ST. STEPHEN'S COLLEGE ETC. ETC. v. UNIVERSITY OF DELHI ETC. ETC.

DECEMBER 6, 1991

Constitution of India, 1950-Article 30(1}-Minority educational insti- tution-Constitutional safe-guards-Object and purpose of.

Constitution ofIndia, 1950-Articles 30(1), 29(I), 29(2 }-Minority edu- • C cational institution-Religious autonomy in education and constitutional guar- antee-Construction-Rights under the Articles-Distinction.

Constitution ofIndia, 1950-Articles 30(1), 29, 14, 15-Minorityeduca- . tional institution-Admission on the basis of religion-Legality of. D Constitution of India, 1950-Article 30(1}-Minority educational insti- tution claiming protection under~equirements.

Constitution of India, 1950-Articles 30, 29-St. Stephen's College, whether a religious minority institution. E Constitution of India, 1950-Article 30( I)-" Management of the affairs of the institution", 11 establish", 11 administer" -Construction-Minority educa- tional institution-Right to administer-Nature and scope of-Delhi Univer- sity Act, Statutes, Regulations/State control-Effect and legality of F Constitution of India, 1950-Article 30(1}-Minority educational insti- tution-Right to administer-Admission programme ofa college-Selection of students-Vniversity regulations/directions-Application/effect of

Constitution of India, 1950-Article 30(1}-Minority educational insti- tution-Admission-Selection-Interview-Purpose of--J'rocedure adopted, G whether reasonable.

Constitution of India, 1950-Articles 30(1), 30(2), 337-Minority edu- cational institution-State aid-Object and ambit of-State control in admis- sion matter-Effect of. H

121

122 . SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A Constitution of India, 1950-Articles 14, 15, 30, 29-Minority educa- tional institution-Admission--Reservation to socially and educationally back- ward classes and equality concep1-eonstruction.

Interpretation of Statutes-Kinds of construction-Constitution ofIndia, 1950-Articles 30(1) and 29(2}-Method of Construction. B WP N0.186811980

The petitioner- college was a constituent college or the respondent- Delhi University. It also was affiliated to the University. The College, belonging to a religious minority community, was an aided educational C institution.

The college offered three-years Degree Course in B.AJB.Sc.(Hons.), B.A.(Pass) and B.Sc.(General) and two years Post-graduate degree course in M.A. and M.Sc.

D The college had its own admission programme. The Christian stu- dents were given preference in admission.

On 25.5.1980, the college published "Admissions Prospectus" for the academic year 1.980-81. It was stated therein that ror admission for the first year course, the last date of receipt of applications would be 20.6.1980 E and that there would be an interview prior to final selection or students.

On 5.6.1980, the University issued a circular to all affiliated colleges, notifying the last date for receipt of applications at the colleges as 30.6.1980 and programme of admission was also phased therein. F On 9.6.1980, the University in another circular provided certain guidelines for admission, that admission to B.A.(Pass)IB.A. Vocational (Studies) courses should be based on merit or the percentage of marks secured by students in the qualifying examination; that the admission to B.Com.(Pass), B.A.(Hons.) and B.Com(Hons.) courses should also be on G the basis or marks; that if a college proposed to give weightage to marks obtained in one or more individual subjects in addition to aggregate marks of the qualifying examination, it should b~ notified in advance through the College Prospectus or Notice Board.

The Delhi University Students Union complained to the University H

ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI 123 that the petitioner-college was violating the University Statutes and Ordi· A nances, as it had fixed its own time schedules for receipt of applications for admission and conducting interview before admission-.

The University requested the petitioner-college to conform to the University schedule as per its circular dated 5.6.1980. B The Petitioner-college informed the University that no changes in its admission programme could be made.

When the University by its letter dated 7/9.6.1980, asked the peti· tioner-college to conform to the dates prescribed for the dates of the University for admission, the petitioner-college replied that it was not possible to adhere to the University circulars. But it assured the University that no admission list would be put up before the date prescribed by the University.

On 16.6.1980 a student, seeking admission for under-graduate course in the petitioner-college, filed a writ petition in the High Court challenging the admission schedule of the college.

On 30.6.1980 the High Court directed that as the college had not challenged the Validity of University circulars dated 5.6.1980 and 9.6.1980, the college to receive the applications for admission till 30.6.1980. (The E __writ petition was the subject matter in the T .C.No. 3 of 1980 before this Court).

The petitioner-college moved this Court (by filing W.P. (Civil) No. 1868) under Art. 32 of the Constitution stating that the college was a religious minority run institution; that though it was a constituent college of the University and affiliated to the :respondent-University, it was not a F maintained college; that since the commencement of the college it was exercising inherent managerial powers, like fixing reasonable dates for admission and conducting interview of the candidates all over the country which were not questioned or interfered by the respondent-University; that the University's circulars would amount to ex-facie violative of the G fundamental. right of the petitioner-college, as fixing of the admission schedule was ex-facie managerial; that no part of the management could be taken away and invested in another body without an encroachment upon the guaranteed right; that the selection of the students for admission on the basis of marks, would be unreasonable and violative of fundamental · right of the college guaranteed under Article 30 of the Constitution and H

p. 124

A that the University circulars dated 5.6.1980 & 9.6.1980 should be declared void qua the college in view of its minority status.

In this writ petition, (WP (C) No. 1868of1980), the.Delhi University Students Union became an intervener.

