IN THE

HON’BLE SUPREME COURT OF DHARMASTHAN

(FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF DHARMASTHAN)

DISPUTE RELATING TO

EDUCATIONAL RIGHTS OF MINORITIES

IN THE MATTER OF:

Association of Minority Institutions

(Petitioner)

Vs.

Union of Dharmasthan

(Respondent)

MEMORIAL ON BEHALF OF RESPONDENT

Submitted by:

Mriganc Mishra

Serial Number- 4
 TABLE OF CONTENTS

List of Abbreviation……………………………………………………………….. 3

Index of Authorities…………………………………………………………………4

a. Table of cases 4
b. Books and Articles 5
c. Statutes 5
d. Internet Sources 5

Statement of Jurisdiction…………………………………………………………. 6

Synopsis of facts…………………………………………………………………… 7

Issues presented…………………………………………………………………… 8

Summary of Arguments………………………………………………………….. 9

Arguments Advanced…………………………………………………………….10

Prayer……………………………………………………………………………. 19

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 LIST OF ABBREVIATION

V/VS -- VERSUS

AIR -- ALL INDIA REPORTER

& -- AND

HON’BLE -- HONOURABLE

SCC -- SUPREME COURT CASES

SC -- SUPREME COURT

HC -- HIGH COURT

ORS. -- OTHERS

ANR. -- ANOTHERS

VOL. -- VOLUME

PARA -- PARAGRAPH

I.e. -- THAT IS

CO. -- COMPANY

LTD. -- LIMITED

ST -- SCHEDULED TRIBE

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 INDEX OF AUTHORITIES

a. Table of cases:
Indian Case Laws:
 Modern Dental College & Ors. vs State of Madhya Pradesh & Ors., (2009)
7SCC 751
 Secy Miner Irrigation & Rural Engg. Services, UP vs Sangoo Ram Arya,
(2002) 5 SCC 521
 SadhanaLodhv. National Insurance Co. Ltd., (2003) 3 SCC 524
 Lily Kurian vs St. Levoine, AIR 1979 SC 52
 Sidhrajbhai vs State of Gujarat, AIR 1963 SC 540
 Frank Anthony Public School Employees’ Association vs Union of India,
1986 (Vol. IV)SCC 707
 Kolawana Gram Vikas Kendra vs State of Gujarat, (2010)1 SCC 133
 Managing Board M.T.M vs State of Bihar, (1984) 4 SCC 500
 T.M.A Pai Foundation vs State of Karnataka, AIR 2003 SC 355
 P.A. Inamdar vs State of Maharashtra, AIR 2005 SC 3236
 English Medium Students Parent Association vs State of Karnataka,
(1994)1 SCC 550
 Usha Mehta vs State of Maharashtra, (2004)6 SCC 264

Foreign Case Laws:

 MC Kart vs United States, 395 US 185 (1969)

 Teotico vs Baer, G.R. N.o. 147464 (2006)

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b. Books:
 Jain, M.P., Indian Constitutional Law- Fifth Edition- Volumes I and II
 Basu, Durga Das, Commentary on the Constitution of India- Eighth Edition
 Pandey, J.N., Constitutional Law of India- Fifty fourth edition
 Gaur, K.D., Textbook on Indian Penal Code- Fifth Edition

Articles:

 5th Annual Report of the National Commission for Minorities for the Period
from 1997 to 1998
 Minority education Rights: Supreme Court Judgement, by Iqbal A. Ansari;
Vol. 38, No. 19

Statutes:

 Constitution of India (1950)

 National Commission for Minorities Act, 1992
 National Commission for Minority Educational Institutions Act, 2004
 Karnataka Professional Educational Institutions (Regulation of Admission
and Fixation of Fee)(Special Provision) Act, 2006

Internet Sources:

 www.legalserviceindia.com
 www.indiankanoon.com
 www.manupatra.com

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 STATEMENT OF JURISDICTION

The petitioners approached the Hon’ble Supreme Court of Dharmasthan under Article 32
of the Constitution of Dharmasthan, 1950. The respondents respectfully submit to this
jurisdiction invoked by the petitioners.

