St.Stephen’s College Vs. The University of Delhi

Appeal: Writ Petition (Civil) No.1868 of 1980
WITH
W.P.NO.13213-14/84,T.C.NO.3/80 WITH C.A.NOS.1831-41/89 WITH
C.A. NO.1786/89 AND C.A.NO.2829/89

Petitioner: St.Stephen’s College

Respondent: The University of Delhi

Apeal: Writ Petition (Civil) No.1868 of 1980
WITH
W.P.NO.13213-14/84,T.C.NO.3/80 WITH C.A.NOS.1831-41/89 WITH
C.A. NO.1786/89 AND C.A.NO.2829/89

Judges: M.H. KANIA, K. JAGANNATHA SHETTY, N.M. KASLIWAL, M. FATHIMA BEEVI & YOGESHWAR DAYAL, JJ.

Date of Judgment: Dec 06, 1991

CONSTITUTION OF INDIA, 1950:

Articles 29 and 30(1) – Minority institutions – Whether St. Stephen’s College is a minority-run institution? – Held yes Delhi University Act, Statutes and Ordinances – College Society Rules, Rule 8. (Para 48)

CONSTITUTION OF INDIA, 1950:

Articles 29(1) and 30(1) – Minority institutions – Whether St.Stephen’s College as minority institution is bound by the University circulars dated June 5, 1980 and June 9, 1980 directing that the College shall admit students on the basis of merit of the percentage of marks secured by the students in the qualifying examinations? – Held no – College admission programme based on interview held not arbitrary – Kasliwal, J. dissenting.

Per K. Jagannatha Shetty, J. (For himself and on behalf of M.H. Kania, M. Fathima Beevi & Yogeshwar Dayal, JJ.)

The right to select students for admission is a part of adminisxtration. 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.

……………………………………..

The oral interview as a supplementary test and not as exclusive test for assessing the suitability of candidates for college admission has been recognised by this Court. But at the same time, to avoid arbitrariness in the selection it has been repeat-edly held that there shall not be allocation of high percentage of marks for oral interview test. Where candidate’s personality is yet to develop, it has been emphasised that greater weight has per force to be given to performance in the written examination and the importance to be attached to the interview test must be minimal. The Court has generally indicated that interview marks should not be more than 15 per cent of the total marks. (See: R.Chitralekha and ors. v. State of Mysore and ors; 17 A. Peeriakaruppan v. State of Tamil Nadu; 18 Miss Nishi Maghu and ors. v. State of Jammu and Kashmir; 19 Ajay Hasia etc. v. V.Khalid Mujib Sehravardi; 20 Lila Dhar v. State of Rajasthan and ors.;21 and Koshal Kumar Gupta v. State of Jammu & Kashmir.22.

There is nothing on record to suggest that the interview conducted by the Selection Committee was contrary to the principles laid down by this Court in the aforesaid decisions. We see neither any arbitrariness nor any vice or lack of scientific basis in the interview or in the selection. The interview confers no wide discretion to the Selection Committee to pick and choose any candidate of their choice. They have to select the best among those who are called for interview and the discretion is narrowly limited to select one out of every 4 or 5. In these premises, we would defer to the choice and discretion of the Selection Committee so long as they act properly and not arbitrarily and act within the recognised principles.

………………………………………………

As observed by this Court in D.N. Chanchala v. State of Mysore 23 the result obtained by a student in an examination held by one University cannot be comparable with the result obtained by another candidate in an examination of another University. Such standards depend on several human factors, method of teaching, examining and evaluation of answer papers. The subjects taught and examined may be the same, but the standard of examination and evaluation may vary, and the variations are inevitable. In the premises, the admission solely determined by the marks obtained by students, cannot be the best available objective guide to future academic 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 method of selection based on the marks secured in the qualifying examinations. We are, therefore, unable to accept the submission that the College Admission Programme is arbitrary and the University criteria for selection is objective. (Paras 62, 66 and 67)

1. A.P. Christian Medical Eductional Society v. Government of Andhra Pradesh, 1986 (2) SCR 749 (Paras 22,29)
2. Koshal Kumar Gupta v. State of Jammu & Kashmir, 1984 (3) SCR 407 (Para 65)
3. Chikkala Samuel v. District Educational Officer Hyderabad and Anr., AIR 1982 A.P. 64 (Para 23)
4. Lila Dhar v. State of Rajasthan and Ors., 1982 (1) SCR 320 (Para 65)
5. Ajay Hasia etc. v. V. Khalid Mujib Sehravardi, 1981 (2) SCR 79 (Para 65,)
6. Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of
India and Ors., 1981 (2) SCR 185 (Para 101)
7. Miss Nishi Maghu and Ors. v. State of Jammu and Kashmir, 1980 (4) SCC 95 (Para 65)
8. Lily Kurian v. Lewina and Ors., 1979 (2) SCC 124 (Para 60)
Rt. Rev. Magr. Mark Netto v. Government of Kerala, 1979 (1) SCR
609 (Para 62)
9. State of Kerala v. N.M. Thomas and Ors.,1976 (1) SCR 906, 933 (Para 100)
10. Ahmedabad St. Zaviers College Society v. State of Gujarat & Anr., 1975 (1) SCR 173 (Paras 57,80,97,135)
11. Gandhi Faiz-Am-College Shahjahanpur v. University of Agra and Anr., 1975 (2) SCC 283 (Para 21)
12. Rajershi Memorial Basic training School v. The State of Kerala and Anr., AIR 1973 Ker 89 (Para 24)
13. A.Peeriakaruppan v. State of Tamil Nadu, 1971 (2) SCR 430 (Para 65)
14. D.N. Chanchala v. State of Mysore, 1971 Supp. SCR 608 (Para 67)
15. D.A.V. College Jullundur v. State of Punjab, 1971 (2) SCC 269 (Para 21,91)
16. D.A.V. College etc. v. State of Punjab & Ors., 1971 Suppl. SCR 688. (Para 134)
17. Director of School Education Government of Tamil Nadu v. Rev.Brother G. Arogiasamy, AIR 1971 Madras 440 (Para 62)
18. State of Kerala v. Mother Provincial, 1971 (1) SCR 734 (Para 56)
19. S.K. Patro v. State of Bihar, 1970 (1) SCR 172 (Para 26)
20. Rev. Father W. Proost and Ors. v. State of Bihar and Ors., 1969 (2) SCR 73 (Paras 21,56,80)
21. Azeez Basha v. Union of India, 1968 (1) SCR 833 (Para 25)
22. Katra Education Society v. State of U.P. & Ors., 1966 (3) SCR 328 (Para 133)
23. R.Chitralekha and Ors. v. State of Mysore and Ors., 1964 (6) SCR 368 (Paras 65,122,125)
24. Balaji v. State of Mysore, 1963 (1) Supp. 43 (Para 98)
25. Sidhajbhai Sabhai v. State of Bombay and Anr., 1963 (3) SCR 837 (Paras 21,56,89,102,133)
26. Gujarat University, Ahmedabad v. Ranganath Madholkar, 1961 Suppl. SCR 112 (Para 133)
27. Re:Kerala Education Bill 1965 : AIR 1965 SC 956 (Para 149
28. Re:Kerala Education Bill 1957 : 1959 SCR 995 (Paras 56,80,82,89,90,91,98,135)
29. State of Bombay v. Bombay Education Society, 1955 (1) SCR 568 (Paras 21,56,85,133)
30. State of Madras v. Champakam Dorairajan, 1951 (2) SCR 525 (Paras 85,133)

Foreign Cases

1. Mc.Cullock v. Marryland : 4 Wheat 316 (Para 94)
2. Cohens v. Virginia : 6 Wheat 264. (Para 94)
3. University of California v. Allen Bakke, 438 U.S. 265 (Para 96)
4. Warbruton v. Loveland, (1832) 2D. & Cl. 400. (Para 142)

