondents spumed that plea observing: "In the present case as from the facts mentioned in the additional affidavit and referred to above, it cannot be said that there was undue lethargy or indifference." 835 Under Ground No. (d) of paragraph 16 of the Special Leave Petition, a contention is raised with regard to the delay of disposal of the representation stating that "the extraordinary delay of 27 days in consideration of representation of the petitioner is sought to be explained by mere ipso dixit of the detaining authorities who merely rest content with the skeletal chronology of days taken allegedly by several authorities with copies of unexplained silence about why actually several days as alleged by au thorities were taken to process and consider the representa tion of petitioner.
" Before this Court a reply is filed by the Deputy Super intendent of Police, Jaisalmer stating that he is "appointed as Officer Incharge in this case" and that he is replying to the allegations made in the Special Leave Petition with reference to the record connected with this case.
In para graph 15(d) of his reply, it is averred that "there is no delay in the consideration of representation of the peti tioner.
" The same Deputy Superintendent of Police in an additional affidavit filed before the High Court has sought to explain the delay stating that the representation of the detenu was placed before the Assistant Secretary on 19.6.
1989 with a proposal that a report might be called from the District Magistrate, Jaisalmer, who was the sponsoring authority, that the District Magistrate who received the communication on 22.6.1989 forwarded his comments to the State Government on 29.6.1989, that the comments were re ceived by the State Government on 1.7. 1989 and were placed for perusal of the Assistant Secretary on 3.7.1989 and that the Assistant Secretary after putting up a note incorporat ing the comments of the District Magistrate on the represen tation placed the same for perusal to the Deputy Secretary on 9.7.1989 and thereafter on the recommendation of the Special Secretary (Home) the representation was rejected on 11.7.1989.
A perusal of the above additional affidavit shows that the Deputy Superintendent of Police speaks on behalf of the detaining authority, namely, the State Government as well the authorities who dealt with the representation, namely, the Assistant Secretary and the Special Secretary (Home Department).
Finally, in regard to the delay in the disposal of the representation he states in para 7 of the said affi davit thus: " . . The delay has occasioned not by lack of deligence 836 or promptness on the part of the party concerned but due to unavoidable circumstances and for the reasons entirely beyond the control of the Detaining Authority.
" In this connection, we would like to point out that the main reply and the additional affidavit before the High Court as well as the reply affidavit before this Court are filed only by the same Deputy Superintendent of Police on behalf of the Respondents 1 and 2.
After the judgment was reserved, we after going through the papers directed the matter to be reported for further hearing.
Accordingly the matter was listed on 17.4.1990 on which date we asked the learned counsel for the respondents to explain as to under what authority the Deputy Superin tendent of Police has arrogated himself to the knowledge of the entire file relating to the impugned order and speaks for the detaining authority and other authorities who subse quently dealt with the file.
The learned counsel took an adjournment and has now filed an additional affidavit sworn by the Commissioner and Secretary (Home Department) dated 21.4.1990.
In the present additional affidavit no explana tion is given to our query.
The explanation given by the Secretary in his affidavit for the complaint of delayed disposal of the representation is as follows: "That there was no inordinate delay in considering the representation of the petitioner and the same was rejected after careful consideration.
" We are terribly shocked and surprised to note that a police officer who seems to have no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come forward to swear about the entire proceedings from the beginning right up to the rejection of the representation including the holding of the meeting of the Advisory Board on behalf of the appropriate authority.
This practice of allowing a police officer who has not dealt with the case at any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings, to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection.
This Court on several occasions has expressed its views that in response to the Rule Nisi a counter affidavit should normally be filed 837 by the detaining authority himself though it cannot be suggested as a rigid or inflexible rule applicable in all cases of detention under all circumstances.
However, when allegation of mala fide or abuse of powers or personal bias is attributed to the detaining authority, the said authority should himself swear to the counter affidavit.
In the ab sence of any such allegation in the petition a counter affidavit may be sworn by a responsible officer who person ally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned.
A Constitution Bench of this Court in the State of Bombay vs Purushottam Jog Naik, ; in which a similar question arose, the learned Judges answered as follows: " . . if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his con duct and act and the Home Secretary 's affidavit was regarded as sufficient in the particular case, then that would con stitute legally sufficient proof.
But whether that would be enough in any given case, or whether the "best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts.
In the present case, there was the element that 57 cases were dealt with in the course of 6 days and orders passed in all on one day.
But we do not intend to enter into the merits.
All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affida vit from the Minister in charge of the department is indis pensable in all such cases, then they went too far." In Ranjit Dam vs State of West Bengal, 16 the counter affidavit was filed by the Assistant Secretary, Home (Special) Department, who was authorised to file it as the detaining authority had since then been appointed as Secretary of the State Electricity Board.
This Court in that circumstance stated thus: "The reason given in this counter affidavit for the District Magistrate not making the affidavit himself does not appear to be satisfactory.
But as nothing terms on that fact we need say no more about it for the present.
" Sarkaria, J. in Shaik Hanif vs State of West Bengal, ; observed thus: 838 "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective stand ards, it is all the more desirable that in response to the rule nisi the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the author ity on whose subjective satisfaction the detention order under Section 3_ .was passed.
If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under Section 3 cannot be furnished, the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submit ted it to the Minister or other officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters.
" The learned Judge after referring to Ranjit Dam 's case (albeit) and to I.N. Roy vs State of West Bengal, stated as under: "Nevertheless, the failure to furnish the counter affidavit of the Magistrate who passed the order of detention, is an impropriety.
In most cases, it may not be of much conse quence but in a few cases, for instance, where mala fides or extraneous considerations are attributed to the Magistrate or the detaining authority, it may, taken in conjunction with other circumstances, assume the shape of a serious infirmity, leading the Court to declare the detention ille gal.
" 71 having regard to the facts of that case wherein the Deputy Secretary Home) filed the counter instead of District Magistrate it was held that he mere omission to file the affidavit by District Magistrate did not vitiate the deten tion order.
Speaking for the Bench, Krishna Iyer, J. in Bhut Nath Mete vs State of West Bengal, 11974] 1 SCC 645 at page 658 (para 21) has expressed his considered view on this point as hereunder: "True, we should have expected an affidavit from the detain ing authority but even that is felt too inconvenient and a Deputy Secretary who merely peruses the records and swears an affidavit in every case is the poor proxy.
Why 839 is an affidavit then needed at all? The fact of subjective satisfaction, solemnly reached, considering relevant and excluding irrelevant facts, sufficient in degree of danger and certainty to warrant pre emptive casting into prison, is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precis in the form of an affidavit.
The purpose is missed, going by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainer later for misuse.
We are aware that in the exigencies of adminis tration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit.
The next best would then be the oath of one in the Secretariat who officially is cognisant of or has par ticipated in the process of approval by Government not one who, long later, reads old files and gives its gist to the Court.
Mechanical means are easy but not legitimate.
We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of deprivation of civil liberty.
In some cases, where a valid reason for the District Magistrate 's inability to swear affidavits directly has been furnished, this Court has accepted the concerned Deputy Secretary 's affidavit.