B W.P. Nos. 13213-14/84

Under Art. 32 of the Constitution, the Delhi University Students Union and another filed two writ petitions in connection with admission year 1984-85 seeking a direction from this Court to the college to follow all University policies, Rules, Regulations Ordinances regarding admissions etc. They also prayed this .Court to restrain the college from giving pref- erence in favour of Christian students.

The petitioners-students Union contended that the College was not declared to be a minority college by any Court nor it was recognised as a minority college by the University; that the College was not entitled. to discriminate students on grounds of religion, as the college was receiving maintenance grant from the Government; and that the discrimination of students for admission to the College based only on religion was contrary to the provisions of Article 29(2) of the Constitution.

The University contended that every college should comply with the E Statutes, Ordinances and Regulations of the University; that the college was required to comply with the directions given by the University regarding admission ~f students; that under clause 6-A(5) of Ordinance XVIII; the Staff Council was to make recommendations regarding formu- lations of admission policy within the framework of the policy laid down by the University; that the College could not lay down its own admission F ·- policy so as to be in conflict with the policy laid down by the University; that since the College was receiving aid out of State funds, it was not entitled to practice discrimination in the matter of admission on the ground or religion or language, which was contrary to the mandate of Article 29(2) of the Constitution; that the circulars of the University did G not infringe in any manner the fundamental rights of the body administer· ing the College; that the College like all other colleges was bound to follow the circulars of the University, which contained directions in the matter. of admission; and that the college's fundamental right ender Article 30 of the Constitution was not affected.

H CA. Nos. 1830-41 of 1989; C.A.No. 1786 of 1989 and CANo. 2829 of 1989.

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 125

The students, who were denied admission by The Allahabad Agri- A cultural Institute which was established and administered by the Chris- tian religious minority filed writ petitions under Art. 226 of the Constitu- tion challenging the reservation and admission of Church sponsored Christian students.

The High Court, declaring that the policy of reservation for Chris- B tian students was contrary to the equality guaranteed to citizens under Article 29(2) of the Constitution, allowe() the writ petitions.

The Institute, obtaining certificate under Article 133(1)(a) of the Constitution filed C.A. Nos. 1831-41of1989 challenging the High Court's decisions. C CANos. 1786/89 and 2829/89 were filed against the same judgment of the High Court, by the aggrieved students.

On the questions, (1) whether St. Stephen's College was a minority- run institution? (ii) whether St. Stephen's College as a minority institution DI was bound by the University Circulars dated 5.6.1980 and 9.6.1980, directing that the College should admit students on the basis of merit of the percentage of marks secured by the students in the qualifying exami~ nations? and (iii) whether St.Stephen's College and the AIJahabad Agri- cultural Institute were entitled to accord preference to or reserve seats for E students of their own community, and whether such preference or reser- vation would be invalid under Article 29(2) of the Constitution?, this Court, allowing the W.P.(C) No. 1868/1980 filed by the College and the appeals filed against the judgment of the Allahabad High Court, and dismissing the W.P.Nos. 13213-14 of 1984 and T.C.No. 3/1980,

1.01 India is a multi-cultural and multi-religious society. It is an extra-ordinary pluralistic and complex society with different religious minorities. Besides, there are linguistic aspirations and caste considera- G tions. There may be individuals in the minority group who want to assimilate into the majority, but the group itself has a collective interest for non-assimilation. It is interested in the preservation and promotion as a community. This appears to be the chief reason for which Article 30(1) was incorporated as a fundamental right. [178 C-EJ H ...,·-

p. 126

A 1.02 The minorities cannot be treated in a religious neutral way in the educational institutions established and administered by them. Clearly that was not the aim of Article 30(1). Article 30(1) was incorpo- rated to secure to the minorities a fair deal in the name of religion.only. It was guaranteed to them as a fundamental right after a great deal of de- liberation by the Framers. It should not be nullified by narrow judicial B interpretation or crabbed pedantry. There must be a broad approach and the statesmen-like vision. The catholic approach that led to the drafting of the provisions dealing with the minority rights should not be set at naught. It must be ensured that nothing is done to deprive the minorities of a sense of belonging and of a feeling of security. (180 D-E]

C 1.03 The minorities bav~ the right to admit their own candidates to maintain the minority character of their institutions. That is a necessary concomitant right which flows from the right to establish and administer educational.institution in Article 30(1). There is also a related right to the parents in the minority communities. The parents are entitled to have their children educated in institutions having an atmosphere congenial to D their own religion. [181C-D]

2.01. The constitutional concept or religious autonomy in education in Article 30(1) bas to be balanced wah the constitutional guarantee under Article 29(2). Both the Articles operate in the same field namely, educa- tional institutions. The right guaranteed to minorities under Article 30(1) E to establish and administer educational institutions of their choice cannot be read in isolation, and it has to be interpreted in a manner that it does not destroy the right in Article 29(2). (173 F-G]

2.02. Under Article 29(1) every section of the citizens having a distinct language, script or culture of its own has the right to conserve the same. Under A.rticle 29(1), the minorities-religious or linguistic-are en- titled to establish and administer educational institutions to conserve their distinct language, script or culture. The right to establish an educational institution is not confined to purposes of conservation of language, script or culture. The rights in Article 30(1) are of wider amplitude. The width of Article 30(1) cannot be cut down by the considerations on which Article 29(1) is based. The words "of their choice" in Article 30(1) leave vast options to the minorities in selecting the type of educational institutions which they wish to establish. They can establish institutions to conserve their distinct language, script or culture or for imparting general secular education or for both the purposes. [17SH-176C] H