K.JAGANNATHA SHETTY, J :
INTRODUCTION
1. St.Stephen’s College at New Delhi and Allahabad Agricultural Institute at Naini are two of our premier and renowned institutions. The former has been affiliated to the Delhi University and the latter to the U.P. University. Both are aided educational institutions and getting grant from the State funds. They have their own admission programme which they follow every academic year. The admission programme provides for giving preference in favour of Christian students. It is claimed that they are entitled to have their own admission programme since they are religious minority institutions. The validity of the admission programme and the preference given to Christian students are the issues that need to be resolved in these cases. The questions are of great constitutional importance and consequence to all minority institutions in the country.
THE FACTS IN GENERAL
ST. STEPHEN’S COLLEGE
2. St. Stephen’s College was founded on February 1, 1881. It is the oldest College in Delhi. It was first affiliated to Calcutta University and then to Punjab University and thereafter to Delhi University. Upon affiliation to the Delhi University it became one of its three original constituent colleges. The College offers three years degree course in B.A./B.Sc.(Hons),B.A.(Pass) and B.Sc.General as well as two years Post-graduate degree course in M.A. and M.Sc. For the academic year 1980-81, the College published “Admissions Prospectus” on May 25, 1980, inter alia, providing that applications for admission for the first year course must be received in the College office on or before June 20, 1980. In the same prospectus, it was also provided that there would be interview prior to final selection of students for admission to the College. It appears that on May 22, 1980 the Vice-Chancellor of the Delhi University in exercise of his emergency powers under Statute 11-G(4) of the Statutes of the University, constituted an Advisory Committee to consider and recommend the dates for admission/registration to various undergraduate/ post-graduate courses in the Faculties of Arts and Social Sciences/Mathematics and Science for the academic session 1980-81 and for other related matters concerning admissions. The Constitution of the Advisory Committee was approved by the Academic Council in its meeting held on May 29, 1980 and the Academic Council also authorised the Vice-Chancellor to accept the recommendations of the Advisory Committee for implementation. The Advisory Committee, inter alia, laid down as follows:
“(i) Admission to B.A.(Pass)/B.A.Vocational Studies Courses be based on the merit of the percentage of marks secured by students in qualifying examination.
(ii) The admission to B.Com(Pass) B.A.(Hons.) and B.Com(Hons.) Courses be also on the basis of marks. However, the College may give weightage to marks obtained in one or more individual subjects in addition to the aggregate marks of the qualifying examination. But whenever weightage is proposed to be given to individual subject (s) by the College, it should be notified in advance to the students through the College Prospectus/Notice Board so that applicants seeking admission know in advance the basis of admission.
(iii) That last date for receipt of applications to all the under-graduate courses will be June 30, 1980 and this would be uniformly adhered to by all the Colleges.”
3. These recommendations were accepted by the Central Admission Committee and also by the Vice-Chancellor.
THE CIRCULARS OF THE UNIVERSITY
4. That on June 5, 1980 the University issued circular to all affiliated Colleges prescribing the last date for the receipt of applications as June 30, 1980. The circular also provided phased programme of admission as follows:
“A. First phase of admission For Students securing
45% of marks or above
i) Notification of first Wednesday 2nd
admission list by the July, 1980
colleges
Payment of fees (upto) Friday 4th July
1980 upto 4 PM
General note:
The number of names in all admission lists shall correspond to the number of seats available in the courses concerned. No student whose name appears in an admission list (or who quali fies on the basis of the percentage indicated in the list) shall be denied admission provided he/she pays the fees by the date and time stipulated.
ii) Notification of second Friday 4th July
Admission List by the 1980 6 PM
Colleges
Payment of fees Saturday 5th -Monday
7th July 1980 upto
4 PM
B. Second phase of For students
admission securing below 45%
but above 40% marks
Notification of Third Tuesday 8th July
admission List by 1980, 12.00 Noon
the Colleges
Payment of fees (upto) Thursday 10 July 1980,
4.00 PM
5. On June 9, 1980, the University issued another circular to Principals of all Colleges intimating inter-alia, that Admission to B.A.(Pass)/B.A.Vocational study courses be based on the merit of the percentage of marks secured by students in the qualifying examination. The admission to B.Com(Pass), B.A.(Hons) and B.Com(Hons) courses shall be on the basis of marks. However, the College may give weightage to marks obtained in one or more individual subjects in addition to the aggregate marks of the qualifying examination. But whenever, weightage is proposed to be given to individual subject(s) by the College, it should be notified in advance to the students through the College Prospectus/ Notice Board so that applicants seeking admission know in advance the basis of admission. This circular also provides certain guidelines for admission to sportsmen and persons with other distinctions.
6. The Delhi University Students Union had complained to the University authorities that the College was violating the University Statutes and Ordinances by fixing its own time schedule for receipt of applications as well as by stipulating interview before admission. On the basis of this complaint, the Registrar of the University wrote a letter dated June 9, 1980 requesting the Principal of the College to conform to the University schedule communicated to the College by the circular dated June 5, 1980. This was followed by some more correspondence between the College management and the Vice-Chancellor. The college management pointed out that at that late stage, it would not be possible to make any changes in their admission programme. There then the Vice-Chancellor addressed a letter dated 7/9th June 1980 to the Chairman of the Governing Body of the College stating that as per the decision of the Central Admission Committee, the last date for receipt of admission forms for under-graduate courses should be June 30,1980 and the stipulation of the College as June 20, 1980 for that purpose would be very embarrassing to the University authorities. The Vice-Chancellor again asked the College management to conform to the dates prescribed by the University.
7. The Principal of the College was not available at that time and in his absence, the Vice-Chairman of the College replied by letter dated June 12, 1980 to the Vice-Chancellor stating that “the interview of prospective students by a competent body is an integral part of admission procedure at St.Stephen’s College and this policy has been followed and highly valued throughout the history of the college…”. He thus indirectly pointed out that it was not possible for the College to adhere to the University Circulars. He however, assured the Vice-Chancellor that no admission list would be put up before July 2, 1980, the date prescribed by the University for publishing the first admission list.
A STUDENT MOVES THE DELHI HIGH COURT
8. When the matter thus stood, a student by name Rahul Kapoor seeking admission to the College for under-graduate course filed a Writ Petition No.790/80 in the High Court of Delhi under Article 226 of the Constitution, challenging the admission schedule of St. Stephen’s College and the interview test prescribed for candidates. The Writ Petition was filed on June 16, 1980. On June 30, 1980 the High Court passed an order directing the College, to receive the applications for admission till June 30, 1980 and also prohibiting the College from announcing the admission list, for which the prescribed date was 2nd July 1980 till the disposal of the Writ Petition. Incidentally, the High Court also observed that it had no option but to issue such an order since St.Stephen’s College had not challenged the validity of the University circulars dated 5th and 9th June, 1980. This Writ Petition has been the subject matter in the Transferred Case No.3 of 1980.
ST. STEPHEN’S COLLEGE MOVES THE SUPREME COURT
9. That in pursuance of these events, St.Stephen’s College moved this Court by means of a Writ Petition under Article 32 of the Constitution. We are primarily concerned with this Writ Petition (Civil) No.1868 of 1980. The averments in the writ petition are these: that St. Stephen’s College is a religious minority-run institution. It is a constituent College, like an affiliated college admitted to the privileges of the University, but not a maintained college. From the very beginning, the College has been exercising certain obvious and inherent managerial powers: one of them was to fix reasonable dates for admission and the other was for an interview of the candidates. These managerial functions have never been questioned or interfered with by the University. That even assuming, without conceding, that within the general power of the regulations, the University has power to prescribe the date for admission, this would be ex-facie violative of the fundamental right of the college as fixing of this schedule is ex-facie managerial. The management 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 interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.
10. It is further alleged that approximately 6000 applications are received by the College as against its 300 available seats. Because of its pre-eminent position, applications come from every part of the country. In subsequent years, more than 12000 applications were received. It would, therefore, be humanly impossible to process those applications within a day and to select 300 of the most suitable candidates with any semblance of fairness. Usually about 40% of the applicants are from outside; of the 300 to be admitted 100 are for admission to the hostel. The provision for the interview, which has been the procedure followed by the College since its inception, is an integral part of administration of the College. It is a part of its managerial function and it cannot be taken away by the University. The selection on the basis of only marks obtained by the candidates on the face of it would be unreasonable and violative of the fundamental right of the College guaranteed under Article 30 of the Constitution. With these and other contentions, the College prayed for a declaration that the circulars dated 5th and 9th June, 1980 issued by the University are void qua the College in view of its minority status.
11. This Court while issuing Rule Nisi in the said Writ Petition has stayed the operation of the circulars. In view of the stay granted by this Court, the College continued to follow its own admission policy, modality and schedule in the succeeding years.
THE DELHI UNIVERSITY STUDENTS’ UNION APPROACHES THE SUPREME COURT
12. The Delhi University Students’ Union is an intervenor in the Writ Petition No.1868 of 1980 filed by St. Stephen’s College. That subsequently for the admission year 1984-85,the Delhi University Students Union and Dr.Mahesh C.Jain filed W.P. Nos.13213-14/84 under Article 32 of the Constitution seeking a direction to St.Stephen’s College to follow all University policies, rules, regulations, ordinances regarding admissions etc. and further for a direction restraining the College from giving preference in favour of Christian students in the matter of admission to the College. It was alleged in the Writ Petition that the College has not been declared to be a minority college by any Court nor it is recognised as a minority college by the University. It was alternatively contended that even assuming that it is a minority college, it is not entitled to discriminate students on grounds of religion as the College is receiving maintenance grant from the Government. The discrimination of students for admission to the College based only on religion is contrary to the provisions of Article 29(2) of the Constitution.
THE CASE OF THE DELHI UNIVERSITY
13. The Delhi University in its affidavit-in-opposition has justified the issuance of the aforesaid circulars with reference to the provisions of the Delhi University Act, the Ordinance II and the relevant Statutes of the University. Reference is made to Statute 30 and the terms and conditions of Government grant to Colleges. It is said that every college shall comply with the Statutes, Ordinances and Regulations of the University. The College is required to comply with the directions given by the University regarding admission of students. Reliance is also placed on Ordinance XVIII which provides for constitution of a Staff Council in every college. All the members of the teaching staff, Librarian and the Director of Physical Education constitute the Staff Council. The Principal is the ex-officio Chairman of the Staff Council. The functions of the Staff Council are provided in sub-clause(5) of Clause 6-A of Ordinance XVIII. One of the functions assigned to the Staff Council is to make recommendations regarding formulation of admission policy within the framework of the policy laid down by the University. The College however, cannot lay down its own admission policy so as to be in conflict with the policy laid down by the University. Like all other colleges admitted to the privileges of the University, St.Stephen’s College is also in receipt of maintenance grant from the University Grants Commission. Since the College is receiving aid out of State funds, it is not entitled to practise discrimination in the matter of admission on the ground of religion and/or language. This is plainly contrary to the mandate of Article 29(2) of the Constitution. The circulars of the University containing directions as to admission of students to affiliated colleges do not infringe in any manner the fundamental rights of the body administering the College, assuming without admitting that such a body is entitled to claim a fundamental right under Article 30 of the Constitution. The College, therefore, is bound to follow the two directions in question which have been given by the University to all colleges alike in exercise of its statutory power under the relevant Ordinances of the University.
THE ALLAHABAD AGRICULTURAL INSTITUTE
14. This is a professional college which offers several courses of study in Agricultural Sciences. It is undisputedly an institution established and administered by the Christian religious minority. In 1911, it was founded by Christians under the leadership of Dr.Sam Higginbothom. It is now located on the right bank of Jamuna river at a tiny place called Naini in the famous pilgrimage and education centre of Allahabad. It has 600 acres campus including staff quarters, men’s and women’s hostels, library and administration buildings with ten departments and auxiliary units of the Institute. The Institution imparts education in several courses of study, like Inter Agriculture, Inter Home Science, Indian Dairy Diploma (IDD), B.Sc. in Agriculture, B.Sc. Home Economics, B.Tech. in Agricultural Engineering, M.Sc. in Agriculture and M.Sc. in Agricultural Engineering. It claims to be a national institute and every year it holds entrance test at different centres. It has prescribed the rules of admission to 1st year of each degree/diploma programme as follows:-
1. Church Sponsored students from the whole country of which at least 1/5th shall be from U.P. Minimum 50%
2. Students of U.P. Domicile including Church sponsored coming on merit ranking 40 %
3. Students from other States including foreign students but excluding U.P. and Church-sponsored students 5%
4. Tribals 5%
15. In order to strengthen the spirit of national integration and to bring about the All Indian character of Institute, the distribution of the seats will be as follows:
Zones:
North : Himachal Pradesh, Jammu & Kashmir, Punjab, Haryana, Rajasthan Bihar, Bengal and Delhi 40 %
South : Orissa, Andhra, Tamil Nadu, Kerala, Karnataka, Pondicherry, Goa,
West : Gujarat, Maharashtra, Madhya Pradesh 10%
North-West : Assam, Arunachal, Mizoram, Nagaland, Manipur, Meghalaya, Tripura and Sikkim 20%
(2) Scheduled Caste students who qualify the Entrance Test and old students will be adjusted in each of respective quota and zones first.
(3) In each of the categories only those who have qualified in the entrance test will be considered and admitted strictly in order of merit within each list,
(4) Disciplinary action – Any student who has a disciplinary action taken against him/her will not be admitted to any course in this Institute.
(5) Not less than 25% of the enrolment shall be women students.”
16. The students who have been denied admission by this Institute filed Writ Petitions under Article 226 of the Constitution in the Allahabad High Court challenging the reservation and admission of Church sponsored Christian students. The High Court has allowed the writ petitions declaring that the policy of reservation for Christian students is contrary to the equality guaranteed to citizens under Article 29(2) of the Constitution.