This should, however, be the exception, not the rule.
" Khanna, J. in Asgar Ali vs District Magistrate, Burdwan & Ors., while answering a contention that an affidavit by the detaining authority was essential for sustaining the validity of the detention order observed as follows: "Although normally the affidavit of the person actually making the detention order should be filed in a petition for a writ of habeas corpus, the absence of such an affidavit would not necessarily be fatal for the case of the respond ents.
It would indeed depend upon the nature of allegations made by the detenu in the petition for determining whether the absence of affidavit of the person making the detention order introduces a fatal infirmity.
In case an allegation is made that the officer making the detention order was actuat ed by some personal bias against the detenu in 840 making the detention order, the affidavit of the person making the detention order would be essential for repelling that allegation.
Likewise, such an affidavit would have to be filed in case serious allegations are made in the peti tion showing that the order was mala fide or based upon some extraneous considerations.
In the absence of any such alle gation in the petition, the fact that the affidavit filed on behalf of the respondents is not that of the District Magis trate but that of the Deputy Secretary, Home (Special) Department of the Government of West Bengal would not by itself justify the quashing of the detention order.
" In Suru Mallick vs State of West Bengal, , this Court accepted the affidavit of the Deputy Secretary (Home) who dealt with the matter as the District Magistrate was not available and preoccupied with some urgent business.
In Gulab Mehra vs State of U.P. & Ors., [ 1988] 1 SCR 126, a Station House Officer of Kydganj Police Station filed the counter stating that District Magistrate had passed the detention order when the appellant was already in jail on the apprehension that the appellant therein was likely to be released on bail in the near future.
Ray, J. speaking for the Bench while setting aside the order of detention held thus: "This clearly goes to show that the Sub inspector has arro gated to himself the knowledge about the subjective satis faction of the District Magistrate on whom the power is conferred by the Act.
The District Magistrate, the detaining authority in this case has not chosen to file his affidavit.
The affidavit in opposition filed by the Station Officer of Police implies that he has access to the file of the Dis trict Magistrate or he influenced the decision of the Dis trict Magistrate for making the detention order.
" Again in State of Gujarat vs Sunil Fulchand Shah & Anr., ; , accepting a further affidavit of the Deputy Secretary (Home Department), this Court did not attach much importance to the fact that the affidavit was not filed by the detaining authority personally.
However, the Court said: "It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf, but it cannot be sug gested as an inflexible rule applicable to all detention cases irrespective of the circumstances." 841 Recently in Madan Lal Anand vs Union of India, Dutt, J. speaking for the Bench pointed out: "There can be no doubt that a deponent who has no personal knowledge about any fact may, on the basis of some other facts, make his submissions to the court.
We do not think that any importance should be attached to the said statement made by the deponent in the counter affidavit.
" Thereafter the learned Judge has expressed his views that when there is an allegation of mala fide or bias made against the detaining authority, then the detaining authori ty should himself swear to the counter affidavit.
Ultimately having regard to the allegation made therein and to the fact that the Under Secretary to the Government has filed the counter, the learned Judge pointed out: "Merely because the detaining authority has not sworn an affidavit, it will not in all circumstances be fatal to the sustenance of the order of detention." As we have pointed out supra the reply affidavit and the additional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who does not seem to have any connection whatsoever with the passing of the order or dealing with or processing the file at any point of time.
In fact, the Deputy Superintendent of Police could not have got any personal knowledge with the passing of the order or its subsequent proceeding since the impugned order has been passed by the State Government and the subsequent proceedings have been dealt with by the officials of the Secretariat.
Reverting to the facts of the case there is no explanation for the delay from 3rd to 9th July 1989, i.e. for 7 days for the Assistant Secretary merely to put up a note on the basis of the comments of the District Magistrate.
The present additional affidavit sworn to by the Commissioner and Secretary on 21.4.1990 also does not whisper any explanation as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary.
The learned counsel appearing for the appellant in support of his contention that the unexplained delay has vitiated the order has placed reliance on a decision of this Court in Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police & Ors., to which decision one of us (Ratnavel Pandian, J.) was a party.
In that decision 842 after referring to various decisions of this Court including Smt.
Shalini Soni vs Union of India.
[ ; the following proposition was laid down: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu for wards this representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasona ble dispatch and to dispose the same as expeditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob served in breach, it would amount to negation of the consti tutional obligation rendering breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution." However, in the same decision it has been pointed out that "what is reasonable dispatch depends on the facts and cir cumstances of each case and no hard and fast rule can be laid in that regard.
" We have already expressed that the affidavit filed by the Deputy Superintendent of Police is not worth consideration and there is absolutely no explana tion for the delay caused at the hands of the Assistant Secretary.
Therefore, for the reasons stated above, we set aside the impugned order of detention on the ground that there is a breach of constitutional obligation as enshrined under Article 22(5) of the Constitution of India.
In the result, the appeal is allowed and the detenu is directed to be set at liberty forthwith.
P.V. Appeal al lowed.

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The appellant challenged before the High Court the order of detention passed against him under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psycho tropic Substances Act, 1989, on various grounds including delay in disposal of his representation.
An affidavit was filed by a Deputy Superintendent of Police, on behalf of the respondents stating that the representation was placed before the Assistant Secretary on 19.6.1989, a report was called for from the District Magistrate, the comments, which were received by the State Government on 1.7.1989, were placed before the Assistant Secretary on 3.7.1989 who, in turn, submitted to the higher authorities with his note on 9.7.1989 and the representation was rejected on 11.7.1989.
The High Court dismissed the Writ Petition holding that there was no undue lethargy or indifference.
In the appeal, by special leave, on behalf of the dete nu, it was contended that the detenu 's representation was not decided within a reasonable time and hence the extraor dinary delay of 27 days was fatal to the detention.
A reply was filed by the same Deputy Superintendent of Police, as Officer Incharge of the case, who filed the affidavit before the High Court, stating that there was no delay in the consideration of the representation.
832 Subsequently, on the direction of the Court, an addi tional affidavit sworn by the Commissioner and Secretary (Home Department) stating that there was no inordinate delay in considering the representation and it was rejected after careful consideration, was filed.
Allowing the appeal, this Court, HELD: 1.
There is no explanation for the delay from 3rd to 9th July, 1989 i.e. for 7 days, for the Assistant Secre tary to merely put up a note on the basis of comments of the District Magistrate.
The additional affidavit sworn to by the Commissioner and Secretary does not whisper any explana tion as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary.
The order of detention is, therefore, a breach of constitutional obligation as en shrined under Article 22(5) of the Constitution of India.
[841F G; 842F] Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police Smt.
Shalini Soni vs Union of India, ; , referred to.
2.1 A counter affidavit should normally be filed by the detaining authority himself, but this is not a rigid or inflexible rule and, in the absence of any allegations of mala fide or abuse of powers of personal bias attributed to the detaining authority, it may be sworn by a responsible officer who personally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned.
However, the practice of allowing a police officer who has not dealt with the case any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings, to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection.