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 127

2.03. The collective minority right is required to be made functional and is not to be reduced to useless number. A meaningful right must be shaped, moulded and created under Article 30(1), while at the same time affirming the right of individuals under Article 29(2). There is need to . strike a balance between the two competing rights. It is necessary to mediate between Article 29(2) and Article 30(a) between letter and spirit of these Articles, between traditions or the past and the convenience of the present, between society's need fC?r stability and its need for change. [181 E~F) , 3.01. The institutional preference to minority candidates based on religion is apparently an institutional discrimination on the forbidden ground of religion •.It operates to stigmatise or single out candidates from non-minority communities on the ground only of religion. If an educa- tional institutions says "yes" to one candidate but says "no" to another candidate on ground of religion, it amounts to discrimination on ground of religion. The mandate of Article 29(2) is that there shall not be any such discrimination. [176E-F] D 3.02. The choice of institution provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. Indeed, they cannot. The minori- ties cannot establish educational institution only for the benefit of their community. If such was the aim, Article 30(1) would have been differently worded and it would have contained the words "for their own commu- E nity". In the absence of such words it is legally impermissible to construe the Article as conferring the right on the minorities to establish educa- tional institution for their own benefit. [176G-177A]

3.03. Even in practice, such claims are likely to be met with consid- erable hostility. It may not be conclusive tQ'have relatively a homogeneous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges; segregated faculties or universities for imparting general secular educa- tion are undesirable and that may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a 'melting-pot'. In our national life, the students and teachers are the critical ingredients. It is there they develop respect fo}, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions. [177U-C] H

p. 128

A 3.04 The access to academic institutions maintained or aided by the State funds is the special concern of Article 29(2). It 1·ecognises the right of an individual not to be discriminated based solely on the ground or a citizen's particular religion, race, caste, or having any particular language is absolutely prohibited in educational institutions maintained by the State or receiving aid out of State funds. It applies to minorities as well as to B non-minorities. When other qualifications being equal the religion, race, caste, language of a citizen shall not be a ground of preference or disability. Similarly, the words "any of them" as used in Article 29(2) are intended to give further emphasis that none of the grounds mentioned in the Article can be made the sole basis of discrimination. [177 F-H]

C 3.05. The fact that Article 29(2) applies to minorities as well as non- minorities does not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1). Article 29(~) deals with non-dis- crimination and it is available only to individuals. The general equality by non-discrimination is not the only goal of minorities. The minority rights under the majority rule implies more than non-discrimination and indeed, it begins with non-discrimination. Protection of interests and institutions and advancement of opportunity are just as important. Differential treat- ment that distinguishes them from the majority is a must to preserve their basic characteristics. [178 A-B]

3.06. The minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject, of course, in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institutions is intended to serve. But in no ca,se such intake shall exceed fif-ty per cent of the annual admission. The minority institutions shall make available at least fifty per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit. [183 D-E]

4.01. The minority competent to claim the protection of Article 30(1) (] of the Constitution, and on that account the privilege of establishing and maintaining educational institutions of its choice, must be a minority of persons residing in India. They must have formed a well-defined religious or linguistic minority. It does not envisage the rights of the foreign mis- sionary or institution, however, laudable their objects might be. After the Constitution, the minority .under Article 30 must necessarily mean those who form a distinct and identifiable group of citizens oflndia. Whether it

ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI 129 \ is "old stuff'' or "new product", the object of the institute should be genuine, and not devices. There should be nexus between the means employed and the ends desired. [156 D-F]

4.02:There must exist some positive index to enable the educational institution to be identified with religious or linguistic minorities. Article 30(1) is a protective measure only for the benefit of religious and linguistic minorities and it is essential, to make it absolutely clear that no ill-tit or camouflaged institution should get away with the constitutional protec- tion. [156 F]

5. The College has been constituted as a self-contained and autono- mous institution. It has preserved the right to choose its own Governing: C Body, and select and appoint its own Principal both of which have a great' contributing factor to maintain the minority character of the institution. It may also be noted that the Constitution of the College has been duly registered with the Registrar of Joint Stock Companies, Delhi Province~ as also the University of Delhi. The University has at no stage raised any objection about any of the provisions of the Constitution of the College. D From these facts and circumstances it becomes abundantly clear that St.Stephen's College was established and administered by a minority community, viz., the Christian community which is indisputably a relig- ious minority in India as well as in the Union Territory of Delhi where the College is located. [163 B-D] E 6.01. The minorities whether based on religion or language have the. right to establish and administer educational institutions of their choice. The administration of education;tJ1 institutions of their choice under Ar- ticle 30(1) means 'management of the affairs of the institution'. This man- agement must be free from control so that the founder of their nominees can mould the institution as they think tit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. But the standards of education are not a part of the management as such. The standard concerns the body politic, and is governed by considerations or the advancement of the country and .,I its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore, has the right to regulate the standard of education and allied matters. Minor.ity institu- tions cannot be permitted to fall below the standards .of excellence ex- pected of educational institutions. They cannot decline to follow the general pattern of education under the guise of e.xclusive right of manage- ment. While the management must be left to them, they may be compelled to keep in step with others. [165H-166C]

