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IN THE case of St. Stephen's College v. University ofDelhi}] the facts were : St.
Stephen's College is affiliated to Delhi University and is one of its three original
constituent Colleges. In the academic year 1980-81, the College published its
admission prospectus on 25 May 1980-providing that application for admission
for the first year course must be received in the College office on or before 20 June
1980. It was also mentioned that there would be an interview prior to final
selection for admission to the college. On 22 May 1980 the Vice-Chancellor of
the Delhi University constituted an Advisory Committee to consider and recom-
mend the dates for admission to various courses. On 29 May, 1980, the Academic
Council approved the constitution of the Advisory Committee and authorised the
Vice-Chancellor to accept the recommendations of the Advisory Committee for
implementation.
The Advisory Committee made the following recommendations :
(/) Admission to B.A. (Pass)/B.A. Vocational Studies Courses be based on
the merit of percentage of makes secured by students in qualifying
examination.
(//) 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 its
prospectus/notice board, so that applicants seeking admission may know
in advance the basis of admission.
(Hi) That last date for receipt of applications to all the under-graduate
courses would be June 30, 1980 and this was to be uniformely adhered
to by all the colleges.
The recommendations made by the Advisory Committee were accepted by the
Central Admission Committee and also by the Vice-Chancellor.
On 5 June, 1980 the university issued a circular to all affiliated colleges
prescribing the last date for receipt of applications as 30 June, 1980. The circular
also mentioned a phased programme of admissions. Another circular was issued
on 9 June, 1980 by the university to principals of all colleges intimating 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
(//) Whether the circular issued by the University in any way violated the
rights of minorities under article 30(1).
(Hi) Whether St. Stephen's College and the Allahabad Agricultural Institute
are entitled to reserve seats for students of their own community and
whether such reservation would be violative of article 29(2).
A Bench consisting of 5 judges 2 examined the aforesaid questions in the light
of rival contentions. As regards the first question, K. Jagannatha Shetty J., for the
majority, after considering the pleadings as well as the various factors, 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. Kasliwal,
J, also agreed to the majority view on this point.
The second question was whether St. Stephen's College was bound by the
circulars of the university. The first, prescribed the last date for receipt of
applications for admission whereas according to the second all the colleges of
Delhi University were directed to admit students solely on the basis of merit.
According to the college it has been following its own admission programme for
more than 100 years and the method of interview had been followed without any
objection from any quarter. By this admission programme a relaxation upto 10 per
2. The majority view was taken by Kania MH, K. Jagannatha Shetty, Mrs. M. Fathima Beevi,
Yogeshwar Dayal, JJ., and minority-view by Kasliwal, N.M., J.
cent was given to Christian students. It had been further contended that the right
to select students for admission was a part of the administration. On the other hand
Delhi University and the Student's Union argued that the circulars were regulative
in character and did not impinge upon the rights guaranteed by article 30(1).
Relating to the second question, the majority came to the conclusion that St.
Stephen's College was not bound by the impugned circulars of the university.
In this connection, it is respectfully submitted that the majority view on the
second question does not seem to be based on the earlier rulings of the Court as
it would be clear from discussion of the principles laid down in the earlier rulings.
Hidayatullah J. in State of Kerala v. Mother provincial? maintains that the
standard of education is not a part of management as such. These standards
concern the body politic and are dictated by considerations of the advancement
of the country and the people. The minority institution can not be allowed to fall
below the standard of excellance expects of educational institution 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. Likewise, Ray, C.J. (for himself and on behalf of Palekas, J.) in
Ahmeda St. Xavier's College, v. State of Gujarat4 stated that the right conferred
on the religious and linguistic minorities to administer educational institutions of
their choice is not an absolute right. The right is not free from regulations. Just
as regulatory measures are necessary for maintaining the educational character
and content of minority institution, similarly, such measures are necessary for
ensuring orderly, efficient and sound administration. The right to administer is
subject to permissible regulatory measures. A similar view was taken by the
Supreme Court in All Saints High School v. State of A. P.5
The present author feels that by prescribing the last date for the receipt of
application for admission, the University in no way interfered with the right of the
minority to administer educational institutions as it was intended to ensure
uniformity in admission dates in all affiliated and constituent colleges. This
regulation was in the interest of the students and any regulation which serves the
needs of the beneficiaries of the institution comes within the zone of permissible
regulatory measures.