[836H; 837A B; 836F G] The State of Bombay vs Purushottam Jog Naik, ; ; Ran]it Dam vs State of West Bengal, ; Shaik Hanifv.
State of West Bengal; , ; J.N. Roy vs State of West Bengal, ; Bhut Nath Mete vs State of West Bengal, ; at page 658; Asgar Ali vs District Magistrate Burdwan & Ors., Suru Mallick vs State of West Bengal, [1975] 833 4 SCC 470; Gulab Mehra vs State of U.P. & Ors., [19881 ] SCR 126; State of Gujarat vs Sunil Fulchand Shah & Anr., ; and Madan Lal Anand vs Union of India, , referred to.


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Appeals Nos. 64 to 66 of 1954.
Appeals under article 132(1) of the Constitution of India from the Judgment and Order dated the 13th February, 1954, of the High Court of Judicature at Bombay in Special Applications Nos. 259, 288 and 289 of 1954 respectively.
M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India (G. N. Joshi, M. M. Desai, Porus A. Mehta and P. G. Gokhale, with them) for the appellant in all the appeals.
N. A. Palkhivala, J. B. Dadachanji, J. K. Munshi and Rajinder Narain for respondents Nos. 1 and 2 in C. A. No. 64.
Frank Anthony, J. B. Dadachanji, J. K. Munshi and Rajinder Narain for respondent No. 3.
N. A. Palkhivala, J. B. Dadachanji, J. K. Munshi and Rajinder Narain for the respondent No. I in C. A, No. 65.
571 Frank Anthony and Rajinder Narain for respondent No. 2.
N. A. Palkhivala, Frank Anthony, J. B. DadachanjiJ. K. ' Munshi and Rajinder Narain for respondent No. I in C. A. No. 66.
Frank Anthony, J. B. Dadachanji, J. K. Munshi and Rajinder Narain for respondent No. 2. 1954.
May 26.
The Judgment of the Court was delivered by DAS J.
These three appeals, filed by the State of Bombay, with a certificate granted by the Bombay High Court, are directed against the Judgment and Order pronounced by that High Court on the 15th February, 1954, on three Civil Applications under article 226.
By that Judgment and Order the High Court held that the circular order No. SSN 2054(a) issued by the State of Bombay, Education Department, on the 6th January, 1954, was bad in that it contravened the provisions of article 29(2) and article 337 and directed the issue of a writ prohibiting the State from enforcing the order against the authorities of Barnes High School established and run by the Education Society of Bombay (hereinafter referred as the Society).
The Society, which is the first respondent in Appeal No. 64 of 1954, is a Joint Stock Company incorporated under the Indian Companies Act, 1913.
The other two respondents in that appeal Venble Archdeacon A. section H. Johnson and Mrs. Glynne Howell are members and Directors of the Society.
The Ven 'ble Archdeacon A. section H. Johnson is also the Secretary of the Society.
Both of them are citizens of India and are members of the Anglo Indian Community.
The mother tongue of these respondents as of other members of the Anglo Indian Community is English.
In the State of Bombay there are in all 1403 Secondary Schools.
1285 of these Schools import education through the medium of some language other than English.
The remaining 118 Schools have adopted English as the medium of instruction.
Thirty out of these 118 Schools are Anglo Indian Schools.
In these thirty Schools there are three thousand Anglo Indian 572 students forming 37 per cent.
of the total number of students receiving instruction in those Anglo Indian Schools.
The rest 63 per cent.
consist of non Anglo Indian students.
In furtherance of its object the Society in 1925 established and since then has been conducting and running a School known as Barnes High School at Deolali in Nasik District in the State of Bombay.
The School is a recognized Anglo Indian School having Primary, Secondary and High School classes.
The School receives considerable aid from the State.
The total number of students in the School in December, 1953, was 415, out of which 212 were Anglo Indians and the remaining 203 belonged to other Indian Communities.
In all the classes in the said School English is used as the medium of instruction and has been so used since the inception of the School.
The entire staff of the School consist of 17 teachers who, with the exception of one, are trained and qualified to teach only in English, the exception being the teacher who teaches Hindi which is, the second language taught in that School.
On the 16th December, 1953, the Inspector of Anglo Indian Schools, Bombay State, and Educational Inspector, Greater Bombay, sent a circular letter to the Headmaster of Barnes High School intimating that the Government had under consideration the issue of orders regulating admissions to Schools in which the medium of instruction was English.
The orders under consideration were stated to be on the following lines, namely, (1) that from the next School year admissions to English medium School should only be confined to children belonging to the Anglo Indian and European Communities, and (2) that those pupils who, 'prior to the issue of the orders, were studying in recognized Primary or Secondary English medium Schools, could continue to do so.
The letter in conclusion advised the Headmaster not to make any admission for the academic year beginning from January, 1954, of pupils other than Anglo Indians or Europeans pending further orders which, it was said, would issue shortly.
The contemplated order came on the 6th January, 1954, in the shape of circular No. SSN 2054(a) headed 573 "Admissions to Schools teaching through the medium of English".
In paragraphs 1, 2 and 3 of this circular reference was made to the development of the policy of the Government regarding the medium of instruction at the Primary and Secondary stages of education.
It was pointed out that since 1926 27 the University of Bombay permitted pupils to answer questions in modern Indian languages at the Matriculation examination in all subjects except English and other foreign languages and that this had resulted in 1285 out of 1403 schools in the State ceasing to use English as the medium of lnstruction.
It was then stated that in 1948 instructions were issued to all English teaching schools that admissions to such Schools should ordinarily be restricted to pupils who did not speak any of the regional languages of the State or whose mother tongue was English.
It was said that in 1951, after a review of the position, a general policy had been laid down to the effect that admission to such schools should be restricted only to four categories of children therein mentioned.
Reference was then made to the recommendations of the Secondary Education Commission that the mother tongue or the regional language should generally be the medium of instruction throughout the Secondary school stage, subject to the.
provision for special facilities for linguistic minorities.
In paragraph 4 of the Circular order it was stated that the Government felt that the stage had then been reached for the discontinuance of English as a medium of instruction and that the Government had decided that subject to the facilities to be given to linguistic minorities all special and interim concessions in respect of admission to Schools (including Anglo Indian Schools) using English as the medium of instruction, should thereafter be withdrawn.
Then came the operative part of the order, the relevant portion of which is set out below: "5.
Government has accordingly decided as follows : Subject to the exceptions hereinafter provided, no primary or secondary school shall from the date of these orders admit to a class where English is used as 574 a medium of instruction any pupil other than a pupil belonging to a section of citizens the language of which is English namely, Anglo Indians and citizens of nonAsiatic descent.
" There were three exceptions made to this general order in favour of three categories of students who, prior to the date of the order, were studying through the medium of English.
Provision was made for admission of foreign pupils, other than those of Asiatic descent, belonging to foreign possessions in India, to Schools using English as a medium of instruction or to any other School of their choice.
The concluding paragraph of the Order was in the following terms : "7.
All Schools (including Anglo Indian Schools) using English as a medium of instruction should regulate admissions according to this circular.