.;.......·"" ..

p. 130

A 6.02. The words" establish" and "administer" used in Article 30(1) are to be read conjunctively. 'Jhe right claimed by a minority community \ to administer the educational institution depends upon the proof of estab- lishm~nt of the institution. The proof of establishment of the institution, is ,_ thus a 'condition precedent for claiming the right to administer the institution. [156 CJ · B 6.03. The State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compul- sory affiliation since Article 30(1) is a special right to minorities to establish educational i!tStitutions of their ctioice. The minority institution has a distinct identity and the right to administer with continuance of suc,h C identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutiona.1 guarantee. The·~ight to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be.displaced or reorganised if the right is to be recognised and maintained. D Reasonable regulations, however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Article 30(1). [160 H-16f BJ·

6.04. Though Article 30(1) is couched in absolute terms in marked contrast with other fundamental rights in Part III of the Constitution, it has to be read subject to the power of the State to regulate education, edu- cational standards and allied matters. [166 EJ

6.05. The right to administer does not include the right to maladmin- ister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and stan- dard or against general laws such as laws relating to law and order, health, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shaU not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30{1). [168 F-H] H

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 131

6.06. Laws carving out the rights of minorities in Article 30(1) A ', ' however, must not be arbitrary, individual or unjustified; they must have a reasonable relation between the aim and the means employed. The individual rights will necessarily have to be balanced with competing minority interests. [183 A]

6.07. There is no provision in the Delhi University Act with overrid- B ing powers precluding the management of the College from exercising its right to administer the College as a minority institution. [161 CJ

7.01. The admission programme of the College has become a crucial instrument to promote the excellence of the institution and it forms part of the administration which the Coll.ege is entitled to have as a ntinority institution under Article 30(1) of the Constitution. The University cannot direct the College the dispense with its admission programme in the absence of proof of maladministration of the College. [163 G-H]

·7.02. The right to select students for admission is a part of admini~ stration. It is indeed an important facet of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. [169 A-B] 7.03. In the instant case, also the impugned directives of the Univer- sity to select students on the uniform basis of marks secured in the qualifying examii:tations would deny the right of St.Stephen's College- to admit students belonging to Christian community. It has been the experi- ence of the College that unless some concession is provided to Christian students they will have no chance of getting into the College. If they are thrown into the competition with the generality of students belonging to other communities, they cannot even be brought within the zone of consideration for the interview. Even after giving concession to a certain extent, only a tiny number of minority applicants would gain admission. [170 C-D]

.8.01. The purpose of the interview is not to reassess or remeasure the merits of the applicants in the qualifying examinations. The marks se- G cured in the qualifying examinations are indeed relevant for selection and the interview is only supplementary test. The College fixes different cut- off percentage qf matks in different subjects. The candidates are called for interview in the ratio of 1:4 or 1:5 depending upon the candidates choice of selection of courses of study. The interview is conducted by men of high integrity, calibre and qualification. They are men who deal with education H

......... ...-----...--~·-· -- '"

\

p. 132

.A and the students. During the interview, questions are asked to test the cand.idate's knowledge of the subject and his general awareness of the current problems. The student is also required to· furnish in the applica- tion form his intei:est, hobbie, values; career plan etc. Each member of the Interview Committee grades the performance of the candidates and the seltc'tiop is made for each course of study by taking into consideration the B opinion expressed by all tbe members of the Interview Committee. By consensus_ ~he final list of candidates is prepared. The selection is thus made on the basis of the candidate's academic record and performance at the interview keeping in mind his/her ~II rom1d competence, capacity to benefit from being in the College as well as potential to contribute to the life of College. Judging the performance by grading is a well known c method followed in the academic field. [170F-171AJ

8.02. The admission solely determined by the marks obtained by students, cannot be the best available objective guide to future aca~emic \ " performance. The College Admission Programme on the other hand, based on the test of promise and accomplishment of candidates seems to be better than the blind ~ethod of selection based on the marks secured in the qualifying examinatiotis. St. Stephen's College is not bound by the impugned circulars of the University.[172 B-C]

. 9.01. The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. Ther~ is also restraint on coltection of fees with the restraint on collection of fees, the minorities cannot'be saddled with the burden of maintaining educational institutions without grant-in-aid. They do not have economic advantage over others. It is not possible to have educational institutions without State aid. The minorities cannot therefore, be asked to maintain ed.ucational institutions on their own. [179 D-E) F 9.02.r There is no entitlement to State grant for minority educational institutions. There ~as only a stop-gap arrangement under Article 337 for the Anglo-Indian community to receive State grants. There is no similar provision for other minorities to get grant from the State. But under G Article 30(2), the State is under an obligation to maintain a quality of treatment in granting aid to educational Institutions. Minority institutions are not to b{! treated differently while giving financial assistance. They are entitled 'to get the financial assistance much the same way as the institu- ;tions of tlfo majority communities. [178G-179A]

H 9.03. The rec~ipt of State aid does not impair the rights in Article

_, --

ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI 133

30(1). The State can lay down reasonable conditions for obtaining grant- A in-aid and for its proper utilisation. The State has no power to compel minority institutions to give up their rights under Article 30(1). [179 BJ

9.04. The rights under Article 311~1) remain unaffected even after securing financial assistance from the Government. [179 DJ