17. Being aggrieved by the decision of the High Court, the Institute by obtaining certificate under Article 133(1)(a) of the Constitution has preferred Civil Appeal Nos.1831-41 of 1989. Civil Appeal Nos.1786/89 and 2829/89 are by some of the students. They are connected appeals against the same judgment of the Allahabad High Court.
QUESTION OF LAW
18. A great many questions were debated before us in the course of hearing. The important issues can be grouped under three main heads:
First : Whether St.Stephen’s College is a minority-run institution ?
Second: Whether St.Stephen’s College as minority institution is bound by the University circulars dated June 5, 1980 and June 9, 1980 directing that the College shall admit students on the basis of merit of the percentage of marks secured by the students in the qualifying examinations ?
Third: Whether St. Stephen’s College and the Allahabad Agricultural Institute are entitled to accord preference to or reserve seats for students of their own community and whether such preference or reservation would be invalid under Article 29(2) of the Constitution ?
19. The first two questions are relevant only to St. Stephen’s College and they do not arise in the case of Allahabad Agricultural Institute since there is no dispute as to the minority character of that institute. There is also no grievance by the U.P. University with the procedure of selection of candidates followed by the institute. The third question, of course, is relevant to common problems of both the institutions.
20. We may take up these questions in turn, but before doing so, we may briefly refer to some of the cases where similar problem came up for consideration.
21. In State of Bombay v. Bombay Education Society1 the concerned school known as Bernes High School at Deolali in Nasik District in the State of Bombay was recognised as that of belonging to Anglo-Indian community whose mother is English. There was thus little difficulty for the Court to accept the claim of the Anglo-Indian School that it was a linguistic minority institution entitled to protection under Article 30(1) of the Constitution. In Sidhajbhai Sabhai v. State of Bombay and anr.2 this Court was concerned with a Training College for teachers, known as the “Mary Brown Memorial Training college”, at Borsad, District Kaira. The cost of maintaining the training college was met out of donations received from the Irish Presbyterian Mission, fee from scholars and grant-in-aid under the Education Code of the State Government. The College and other forty-two primary schools are run for the benefit of the religious denomination of the United Church of Northern India and Indian Christians generally, though admission is not denied to students belonging to other communities. The Training College was therefore, held to have been established and administered by the Christian minority. In Rev. Father W.Proost and ors. v. State of Bihar and ors,3 there was again no serious dispute that the institution concerned i.e. St.Xavier’s College was founded by Jesuits of Ranchi, who were a Christian minority. In Gandhi Faiz- Am-College Shahjahanpur v. University of Agra and anr.4 the appellant was a registered society formed by the members of the Muslim community at Shahjahanpur.It was running the G.F.College. The management claimed protection of Article 30(1) against interference by the Agra University. The Court proceeded on the basis that the community ranks as a minority in the country and the educational institution run by it has been found to be what may loosely be called a ‘minority’ institution, within the constitutional compass of Article 30. This conclusion was reached on a rapid glance at the evolution of the Institution. In D.A.V. College Jullundur v. State of Punjab,5 the College established by Arya Samaj in the State of Punjab claimed protection under Articles 29(1) and 30(1) of the Constitution. It was conceded by the State of Punjab that the Hindus of Punjab are a religious minority in the State though they may not be so in relation to the entire country. The claim of Arya Samaj to be a linguistic minority was, however, contested. This Court observed that linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language, but it is not necessary that that language should also have a distinct script of its own. The Sections of people who speak a language which has no script will also be a linguistic minority entitled to protection of Article 30(1). Since Arya Samaj have a distinct script of their own, namely Devnagri, this Court held that they are entitled to invoke the right guaranteed under Article 29 (1) because they are a section of citizens having a distinct script. They are also held entitled to the right under Article 30(1) because of their being a religious minority in the State of Punjab. It was also observed that the religious or linguistic minorities need not be so in relation to the entire population of the country and it is enough if they are so in relation to the particular legislation or the State concerned. After referring to the history of Arya Samaj, it was stated that though the Hindu Community is a majority community in the whole of India, the Arya Samaj which comprise of members of the Hindu Community, is a religious minority in Punjab and that they are entitled to claim the right under Articles 29(1) and 30(1) since the College was established and administered by that religious minority with a script of its own.
22. In a more recent case A.P.Christian Medical Educational Society v. Government of Andhra Pradesh6 the appellant was a registered society. It claimed to have established and administered a medical college as a Christian Minorities Educational Institution. It went on admitting students for the medical college and claimed protection under Article 30(1). The State Government refused permission to establish the College. The University also refused affiliation. When the matter came before this Court, it was observed that the Government, the University and ultimately the Court have the undoubted right to pierce the ‘minority veil’ and discover whether there is lurking behind it no minority at all and in any case no minority institution. The minority institutions must be educational institutions of the minorities in truth and in reality and not mere masked phantoms. It was emphasized that what is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities.
23. In Chikkala Samuel v. District Educational Officer Hyderabad and anr.7 the Andhra Pradesh High Court observed that minority institution imparting general secular education in order to claim the benefit of Article 30(1) must show that it serves or promotes in some manner, the interest of the minority community or a considerable section thereof. Without such proof, it was said that there would be no nexus between the institution and the minority as such.
24.In Rajershi Memorial Basic training School v. The State of Kerala and anr.8 the Kerala High Court said that the mere fact that the school was founded by a person belonging to a particular religious persuation is not at all conclusive on the question. The petitioner has to prove by production of satisfactory evidence that the school in question was one established and administered by a minority whether based on religion or language.
25. In Azeez Basha v. Union of India 9 the challenge was mainly directed to certain amendments made in the Aligarh Muslim University Act, 1920 by the Amendment Act of 1951 and also of 1965. The petitioners took the plea that by the amendments made in 1965, the management was deprived of the right to administer Aligarh Muslim University and that this deprivation was in violation of Article 30(1) of the Constitution. Having regard to the nature of the contention raised, it was found necessary for this court to make a detailed study of the history of the Aligarh Muslim University in the light of the provisions of the University Act, 1920. The Court observed that although the nucleus of Aligarh Muslim University was the Mohammadan Anglo-Oriental College which was till 1920 a teaching institution, the conversion of that College into the University was not by the Muslim minority but it took place by virtue of the Act of 1920 which was passed by the then Central Legislature. As there was no Aligarh Muslim University existing till the Act of 1920 and since it was brought into being by the Act of Central Legislature, the Court refused to hold that it was established by the Muslim minority. It was also concluded that there is no proof to justify the claim that the Aligarh Muslim University owed its establishment to the Muslim minority and they, therefore, have no right to administer the University by virtue of the fundamental right guaranteed under Article 30(1).
65. The oral interview as a supplementary test and not as exclusive test for assessing the suitability of candidates for college admission has been recognised by this Court. But at the same time, to avoid arbitrariness in the selection it has been repeatedly held that there shall not be allocation of high percentage of marks for oral interview test. Where candidate’s personality is yet to develop , it has been emphasised that greater weight has per force to be given to performance in the written examination and the importance to be attached to the interview test must be minimal. The Court has generally indicated that interview marks should not be more than 15 per cent of the total marks. (See: R.Chitralekha and ors. v. State of Mysore and ors;17 A. Peeriakaruppan v. State of Tamil Nadu;18 Miss Nishi Maghu and ors. v. State of Jammu and Kashmir;19 Ajay Hasia etc. v. V.Khalid Mujib Sehravardi;20 Lila Dhar v. State of Rajasthan and ors.;21 and Koshal Kumar Gupta v. State of Jammu & Kashmir.22.
66. There is nothing on record to suggest that the interview conducted by the Selection Committee was contrary to the principles laid down by this Court in the aforesaid decisions. We see neither any arbitrariness nor any vice or lack of scientific basis in the interview or in the selection. The interview confers no wide discretion to the Selection Committee to pick and choose any candidate of their choice. They have to select the best among those who are called for interview and the discretion is narrowly limited to select one out of every 4 or 5. In these premises, we would defer to the choice and discretion of the Selection Committee so long as they act properly and not arbitrarily and act within the recognised principles.
67. The College seems to have compelling reasons to follow its own admission programme. The College receives applications from students all over the country. The applications ranging from 12000 to 20000 are received every year as against a limited number of 400 seats available for admission. The applicants come from different institutions with diverse standards. The merit judging by percentage of marks secured by applicants in different qualifying examinations with different standards may not lead to proper and fair selection. It may not also have any relevance to maintain the standards of excellence of education. As observed by this Court in D.N. Chanchala v. State of Mysore23 the result obtained by a student in an examination held by one University cannot be comparable with the result obtained by another candidate in an examination of another University. Such standards depend on several human factors, method of teaching, examining and evaluation of answer papers. The subjects taught and examined may be the same, but the standard of examination and evaluation may vary, and the variations are inevitable. In the premises, the admission solely determined by the marks obtained by students, cannot be the best available objective guide to future academic 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 method of selection based on the marks secured in the qualifying examinations. We are, therefore, unable to accept the submission that the College Admission Programme is arbitrary and the University criteria for selection is objective.
68. So in the end we are driven to conclude that St.Stephen’s College is not bound by the impugned circulars of the University.
THIRD QUESTION
69. Whether St.Stephen’s College and the Allahabad Agricultural Institute as minority institutions are entitled to accord preference in favour of or reserve seats for candidates belonging to their own community and whether such preference or reservation would be invalid under Article 29(2) of the Constitution ?
70. It is not in dispute that St. Stephen’s College and Allahabad Agricultural Institute are receiving grant-in-aid from the Government. St.Stephen’s College gives preference to Christian students. The Allahabad Agricultural Institute reserves fifty per cent of the seats for Christian students. The Christian students admitted by preference or against the quota reserved are having less merit in the qualifying examination than the other candidates. The other candidates with more merit are denied admission on the ground that they are not Christians.
71. It was argued for the University and the Students Union that
since both the institutions are receiving State aid, the institutional preference for admission based on religion is violative of Article 29(2) of the Constitution. The institutions shall not prefer or deny admission to candidates on ground of religion. For institutions, on the other hand, it was claimed that any preference given to the religious minority candidates in their own institutions cannot be a discrimination falling under Article 29(2). The institutions are established for the benefit of their community and if they are prevented from admitting their community candidates, the purpose of establishing the institutions would be defeated. The minorities are entitled to admit their candidates by preference or by reservation. They are also entitled to admit them to the exclusion of all others and that right flows from the right to establish and administer educational institutions guaranteed under Article 30(1).
72. We are concerned in this question with discrimination, and mainly with discrimination on ground of religion in the aided educational institutions. The issue involves the citizen’s entitlement as a part of his personal liberty not to be discriminated on the ground of religion as against the minority’s right in their own educational institution. This is the most difficult and complicated issue and is seemingly not covered by any authority of this Court. The determination of the issue mainly depends upon the constitutional compass of Articles 29(2) and 30(1) of the Constitution.
THE VIEWS EXPRESSED BY THE ALLAHABAD HIGH COURT
73. Before grappling with the issue, we may turn to the decision of the High Court of Allahabad which is under appeal before us. The students were denied admission though they had secured a high percentage of marks in the competitive test held by the Institute. The denial was in view of the fact that a large number of seats had been reserved for Church sponsored candidates and tribals. The contention of the petitioners was that the reservation was violative of Article 29(2) since it was based on religion. The High Court accepted the contention and inter alia, held that the denial of admission to more merited candidates on the ground of religion was impermissible. The institution also could not reserve seats for members of its community. The constitutional concept of religious autonomy in education in Article 30(1) has to be balanced with the constitutional guarantee under Article 29(2). Both the Articles operate in the same field namely; educational institutions. The right guaranteed to minorities under Article 30(1) 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). The High Court has finally observed that the right of admission which vests in an institution by virtue of the power of administration under Article 30(1) cannot be in violation of Article 29(2).
74. It seems to us that the High Court has followed the liberal
individualist theory. The liberal individualist theory is generally the Western political theory since the period of the American and French revolutions. The High Court gave little or no attention to the positive minority rights with respect to language, religion, education and cultural rights guaranteed under the Constitution. It has failed to consider the predominating emphasis expressed in Article 30(1). It has overlooked the difference in perspective underlying in Articles 29(2) and 30(1).
PRE-NATAL HISTORY OF MINORITY RIGHTS
75. The minorities do not stand to gain much from the general Bill of Rights or Fundamental Rights which are available only to individuals. The minorities require positive safeguards to preserve their minority interests which are also termed as group rights. The safeguards and group rights have been the part of our Constitution making. It is interesting to observe the history perspective of Articles 29 and 30. The Advisory Committee constituted by the Constituent Assembly dealing with the question of minorities made the following recommendations 24 :
“(i) Minorities in every unit shall be protected in respect of their language, script and culture, and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect.”
(ii) No minority-whether based on religion, community or lan guage – shall be discriminated against in regard to admission into state educational institutions, nor shall any religion, instruction be compulsorily imposed on them.
(a) All minorities-whether based on religion, community or language – shall be free in any unit to establish and administer educational institutions of their own choice; and