With a view to facilitating the admission of pupils who under these orders are not intended to be educated through the medium of English, these schools are advised to open progressively divisions of Standards using Hindi or an Indian language as the medium of instruction, starting from Standard I in 1954.
Government will be prepared to consider the payment of additional grant on merits for this purpose.
" The above order was followed by another Circular No. SSN 2054 (b) issued on the same date drawing the attention of the heads of all Anglo Indian Schools to the Circular No. SSN 2054(a) of the same date, and requesting them to regulate thereafter admissions to their Schools in accordance with that circular.
It was stated that the orders in that circular were not intended to affect the total grant available for distribution to Anglo Indian Schools under the Constitution but that the Government would be prepared to consider, in consultation with the State Board of Anglo Indiain Education, whether in consequence of this order, any change was necessary in the existing procedure for the equitable distribution of the total grant among individual Anglo Indian Schools.
In conclusion the attention of the Headmasters was particularly invited to the concluding sentence of paragraph 7 of that circular order, and it was pointed out that 575 the grants contemplated therein were intended to be in addition to, the grants available under article 337.
Major Pinto, who is a citizen of India, belongs to the Indian Christian Community.
He claims that his mother tongue, as that of a section of the Indian Christian Community, is English and that his entire family speak and use English at home.
Two of his sons were then studying in the Barnes High School and were being educated through the medium of English.
On 2nd February, 1954, Major Pinto accompanied by his daughter Brenda approached the Headmaster of Barnes High School seeking admission for her to the said School.
He was informed by the Headmaster about the order issued by the State of Bombay on the 6th January, 1954, and was told that, in view of the said order, the Headmaster was compelled to refuse admission to her since she did not belong to the AngloIndian Community nor was she of non Asiatic descent, although she had all the necessary qualifications for admission to the said School.
Dr. Mahadeo Eknath Gujar is also a citizen of India and is a member of the Guzrati Hindu Community.
His mother tongue is Guzrati.
I le desires that his son Gopal Mahadeo Gujar should become a medical practitioner and go abroad for higher medical studies and qualifications and thought that his son should be educated through the medium of English.
He found the Barnes High School, which teaches through the medium of English, as suitable for the needs of his son.
Accordingly on the 1st February, 1954, Dr. Gujar accompanied by his son approached the Headmaster of Barnes High School seeking admission for his son to the said School but the Headmaster, in view of the Government Circular Order, felt bound to turn down such request as the boy did not belong to the AngloIndian Community and was not of non Asiatic descent, although he had all the necessary qualifications for admission to the school.
There have been similar other applications for admission which have had to be rejected on similar grounds, 576 Thereupon the Society and Ven 'ble Archdeacon A.S.H. Johnson and Mrs. Glynne Howell in February, 1954, presented before the High Court of Bombay the Special Civil Application No ' 259 of 1954 under article 226 of the Constitution praying for the issue of a writ in the nature of mandamus restraining the State of Bombay, its Officers, servants and agents from enforcing the said order and from taking any steps or proceedings in 'enforcement of the same and compelling the respondent to withdraw or cancel the said purported order and to allow the petitioner to admit to any standard in the said school any children of nonAnglo Indian citizens or citizens of Asiatic descent and to educate them through the medium of English language.
Likewise Major Pinto and his daughter Brenda and Dr. Gujar and his son Gopal made similar applications, being Nos. 288 and 289 of 1954 respectively, praying for similar reliefs.
The three applications were consolidated on llth February, 1954, and were heard together and were disposed of by the same Judg ment and Order pronounced on the 15th February, 1954.
The High Court accepted the petitions and made an order as prayed.
The State of Bombay has now come up in appeal against the said Orders.
On the facts of these cases two questions arise namely (1) as to the right of students who are not Anglo Indians or who are of Asiatic descent to be admitted to Barnes High School which is a recognized Anglo Indian School which imparts education through the medium of English, and (2) as to the right of the said Barnes High School to admit non Anglo Indian students and students of Asiatic descent.
The ques tions, thus confined to the particular facts of these cases, appear to us to admit of a very simple solution, as will be presently explained.
Re (1) : As already indicated Barnes High School is a recognized Anglo Indian School which has all along been imparting education through the medium of English.
It receives aid out of State funds.
The daughter of Major Pinto and the son of Dr. Gujar are citizens of India and they claim admission to Barnes High School in exercise of the fundamental right said 577 to have been guaranteed to them by article 29(2) of the Constitution.
The School has declined to admit either of them in view of the circular order of the State of Bombay.
The provisions of the circular order, issued by the State of Bombay oh the 6th January, 1954, have already been summarised above.
The operative portion of the order, set forth in clause 5 thereof, clearly forbids all Primary or Secondary Schools, where English is used as a medium of instruc.
tion, to admit to any class any pupil other than a pupil belonging to a section of citizens, the language of which is English namely Anglo Indians and citizens of non Asiatic descent.
The learned Attorney Generalcontends that this clause does not limit admission only, to Anglo Indians and citizens of non Asiatic descent, but permits admission of pupils belonging to any other section of citizens the language of which is English.
He points out that, one of the meanings of the word II namely " as given in Oxford English Dictionary, Volume VII, p. 16 is " that id to say " and he then refers us to the decision of the Federal Court in Bhola Prasad vs The King Emperor (1), where it was stated that the words "that is to say " were explanatory or illustrative words and not words either of amplification or limitation.
It should, however, be remembered that those observations were made in connection with one of the Legislative heads, namely entry No. 31 of the Provincial Legislative List.
The fundamental proposition enunciated in The Queen vs Burah (2) was that Indian Legislatures within their own sphere had plenary powers of legislation as large and of the same nature as those of Parliament itself.
In that view of the matter every entry in the legislative list had to be given the widest connotation and it was in that context that the words " that is to say," relied upon by the learned Attorney General, were interpreted in that way by the Federal Court.
To do otherwise would have been to cut down the generality of the legislative head itself.
The same reason cannot apply to the construc tion of the Government order in the present case for the considerations that applied in the case before the (1) at p. 25.
(2) 74 578 Federal Court have no application here.
Ordinarily the word " namely " imports enumeration of what is comprised in the preceding clause.
In other words it ordinarily serves the purpose of equating what follows with the clause described before.
There is good deal of force, therefore, in the araument that the order restricts admission only to Anglo Indians and citizens of nonAsiatic descent whose language is English.
This inter.
pretation finds support from the decision mentioned in clause 4 to withdraw all special and interim concessions in respect of admissioni to Schools referred to in clause 4.
Facilities to linguistic minorities provided for in the circular order, therefore, may be read as contem plating facilities to be given only to the Anglo Indians and citizens of non Asiatic descent.
Assuming, however, that under the impugned order a section of citizens, other than Anglo Indians and citizens of non Asiatic descent, whose language is English, may also get admission, even then citizens,, whose language is not English, are certainly debarred by the order from admission to a School where English is used as 'a medium of instruction in all the clases.
Article 29(2) ex facie puts no limitation or qualification on the expression " citizen.