10.01. The Constitution establishes secular d~mocracy. The animat- ing principle of any democracy is the equality of the people. But the idea that all people are equal is profoundly speculative. In order to treat some B - f, - persons equally, we must treat them differently. We have to recognise a .. fair degree of discriminations in favour of minorities. But it is impossible to have an affirmative action for religious minorities in religfous n~utral c way. In order to get beyond religion. We cannot ignore religion. We must first take account of religion. [181 GJ

10.02. The reservation to socially and educationally backward classes would serve the interests of the society at large by promoting the advance- ment of the weaker elements in the society. [182 BJ D

10.03. The concept of equality before the law and the prohibiti.ori of t certain kinds of discrimination do not require identical treatment. The, to equality means the relative equality, namely the principle treat· equally· what are equal and unequally what are unequal. To treat unequals differ- ently according to their inequality is not only permitted but required. E - {182 HJ State of Bombay v. Bombay Education Socie,i-y, [1955) 1 SCR 568; Sidhajbhai Sabhai v. State of Bombay and Anr., [1963) 3 SCR 837; Rev. · Father W.Proost and Ors. v. State of Bihar and .Ors., [1969] 2 SCR 73; Gandhi Faiz-Am-Col/ege Shahjahanpur v. University ofAgra andAnr., [1975] F 2 SCC 283. DA. V.Col/ege Jullundur v. State of Punjab, [1971) 2 SCC 269; A.P.Christian Medical Educational Society v. Government ofAndhra Pradesh, (1986] 2 SCR 749; Chikkala Samuel v. District Educational O/ficer, llydeta- bad and Anr., AIR 1982 A.P. 64; Rajershi Memoria/ Basic Training School v. The State of Kerala and Anr., AlR 1973 Ker.. 89; AzeezBasha v~ Union of India, (1968) lSCR 833; S.K.Patro v. State ofBihar, [l970] 1 SCR 112; Re: G Kerala Education Bill, 1957, {1959) SCR'99S; Siate of Ktfala v. Mothtr Pro- vincial, [1971] 1 SCR 734; Ahmedabad St. Xaviers College Soaiety v. Slate of Gujarat & Anr.. [1975] 1 SCR 173; Lily Kurian v. Lewina and Ors., (1979) 2 sec l24;Rt.Rev.MagrMarkNetto v.Governmemof Kera/a, [1979] 1 SCR 609; Director of School Education, Governl'l'llnl of Tamil Nadu v. Rev. Brother G. Arogiasamy, AIR 1971 Madras 440; R.Chitralekha and Ors. v. State of .H

p. 134

A Mysore and Ors., [1964) 6 SCR 308: A.Peeriakaruppan v. State of Tamil Nadu, [1971) 2 SCR 430; Miss Nishi Maghu and Ors. v. State of Jammu and Kashmir, [19~0) 4 SCR 95; Ajay Hasia etc. v. V.Khalid Mujib Sehravardi, .[1981) 2 SCR 79; Lila Dhar v. State of Rajasthan arid Ors., [1982) .1SCR320, Koshal Kumar Gupta v. State of,Jammu & Kashmir, [1984) 3 SCR 407; DN.Chanchala v. State of Mysore. [1971) Supp. SCR 608, State of Madras B v. Champakam Dorajrajan, [1951) 2 SCR 525; Mc Cullock v. Marryland, 4 Wheat 316 at 407; Cohens v. Virgina, 6 Wheat 264 at 387; University of California v. Allen Bakke, 438 U.S~265; Balaji v. State of Mysore, [1963) 1 · '~, Supp. SCR 43; Akhil Bhartiya Soshit Karamchari Sangh(Railway) v. Union ofIndia and Ors., [1981) 2SCR185; State of Kerala v.N.M.Thomasand Ors., [1976) 1 SCR 906, 933, referred to. c B.Shiva Rao: Framing ofIndia's Constitution - Select Documents, Vol.II P.298; CAD Vol VII 1949 pp. 895, 925; B.Shiva Rao: Framing of India's Constitution A Study, 1969 Ed.p.280, re- '• ferred to.

D N.M. Kasliwal, ].(Dissenting)

1.01. The aim or our Constitution is unity in diversity. It is to enrich the unity by making it assimilate the diversities, it is not to encourage fissiparous tendencies. The fundamental right guaranteed by Art.30(1) is not, therefore, to bAxtended so as to encroach upon other fundamental rights or to go contrary to the intentions of the founding fathers. [209 DJ

1.02. The framers or the Constitution were fuJly knowing the prob- lems of various communities having differentreJigions, distinct languages and diverse cultures. The whole edifice of our Constitution is based on secularism and so far as the minorities are concerned it was considered necessary that they should be aJlowed some rights in respect of establish- ing and administering educational institutions of their choice. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, scriptor~ure of its own were conferred the right to conserve the same. Education is a stro~g factor to unite the entire country and it was considered necessary that where ~my educational institution is maintained by the State or receives aid out of State funds then the right of equality was guaranteed to every citizen in the matter or admission. in such institution. If the ·minorities, based on religion. or language wanted to run any educational instit;ution without any aid out of State funds, there was no restriction placed upon the IJ!inoritits in· the matter of admission in such education institutions and they were free to

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 135 admit students of their community. But in a case where they were receiving aid out of State funds which money comes from contributions by, way of ta.'<es from every citizen of this cot:"'ltry~ then sut:h educational institutions run by the minorities had to fall in line with· all other educational institutions and were not entitled to deny admission to' any citizen on the ground or religion, race, caste, language or any of them. (208 C-EJ B