(b) The State shall not, while providing State aid to schools discriminate against schools under the management of minorities whether based on religion, community or language.”
76. At the drafting stage, these recommendations were finally reformulated as draft Article 23 with certain crucial changes. The Drafting Committee itself sought to make a distinction between the right of any section of the citizens to conserve its language, script or culture, and the right of minorities based on religion or language to establish and administer institution of their choice. With this distinction in view, the word ‘minority’ had been replaced with the term ‘any section 24. B.Shiva Rao, Framing of India’s Constitution Select Documents, Vol. II p. 298
of the citizens’, in the earlier part of the draft Article 23 corresponding to the present Article 29(1). The Drafting Committee, however, had retained the word ‘minority’ in the latter part
of draft Article, which later became the present Article 30(1).25
77. With regard to prohibition of discrimination against minorities in admission, it was all along felt that the right should extend to State-aided institutions as well. But the Drafting Committee here also made changes and substituted draft clause(2) of Article 23 with the present Article 29(2) and that was accepted.26
78. Dr. Ambedkar explained the reasons for this change, while replying in the debate dealing with some of the amendments. He said that the term ‘minority’ was used in the earlier draft not merely to indicate the minorities in the technical sense of the word but were minorities nonetheless. Since the word ‘minority’ was capable of a narrow interpretation and the intention was to provide protection in the matter of culture, language and script in a wider sense, the Drafting Committee had dropped the word ‘minority’ and used instead the term ‘any section of the citizens’.He pointed out:27
“That the Article was an improvement on the draft Article. The original provision only cast a duty upon the State to protect the culture, script and language of the minorities. It gave no fundamental right to these communities. “It only imposed the duty and added a clause that while the State may have the right to impose limitations upon these rights of language, culture and script, the State shall not make any law which may be called oppressive; not that the State has no right to make a law affecting these matters, but that the law shall not be oppressive….the protection granted in the original article was very insecure. It depended upon the goodwill of the State. The present situation as you find it….is that we have converted that into a fundamental right, so that if a State make any law which was inconsistent with the provisions of this Article, then that…..law would be invalid.”
79. These are the reasons that prompted the incorporation of measures of fundamental rights for protection of interests of minorities.
ARTICLE 29(1) AND 30(1) OF THE CONSTITUTION
80. Having set the scene, we can deal with the provisions of Articles 29(1) and 30(1) relatively quickly. 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 Article 29(1), the minorities – religious or linguistic – are entitled to establish and administer educational institutions to conserve their distinct language, script or culture. However, it has been consistently held by the Courts that 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. (See: Father W.Proost v. State of Bihar; 3 Ahmedabad St.Xavier’s College v. State of Gujarat;13 and Re:Kerala Education Bill case.11)
ARTICLES 29(2) AND 30(1) OF THE CONSTITUTION
81. Indeed, we should steer clear of the two extreme arguments urged for the institutions. Counsel for the institutions contended that the preference given to minority candidates in their own educational institution is not violative of Article 29(2). Such preference is not solely on the basis of religion but on the ground that the candidate belongs to a minority community. It was also urged that the minorities in the exercise of their right in Article 30(1) are entitled to establish and administer educational institutions for the exclusive advantage of their own community candidates. So far as the first point is concerned, it may be noted that 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 educational institution 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.
82. Equally, it would be difficult to accept the second submission that the minorities are entitled to establish and administer educational institutions for their exclusive benefit. 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. It was pointed out in Re:Kerala Education Bill (*11) that the minorities 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 community”. In the absence of such words it is legally impermissible to construe the Article as conferring the right on the minorities to establish educational institution for their own benefit.
83. Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have relatively a homogenous 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 education are undesirable and they 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 for, 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.
84. The core of the argument of counsel for the University and Students Union is that the minority institutions getting Government aid are bound by the mandate of Article 29(2) and they cannot prefer their own candidates. We may start with Article 29(2).
85. Article 29(2) provides:
“29(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”
86. The access to academic institutions maintained or aided by the State funds is the special concern of Article 29(2). It recognises the right of an individual not to be discriminated under the aegis of religion, race, caste, language or any of them. This is one of the basic principles of a secular State. The discrimination based solely on the ground of 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 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. (See: State of Madras v. Champakam Dorairajan28 and Bombay Education Society case1.
87. 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(2) deals with non-discrimination 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 treatment that distinguishes them from the majority is a must to preserve their basic characteristics. To be blunt, black men do not wish to be white. Jews do not wish to be Protestants. Serbs do not want to be Croats. French Canadians do not want to lose their French heritage. There are many other instances, including the Corsicans in France, the Irish Catholics in Ulster, the French Canadians in Quebec, the Albanians in Kosovo, Yugoslavia, the Tamils in Sri Lanka, the Islamic separatists in the Philippines, and the Animist and Christian minorities in southern Sudan. The problem in India is not quite different. 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 considerations. 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. Article 27 of the International Covenant on Civil and Political Rights (1966) also lays a foundation in this regard. It states : “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”.
88. Yet another submission which counsel argued is that in a secular democracy the Government fund cannot be utilised to promote the interests of any particular community and Article 29(2) interdicts only when the minority institution seeks and gets State financial aid and the minority institution is not entitled to State aid as of right.
89. It is quite true that there is no entitlement to State grant for minority educational institutions. There was 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 Article 30(2), the State is under an obligation to maintain equality of treatment in granting aid to educational institutions. Minority institutions are not to be treated differently while giving financial assistance. They are entitled to get the financial assistance much the same way as the institutions of the majority communities.
90. Second, the receipt of State aid does not impair the rights in Article 30(1). The State can lay down reasonable conditions for obtaining grant-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). (See: Re:Kerala Education Bill case11 and Sidhajbhai case.2) In the latter case, this Court observed (at 856-857) that the regulation which may lawfully be imposed as a condition of receiving grant must be directed in making the institution an effective minority educational institution. The regulation cannot change the character of the minority institution. Such regulations must satisfy a dual test; the test of reasonableness, and the test that it is regulative of the educational character of the institution. It must be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. It is thus evident that the rights under Article 30(1) remain unaffected even after securing financial assistance from the Government.
91. The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said that there is also restraint on collection of students 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. This was also the view expressed by Das, C.J., in Re: Kerala Education Bill case. *11 The minorities cannot therefore, be asked to maintain educational institutions on their own.
92. It was argued that Article 30(1) is subject to Article 29(2) and in support thereof, the observations in DAV College *5 and Re:Kerala Education Bill11 cases were relied upon. In DAV
College case this Court explained the respective scopes of Articles 29(1) and 30(1) and said (at 273) that Article 29(1) is wider than Article 30(1). Rights guaranteed under Article 29(1) are available to any section of the citizens including the minorities while the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. The right of a religious or linguistic minority to establish and administer educational institutions of its choice under Article 30(1) is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Article 29(2) which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them. In Re:Kerala Education Bill case 11 it was pointed out (at 1047) that the right in Article 30(1) is subject to Article 29(2) which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
93. The Court however, was not deciding the question that has now arisen before us. The Court only made a passing reference to the right in Article 30(1). The aspects which now presented were never considered by the Court. In fact the issue which we are called upon to consider as to the right of minorities to prefer their community candidates in their educational institutions did not come up for consideration before the Court. We are on virgin soil, not on trodden ground.
94. 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 or Article 30(1). Article 30(1) was incorporated 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 deliberation by the Framers. It should not be nullified by narrow judicial interpretation or crabbed pedantry. There must be a broad approach and the Statesman-like vision. The catholic approach that led to the drafting of the provisions dealing with the minority rights, as discussed earlier, 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. ((See: the observations of Khanna,J., in St.Xavier’s case 13 (at 234))
95. India is very much a Nation in the making. There are linkages and connections in the multilayered mix up. There are concern and considerations underlying the provisions relating to minority rights. There are shared understanding and expectations of the founding fathers. The constitutional construction without such concern and consideration and without such shared understanding and expectations is bound to be inadequate. It would be profoundly anti-historic and likely to produce constitutional nihilism with calamitous consequences. “We must never forget” said the Chief Justice Marshal “that it is a Constitution we are expounding” 29, an instrument “framed for ages to come, and …… designed to approach immortality as nearly as human institution can approach”. 30.
96. We have been referred to the decision of the American Supreme Court in University of California v. Allen Bakke31 where the claim of Bakke for regular admission was rejected by California Medical School, in view of the preference shown in favour of certain disadvantaged candidates who were admitted under the Special Admission Programme. The American Supreme Court struck down the Special Admission Programme as unconstitutional since it was based on race as a determining factor in admission. The decision in Bakke’s case rested on the Civil Rights Act of 1964 and the Fourteenth Amendment to the American Constitution. The decision, however, is of little assistance to the case before us since the Constitution of the United States contains no provision similar to Article 30(1) of our Constitution.
THE MINORITY RIGHTS AND BALANCING INTERESTS
97. We have elsewhere pointed out that the minorities have 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 their own religion (see: the observations of Mathew,J., at 253 in St. Xavier’s case 13
98. The collective minority right is required to be made functional and is not to be reduced to useless lumber. 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(1), between letter and spirit of these Articles, between traditions of the past and the convenience of the present, between society’s need for stability and its need for change.
99. The Constitution establishes secular democracy. The animating principle of any democracy is the equality of the people. But the idea that all people are equal is profoundly speculative. It is well said that in order to treat some persons equally, we must treat them differently. We have to recognise a fair degree of discrimination in favour of minorities. But it is impossible to have an affirmative action for religious minorities in religious neutral way. In order to get beyond religion, we cannot ignore religion. We must first take account of religion. It is exactly in the spirit of these considerations that this Court in its advisory opinion in Re: Kerala Education Bill case 11 recognised a fair degree of discrimination in favour of religious minorities. In this respect the Court seems to have acted on the same principle which is applied to socially and educationally backward classes, that is the principle of protective discrimination. In Balaji v. State of Mysore 32 while examining the validity of reservation to socially and educationally backward classes under Article 15(4) Gajendragadkar,J., as he then was, pointed out that the reservation to socially and educationally backward classes would serve the interests of the society at large by promoting the advancement of the weaker elements in the society.
100. In State of Kerala v. N.M. Thomas and ors. 33 Ray, C.J., while dealing with the concept of equality guaranteed by Article 14, 15(1) and 16(1) with reference to the preferential treatment for backward classes observed that preferential treatment for members of the backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality for opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason.
Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible objects. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.
101. In Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India and ors., 34 Chinnappa Reddy,J., while explaining the inter-relationship of Article 16(1) and 16(4) said that Article 16(4) is not in the nature of an exception to Article 16(1). It is a facet of Article 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an under-privileged and deprived classes of citizens. It is illustrative of what the State must do to wipe out the distinction between egalite to droit and egalite de fait. It recognises that the right to equality of opportunity includes the right of the under privileged to conditions comparable to or compensatory of those enjoyed by the privileged. Equality of opportunity must be such as to yield equality of results and not that which simply enables people, socially and economically better placed to win against the less fortunate, even when the competition is itself otherwise inequitable.
102. It is now an accepted jurisprudence and practice that the concept of equality before the law and the prohibition of certain kinds of discrimination do not require identical treatment. The equality means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal. To treat unequals differently according to their inequality is not only permitted but required.
103. Laws carving out the rights of minorities in Article 30(1) however, must not be arbitrary, invidious 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. In Sidhajbhai case2 the Government order directing the minority run college to reserve 80 per cent of seats for Government nominees and permitting only 20 per cent of seats for the management with a threat to withhold the grant-in-aid and recognition was struck down by the Court as infringing the fundamental freedom guaranteed by Article 30(1). Attention may also be drawn to Article 337 of the Constitution which provided a special concession to Anglo-Indian community for ten years from the commencement of the Constitution. Unlike Article 30(2) it conferred a positive right on the Anglo-Indian community to get grants from the Government for their educational institutions, but subject to the condition that at least forty
per cent of annual admission were made available to members of other communities.