" Therefore, the construction sought to be put upon clause 5 does not apparently help the learned Attorney General, for even on that construction the order will contravene the provisions of article 29(2).
The learned Attorney General then falls back upon two contentions to avoid the applicability of article 29(2).
In the first place he contends that article 29(2) does not confer any fundamental right on all citizens generally but guarantees the rights of citizens of minority groups by providing that they must not be denied admission to educational institutions maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them and he refers us to the marginal note to the article.
This is certainly a new contention put forward before us for the first time.
It does not appear to have been specifically taken in the affidavits in opposition filed in the High Court and there is no indication in the 579 Judgment under appeal that it was advanced in this form before the High Court.
Nor was this point specifically made a ground of appeal in the petition for leave to appeal to this Court.
Apart from this, the contention appears to us to be devoid of merit.
Article 29(1) gives protection to any section of the citizens having a distinct language, script or culture by guaranteeing their right to conserve the same.
Article 30(1) secures to all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice.
Now suppose the State maintains an educational institution to help conserving the distinct language, script or culture of a section of the citizens or makes grants in aid of an educational institution established by a minority community based on religion or language to conserve their distinct language, script or culture, who can claim the protection of article 29(2) in the matter of admission into any such institution ? Surely the citizens of the very section whose language, script or culture is sought to be conserved by the institution or the citizens who belong to the very minority group which has established and is administering the institution, do not need any protection against themselves and therefore article 29(2) is not designed for the protection of this section or this minority.
Nor do we see any reason to limit article 29(2) to citizens belonging to a minority group other than the section or the minorities referred to in article 29(1) or article 30(1), for the citizens, who do not belong# to any minority group, may quite conceivably need this protection just as much as the citizens of such other minority groups.
If it is urged that the citizens of the majority group are amply protected by article 15 and do not require the protection of article 29(2), then there are several obvious answers to that argument.
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 580 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 ground 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.
In view of all these considerations the marginal note alone, on which the AttorneyGeneral relies, cannot be read as controlling the plain meaning of the language in which article 29(2) has been couched.
Indeed in The State of Madras vs Srimathi Champakam Dorairajan (1), this Court has already held as follows: " It will be noticed that while clause (1) protects the language, script or culture of a section of the citizens, clause (2) guarantees the fundamental right of an individual citizen.
The right to.
get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens.
" In our judgment this part of the contention of the learned Attorney General cannot be sustained.
(1) ; at P. 530.
581 The second part of the arguments of the learned Attorney General hinges upon the word "I only " to be found in article 29(2).
His contention is that the impugned order does not deny admission to any citizen on the ground only of religion, race, caste, language or any of them.
He maintains with considerable emphasis.
that it is incumbent on the State to secure the advancement of Hindi which is ultimately to be our National language and he stresses the desirability of or even the necessity, generally acknowledged by educationists, for imparting education through the medium of the pupil 's mother tongue.
We have had equally emphatic rejoinder from learned counsel appearing for the different respondents.
Characterising the impugned circular as an unwarranted and wanton encroachment on the liberty of the parents and guardians to direct the education and upbringing of their children and wards reliance has been placed on the following observations of McReynolds J. in Pierce vs Society of Sisters of Holy Names(1) : " The fundamental theory of liberty upon which all Governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.
The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
" It is also urged that the main, if not the sole, object of the impugned order is to discriminate against, and if possible to stifle the language of the Anglo Indian Community in utter disregard of the constitutional inhibition.
It is pointed out that to compel the Anglo Indian Schools to open parallel classes in any Indian language will not necessarily facilitate the advancement of the Hindi language for the language adopted for such parallel classes may not be Hindi.
Further the opening of parallel classes in the same School with an Indian language as the medium of instruction while the pupils in the other classes are taught in English will certainly not be conducive to or promote the conservation of the distinct language, script or culture which (1) ; 268 U.S. 508; at p. 1078.
582 is guaranteed by article 29(1) to the Anglo Indian Community as a section of the citizens.
It is equally difficult, it is said, to appreciate why the salutory principle of imparting education through the medium of the pupil 's mother tongue should require that a pupil whose mother tongue is not English but is, say, Guzrati, should be debarred from getting admission only into an Anglo Indian School where the medium of instruction is English but not from being admitted into a School where the medium of instruction is a regional language, say Konkani, which is not the mother tongue of the pupil.
The rival arguments thus formulated on both sides involve questions of State policy on education with which the Court has no concern.
The American decisions founded on the 14th amendment which refers to due process of law may not be quite helpful in interpretation of our article 29.
We must, therefore, evaluate the argument of the learned Attorney General on purely legal considerations bearing.
on the question of construction of article 29(2).
The learned Attorney General submits that the impugned order does not deny to pupils who are not Anglo Indians or citizens of non Asiatic descent, admission into an Anglo Indian School only on the ground of religion, race, caste, language or any of them but on the ground that such denial will promote the advancement of the national language and facilitate the imparting of education through the medium of the pupil 's mother tongue.
He relies on a number of decisions of the High Courts, e.g., Yusuf Abdul Aziz vs State (1), Sm.
Anjali Roy vs State of West Bengal (), The State of Bombay vs Narasu AppaMali (3), Srinivasa Ayyar vs
Saraswathi Ammaland Dattatraraya Motiram More vs State of BombayThese decisions, it should, be noted, were concernedwith discrimination prohibited by article 15 which deals with discrimina.
tion generally and not with denial of admission into educational institutions of certain kinds prohibited by article 29(2).
It may also be mentioned that this (1) A.I.R 1951 Bom, 470.
(2) A.I.R 1952 Cal.
(3) A.I.R. 1952 Bom.
(4) A.I.R. 1952 Mad. 193.
(5) A.I.R. 1953 Bom.
583 Court upheld the actual decision in the first mentioned Bombay case not on clause (1) but on clause(3) of article 15.
These cases, therefore, have no direct bearing on article 29(2).
The arguments advanced by the learned Attorney General overlook the distinction between the object or motive underlying the impugned order and the mode and manner adopted therein for achieving that object.
The object or motive attributed by the learned Attorney General to the impugned order is.
undoubtedly a laudable one but its validity has to be judged by the method of Its operation and its effect on the fundamental right guaranteed by article 29(2).
A similar question of construction arose in the case of Punjab Province vs Daulat Singh (1).
One of the ques tions in that case was whether the provision of the new section 13 A of the Punjab Alienation of Land Act was ultra vires the Provincial Legislature as contravening sub section (1) of section 298 of the Government of India Act, 1935, in that in some cases that section would operate as a prohibition on the ground of descent alone.
Beaumont J. in his dissenting judgment took the view that it was necessary for the Court to consider the scope and object of the Act which was impugned so as to determine the ground on which such Act was based, and that if the only basis for the Act was discrimination on one or more of the grounds specified in section 298 sub section (1) then the Act was bad but that if the true basis of the Act was something different the Act was not invalidated because one of its effects might be to invoke such discrimination In delivering the Judgment of the Board Lord Thankerton at page 74 rejected this view in the words following: " Their Lordships are unable to accept this as the correct test.