1.03. We cannot overlook that religious fundamentalism and linguis- tic parochialism leads to fissiparous tendencies and obstru,c~ the natk>nal unity as a whole. It is necessary tJtat minorities should join and be part and parcel of common stream of the country. The framers or the Constitution provided to conserve the distinct language, script or culture of any section c of CitiZfnS-ef-this country and granted right to minorities to establish and -- -administer educational institution of their choice. At.the same time clearly provided in Art. 28 that no religious instruction shall lie provided in any educational institution wholly maintained out of Stat~ funds. While in case of institution maintained or receiving aid out of state funds, no citiz~n shall · be denied admission on grounds only of religion, race, caste, language or any of them under Clause(2) of Article 29. Thete is no impedirnellhor obstruction in the right of minorities in imparting education in ·their own language and disseminating their culture by way of extra currkular activities and thus to conserve their own culture. Clause(l) of Art~ 29 Uo-es · not take away any such right nor puts any restrktion on tht minorities in running the educational institutions of their choice. It would be rather in the interest of the minorities to admit students of otHei' communities and I to disseminate their' own culture in a wider range ot tom.munity. For example, if Christians are running an educationafinstitution, they are free to have English as a medium of instruction. They can also ·teach· the high ideals and values of Christian religion. The· only t~triction is what is contained in Art. 28(3) which applies to any edutktional institution recognised by the State or receiving aid out of State funds irrespective of the same being a minority or majority institution. The restriction under Art.28(3) is that no person attending such educational institution shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution without his consent and in case such a person is ·minor without t!ie consent of his guardian. [208 F-209 CJ 1.04. A conspectus of the entire scheme or Part (III) of the Constitu- tion clearly goes .to show that the Constitution makers did not i.ntend to confer absolute rights on a religious or linguistic minority to establish ~nd administer educational institutions. Right to admission is curtailed by Art. H

p. 136

A 15(4) which enables the State to make any special provision for the advancement of any socially and educationally backward class of citizens or for the Scheduled Caste and Scheduled Tribes in the matter of admis- sion in the educational institutions receiving a.id from the State. Art. 28(3) imposes an other restriction according to which any person attending any educational institution recognised or receiving any aid by the State shall B not be required to take part in any religious instruction or to attend any religious worship imparted or conducted in such institution without the consent of such person or if such person is a minor without the consent of his guardian. Thus, even though a minority may have established an educational institution but if it receives aid or is recognized by the State, it is bound by the mandate of Art. 28(3). The third restriction is put by Art. C 29(2) according to which if such minority educational institution receives aid from the State funds then it cannot deny admission to any citizen on grounds only of religion, race, caste, language or any of them. Thus ~rticles 15-(~), 28(3) and 29(2) place express limitations qn the right given to minorities in Art. 30(1). (212 A-D]

D LOS. In any view of the matter if the College is receiving aid out of State funds it has to abide by the rigour of Art. 29(2) in the matter of admission of students in the College. [213 E]

1.06. St. Stephen's College and Allphabad Agricultural Institute are not entitled to claim any preferentiaJ/right of reservation in favour of E students of Christian Community as they are getting grant-in-aid. [213 G]

2.01. The controversy involved in the cases is between clause (2) of Art. 29 and Clause (1) of Art. 30. The framers of the c;onstitution were fully knowing about the necessity of granting protection to the interests of F · minorities but at the same time they wanted that if any educational institutions are run by receiving aid out of State funds then no citizen could be denied admission on grounds only of religion, race, caste, language or any of them. The rights conferred to the minorities under Art. · 29(1) or Art> 30(1) are enabling ones while clause (2) of Art. 29 is a mandate that'·in ·the matter of ~dmission in any educational institution G maintained by the-State-0r receiving aid all citizens would be treated equal and could not be denied admission on grounds only of religion race, caste, language or any of them. The right guaranteed under Art. 29(2) is a special right which would prevail over the general right guaranteed to the minorities under Art. 30(1). [202 F~G]

H 2.02 The right conferred on minority to. establish and administer

.I ' ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 137 ) .It educational institutions under Art. 30(1) of the Constitution is not absolute and is always subject to reasonable regulations. If a minority had estab· lished and is administering educational institution without receiving any aid out of the State funds then clause (2) of Art. 29 will not come into play. However, if such educational institution is receiving aid out of the State funds then it would be subject to the rigour of clause (2) of Art. 29 and it cannot deny admission on grounds only of religion, race, caste, language or any of them. If such institution gives preference or makes reservations for the candidates belonging to its own religion, then it is bound to cause inequality and discrimination with a candidate belonging to another religion and it would be a denial of admission on the ground of religion and . would be hit by Art. 29(2). [201 A-C] c 2.03. The right conferred under Art. 30 is a general right granted to all minorities, but if any educational institution esta~lished and admini- stered by such minority also gets the benefits of grant-in-aid out of the State funds then it has to fall in the line equally with all other educational institutions in the matter of admitting students in such institution and . cannot prefer or reserve any seats for students of its own religion. [201CJ D