6
 SYNOPSIS OF FACTS

 Dharmasthan is a country whose educational rights are recognized as fundamental

rights, and rights of minority are provided under Directive Principles of State Policy.
 Parliament of Dharmasthan passed a law prescribing a necessity for minority
educational institutions to get affiliated/ recognized by the State.
 The law contained certain basic prerequisites such as prescribing age, qualifications,
syllabus, fee structure, conducting entrance examinations, reservation of seats,
counseling during admission etc., in order to ensure a proper educational system
throughout the country of Dharmasthan, preventing practices like
maladministration.
 The state allegedly interferes with the nominations, autonomy, independence and
rights of the private (aided and unaided) and minority institutions as provided under
the Constitution of Dharmasthan.
 The state, however, imposed reasonable restrictions as the right to manage and
administer an educational institute is not absolute.
 The private (aided and unaided) and minority institutions formed an association to
represent their concerns by directly filing a writ petition before the Supreme Court
of Dharmasthan.
 The association aims to strike down the law in question because of the alleged
unreasonable restrictions and infringement of their rights.
 The apex court admitted the said petition and the matter is now posted for final
arguments.

ISSUES PRESENTED

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1. WHETHER THE SAID WRIT PETITION IS MAINTAINABLE OR NOT
UNDER ARTICLE 32 OF THE CONSTITUTION OF DHARMASTHAN?

2. WHETHER THE LAW PASSED BY THE PARLIAMENT OF DHARMASTHAN

ABRIDGES THE FUNDAMENTAL RIGHTS OF MINORITIES GUARANTEED
UNDER ARTICLE 29(1) AND ARTICLE 30(1) OR NOT?

3. WHETHER THE RESTRICTIONS IMPOSED BY THE STATE OF

DHARMASTHAN ARE REASONABLE OR NOT?

SUMMARY OF ARGUMENTS

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1. WHETHER THE SAID WRIT PETITION IS MAINTAINABLE OR NOT
UNDER ARTICLE 32 OF THE CONSTITUTION OF DHARMASTHAN?
The counsel for the respondent humbly contends that the said Writ petition is not
maintainable under Article 32 of the constitution of Dharmasthan. Article 32 is
reserved exclusively for the enforcement of a fundamental right. The petitioner
enjoys majority control over the administration of the minority run institutions. The
state can lay down reasonable conditions for maintaining the standard of education.
Such a law cannot be said to transgress any constitutional limitation.

2. WHETHER THE LAW PASSED BY THE PARLIAMENT OF DHARMASTHAN

ABRIDGES THE FUNDAMENTAL RIGHTS OF MINORITIES GUARANTEED
UNDER ARTICLE 29(1) AND ARTICLE 30(1) OR NOT?
It is humbly submitted before this Hon’ble Court that the law passed by the
Parliament of Dharmasthan does not abridge rights of minorities guaranteed under
Article 29(1) and Article 30(1). The Constitution confers upon the State a power to
impose, by law, reasonable restrictions on the rights guaranteed to the citizens
subject to public order, health and morality.

3. WHETHER THE RESTRICTIONS IMPOSED BY THE STATE OF

DHARMASTHAN ARE REASONABLE OR NOT?
The counsel for respondent humbly submits before this Hon’ble Court that the
restrictions imposed by the State of Dharmasthan are reasonable and hence the
Petitioner has no cause of action. The law passed by the Parliament of Dharmasthan
does not destroy the character of the minority run institutions, and simultaneously
ensures that it is instrumental in making the minority run institutions propagate
better education, which is within the domain of the State.
ARGUMENTS ADVANCED

__________________________________________________________________

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 1. WHETHER THE SAID WRIT PETITION IS MAINTAINABLE OR NOT
UNDER ARTICLE 32 OF THE CONSTITUTION OF DHARMASTHAN?

The counsel appearing for the respondent submits that the said writ petition is not
maintainable under Article 32 of the constitution of Dharmasthan. In Modern Dental
college and research centre and ors. vs State of Madhya Pradesh and ors.1 it was
held that; “Private unaided minority institutions have a right to devise rational
manner of selecting and admitting students. However, certain degree of state control
is required since the State has a duty to see that high standards of education are
maintained in all professional institutions.”