104. In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), 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 institution is intended to serve. But in no case such intake shall exceed fifty 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.
105. In the result and for the reasons stated, the Writ Petition (Civil)No.1868 of 1980 filed by St.Stephen’s College is allowed. The W.P.Nos. 13213-14 of 1984 and T.C.No.3 of 1980 are dismissed. The appeals against the judgment of the Allahabad High Court are allowed modifying the judgment of the High Court to the extent indicated above. However, the admissions made hitherto by Allahabad Agricultural Institute shall not be disturbed. The students who have been admitted pursuant to the direction issued by this Court or the High Court shall be allowed to complete their courses.
106. In the circumstances of the case, we make no order as to costs.
KASLIWAL, J. : 107. I had the advantage of going through the Judgment of my Learned brother K.J. Shetty, J. With due deference I am unable to agree.
108. In view of the fact that Shetty, J. in his Judgment has set out the facts in detail, I am mentioning such facts which are necessary in order to grapple with the questions raised in these cases.
109. W.P.No.1868 of 1980, W.P. Nos. 13213-14 of 1984 and Transferred Case No.3 of 1980.
110. All these cases relate to St. Stephen’s College (in short ‘College’) and the facts of these cases are stated in short as under:-
St. Stephen’s College is affiliated to Delhi University and is one of its three original constituent colleges. For the academic year 1980-81, the College published ‘Admissions Prospectus’ which inter alia provided that applications for admission to the first year must be received in the college office on or before 20th June, 1980. It was also mentioned in the prospectus that there would be interview prior to final selection for admission to the college. The Vice Chancellor of the Delhi University on May 22, 1980 constituted an Advisory Committee to consider and recommend the dates for admission/registration to various courses for the academic session 1980-81 and for other related matters concerning admissions. The Constitution of the Advisory Committee was also approved by the Academic Council. Advisory Committee constituted by the Vice Chancellor Delhi University laid down as follows:-
For matters concerning admissions for the academic session 1980-81.
(i) Admission to B.A. (Pass)/B.A. Vocational Studies Courses be based on the merit of the percentage of marks secured by students in qualifying examination.
(ii) The admission to B.Com((Pass) B.A. (Hons) and B.Com(Hons) Courses be also on the basis of marks. However, the College may give weightage to marks obtained in one or more individual subjects in addition to the aggregate marks of the qualifying examination. But whenever weightage is proposed to be given to individual subject (s) by the college, it should be notified in advance to the students through the college Prospectus/Notice Board so that applicants seeking admission know in advance the basis of admission.
(iii) That last date for receipt of applications to all the under-graduate courses will be June 30, 1980 and this would be uniformly adhered to by all the colleges”.
111. The above recommendations were accepted by the Central Admission Committee and also by the Vice Chancellor.
112. On June 5, 1980 the University issued Circular to all affiliated colleges prescribing the last date for the receipt of applications as June 30, 1980. The Circular also provided phased programme of admission. On June 9, 1980 the University issued another Circular to Principals of all the colleges stating inter alia, that admission to B.A.(Pass)/B.A. Vocational Study Courses be based on the merit of percentage of marks secured by students in the qualifying examination. The admission to B.Com(Pass)/B.A.(Hons) and B.Com(Hons) Courses shall be on the basis of marks. However, the College may give weightage to marks obtained in one or more individual subject(s) in addition to the aggregate marks of the qualifying examination. But whenever the weightage is proposed to be given to individual subject(s) by the College, it should be notified in advance to the students through the college Prospectus/Notice Board so that applicants seeking admission know in advance the basis of admission. This Circular also provided certain guidelines for admission to sportsmen and co-curricular distinctions.
113. On a complaint made by the Delhi University Students Union that the college was violating the University’s Statutes and Ordinances by fixing its own time Schedule for receipt of applications as well as by stipulating interview before admission, some correspondence took place between the university and the College, but the College authorities did not agree to adhere to the University’s Circular. At this stage Rahul Kapoor a student seeking admission to the college filed a writ petition No.790 of 1980 in the Delhi High Court challenging the admission schedule prescribed by the College as well as the Policy of interview test prescribed by the college. This Writ petition is the subject matter of the Transferred Case No.3 of 1980. The St. Stephen’s College filed a writ petition No.1868 of 1980 before this Court under Art.32 of the Constitution. The college in substance took the stand that it was a religious minority – run institution and the Circulars dated 5th and 9th June, 1980 issued by the University were violative of the fundamental right guaranteed under Art.30 of the Constitution. The Delhi University Students Union became an intervener in the writ petition No.1868 of 1980 filed by the College. Subsequently for the admission year 1984-85, the Delhi University Students Union and Dr. Mahesh C. Jain filed writ petition Nos.13213-14 of 1984 under Art.32 of the Constitution against the College. It was maintained in these writ petitions that the College was bound to follow all university policies, rules, regulations, Ordinances regarding admission and that the College be restrained from giving preference in favour of Christian students in the matter of admission to the College. It was alleged that the college is not a minority institution and in the alternative it was further pleaded that even assuming that the College was a minority institution, it was not entitled to discriminate students on grounds of religion as the college was receiving grant in aid from the Government. Such discrimination was violative of Art.29(2) of the Constitution.
114. A Bench of two Judges of this Court by order dated 9th December, 1987 held that the Stephen’s College, Delhi being a religious minority educational institution, the right to administer the institution guaranteed under Art.30(1) of the Constitution carries with it the right to regulate the admission of students of its own choice, involves a substantial question of law as to the interpretation of the Constitution, and, therefore, the petitions be laid before the Hon’ble the Chief Justice of India for being placed for hearing before a Constitution Bench. In view of the above order these matters were placed for hearing before the Constitution Bench. So far as the question whether St. Stephen’s College is a minority run institution Hon’ble Shetty, J. after considering the pleadings as well as the various factors has held that St. Stephen’s College was established and administered by a minority community, viz. the Christian Community which is indisputably a religious minority in India as well as in the Union Territory of Delhi where the College is located. I am in full agreement with the above conclusion and have nothing to add.
115. The next question which calls for consideration is whether the College was bound, by the University’s Circulars dated 5th and 9th June, 1980? The College has challenged these notifications as infringing the rights of the College of administering and managing the affairs as being violative of their right conferred under Art.30(1) of the Constitution. The first objection relates to the Circular of University dated June 5, 1980 which prescribed the last date for receipt of applications as June 30, 1980 instead of June 20, 1980 prescribed by the College. The second relates to Circular dated June 9, 1980 by which the University had given a direction to all the Colleges to admit students solely on the basis of merit to be determined on the basis of the percentage of marks secured in the qualifying examination. According to the College they were entitled to hold interview and thereby select candidates for admission to the college. So far as the first controversy relating to fixing of last date for receipt of applications for admission to the College is concerned, it does not appear to be of much consequence as the same can be regulated by adjustment with the University. In any case the fate of the first question is dependent on the second question of interview inasmuch as if the college is held entitled to hold interviews before admission, then the last date for receipt of the applications has to be kept early giving sufficient time for interviews before finalising the admissions, as scheduled by the college.
116. The contention on behalf of the college in this regard is that it has been following its own admission programme for more than 100 years and the method of interview has been followed without any objection from any quarter and this has resulted in promoting the all round image and excellence of the institution. There is no allegation of any malafides in holding interviews and it is done to test the candidate’s knowledge of the subject together with his general awareness of the current problems. According to the College such interview fulfils its twin objects of giving preference to Christian students by granting relaxation upto 10% which subserves the interest of the minority community of Christians for whose benefit the College has been established and secondly, to select the best talent for future academic performance. It has been further contended in this regard that the right to select students for admission is a part of administration. The management of the College has the full say in the admission of students and it should be left free from control so that the minority institutions may admit the students in accordance with their ideas as to how the interests of the community in general and the institution in particular will be best served. The interview is also necessary because of fantastically high marking given by some examining Boards and it would not be in the interest of the college to admit students solely on the basis of marks secured by the candidates in the qualifying examination.
117. It was contended on behalf of the University as well as the students Union that the first Circular dated 5th June, 1980 fixing the last date for receipt of applications for admission was done in order to ensure uniformity in the admission dates in all the affiliated colleges of the University and it was considered beneficial in the interest of students community as a whole. So far as the second Circular dated 9th June, 1980 was concerned University was justified in applying a uniform standard that the admission should be made on the basis of marks secured by the applicants in the qualifying examinations and this would exclude arbitrariness in the selection and ensure fairness to all the applicants. It has been submitted that the Circulars in question were regulatory in character and did not impinge upon any right guaranteed under Art.30(1) of the Constitution to St. Stephen’s College as a minority institution. It was further contended that once an educational institution is affiliated to the University or becomes a constituent of such University it has to abide by the regulations framed by the University relating to admissions in such institutions irrespective of their being a minority or non-minority institution. The University has the right to regulate the standard of education and the admission of students in an educational institution is a part and parcel of such right. St. Stephen’s College cannot adopt a different standard for admitting students, under the guise of exclusive right of management given to a minority institution. It has been contended that the uniformity in the matter of admission is a necessary concomitant of the right to seek higher education by joining a college and uniform pattern would better serve the interest of the student community as a whole. The college has not pointed out as to which examining Boards are giving fantastically high marks and it has not been shown by the college as to how and in what manner they are able to cope with such problem by resorting to the method of interview. It has also not been shown by the college as to how many percentage of marks have been kept for interview and whether it is in consonance with the norms and principles laid down by this Court in large number of cases restricting the maximum percentage of marks for interview. It has been submitted that the aim of minority institutions is also to maintain uniformity in standards of education. To qualify for studies at graduate level the only relevant consideration should be the academic performance shown by the candidate in his qualifying examination. If the candidate has shown his ability and distinction in academic standards at the level of Higher Secondary or 10+2 examination he cannot be denied the right of pursuing higher studies by resorting to the method of interview. It has been further contended that once the St. Stephen’s College, though being a minority institution, gets grant in aid from the State, it has to fall in line with the other non-minority institutions in the matter of admitting the students and has to abide by a uniform rule prescribed by the Delhi University.
118. The question of granting benefit or preference to the candidates belonging to Christian Community shall be examined separately while dealing with the provisions of Art.29(2) and Art.30(1) of the Constitution. I would presently deal with the validity of interview kept as a rule for admission by the St. Stephen’s College independently of the above articles of the Constitution.
119. The College in its counter affidavit in Writ Petitions (Civil) Nos. 13213-14 of 1984 has justified the method of interview on grounds inter alia that there are more than 26 Higher Secondary Examining bodies with widely disparate standards of marking and different grading systems. Interview provides a valuable method of equivalence in determining the real merit of students coming from different examining/grading system. It has been further alleged that malpractices are adopted in examinations and taking of fake and forged certificates and mark-sheets are widely prevalent. The college by the method of interview provides an important corrective for assessing the real merit in place of paper merit of a candidate. Applicants have different combination of subjects and though one may have secured very high percentage of marks in science subject but may be seeking admission in subjects like History or English. A personal interview helps in finding out his interest and aptitude for such subject. By interview, it can be found out whether the applicant would be able to follow lectures through the medium of English. By interview, it is decided whether the candidate has an aptitude to contribute to the richness and variety of the corporate life of the academic community of the college. It has been further submitted that the Founders of the college never meant it to be a mere teaching shop but as an academic community based on faith, fellowship and fruitful studies in an atmosphere in which the college could serve as a national microcosm and students of different caste and creed and belonging to all parts of the country could learn and live together, interest together and thereby bring about a real national integration.
120. It has been further submitted on behalf of the college that the process of selection for admission by the college is not arbitrary. It is an extremely elaborate and carefully planned process, details of which have been given in the reply. In the selection process, each member of the Selection Committee grades performance of the candidates and after the end of the interview for such course of study, the opinion of the members is taken into account and by consensus the final list of candidates selected for admission is put up. The above procedure is applied, without any discrimination in case of Christian as well as non-Christian candidates or one who has stood first in the All India Examination or one who might be seeking admission on the basis of a sportsman. These modalities of admission in the college have been followed for more than 100 years and there is no reason to discontinue such a policy which has proved so valuable for such a long time and have stood the test of time.