2.04. Clause(2) of Art. 29 is a counterpart of the equality clause of Art. 15. There should be no discrimination against any citizen on the ground of religion, race, caste or language or any of them in the matter of admission into any educational institution maintained or aided by the State. Which clause(l) of Art. 29 protects the rights of a section of the E citizens having a distinct language, script or culture of its own, the right conferred by clause (2) is an individual right given to the citizen as such an<J not as a member of any community. This clause (2) offers protection to all citizens, whether they belong to majority or minority groups. Compared with Art. 15(1), it appears that 'sex' and 'place of birth' are omitted from Art. 29(2). Hence, educational institution intended exclu· F sively for men or women could be maintained by the State without vfolation of the Constitution. (201 D-FJ

2.05. Clause(l) of Art.30 grants a right to minority community to impart instruction to the children of its own commun.ity in institutions run G by it and in its own language. It confers two rights, (a) the right to establish an institution, (b) the riglit to administer it. The right of establishment means the bringing into being of an institution by a minority community. It matters not, if a single philanthropic individual with his own mearis funds the institution or the community at large contributes the funds. The next part of right relates to the administr~tion of such institution. Ad mini- H

p. 138

A stration means management of the affairs of the institution. This manage- 41.; ment must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the community in general and the institution in particular will be best served. There is, however, an exception to this and it is that the standards of education are not a part of management as such. These B standards concern the body politic and are adopted by considerations of the advancement of the country and its people. Therefore, if university es- tablished syllabi for examination that must be followed, subject however to special subjects which the institution may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not C bear directly upon management, although they may indirectly affect it. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern while the management must be left to them the·y may be compelled to keep in step with others. [201 G-202 C] D 2.06. Clause (l) of Art. 29 is complementary to the right conferred by clause (1) of Art. 30. A minority can effectively conserve.its distinct language, script or culture only if it has the right to establish educational institutions of its choice. However, the right-under Art.30(1) is a separate right independent of the considerations under Art.29(1). [202 E] E 3.01. The University can lay down regulatory measures in respect of colleges which are affiliated or constituent of such University. If such measures are reasonable and conducive to making the educational institu- tion an effective vehicle for education, the same cannot be challenged. F [189 E]

3.02. It is the fundamental duty of every educational institution in our country to provide opportunity of education and the suitability for - future academic performance can best be judged on the basis of marks secure,d in the qualifying examination a~d not by interview. [197 B] G 3.03 The right to seek higher education in the college is a right of every citizen of this country. Those neo rich or having political patronage or pull get preference iri admission based on interview. Those students who come from rural background or belong to weaker section of the -.. ; society though m_ore meritorious in academic distinction, generally remain at disadvantage in the method of interview. But those having more attractive physical appearance and dress rather than anything else or

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 139 those breezy and shiny type of candidate scores highly in the interview while the rough uncut diamonds may go unappreciated. (198 F-G]

3.04. The primary aim of the St.Stephen's College as mentioned in the Memorandum of St.Stephen's College, Delhi, Society is to prepare students of the college for University degrees and examinations and to offer instruction in doctrines of Christianity, which instruction must be in accordance with the teaching of the Church of North India. This object is fully achieved by admitting students on the basis of marks in qualifying examination rather than by interview. [198 H-199 A]

3.05. The selection of students out of the eligible candidates caJJed for interview, is based hundred per cent, i.e. solely on the basis of interview and this is clearly in violation of the decision given by the Constitution Bench of this Court in Ajay Hasia' s case, which has been consistently followed by this Court in latter cases, Ashok Kumar Yadav & ors. v. State of Haryana & Ors., [1985] Vol. 4 SCC 417, Mo/Under Sain Garg v. State of Punjab & Ors., [1991)]1 SCC 662 and Munindra Kumar & Ors. v. Rajeev Govil & Ors., (1991] 3 SCC 368. The maximum marks for interview can be D 15% and not more • [199 B-C]

3.06. St. Stephen's College is a constituent of the Delhi University and in bound by the Statutes Ordinances and other Rules and regulations made by the University which apply equally to its affiliated and constitu- ent colleges. It is the primary concern of the University to maintain E standards of education and in this regard if the advisory committee of the University has made the rule accepted by the Central Admission Commit- tee and the Vice Chancellor that the admissions to all the affiliated and constituent colleges shall be made on the basis of marks secured in the qualifying examination it is binding on St. Stephen's College also irrespec- F tive of its minority character. [196 C-D]

3.07. The primary concern of the University in the interest of student community as a whole is to afford equality of opportunity for studies at the graduate level' The method of interview in the present case results into discrimination and is violative of Art. 14 of the Constitution as. it has no G reasonable nexus with the object of affording an equality of opportunity of education at graduate level. [196 E]

3.08. St. Stephen's College is a constituent college of Delhi University and the University has issued the impugned notification dated 9th June, 1980 by which a uniform rule has been made that admissions to all the H

p. 140

A affiliated and constituent coJieges of the University should be made on the basis of marks secured in the qualifying examination. [195 G]

3.09. The method of interview adopted by the CoUege does not disclose as to how many percentage of marks are kept for interview in proportion to marks secured in qualifying examination. It is the right of every student to know in advance the basis of admission laid down by the College. [196 F]

3.10. It has not been shown as to how the minority character or the College will be effected or prejudiced if students belonging to non- Christian community are given admission solely on the.basis of marks obtained in the qualifying examination µnd not by interview. [196 G]

3.11. The method of interview adopted by the college goe.s to show that out of the candidates called for interview the final selection is based hundred per cent i.e. solely on the basis of interview and at this stage it has not been shown as to how much weight/percentage is given to the marks secured in the qualifying examination and how much to the interview proportionately. This method of selection is bound to result in arbitrar.y selection. [190 E-F] ..