In their view, it is not a question of whether the impugned Act is based only on one or more of the grounds specified in section 298 sub section (1), ,but whether its operation may result in a prohibition only on these grounds.
The proper test as to whether there is a contravention of the sub section is to ascertain the reaction of the impugned Act on the personal right conferred by the subsection, and, while the scope (1) (1916) L.R. 73 I.A. 59, 584 and object of the Act may be of assistance in deter.
mining the effect of the operation of the Act on a proper construction of its provisions, if the effect of the Act so determined involves an infringement of such personal right, the object of the Act, however laudable, will not obviate the prohibition of sub section (1).
" Granting that the object of the impugned order before us was what is claimed for it by the learned Attorney General, the question still remains as to how that object has been sought to be achieved.
Obviously that is sought to be done by denying to all pupils, whose mother tongue is not English, admission into any School were the medium of instruction is English.
Whatever the object, the immediate ground and direct cause for the denial is that the.
mother tongue of the pupil is not English.
Adapting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of article 29(2) because the effect of the order involves an infringement of this fundamental right, and that effect is brought about by denying admission only on the ground of language.
The same principle is implicit in the decision of this Court in The State, of Madras vs Srimathi Champakam Dorairajan (1).
There also the object of the impugned communal G.O. was to advance the interest of educationally backward classes of citizens but, that object notwithstanding, this Court struck down the order as unconstitutional because the modus operandi to achieve that object was directly based only on one of the forbidden grounds specified in the article.
In our opinion the impugned order offends against the fundamental right guaranteed to all citizens by article 29(2).
Re. 2: Coming to the second question as to whether the impugned order infringes any constitutional right of Barnes High School, the learned AttorneyGeneral contends that although any section of the citizens having distinct language, script or culture of its own,has under article 29(1) the right to conserve the same and although all minorities, whether based on religion or language, have, under article 30(1), the right (1) ; at p. 530. 585 to establish and administer educational institutions of their choice, nevertheless such sections.
or minorities cannot question the power of the State to make reasonable regulations for all Schools including a requirement that they should give instruction in a particular language which is regarded as the national language or to prescribe a curriculum for institutions which it supports.
Undoubtedly the powers of the State in this behalf cannot be lightly questioned and certainly not in so far as their exercise is not inconsistent with or contrary to the fundamental rights guaranteed to the citizens.
Indeed in the cases of Robert T. Meyer vs State of Nebraska (1) and August Bartels V. State of Iowa (2) the Supreme Court of the United States definitely held that the State 's police power in regard to education could not be permitted to override the liberty protected by the 14th amendment to the Federal Constitution.
That is how those cases have been understood by writers on American Constitutional Law.
[See Cooley 's Constitutional Limitations, Volume 11, page 1345, and Willis, page 64.] The statutes impugned in these cases provided: (1)That no person should teach any subject to any person in any language other than the English language, and (2)That languages other than English may be taught only after the pupil had passed the 8th grade.
A contravention of those two sections was made punishable.
In the first mentioned case only the first part of the prohibition was challenged and struck down and in the second case both the provisions were declared invalid.
The learned Attorney General informed us that in 29 States in U.S.A. legislation had made compulsory provision for English as the medium of instruction.
Those statutes do not appear to have been tested in Court and the Attorney General cannot, therefore, derive much comfort from the fact that 29 States have by legislation adopted English as the medium of instruction.
The learned Attorney General (1) ; ; (2) ; ; , 75 586 also relies on the case of Ottawa Separate Schools Trustees vs Mackell(1).
That case does not help him either, because in that case the schools were classified as denominational purely on the ground of religion.
They were not classified according to race or language.
It was contended that the kind of school that the trustees were authorised to provide was the school where education was to be given in such language as the trustees thought fit.
Their Lordships of the Judicial Committee rejected this contention with the following observations: " Their Lordships are unable to agree with this view.
The 'kind ' of school referred to in sub section
8 of section 79 is, in their opinion, the grade or character of school, for example, 'a girls ' School, ' 'a boys ' school, ' or 'an infants ' school, ' and a I kind ' of school, within the meaning of that sub section, is not a school where any special language is in common use.
" Where, however, a minority like the Anglo Indian Community, which is based, inter alia, on religion and language, has the fundamental right to conserve its language, script and culture under article 29(1) and has the right to establish and administer educational institutions of their choice under article 30(1), surely then there must be implicit in such fundamental right the right to impart instruction in their own institutions to the children of their own Community in their own language.
To hold otherwise will be to deprive article 29(1) and article 30(1) of the greater part of their contents.
Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it.
We now pass on to article 337 which is in Part XVI under the heading " Special Provisions relating to certain classes.
" Article 337 secures to the Anglo Indian Community certain special grants made by the Union and by each State in respect of education.
The second paragraph of that article provides for progressive diminution of such grant until such special grant (1) , 587 ceases at the end of ten years from the commencement of the Constitution as mentioned in the first proviso to that article.
The second proviso runs as follows: " Provided further that no educational institution shall be entitled to receive any grant under this article unless at least forty per cent.
of the annual admissions therein are made available to members of communities other than the Anglo Indian community.
" It is clear, therefore, that the Constitution has imposed upon the educational institution run by the Anglo Indian Community, as a condition of such special grant, the duty that at least 40 per cent.
of the annual admissions therein must be made available to members of communities other than the Anglo Indian Community.
This is undoubtedly a constitutional obligation.
In so far as clause 5 of the impugned order enjoins that no Primary or Secondary school shall from the date of this order admit to a class where English is used as the medium of instruction any pupil other than the children of Anglo Indians or of citizens of non Asiatic descent, it quite clearly prevents the Anglo Indian Schools including Barnes High School from performing their constitutional obligations and exposes them to the risk of losing the special grant.
The learned Attorney General refers to clause 7 of the impugned order and suggests that the authorities of Anglo Indian Schools may still discharge their constitutional obligations by following the advice given to them in that concluding clause.
The proviso to article 337 does not impose any obligation on the Anglo Indian Community as a condition for receipt of the special grant other than that at least 40 per cent.
of the annual admissions should be made available to non Anglo Indian pupils.
The advice, tendered by the State to the Anglo Indian Schools by clause 7 of the impugned order, will, if the same be followed, necessarily impose an additional burden on the, Anglo Indian Schools to which they are not subjected by the Constitution itself.
The covering circular No. SSN 2054(b), which was issued on the same day, throws out the covert hint of the possibility, in consequence of the impugned order, of some change becoming necessary in the existing procedure for the 588 equitable distribution of the total grant among AngloIndian Schools, although the impugned order was not intended to affect the total grant available for distribution to Anglo Indian Schools under the Constitution.
If, in the light of the covering circular, clause 7 is to ,be treated as operative, in the sense that a noncompliance with it will entail loss of the whole or part of this grant as a result of the change ' in the existing procedure for the equitable distribution, then it undoubtedly adds to article 337 of the Constitution a further condition for the receipt by Anglo Indian Schools, of the special grant secured to them by that article.