ALTERNATIVE REMEDIES HAVE NOT BEEN EXHAUSTED

The petitioner has effective alternative remedies under the relevant acts :

a. According to Section 9 of The National Commission for Minorities Act, 1992;

the National Commission for Minorities being a seven member commission
headed by the Chairperson has all powers like a civil court in trying a suit and
matters connect with.
b. According to Section 12D of The National Commission for Minority
Educational Institutions Act, 2004, the Commission has the power to investigate
into matters relating to deprivation of the educational rights of minorities.
c. Section 12E of the same act states that the Commission while inquiring into the
complaints of violation or deprivation of educational rights of minorities shall
call for information or report from the Central Government or any State
Government or any other authority or organization subordinate thereto within
such time as may be specified by it.

1
(2009) 7 SCC 751

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 d. Clause 3 of Section 12 of the same act, states that every proceeding before the
Commission shall be deemed to be a judicial proceeding within the meaning of
sections 193, 196 and 228 of the Indian Penal Code (45 of 1860) and the
Commission shall be deemed to be a civil court for the purposes of section 195
and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

It is submitted that the petitioner has not approached any of these authorities and
has not resorted to the above mentioned remedies, and has directly approached
this Hon’ble court. These authorities and remedies constituted under the
aforesaid acts are the authorities to be approached by any aggrieved in the first
place and only if they deny the relief or violate any procedure, shall their action
be challenged in writ jurisdiction. Without approaching these authorities, the
petitioner shall not approach the highest court of appeal as rights have not been
asserted and issue of enforcement through a writ petition would fall only
thereafter.

The rule that an aggrieved person’s first step should be to approach the
administrative authorities is well established in our jurisdiction. In Secy. Miner
Irrigation and Rural Engg. Services, UP vs Sangoo Ram Arya2, the Supreme
Court held that: “Where statute provided Service Tribunals for adjudicating
disputes of government servants, the said Tribunal cannot be bypassed by filing
writ petition on the ground that Tribunal lacks power to pass interim order.”
In SadhanaLodhv. National Insurance Co. Ltd.3, the Supreme court held that a
writ petition by an insurer challenging the award granted by the Tribunal is not
maintainable prima facie that an alternative remedy by filing appeal to the High
Court under Motor Vehicles Act was available to the insurer.

2
(2002) 5 SCC 521
3
(2003) 3 SCC 524

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 The doctrine of exhaustion of administrative remedies is well established in
foreign Jurisdictions as well. In the leading case law of MC Kart vs United
States4, the American Supreme court held that; “No one is entitled to judicial
relief for a supposed or a threatened injury until prescribed administrative
remedy has been exhausted.”

In the leading case law of Teotico vs Baer5, the Supreme Court of Philippines
held that; “The thrust of the rule on exhaustion of administrative remedies is that
the courts must allow the administrative agencies to carry out their functions and
discharge their responsibilities within the specialized areas of their respective
competence. Reasons of law, comity and convenience prevent the courts from
entertaining cases proper for determination by administrative agencies.”

2. WHETHER THE LAW PASSED BY THE PARLIAMENT OF

DHARMASTHAN ABRIDGES THE FUNDAMENTAL RIGHTS OF
MINORITIES GUARANTEED UNDER ARTICLE 29(1) AND ARTICLE
30(1) OR NOT?

4
395 US 185(1969)
5
G.R. No. 147464 (2006)

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 The counsel on behalf of the respondent submits that the law passed by the
Parliament of Dharmasthan does not abridge the fundamental rights of the
petitioner. Article 29(1) guarantees to any section of the citizens residing in any part
of India having a distinct language, script or culture of its own, the right to conserve
the same, i.e. language, script or culture. The Parliament of Dharmasthan, without
violating the aforementioned article, prudently and in full consonance with the
existing rights of minorities, passed the law which enables the state to keep vigilance
over maladministration in such minority run institutions. Such a law cannot be said
to transgress any constitutional limitation.