121. It cannot be disputed that 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 institution an effective vehicle for education, the same cannot be challenged. It may also be noted that the Delhi University is governed by the Delhi University Act 1922, the Statutes and the Ordinances and the Rules and Regulations made thereunder. Ordinance XVIII of the University provides for a Staff Council in every college. The Principal is the ex-officio Chairman of the Staff Council. The functions of the staff Council include making of recommendations regarding formulation of admission policy within the framework of the policy laid down by the University. This shows that no college can lay down its own admission policy so as to be in conflict with the policy laid down by the University. The University has issued a general direction to all the colleges to admit students on the basis of marks secured in the qualifying examination. In the present state of affairs existing in our country there is a great rush of students seeking admission to degree colleges after having passed the qualifying examination of Higher Secondary or 10+2. There is a paucity of such colleges and the number of students being large there is a tough competition for getting admission in the college for higher studies. In these circumstances if the Delhi University has laid down a uniform rule that the merit, for the purpose of admission in its affiliated and constituent colleges, should be determined on the basis of marks secured in the qualifying examination, it cannot be challenged on the ground of being unreasonable. St. Stephen’s College is not a professional college in the sense that it does not impart any technical education like engineering or medical. It is like all other Arts, Science and Commerce colleges which impart studies in these subjects upto graduate or post graduate level and as such cannot claim a different treatment in the matter of admitting students in the college. In case the bodies like the academic council of the University has approved the rule for admission on the basis of marks obtained in the qualifying examination, it cannot be objected by taking the stand that it is against the interest of the Christian Community for whose interest the College had been established. Though a detailed reply has been given on behalf of the college justifying the method of interview, but, it would be important to note that it does not make a mention as to how much percentage of marks are kept for interview and how much for the qualifying examination. According to the reply submitted by the College in this regard a list of potential suitable candidates called for interview is prepared which is normally on the basis of 1:4 or 1:5 for Arts, and higher for Science students. Thus the criteria or basis for calling in interview is nothing else than marks secured in the qualifying examination. Thereafter each member of the Committee grades the performance of the candidates after the end of the interview for each course of study, the opinion of all the members is taken into account and by consensus the final list of candidates selected for admission is put up. This method of interview adopted by the college goes to show that out of the candidates called for interview the final selection is based hundred percent 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. In my humble opinion this method of selection is bound to result in arbitrary selection. According to the College cut-off marks are fixed for calling in interview and according to Annexure I dated 27th June, 1984 in W.P. No.1868 of 1980 for Science Stream it is 83%, for Commerce Stream 80%, for humanities 77% and so on. Now for each one of these streams candidates are called for interview four or five times the number of available seats. Thereafter, if their selection is made dependent on interview then a highly meritorious student having secured even 90% or more marks may not get admission while a student just getting marks near the cut-off level can get admission in the college. To illustrate if there are 50 vacancies in the Science Stream and 200 candidates are called for interview who have secured not less than 83% marks in the qualifying examination, students standing high in merit even at Nos.1 to 50 may not be selected and those standing at Nos.150 to 200 may get admission solely on the basis of interview. Admittedly nothing has been said in the prospectus issued by the college as to what percentage of marks are kept for interview. It is totally silent in this regard. It has not been shown in the reply nor made clear during the course of arguments that any marks for interview are added to qualifying marks. The candidates who are not selected are not made aware of such marks. It has only been stated in the prospectus that final selection will be made after interview. This goes to show that the management or 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.
122. In R. Chitralekha & Anr. v. State of Mysore &Ors. (1964)6 SCR 638 a Constitution Bench considered the question of selection by viva voce. The Government sent a letter to the Director of Technical Education Mysore, Bangalore informing him that it had been decided that 25% of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Engineering Colleges shall be fixed as interview marks; it also laid down the criteria for allotting marks in the interview. The Selection Committee converted the total of the marks in the optional subjects to a maximum of 300 marks and fixed the maximum marks for interview at 75. Some of the candidates whose applications for admission were rejected filed writ petitions under Art.226 of the Constitution in the High Court of Mysore. The High Court after considering the various contentions raised by the petitioners, held that the orders defining backwardness were valid and that the criteria laid down for interview of students were good; but it held that the Selection Committee had abused the powers conferred upon it and on that finding set aside the interviews held and directed that the applicants shall be interviewed afresh in accordance with the scheme laid down by the Government. Two of the petitioners came to this Court by filing appeals by special leave before this Court. It was contended on behalf of the appellants that selection by interviews is inherently repugnant to the doctrine of equality embodied in Art.14 of the Constitution, for, whatever may be the objective test laid down, in the final analysis the award of marks is left to the subjective satisfaction of the selection committee and, therefore, it gives ample room for discrimination and manipulation. The Court did not accept such a wide contention. It was observed that without better and more scientific material placed before the court it cannot be held that selection by interview in addition to the marks obtained in the written examination is itself bad offending Art.14 of the Constitution.
123. The matter was again dealt with in detail by a Constitution Bench of this Court in Ajay Hasia v. Khalid Mujib Sehravardi & Ors. etc. (1981) 2 SCR 79). The question in this case was regarding admission to the Regional Engineering College, Srinagar. According to the rules of admission the comparative merit was to be determined by holding a written entrance test and a viva voce examination and the marks allocated for the written test in the subjects of English, Physics, Chemistry and Mathematics were 100, while for viva voce examination, the marks allocated were 50 divided as follows: (i) General Knowledge and Awareness -15; (ii) Broad understanding of Specific Phenomenon – 15; (iii) Extra-curricular activities – 10 and (iv) General Personality Trait – 10, making up in the aggregate – 50. The Court considered the question regarding the validity of viva voce examination as a permissible test for selection of candidates for admission to college. It was contended on behalf of the petitioners that the viva voce examination does not afford a proper criteria of assessment of the suitability of the candidates for admission and it is a highly subjective and impressionistic test where the result is likely to be influenced by many uncertain and imponderable factors such as predilections and prejudices of the interviewers, his attitudes and approaches, his pre-conceived notions and idiosyncrasies and it is also capable of abuse because it leaves scope for discrimination, manipulation and nepotism which can remain undetected under the cover of an interview and moreover it is not possible to assess the capacity and calibre of a candidate in the course of an interview lasting only for a few minutes and, therefore, selections made on the basis of oral interview must be regarded as arbitrary and hence violative of Art.14. The Court observed: That this criticism cannot be said to be wholly unfounded and it reflects a point of view which has certainly some validity. The Court then quoted the following passage from the book on “Public Administration in Theory and Practice” by M.P. Sharma:
“The oral test of the interview has been much criticised on the ground of its subjectivity and uncertainty. Different interviewers have their own notions of good personality. For some, it consists more in attractive physical appearance and dress rather than anything else, and with them the breezy and shiny type of candidate scores highly while the rough uncut diamonds may go unappreciated. The atmosphere of the interview is arti ficial and prevents some candidates from appearing at their best. Its duration is short, the few questions of the hit-or-miss type, which are put, may fail to reveal the real worth of the candidate. It has been said that God takes a whole life time to judge a man’s worth while interviewers have to do it in a quarter of an hour. Even at it’s best, the common sort of interview reveals but the superficial aspects of the candidate’s personality like, appearance, speaking power, and general address. Deeper traits of leadership, tact, forcefulness, etc., go largely undetected. The interview is often in the nature of desullory conversation. Marking differs greatly from examiner to examiner. An analysis of the interview results show that the marks awarded to candidates who competed more than once for the same service vary surprisingly. All this shows that there is a great element of chance in the interview test. This becomes a serious matter when the marks assigned to oral test constitute a high proportion of the total marks in the competition”.
124. The Court further observed as under:
“Ol Glenn Stahl points out in his book on “Public Personnel Administration” that there are three disadvantages from which the oral test method suffers, namely, “(1) the difficulty of developing valid and reliable oral tests; (2) the difficulty of securing a reviewable record on an oral test; and (3) public suspicion of the oral test as a channel for the exertion of political influence” and we may add, other corrupt, nepotistic or extraneous considerations. The learned author then proceeds to add in a highly perceptive and critical passage:
“The oral examination has failed in the past in direct pro portion to the extent of its misuse. It is a delicate instru ment and, in inexpert hands, a dangerous one. The first condition of its successful use is the full recognition of its limitations. One of the most prolific sources of error in the oral has been the failure on the part of examiners to understand the nature of evidence and to discriminate between that which was relevant, material and reliable and that which was not. It also must be remem bered that the best oral interview provides opportunity for analysis of only a very small part of a person’s total behaviour. Generalizations from a single interview regardd ing an individual’s total personality pattern have been proved repeatedly to be wrong”.
125 But, despite all this criticism, the oral interview continues to be very much in vogue as a supplementary test for assessing the suitability of candidates wherever test of personal traits is considered essential. Its relevance as a test for determining suitability based on personal characteristics has been recognised in a number of decisions of this Court which are binding upon us. In the first case on the point which came before this Court, namely, R.Chitra Lekha and Others v. State of Mysore and Others this Court pointed out:
“In the field of education there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance to e extra-curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is prefer able or which is the correct one ……………………….. …………………The
scheme of selection, however, perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the busi ness of selection to qualified persons, this Court cannot obviously have any say in the matter”.
and on this view refused to hold the oral interview test as irrelevant or arbitrary. It was also pointed out by this Court in A. Peeriakaruppan v. State of Tamil Nadu & Ors.:
“In most cases, the first impression need not necessarily be the last impression, but under the existing condi tions, we are unable to accede to the contentions of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless”.
126. It is, therefore, not possible to accept the contention of the petitioners that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary. The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification”.
127. The Court then examined the question that even if oral interview may be regarded in principle as a valid test for selection of candidates for admission to a college, whether it was arbitrary and unreasonable since the marks allocated for the oral interview were very much on the higher side as compared with the marks allocated for the written test. The marks allocated for the oral interview were 50 as against 100 allocated for the written test, so that the marks allocated for the oral interview came to 33 1/3% of the total number of marks taken into account for the purpose of making the selection. The Court in this regard held that there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated in the written test, cannot be accepted by the Court as free from the vice of arbitrariness. The Court then took notice of the fact that even in case for selection of candidates for the IAS, IFS and the IPS where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination constituting only 12.2% of the total marks taken into consideration for the purpose of making the selection. The Court thus held that the allocation of as high percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure suffered from the vice of arbitrariness. The Court was thus of the view that under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid.
128. It would be important to note that even in Ajay Hasia’s case (supra) their Lordships clearly took the view that having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated in the written test, cannot be accepted by the Court as free from the vice of arbitrariness. It was then held that under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be liable to be struck down as constitutionally invalid. It is further important to note that St. Stephen’s College is a constituent college of Delhi University and the University has issued the impugned notification dated 9th June, 1981 by which a uniform rule has been made that admissions to all the affiliated and constituent colleges of the University should be made on the basis of marks secured in the qualifying examination. According to the stand taken by the College itself only 6 to 10% of the students belonging to Christian community get admission and rest are students belonging to non-christian communities
129. Thus we have to examine whether this method of viva voce adopted by the college can be justified or not, which gives a clear free hand to the college management in admitting the students of their own choice out of 90 to 94% belonging to non-Christian communities. As already mentioned above the college has neither mentioned in the prospectus nor in any counter placed before the Court or even during the course of arguments as to how much percentage of marks are kept for interview in comparison to the marks obtained by the candidates in the qualifying examination. I am clearly of the view that action of the college in applying the method of interview contrary to the direction given by the University is wholly arbitrary, wrong and illegal and violative of Article 14 of the Constitution. In short I formulate my reasons as under:-
(a) St. Stephen’s college is a constituent of the Delhi University and is bound by the Statutes, Ordinances and other Rules and Regulations made by the University which apply equally to its affiliated and constituent colleges. It is the primary concern of the University to maintain standards of education and in this regard if the advisory committee of the University has made the rule accepted by the Central Admission Committee 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 irrespective of its minority character.
(b) 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 reasonable nexus with the object of affording an equality of opportunity of education at graduate level. (c) The method of interview adopted by the College 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. (d) It has not been shown as to how the minority character of the College will be affected or prejudiced if students belonging to non-christian community are given admission solely on the basis of marks obtained in the qualifying examination and not by interview. It is understandable if some lee-way is given to the students of Christian Community in respect of marks secured in qualifying examination or to make reservation of some seats to a reasonable extent for them.