On the other hand if clause 7 is to be treated merely as advice, which may or may not be accepted or acted upon,then clause 5 will amount to An absolute prohibition against the admission of pupils who are not AngloIndians or citizens of non Asiatic descent into AngloIndian Schools and will compel the authorities of such Schools to commit a breach of their Constitutional obligation under article 337 and thereby forfeit their constitutional right to the special grants.
In either view of the matter the impugned order cannot but be regarded as unconstitutional.
In our opinion the second question raised in these appeals must also, in view of article 337, be answered against the State.
The result of the foregoing discussion is that these appeals must be dismissed and we order accordingly.
The State must pay the costs of the respondents.
Appeals dismissed.

Output:
The Education Society of Bombay (respondent No. 1) has been running a recognised Anglo Indian School called Barnes High School at Deolali which receives aid from the State of Bombay.
J and G are its Directors.
English is used in the said school as the medium of instruction.
The mother tongue of the Anglo Indians is English.
The State of Bombay issued a circular order on 6th January, 1954, headed " Admission to Schools teaching through the medium of English.
" The operative portion of the order enjoined that no primary or secondary school shall from the date of the order admit to a class where English is used as the medium 569 of instruction any pupil other than a pupil belonging to a section of citizens the language of which is English namely, Anglo Indians and citizens of non Asiatic descent.
One P, a citizen of India and member of Indian Christian Community alleging English to be the mother tongue of his daughter, and one M, a citizen of India and member of Gujrati Hindu Community alleging Gujrati to be the mother tongue of his son, were refused admission to the school for their respective wards on the basis of the aforesaid order dated 6th January, 1964.
The Society and its two Directors presented an application under article 226 of the Constitution in the High Court of Bombay praying for the issue of a Writ in the nature of Mandamus restraining the State of Bombay and its officers from enforcing the said order and to allow the petitioners to admit in the school any children of non Anglo Indian citizens or citizens of the Asiatic descent and to educate them through the medium of English.
Similar applications were made by P and his daughter and by M and his son.
All these applications were consolidated, heard together and accepted by the High Court which made an order as prayed.
The State of Bombay came in appeal before the Supreme Court.
Held: (1) that the impugned order denying the right of students who are not Anglo Indians or are of Asiatic descent to be admitted to a recognised Anglo Indian School (in this case the Barnes High School) which receives aid from the State and which imparts education through the medium of English is void and unenforceable as it offends against the fundamental right guaranteed to all citizens by article 29(2) of the Constitution, because (a)The language of article 29(2) of the Constitution is wide and unqualified and covers all citizens whether they belong to the majority or minority group.
(b)The protection given by the said article extends against the State or anybody who denies the right conferred by it.
(a)The said article confers a special right on citizens for admission into the educational institutions maintained or aided by the State.
(d)The marginal note referring to minorities does not control the plain meaning of the language in which article 29(2) has been couched.
The word " namely " imports enumeration of what is comprised in the preceding clause.
In other words it equates what follows with the clause described before.
(2)Barnes High School at Deolali and other Anglo Indian School shave a right to admit non Anglo Indian students and students of Asiatic descent inasmuch as article 337 proviso 2 imposes an obligation on the Anglo Indian Schools to make available at least 40 per cent.
of the annual admissions to non Anglo Indian students as a condition precedent of their receiving grant from the Government and the impugned order is unconstitutional as it 73 570 prevents the Anglo Indian schools from performing their constitutional obligation and exposes them to the risk of forfeiting their constitutional right to the special grant.
In view of the fundamental right guaranteed to a minority like the Anglo Indian community under article 29(1) to conserve its own language, script and culture and the right to establish and administer educational institutions of its own choice under article 30(1) there is implicit therein the right to impart instruction in its own institutions to the children of its own community in its own language and the State by its police power cannot determine the medium of instruction in opposition to such fundamental right.
Bhola Prasad vs The King Emperor ([1942] F.C.R. 17, 25), The Queen vs Burah , The State of Madras vs Srimathi Champakam Dorairajan ( [1951] S.C.R. 525), Pierce vs Society of Sisters of Holy Names (268 U.S. 508), Yusuf Abdul Aziz vs State (A.I.R. , Sm.
Anjali Boy vs State of West Bengal (A.I.R. , The State of Bombay vs Narasu Appal Mali (A.I.R. 1952) Bom.
84), Srinivasa Aiyar vs Saraswathi Ammal (A.I.R. 1952 Vad. 193), Dattatraya Motiram More vs State of Bombay (A.I.R. , Punjab Province vs Daulat Singh (1946 L.R. 73 I.A. 59), Robert V. Meyer vs State of Nebraska (262 U.S. 390), August Bartels vs State of Iowa ; and Ottawa Separate Schools Trustees vs Mackell (L.R. 1917 A.C. 62) referred to.


Input:
riminal Appeal 573 of 1988.
From the Judgment and Order dated 9.8.1988 of the Bombay High Court in W.P. No. 627 of 1988.
417 Sirish Gupta and V.B. Joshi for the Appellant.
V.C. Mahajan, A. Subba Rao, P. Parmeswaran, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal by special leave under Article 136 of the Constitution of India is preferred against the Judgment made in Criminal Writ Petition No. 627/88 on the file of the High Court of Judicature at Bombay dismissing the writ petition filed by the appellant assail ing the validity and legality of the order of detention dated 28th April 1988 passed against him by the Joint Secre tary, Ministry of Finance (Department of Revenue), Govern ment of India, New Delhi under Section 3(1) of the Conserva tion of Foreign Exchange and Prevention of Smuggling Activi ties Act, 1974 (hereinafter referred as the 'Act ') with a view to preventing the appellant from indulging in activi ties prejudicial to the augmentation of country 's foreign exchange resources.
The detaining authority on the material placed before him arrived to a conclusion that the detenu (appellant) was indulging in receiving and making payments in India unautho risedly under instructions from a person residing abroad in violation of the provisions of the Foreign Exchange Regula tion Act, 1973 and reached his subjective satisfaction that the said unauthorised and illegal transactions carried on by the detenu had affected the foreign exchange resources of the country adversely and hence it was necessary to direct the detention of the detenu by the impugned order.
The appellant having become unsuccessful before the High Court, has now approached this Court assailing the order of deten tion on several grounds.
But the learned counsel for the appellant confined his argument only on the ground of undue delay caused by the Central Government in disposing of the representation of the detenu in violation of Article 22(5) of the Constitution of India.
According to the learned counsel, the detenu had forwarded his representation dated 16.6.88 through the Superintendent of the Central Prison, Bombay to the detaining authority and the Central Government and he received the order of rejection dated 19th July 1988 on 26th July 1988 i.e. after a period of 40 days from the date of making his representation.
A contention based on the delay of 40 days in the disposal of the representation was advanced before the High Court which for the reasons men tioned in paragraph 3 of its judgment based on the explana tion given in the subsequent return 418 dated 5th August 1988 filed by the Under Secretary, Ministry of Finance, Government of India had rejected the same though was not satisfied with the earlier return of the detaining authority.
