Judicial Committee of the Privy Council: Lords Bingham of Cornhill, Slynn of Hadley, Lloyd of Berwick, Steyn and Hope of Craighead, February 2004
The Supreme Court of Mauritius had held that state funding of a group of 12 Roman Catholic Secondary Schools (known as the Catholic Colleges), which, via their admissions policy, ensured that half of all entrants were Roman Catholic, was unconstitutional. These colleges had originally been self-funding via the payment of fees but had received state subsidy since 1947. In 1977 school fees were abolished in favour of direct grants from the government thus making the Catholic Colleges state funded. In dismissing the appeal the Judicial Committee had in mind the provisions of the Constitution of Mauritius and in particular the right of religious organisations to establish and maintain schools (sections 3 and 14) and the obligation of those discharging a public function (in this case the minister of education channelling grant aid to schools) to do so without discrimination inter alia on the grounds of religion (section 16). The respondent (the father of a Hindu prospective pupil) had claimed that the Catholic Colleges’ admissions policy discriminated against non-Roman Catholics in that a non-Roman Catholic applicant could be refused admission in favour of a Roman Catholic applicant with lower examination grades so as to maintain the fifty-percent quota. He claimed that the government of Mauritius, in channelling grant-aid to the Catholic Colleges, sanctioned and acquiesced in this discriminatory admissions policy. The Judicial Committee held that the admissions policy was discriminatory. No argument had been forthcoming to justify the discrimination. The Constitution violated no internationally accepted principle by precluding discrimination in the way that it did. Had the Catholic Colleges received no public subsidy then section 16 of the constitution would not have applied and such discrimination would not have been unconstitutional. However, state funding meant that the section did apply and the policy, and its support by government funding, was therefore unconstitutional.
(2004) 7 Ecc LJ 498