(e) Even in case of public employment where the method of interview may have some importance, this Court in series of cases has laid down that marks for interview should not exceed 15% of the total marks. In the present case we are concerned with the admission to graduate course in which teen-agers seek admission after finishing their studies at the school level. So far as their academic performance is concerned it can only be judged on the basis of marks secured by them in qualifying examination. They are not being selected for any public employment, but are to be selected for pursuing higher studies in the college. 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 secured in the qualifying examination and not by interview. It has not been shown by the College that the method of interview is adopted by any other educational institution affiliated to the Delhi University or in any part of the country at the stage of granting admission to the College in the first year of graduate course. (f) The college in its counter has taken the stand that it is well known that “malpractices in examinations including that of fake and forged certificates and mark-sheets are widely prevalent. Interview as conducted by the respondent college provides an important corrective in the assessment of the real merit of a candidate, in place of what could be only paper merit of a candidate. The candidate has through oral questions as well as in some subjects through solving problems in writing on spot, satisfy a Board of experts, in person, of his academic capacity and potential”. It has also been submitted in the reply that there are more than 26 Higher Secondary examining bodies with widely disparate standards of marking and different grading systems. According to the College Interview provides a valuable method of equivalence to determine the relative merit of students coming from different examining/grading system.
The above grounds taken by the college for justifying the method of interview is neither here nor there. It has not shown as to how the interview provides a valuable method of equivalence in respect of marks awarded by different Higher Secondary examining bodies. This ground of justification is totally vague and carries no weight. The method of interview is no remedy of malpractices in examination or obtaining fake and forged certificates and mark-sheets. The College in this regard is entitled to refuse admission to any student in whose case such malpractices are detected.
(g) It is further important to note that according to its own showing the college authorities call the candidates for interview on the basis of marks awarded in the qualifying examination conducted by the 26 Higher Secondary examining bodies. If the candidates are called for interview on that basis, it does not stand to reason as to how such marks are not treated as correct at the time of interview. It has nowhere been stated by the College authorities as to which Higher Secondary examining bodies are considered to be below standard by them. From the entire method of interview it appears that out of the candidates called for interview which is four or five times of the available seats, the college on the basis of interview can select anyone out of them irrespective of their marks secured in the qualifying examination. By this method out of 200 candidates called for 40 seats, the college authorities can refuse to admit the candidate placed at No.1 and admit a student placed at No.200 and ignore the merit on the basis of marks secured in the qualifying examination. (h) This Court in Ajay Hasia’s case (supra) has not approved oral interview test as a satisfactory test specially when it can leave scope for discrimination, manipulation and nepotism which can remain undetected under the cover of an interview. It has allowed it as a supplementary test and that also wherever test of personal straits is considered essential.
(i) The Court in this regard further held that there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, the allocation of a high percentage of marks for the oral interview as compared to the marks allocated in the written test, cannot be accepted by the court as free from the vice of arbitrariness. Thus the system of interview suffers from inherent weakness and if the Delhi University in its wisdom has arrived to the conclusion that admission should be granted on the basis of marks secured in qualifying examination, such decision taken by the University cannot be challenged on the ground of being illegal or arbitrary.
(j) 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 in admission based on interview. Those students who come from rural background or belong to weaker section of the society though more 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 those breezy and shiny type of candidate scores highly in the interview while the rough uncut diamonds may go unappreciated as said by M.P. Sharma and quoted in Ajay Hasia’s case.
(k) 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.
(l) The selection of students out of the eligible candidates called 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.IV SCC 417, Mohinder Sain Garg v. State of Punjab & Ors. (1991) 1 SCC 662) and Munindra Kumar & Ors. v. Rajeev Govil & Ors. (1991) 3 SCC 368) also. The maximum marks for interview can be 15% and not more.
(m) The remedy of disparate marks, if any, given by various Boards in the qualifying examination lies in holding a written examination of its own by the St. Stephen’s College and not by the method of interview. Even otherwise it has not been shown as to how this disparity is removed by resorting to interview.
(n) Though there is no allegation of any malafides 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 major role. In this background the method of selection by interview alleged to be in vogue for a long period in St. Stephen’s College cannot be considered as so sacrosanct 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. Stephen’s College is also bound to follow such rule and cannot object on the ground of long practice.
(o)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 consideration for their admission to degree courses should be their academic performance in the qualifying examination.
130. The next important question for consideration in this case is the validity of the college admission programme giving preference to Christian students or in other words whether the St. Stephen’s College being a minority institution, in spite of receiving grant in aid from the Government, has any right to select students of Christian Community in exercise of its fundamental right conferred under Art.30(1) or whether such preference or reservation would be invalid under Art.29(2) of the Constitution? It is an admitted fact that St. Stephen’s College is getting grant in aid to the extent of 95% of the annual deficit from the University Grants Commission. In order to consider the above controversy it would be necessary to refer to the provisions of Articles 29 and 30 of the Constitution of India. The said Articles read as under:
CULTURAL AND EDUCATIONAL RIGHTS
Art.29: – PROTECTION OF INTERESTS OF MINORITIES:-
(1) Any section of the citizens residing in the terri tory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiv ing aid out of State funds on grounds only of religion, race, caste, language or any of them.
Art.30: – RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER EDUCATIONAL INSTITUTIONS :-
(1) All minorities, whether based on religion or language, shall have the right to establish and admin ister educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in Clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisi tion of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educa tional institutions, discriminate against any educational institution on the ground that it is under the manage ment of a minority, whether based on religion or lan guage.
131. The right conferred on minority to establish and administer educational institutions under Art.30(1) of the Constitution is not absolute and is always subject to reasonable regulations. If a minority had established 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). The right conferred under Art.30 is a general right granted to all minorities, but if any educational institution established and administered by such minority also gets the benefit of grant in aid out of the state funds then it has to fall in 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.
132. Clause (2) of Art.29 is a counter part 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. While clause (1) of Art.29 protects the rights of a section of the 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 and not as a member of any community. This clause (2) offers protection to all citizens, whether they belong to majority or minority groups. It may be noted that compared with Art.15(1), it appears that ‘sex’ and ‘place of birth’ are omitted from Art.29(2). Hence, educational institution intended exclusively for men or women could be maintained by the State without a violation of the Constitution.
133. So far as Clause (1) of Art.30 is concerned, it grants a right to minority community to impart instruction to the children of its own community in institutions run by it and in its own language. It confers two rights (a) the right to establish an institution, (b) the right 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 means funds the institution or the community at large contributes the funds. The next part of right relates to the administration of such institution. Administration means management of the affairs of the institution. This Management 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 standards concern the body politic and are adopted by considerations of the advancement of the country and its people. Therefore, if university established 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 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, they may be compelled to keep in step with others. The above propositions have been laid down in the following cases:- State of Bombay v. Education Society (1955) 1 S.C.R. 568), The State of Madras v. Shrimathi Champakam Dorairajan (1951 S.C.R. 525), in Re. Kerala 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) and Gujarat University, Ahmedabad v. Ranganath Madholkar (1963) suppl. SCR 112).
134. Now, so far Clause (1) of Art.29 is concerned, it 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).
135. The controversy involved in the cases in hand before us is between clause (2) of Art.29 and Clause (1) of Art.30. The framers of the Constitution were fully knowing about the necessity of granting protection of interests of 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 admission in any educational institution maintained by the State or 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). 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”. It may also be noted that 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 “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 state funds whether run by a minority or majority. In The Ahmedabad St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr. (1975) 1 S.C.R. 173 at p.298), Dwivedi, J. observed as under:
“A glance at the context and scheme of Part III of the Constitution would show that the Constitution makers did not intend to confer absolute rights on a religious or linguistic minority to establish and administer educational institutions. The associate Art.29(2) imposes one re striction on the right in Art.30(1). No religious or linguistic minority establishing, and administering an educational institution which receives aid from the state funds shall deny admission to any citizen to the institution on grounds only of religion, race, caste, language or any of them. The right to admit to an educa tional institution is admittedly comprised in the right to administer it. This right is partly curtailed by Art.29(2).
The right of admission is further curtailed by Art.15(4) which provides an exception to Art.29(2). Art.15(4) enables the State to make any special provi sion for any advancement of any socially and education ally backward class citizens or for the Scheduled Castes and Scheduled Tribes in the matter of admission in the educational institutions maintained by the State or receiving aid from the State.
Art.28(3) imposes a third restriction on the right in Art.30(1). It provides that no person attending any educa tional institution recognised or receiving any aid by the State 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 or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Obviously, Art.28(3) prohibits a religious minority establishing and administering an educational institution which receives aid or is recognized by the State from compelling any citizen reading in the institution to receive religious instruction against his wishes or if minor against the wishes of his guardian. It cannot be disputed that the right of a religious minority to impart religious in struction in an educational institution forms part of the right to administer the institution. And yet Art.28(3) curtails that right to a certain extent.
To sum up, Articles 29(2), 15(4) and 28(3) place certain express limitations on the right in Art.30(1). There are also certain implied limitations on this right. The right should be read subject to those implied limita tions”.
While dealing with the scope of Art.29(2) Das, J. (as he then was) in the State of Bombay v. Bombay Education Society and ors. (1955) 1 S.C.R. 568) observed as under:
The Learned Attorney General then falls back upon two contentions to avoid the applicability of Art.29(2). In the first place he contends that Art.29(2) does not confer any fundamental right on all citizens generally but guarantees the right of citizens of minority groups by providing that they must not be denied admission to educational institutions maintained by the State or re ceiving aid out of the 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 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. Art.29(1) gives protection to any section of the citizens having a distinct language,script or culture by guarantee ing their right to conserve the same. Art.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 grant in aid to 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 Art.29(2) in the matter of admis sion 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 pro tection against themselves and therefore, Art.29(2) is not designed for the protection of this section or this minority. Nor do we see any reason to limit Art.29(2) to citizens belonging to a minority group other than the section or the minorities referred to in Art.29(1) or Art.30(1), for the citizens, who do not belong to any minority group, may quite concievably need this protection just as much as the citizens of other minority groups. If it is urged that the citizens of the majority groups are amply protected by Art.15 and do not require the protection of Art.29(2), then there are several obvious answers to that argument. The language of Art.29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Art.15 protects all citizens against the State whereas the protection of Art.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 Art.29(2) is a protection against a particular species or wrong namely denial of admission into educational institutions of the specified kind. In the next place Art.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 protec tion to all the citizens against discrimination by the State on certain specific grounds. Art.29(2) confers a special right on citizens for admission to 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 right 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 & 30 are grouped 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, irrespec tive 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 consideration the marginal note alone, on which the attorney general relies, cannot be read as control ling the plain meaning of the language in which the Art.29(2) has been couched. Indeed in The State of Madras vs. Shri mathi Champakam Dorairajan, 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 citizen.
In our Judgment this part of the contention of the Learned Attorney General cannot be sustained”.
136. A Constitution Bench of this Court in DAV College etc. v. State of Punjab & Ors. (1971 suppl. SCR 688 at p.695) through Jaganmohan Reddy, J. for the Court observed as under:-
“It will be observed that Art.29(1) is wider than Art.30(1), in that, while any section of the citizens including the minor ities, can invoke the rights guaranteed under Art.29(1), the rights guaranteed under Art.30(1) are only available to the minorities based on religion or language. It is not necessary for Art.30(1) that the minority should be both a religious minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two articles would need us to conclude that a religious or linguis tic minority has a right to establish and administer educa tional institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standard. This right is further subject to clause (2) of Art.29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of state funds, on grounds only of religion, race, caste language or any of them. While this is so these two articles are not interlinked nor does it permit of their being read together”.
137. In Re.The Kerala Education Bill, 1957 (Reference case) (1959) S.C.R. 995 at page 1047 S.R. Das, C.J. observed as under:
“Under clause (1) of Article 29 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its dis tinctive language, script or culture and that is what is conferred on all minorities by Art.30(1) which has hereinbefore been quoted in full. This right, however, is subject to clause (2) of Art.29 which provides that no citizen shall be denied admission into any educa tional institution maintained by the State or receiving aid out of state funds on grounds of religion, race, caste, language or any of them”.
In the same case it was further held (P.1050-51):
“The argument is sought to be reinforced by a reference to Art.29(2). It is said that an educational institution established by a minority community which does not seek any aid from the funds of the State need not admit a single scholar belonging to a community other than that for whose benefit it was a community other than that for whose benefit it was established seeks and gets aid from the State confers Art.29(2) will preclude it from denying admission to members of the other communities on grounds only of religion, race, caste, language or ny of them and consequently it will cease to be an educational institution of the choice of the minority community which established it. This argument does not appear to us to be warranted by the language of the Article itself. There is no such limitation in Article 30(1) and to accept this limitation will necessarily involve the addition of the words “for their own community” in the Article which is ordinarily nor permissible according to well established rules of interpretation. Nor is it reasonable to assume that the purpose of Art.29(2) was to deprive minority educational institutions of the aid they receive from the State. To say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member of any other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority insti tution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid. The real import of Art.29(2) and Art.30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority insti tution. Indeed the object of conservation of the dis tinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Art.30(1) of the Constitution”.
138. The framers of the Constitution were fully knowing the problems of various communities having different religions, 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 allowed some rights in respect of establishing 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, script or culture of its own were conferred the right to conserve the same. Education is a strong factor to unite the entire country and it was considered necessary that where any 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 of admission in such institution. If the minorities, based on religion or language wanted to run any educational institution without any aid out of state funds, there was no restriction placed upon the minorities in the matter of admission in such educational institutions and they were free to 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 taxes from every citizen of this country, then such 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 of religion, race, caste, language or any of them.
139. We cannot overlook that religious fundamentalism and linguistic parochialism leads to fissiparous tendencies and obstructs the national unity as a whole. It is necessary that minorities should join and be part and parcel of common stream of the country. The framers of the Constitution provided to conserve the distinct language, script or culture of any section of citizens of 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 be provided in any educational institution wholly maintained out of State funds. While in case of institution maintained or receiving aid out of state funds, no citizen shall be denied admission on grounds only of religion, race, caste, language or any of them under Clause(2) of Article 29. There is no impediment or obstruction in the right of minorities in imparting education in their own language and disseminating their culture by way of extra curricular activities and thus to conserve their own culture. Clause (2) of Art.29 does not take away any such right nor puts any restriction on the minorities in running the educational institutions of their choice. It would be rather in the interest of the minorities to admit students of other communities and to disseminate their own culture in a wider range of community. For example, if Christians are running an educational institution, 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 restriction is what is contained in Art.28(3) which applies to any educational institution recognized 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 the consent of his guardian.
140. The aim of 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 be extended so as to encroach upon other fundamental rights or to go contrary to the intentions of the founding fathers. It would be useful to consider the debates of the Constituent Assembly while considering these Articles.
ARTICLES 29 AND 30 OF THE CONSTITUTION:-
141. These were Articles 23(1) on the one hand and 23(3)(a) and 23(3)(b) on the other hand in the Draft Constitution. Firstly, Dr. B.R. Ambedkar said in relation to draft Article 23(2) corresponding to the present Article 28 of the Constitution that even in relation to Articles 30 and 29 the State was completely free to give or not to give aid to the educational institutions of the religious or linguistic minorities. He said:-
“Now, with regard to the second clause I think it has not been sufficiently well-understood. We have tried to reconcile the claim of a community which has started educational institutions for the advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions; notwithstanding the fact that it receives certain aid from the State. The State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant-in-aid code merely on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a “further qualification, that while it is free to give religious instruction in the institution and the grant made by the State shall not be a bar to the giving of such institution, it shall not give instruction to, or make it compulsorily upon, the children belonging to other communities unless and until they obtain the consent of the parents of these children. That, I think, is a salutary provision. It performs two functions:-
Shri H.V. Kamath:- On a point of clarification what about institutions and schools run by a community or a minority for its own pupils – not a school where all communities are mixed but a school run by the community for its own pupils?
The Hon’ble Dr. B. R. Ambedkar: If my friend, Mr. Kamath will read the other article he will see that once an institution; whether maintained by the community or not, gets a grant, the condition is that it shall keep the school open to all communi ties. That provision he has not read”.
(VII C.A.D.884)
He reaffirmed the freedom of the State to give or not to give aid to these schools when directly referring to draft Article 23 which is the precurser of the present Articles 29 and 30 as follows:-
“I think another thing which has to be borne in reading Article 23 is that it does not impose any obligation or burden upon the State. It does not say that, when for instance the Madras people come to Bombay, the Bombay Government shall be required by law to finance any project of giving education either in Tamil “language or in Andhra language or any other language”. There is no burden cast upon the State. The only limitation that is imposed by Article 23 is that if there is a cultural minority which wants to preserve its language, its script and its culture, the State shall not by law impose upon it any other culture which may be either local or otherwise”.
(VII CAD. 923)
Secondly, the true object of draft Article 23 now corresponding in Articles 29 and 30 was brought out by Shri K. Santhanam, acknowledged to be one of the best informed and learned members of the Constituent Assembly, He said:-
“Sir, you will remember that throughout Europe, after the first world war; all that the minorities wanted was the right to have their own schools, and to conserve their own cultures which the Fascist and the Nazis refused them. In fact, they did not want State aid, or State assistance. They simply wanted that they should be allowed to pursue their own customs and to follow their own cultures and to establish and conduct their own schools. Therefore, I do not think it is right on the part of any minority to depreciate the rights given in Art23(1)……….In this connection we have to hold the bal ance even between two different trends. First of all we have to give to a large linguistic minorities their right to be educated – especially in the primary stage – in their own language”. At the same time we should not interfere with the historical process of assimilation. We ought not to think that for hundreds and thousands of years to come these linguistic minorities will perpetuate themselves as they are. The historical process should be allowed free play. These minori ties should be helped to become assimilated with the people of the locality. They should gradually absorb the lan guage of the locality and become merged with the people there, otherwise they will be aliens, as it were, in those provinces. Therefore, we should not have rigid provisions by which every child is automatically protect ed in what may be called his mother tongue. On the other hand, this process should not be sudden, it should not be forced. Wherever there are large numbers of children, they should be given education – primary education – in their mother-tongue. At the same time, they should be encouraged and assisted to go to ordinary schools of the provinces and to imbide the local tongue and get assimilated with the people. I feel this clause does provide for these contingencies in the most practicable fashion”.
142. While dealing with the question of the right guaranteed to the minority under Article 30(1) and restriction put on such right under Article 29(2) it cannot be said that we are on virgin soil as we have enough guidance provided in number of earlier Constitution decisions. Those are Smt. Champakam Dorairajan’s case, State of Bombay v. Bombay Education Society, Kerala Education Bill, 1957 reference case, DAV College v. State of Punjab & others and Ahmedabad St. Xaviers College Society. I have already quoted the relevant passages of these cases on the scope of Art.29(2) and Art.30(1). A conspectus of the entire scheme of Part (III) of the Constitution clearly goes to show that the Constitution makers did not intend to confer absolute rights on a religious or linguistic minority to establish and administer educational institutions. Right of admission is curtailed by Art.15(4) which enables the State to make any special provision for any advancement of any socially and educationally backward class of citizens or for the Scheduled Caste and Scheduled Tribes in the matter of admission in the educational institutions receiving aid from the State. Art.28(3) imposes other restriction according to which any person attending any educational institution recognized or receiving any aid by the State shall 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.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 Articles 15(4), 28(3) and 29(2) place express limitations on the right given to minorities in Art.30(1). 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 wholly defeated. The House of Lords observed in Warbruton vs. Loveland (1832) (2 D. & Cl.400) as under:-
“No rule of construction can require that when the words of one part of Statute convey a clear meaning …………It shall be necessary to introduce another part of statute which speaks when with less perspicuity and of which the words may be capable of such construction as by possibility to diminish the efficacy of the first part”.
143. Thus in my humble view in the face of clear language of Art.29(2), there is no scope for accepting the contention sought to be put on behalf of the college.
144. A.N. Ray, CJ., in The Ahmedabad St. Xaviers College Society case laid down in the context of the right of administration of the minority educational institutions that the best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character. Sh. K. Santhanam in his high sounding words of wisdom had told in the Constituent Assembly that first of all we have to give to a large linguistic minorities their right to be educated – especially in the primary stage – in their own language. At the same time we should not interfere with the historical process of assimilation. We ought not to think that for hundreds and thousands of years to come these linguistic minorities will perpetuate themselves as they are. The historical process should be allowed free play. These minorities should be helped to become assimilated with the people of the locality. They should gradually absorb the language of the locality and become merged with the people there, otherwise they will be aliens, as it were, in those provinces. If we consider the case of St.Stephen’s College which may have initially established to protect the interests of Christian Community in India feeling alien during British Rule, have now completely assimilated and merged with the people of the locality and there does not appear any ground or justification to stal such process. According to the stand taken by the college itself more than 90% students belonging to non Christian Community are admitted in the college every year and this clearly shows that the college has already achieved the process of assimilation. 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.
145. Another important question which arises for consideration is that if a minority educational institution getting grant in aid is held entitled to admit students of its own community then how much percentage can be considered as reasonable. Once we hold that the minority is entitled to admit students of its own choice, the result would be that they would be entitled to admit students of their own community cent per cent and the restriction of Art.29 (2) will be totally effaced. Learned counsel appearing for the college were unable to state as to what percentage would be reasonable. Even taking the facts of the cases before us St. Stephen’s College is claiming 10% preference to the Christian students while Allahabad Agricultural Institute seeks justification for 50% as provided in their prospectus. As already held by me St. Stephen’s College and Allahabad Agricultural Institute are not entitled to claim any preferential right or reservation in favour of students of Christian Community as they are getting grant in aid and as such I do not consider it necessary to labour any more on the question of deciding as to what percentage can be considered as reasonable.
CIVIL APPEAL NOS.1786 of 1989 & 1830-41 OF 1089 FILED BY THE ALLAHABAD AGRICULTURAL INSTITUTE:-
146. This Institution imparts education in several courses of study like Inter Agriculture, Inter Home Science, Indian Dairy Diploma (IDD), B.Sc. in Agriculture, B.Sc. Home Economics, B. Tech. in Agricultural Engineering. This Institution grants reservation to the extent of 50% of its seats to students belonging to Christian Community. I do not consider it necessary to give details and break up of 50% students belonging to Christian Community as the details have already come in the Judgment of Shetty, J.
CIVIL APPEAL NO. 2829 OF 1989
147. The appellants Shashipal Singh and Tejpal Singh in Civil Appeal No.2829 of 1989 were granted admission in the Agricultural Institute in the year 1988 by interim orders of the Allahabad High Court. After the final decision of the case their admission was cancelled by the Institute by order dated 3.4.1989. The appellants were then permitted to prosecute their studies in B.Tech. Agricultural Engineering course by an order of this court dated 11.5.1989. In view of these circumstances the above appeal No.2829 of 1980 is also allowed.
148. The students who were not granted admission by this institute filed writ petitions in the Allahabad High Court challenging the reservation for Church sponsored Christian students. The High Court allowed the writ petitions declaring that the policy of reservation for Christians was contrary to the right guaranteed under Art.29(2) of the Constitution. The Allahabad Agricultural Institute by grant of certificate under Article 133(1)(a) of the Constitution has filed Civil Appeal Nos.1830-41 of 1989 and Civil Appeal No.1786 of 1989 before this Court. The controversy arising in these cases is also the same as in St. Stephen’s College case and the same reasoning applies to these appeals. In my view the High Court rightly decided the matter and the Judgment of the High Court does not call for any interference. In the result I find no force in the appeals filed by the St. Stephen’s College as well as Allahabad Agricultural Institute. The W.P. No.1868 of 1980 filed by the St. Stephen’s College, Civil Appeal No. 1786 of 1989 & Civil Appeal Nos. 1830-41 of 1989 filed by Allahabad Agricultural Institute are dismissed and the W.P. Nos.13213 – 14 Of 1984 filed by Delhi University Students Union, T.C. NO. 3 of 1980 filed by Rahul Kapoor one of the students of the University and Civil Appeal No.2829 of 1989 filed by some of the students Of the University are allowed.
149. However, those students who had already been admitted pursuant to the direction issued by this Court or the High Court shall be allowed to complete their courses and any admissions made hitherto by St. Stephen’s College and Allahabad Agricultural Institute shall not be disturbed.