The explanation given in the subsequent return recites that the representation forwarded by the detenu was received in the COFEPOSA Section of Ministry of Finance on June 27, 1988 and that after receiving the comments from the sponsoring authority on 11.7.88 the file was forwarded to Central Government.
Meanwhile the representation forwarded to the detaining authority was rejected on 11.7.88 itself.
The said file was received in the office of the Minister of State (Revenue) on 12.7.88 but the Minister of State was on tour and on his return the representation was forwarded to the Finance Minister on 17.7.88 and the file was received back in COFEPOSA Section on 19.7.88 and the order of rejec tion was communicated to the detenu who received it on 26th July 1988.
This explanation has been accepted by the High Court.
The learned counsel for the appellant has vehemently argued before us that there had been undue and unexplained delay of 11 days between the date of submission of the representation by the detenu to the Superintendent of Cen tral Prisons, Bombay for transmission to the Central Govern ment and the date of receipt of the representation by the Ministry of Finance and this unexplained delay has vitiated the order of detention.
It is seen from the impugned judgment, a similar conten tion was also raised before the High Court but that conten tion has not been properly disposed of.
When this contention was urged before us, the learned counsel for the respondent sought time for filing an affidavit from the Jail Superin tendent showing the date of communication of the representa tion to the Government.
Accordingly, an affidavit dated 17.3.89 sworn by the Superintendent of Prisons, Bombay was filed attempting to explain the delay that had occasioned in transmitting the representation.
The explanation reads thus: "I say that 16.6.88 is the date of receipt of the detenu 's representation and the said representation was forwarded to the Ministry on 22.6.88.
Further I have to submit that on 19th June, 1988 there was a holiday being Sunday.
" From the above explanation, it is clear that though the detenu had handed over the representation to Superintendent of Central Prison on 16.6.88, the latter has callously ignored it and left the same unattended for a period of 7 days and forwarded the same to the Government at his pleasure on 22.6.88.
This Superintendent of 419 Central Prison has not given any satisfactory and Convincing explanation as why he had kept the representation with himself except saying that during the period of 7 days there was a Sunday.
This Court in Abdul Karim and Others vs State of West Bengal; , held: "The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality.
" This view was reiterated in Rashid SK.
vs State of West Bengal, while dealing with the constitutional requirement of expeditious consideration of the petitioner 's representation by the Government as spelt out from Article 22(5) of the Constitution observ ing thus: "The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for without its expeditious consideration with a sense of urgency the basic purpose of af fording earliest opportunity of making the representation is likely to be defeated.
This right to represent and to have the representa tion considered at the earliest flows from the constitutional guarantee of the right to personal liberty the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.
" It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be dis posed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case.
The expression 'reasonable expedition ' is explained in Sabir Ahmed vs Union of India, ; as follows: "What is 'reasonable expedition ' is a question depending on the circumstances of the particu lar case.
No hard and fast rule as to the measure of reasonable time can be laid down.
But is certainly does not cover the delay due to negligence, callous inaction avoidable red tapism and unduly protracted procrastina tion.
" See also Vijay Kumar vs State of Jammu and Kashmir and Other, ; and Raisuddin Alias Babu Tamchi vs State of Uttar 420 Pradesh and Another, ; Thus when it is emphasised and re emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the dis posal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Arti cle 22(5) of the Constitution.
A contention similar to one pressed before us was exam ined by this Court in Vijay Kumar 's case (supra) wherein the facts were that the representation of the detenu therein dated 29.7.81 was forwarded to Government by the Superin tendent of Jail on the same day by post followed by a wire less message, but according to the Government, the represen tation was not received by them.
Thereafter, a duplicate copy was sent by the Jail Superintendent on being requested and the same was received by the Government on 12.8.81.
Considering the time lag of 14 days in the given circum stances of that case, this Court though over looked the same and allowed the Writ Petition on the subsequent time lag, made the following observation: "The Jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order.
The intermediary authorities who are communicating authorities have also to move, with an amount of prompti tude so that the statutory guarantee of af fording earliest opportunity of making the representation and the same reaching the Government is translated into action.
The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit.
If the Government enacts a law like the present Act empowering certain au thorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation 421 reaches the Government as quick as possible and it is considered by the authorities with equal promptitude.
Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.
" Reverting to the instant case, we hold that the above observation m Vijay Kumar 's case will squarely be applicable to the facts herein.
Indisputably the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on 16.6.88 for mere on ward trans mission to the Central Government has callously ignored and kept it in cold storage unattended for a period of 7 days, and as a result of that, the representation reached the Government 11 days after it was handed over to the Jail Superintendent.
Why the representation was retained by the Jail Superintendent has not at all been explained in spite of the fact that this Court has permitted the respondent to explain the delay in this appeal, if not before the High Court.
In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant 's representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu.
This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and consti tutionally impermissible.
We, therefore, allow this Criminal Appeal by setting aside the judgment of the High Court, quash the impugned detention order and direct the detenu to be set at liberty forthwith.
Y.L. Appeal allowed.

Output:
The appellant was detained pursuant to an order of detention passed against him under Section 3(1) of the , with a view to prevent him from in dulging in activities prejudicial to the augmentation of country 's foreign exchange resources.
The detaining authori ty on consideration of the material placed before him came to the conclusion that the appellant was indulging in re ceiving and making payments in India unauthorisedly under instructions from a person residing abroad in violation of the provisions of the Foreign Exchange Regulations Act, 1973 and that the said unauthorised and illegal transactions carried on by him and affected adversely the foreign ex change resources Of the country and as such his detention was necessary.
The appellant assailed his detention before the High Court and being unsuccessful filed this appeal.
Before this Court Counsel for the appellant confined his arguments only to the ground of undue delay caused by the Central Government in disposing of the representation made by the detenu which was calculated to be of 40 days.
The Respondents explained the delay in the counter affidavit filed by it but still according to the appellant 's counsel there has been undue and unexplained delay of 11 days be tween the date of submission of the representation by the detenu to the Superintendent of the Central Prison, Bombay for transmission to the Central Government and the date of receipt of the representation by the Ministry of Finance and, he argued, that this unexplained delay has vitiated the order of detention.
416 Allowing the appeal, this Court, HELD: It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of the detenu has to be disposed of within reasonable expedition but it must necessarily depend on the facts and circumstances of each case.
[419F] Rashid S.K.v.
State of West Bengal, Sabir Ahmed vs Union of India, ; ; Vijay Kumar vs State of Jammu and Kashmir and Others, ; and Raisuddin alias Babu Tamchi vs State of U.P. and Anr.
, ; ; When it is emphasised and re emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay, because the delay caused by slackness on the part of any authority will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution.
[420A B] In the instant case, the supine indifference, slackness and callous attitude on the part of the jail Superintendent who had unreasonably delayed in transmitting the representa tion as an intermediary, had ultimately caused undue delay in the disposal of the appellant 's representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu.
This avoidable and unexplained delay has resulted in render ing the continued detention of the appellant illegal and constitutionally impermissible.
[421D E] Abdul Karim and Others vs State of West Bengal, ; referred to.