Article 30(1) guarantees to all linguistic and religious minorities the ‘right to
establish’ and the ‘right to administer’ educational institutions of their own choice.
The word “establish” indicates the right to bring into existence, while the word
“administer” indicates the right to effectively manage and conduct the affairs of the
institution.

However, the rights guaranteed under Articles 29(1) and 30(1) are not absolute.
These rights are not free from regulation. The state can impose regulatory measures
to ensure an efficient and sound administration.

In Lily Kurian vs st. Levoine6, it was held that; “The state may regulate the exercise
of the right to administration of minority educational institutions but it has no power
to impose restrictions on the rights.” The facts of the present case clearly showcase
that the law passed by the Parliament of Dharmasthan enables the state only to
prescribe reasonable prerequisites as they deem important in providing and
imparting excellent education, while the real administration still lies in the hands of
the minority run institutions, thus not interfering and not destroying their character.

6
AIR 1979 SC 52

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 In Sidhrajbhai vs State of Gujarat7, the court held that; “The regulations can be
made to prevent the housing of an educational institution in unhealthy surroundings
or for preventing setting up and continuation of an institution without qualified
teachers. Thus, regulations made in true interests of the efficiency of instruction,
discipline, morality and public order may be imposed. Such regulations cannot be
said to be restrictions on the substance of the right.” In the present case, the state
envisages to secure proper functioning of the minority run institutions, and helps in
making minority run institutions an effective vehicle of education.

Article 15(4) after the (1st Amendment) Act of 1951 states that the amendment
empowers the state to make special provisions for the advancement of any socially
and educationally backward classes of citizens or the SCs and STs. Accordingly the
state can now reserve seats in public institutions for members of backward classes.
In the present case, the state has prescribed reservation of seats in adherence to
Article 15(4) of the Constitution of Dharmasthan.

In Frank Anthony Public School Employees’ Association vs Union of India8, it was

held that; “Statutory measures regulating terms and conditions of service teachers
and other employees of minority educational institutions for maintaining
educational standards and excellence are not violative of Article 30(1).”

In Kolawana Gram Vikas Kendra vs State of Gujarat9, it was held that; “Certain
extent of government control is permissible in case of minority educational
institution receiving 100% government grant. The government can verify whether
there was vacancy as per work load and whether the candidate possessed minimum
prescribed qualification.”

7
AIR 1963 SC 540
8
[(1986) Vol. IV] SCC 707
9
(2010)1 SCC 133

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 The counsel for the respondent humbly submits before this Hon’ble court that the
petitioner showed non-conformity with the rules and provisions of the law passed
by the state, which is a violation of Article 30 of the Constitution of Dharmasthan.
In Managing Board, M.T.M. vs. State of Bihar10, it was held that; “The state can lay
down reasonable conditions for maintaining the standard of education before they
could be considered for affiliation, but refusal of affiliation on terms and conditions
which practically denies the progress and autonomy of the institution is violative of
Article 30.”

Article 46 (Directive Principles of State Policy) under Part IV of the Constitution

states that; “The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and in particular, of the Scheduled
Castes and the Scheduled Tribes, and shall protect them from social injustice and
all forms of exploitation.” 11
Article 46 asserts a strong argument, since “A
restriction which is imposed for securing the objects laid down in the Directive
Principles of State Policy may be regarded as reasonable restriction.”12

In the light of these above mentioned points, it can be inferred that the state passed
the law without violating any of the rights guaranteed to minorities under the
constitution of Dharmasthan. Notwithstanding the provisions of the law passed by
the state of Dharmasthan, it allows the minorities to mould the institution as it thinks
fit, and in accordance with its ideas of how the interest of the community in general,
and institution in particular, will be served best.

3. WHETHER THE RESTRICTIONS IMPOSED BY THE STATE OF

DHARMASTHAN ARE REASONABLE OR NOT?

10
(1984) 4 SCC 500
11
The Constitution of India, 1950
12
Constitutional Law of India, J.N. Pandey- Fifty Fourth edition

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 The counsel for the respondent humbly submits before this Hon’ble court that the
restrictions imposed by the State of Dharmasthan are reasonable and hence within
the domain of the laws existing to impose reasonable restrictions on certain rights
and freedoms. According to Article 19(1)(g), the state guarantees to all citizens the
right “to practice any profession, or to carry on any occupation, trade or business.”
In T.M.A Pai Foundation vs State of Karnataka13, it was held that; “the right of a
minority to establish and administer an educational institution would be protected
under Article 19(1)(g).