3.12. Tht: method of interview is no remedy of malpractices in exami· nation or obtaining fake and forged certificates and mark-sheets. The E College in this regard is entitled to refuse admission to any student in whose case such malpractices are detected. [197 G]

3.13. Though there is no allegation of any malafules against the college in holding interview, but it cannot be forgotten that there is inherent weakness and infirmity in the system of interview itself in which subjective rather than objective satisfaction plays a niajor role. In this background the method of selection by interview alleged to be in vogue for a Jong period in St. Stephen's College cannot be considered as so sacro- sanct that the same cannot be annulled or changed even when such method does not find approval of the Delhi University. Admittedly the method of viva voce has no statutory or legislative sanction behind it nor is a method approved by any educational authorities at the stage of admitting students in the College after passing higher secondary or 10+2 examination. If all the other affiliated and constituent colleges of the Delhi University, except St. Stephen's College, are admitting students on the basis of marks · secured in the qualifying examinations and the University in its wisdom seeks to abolish method of interview and adopt a uniform rule, St.

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 141

Stephen's College is also bound to follow such rule and cannot object on the ground of Jong practice. [199 E-G]

3.14. The students who qualify for seeking admission in the degree course are generally of young age of 15 to 17 years and the personality of such students still remains to be developed and as such the only considera- tion for their. admission to degree courses should be their academic performance in the qualifying examination. [199 H]

3.lS. It has been stated in the prospectus that final selection will be made after interview. This goes to show that the management of the selection body has a full control in admitting or refusing admission according to their own choice and out of the eligible candidates any candidate can be refused admission on the basis of interview. [191 Bl

3.16. Action of the coUege in applying the method of interview contrary to the direction given by the University is whoJJy arbitrary, wrong and illegal and violative of Article 14 of the Constitution. [196 B]. D 4.01. It Is a well known rule of construction that special law prevails over the general law as contained in the maxim generalia specialibus non derogant. [202 HJ

4.02. The principle of harmonious construction does not require a Court first to produce disharmony by construction in order to resolve it thereafter by harmonious construction. The golden rule of interpretation is that words should be read in the ordinary,.,natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a Special provision dealing with the same subject, the special prevails over the general. If it is not constructed in that way the result would. be that the special provision would be whoJJy defeated. [212 D-EJ . . 4.03. While interpreting a provision of the Constitution no words can be imported or added. If the contention raised on behalf of the college is accepted then it would necessarily involve the importation of the words G "for their own community" in Art. 30(1). Clause(2) of Art. 29 does not make any exception to any educational institution established by the minorities and it clearly provides in unmistakable terms that it applies to any educational institution maintained by the State or receiving aid out of S!ate funds whether run by a minority or majority. [202 H-203 BJ H

p. 142

A R.Chitralekha & Anr. v. State of Mysore & Ors., [1964) 6 SCR 638; Ajay Hasia v. Khalid Mujib Sehravardi & Ors. etc., [1981) 2 SCR 79; A.Peeriakii.ruppam v. State of Tamil Nadu & Ors., [1971) 2 SCR 430; Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., [1985) 4 SCC 417; Mohinder Sain Garg v. State of Punjab & Ors., [1991) 1 SCC 662; Munindra kumar & Ors. v. Rajeev Govil & Ors., [1991) 3 SCC 368; State of Bombay v. B Education Society, [1955) 1 SCR 568; The State of Madras v. Shrimathi Champakam Dorairjan, [1951) SCR ~25; In Re Kera/a Education Bill, AIR 1965 SC 956; Sidhrajbhai v. State of Gujarat, [1963) 3 SCR 837; Katra Education Society v. State of U.P. and Others, [1966) 3 SCR 328; Gujarat University, Ahmedabad v; Ranganath Madholkar, [1961) Suppl. SCR 112; The Ahmedabad St.Xaviers College Society and Anr. etc. v. State of Gujarat C and Anr., [1975] 1 SCR 173 at p.298; DAV College etc. v. State of Punjab & Ors., [1971) Suppl. SCR 688 at p.695; In Re. The Kera/a Education Bill, 1957(Reference Case), [1959) SCR 995 at page 1047; Warbruton v. Love- land, [1832) 2D & CL. 400, referred to.

Public Personnel Administration: By Glenn Stahl, referred to. D ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1868of1900- (under Article 32 of the Constitution) ·

WITH

E W. P. no. 13213-14/84, T.C. no. 3/80

WITH

C.A.Nos. 1831-41/89, 1786/89 and F C.A.No. 2829 of 1989.

V.R.Reddy, Additional Solicitor General, Anil B. Diwan, M.K.Ramamurthi,R.K.Garg and AK.Sen, S.S.Shroff, Mrs. P.S.Shroff, R.Sasiprabhu, Syed Naqvi, Mrs. C. Ramamurthi, M.A.Krishnamoorthy, Anil G Kumar Gupta, Manoj Goel, Ashok Grover, H.L.Tiku, P.K.Chakravarti, A. Mariarputham, Mrs. Aruna Mathur, Narasimha (P.S.V.L.), Harish N. Salve, (N.P.) and Mrs. Shobha Dikshit for the appearing parties.