In P.A. Inamdar vs State Of Maharashtra14, it was held that; “right to establish and
administer an educational institution falls completely under Article 19(1)(g).”

However, minority educational institutions do not become immune and free from
operation of regulatory means merely because the constitution offers them extra
protection under Article 30(1). Clause 6 of Article 19 states that the state can make
any law- (a) Imposing reasonable restrictions on Article 19(1)(g) ‘in the interest of
public’, (b) Prescribing professional or technical qualifications necessary for
practicing any profession or carrying on any occupation, trade or business.

The regulations which may lawfully be imposed by the state must satisfy the dual
test: (1) They must be reasonable; and (2) They are regulative of the educational
character of the institution and are conducive in making the institution an effective
tool of education for the minority or other persons who resort to it. In the present
case, the state had the foresight to make laws that not only are reasonable in their
own cause but are also responsible for making the private run minority institutions
a better educational platform.

Several state legislatures have enacted the laws to regulate the private minority
institutions. These statutes have provided the authority to the state governments to

13
AIR 2003 SC 355
14
AIR 2005 SC 3236

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 regulate the private minority institutions. Their reasonableness have been
challenged in the court of law, due to the state’s inclination towards the
administration a little more than required, but the court of law upheld the laws
passed by the state. For example, the Karnataka Professional Educational
Institutions (Regulation of Admission and Fixation of fee) (Special Provisions) Act,
2006 empowers the Karnataka state to make laws for the fixation of the seats in the
private minority universities.

Section 12C(b) of the National Commission for Minority Educational Institutions

Act, 2004 empowers the State government to prescribe percentage governing
admissions in a minority educational institution.

In English Medium Students Parent Association vs State of Karnataka15, it was held

that; “Particular State can validly take a policy decision to compulsorily teach its
regional language. A proper understanding of the regional language has been held
to be essential for carrying out day to day affairs of the people.”

In Usha Mehta vs State of Maharashtra16, the court upheld the State’s decision and
said; “The State may instruct the private minority universities to adopt the state
language as the medium of instruction. It will not be violative of minority rights.

In the light of these points, it can be inferred that reasonable restrictions that can be
authorized by the state may include the following restrictions:

i. To maintain the educational character and standard of such institution ,e.g.,

to lay down qualifications or conditions of service to secure appointment of
good teachers, to ensure interests of students; to maintain a fair standard of
teaching;

15
(1994) 1 SCC 550
16
(2004) 6 SCC 264

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ii. To ensure orderly, efficient and sound administration and to prevent
maladministration, and to secure its proper functioning as an educational
institution; to ensure that its funds are spent for the betterment of education
and not for extraneous purposes.

iii. To prevent anti-national activity;

iv. To enforce the general laws of land, applicable to all persons, e.g., taxation,
sanitation, social welfare, economic regulations, public order, morality.

v. To prescribe syllabus, curriculum of study and regulate the appointment of

teachers.

vi. To ensure efficiency and discipline of the institution

It can be observed that the law passed by the state of Dharmasthan is reasonable in
its own accord, and poses reasonable and prudent restrictions on the unqualified
rights of minorities. Relying on the aforementioned rationale of the state behind
making the law, the state’s restrictions can be considered to be justified, and
henceforth, the respondent has a legal validity in making and passing the law.

PRAYER FOR RELIEF

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In light of the facts stated, arguments advanced and authorities cited, the Respondent,
humbly prays before this Hon’ble court, to be graciously pleased to:

i. Quash the writs filed by the petitioner in this Hon’ble Court of law, since there
is no violation of the fundamental rights and minority rights.
ii. Maintain the status quo of the impugned Act since there is no violation of the
rights as alleged by the petitioner.
iii. Pass any other order, which this Hon’ble court may deem fit in light of justice,
equity and good conscience.

All of which is most respectfully submitted

(Counsel for the Respondent)

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