As regards the second circular, Kasliwal J. in his minotiry judgment rightly
held that the action of the college in applying the method of interview contrary
to the direction given by the university is wholly arbitrary, wrong, illegal and
violative of article 14 of the Constitution. He observed:6
[N]o 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 thexolleges to admit student on the basis of marks
secured in the qualfying examination.... St. Stephen's College is not a
Professional College in the zone that it does not impart any technical
The above mentioned view is well in consonance with the decision of the
Supreme Court, in cases like Ajay Hasia v. Khalid Muzib1, Liladhar v. State of
Rajasthan? A.K. Yadav v. State ofHaryana,9 M.S. Garg v. State of Punjab™ and
Munindar Kumar v. Rajeev Govil,]] wherein it was held that the marks of the
interview should not exceed 15 per cent of the total marks.
It is further submitted that when the marks of the interview in public employ-
ment cannot exceed 15 per cent then, how the admission to an academic course
can be based soley on interview.
The most important question which arose in 5/. Stephen *s College case was
whether the college and the Allahabad Agricultural Institute (another minority
institution) are entitled to reserve seats for student of their own community and
whether such reservation would be violative of clause (2) of article 29.
The majority held that the minority educational institutions were entitled to
reserve fifty per cent of seats for the students of their own community. This view
leads to the conclusion that clause (1) of article 30 is not subject to clause (2) of
article 29 of the Constitution.
It is humbly submitted that the above view taken by majority is contrary to
the law laid down in the previous judgments of the apex court on this point, as
would be clear by examining those judgments.
In Bombay v. Bombay Education Society.12 S.R. Das J. held that article 29(2)
confers a special right on citizens for admission into educational institutions
maintained or aided by the state. To limit this right only to citizens belonging to
minority groups will be to provide a double protection for much citizens and to
hold that the citizens of the majority group have no special educational rights in
the nature of a right to be admitted into an educational institution for the
maintenance of which they make contribution by way of taxes. There js no cogent
reason for such discrimination.
Again in Inter Kerala Education Bill13 S.R. Das C.J., made it clear that the
real import of article 29(2) and article 30(1) is 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 show its character and
cease to be a minority institution. Indeed, the object of conservation of the distinct
language, script and culture of a minority may be better served by propagating the
same amongst non-members of the particular minority community.
test, they were denied admission, inspite of securing a high percentage of marks
in the test because a large number of seats had been reserved for Church sponsored
candidates. The aggrieved students filed a writ petition before the Allahabad High
Court on the ground that denial of admission to them was an unjustified discrimi
nation.
The High Court relying on the observations of Dwivedi J., in St. Xavier
College case pointed out :
In the present case under discussion Kasliwal J., relying on earlier rulings of
the court, held that the entire scheme of Part III 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 an educational institution. Articles
15(4), 28(3) and 29(2) place express limitation on the right given to the minorities
in article 30(1). He further made it clear that 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 getting19 grant-in-aid.
The present author feels that the construction given by the majority as regards
the relationship of articles 30(1) and 29(2) cannot be accepted for the following
reasons :
First, the rights guaranteed to minorities in educational matters under articles
29 and 30 are not absolute. They are subject to regulatory powers of the state,
regulations can be imposed in the interest of efficiency of institution, discipline,
health, sanitation, morality, public order and the like.
Second, article 30(1) meant to serve as a shield for minority educational
institutions against the invasion of certain rights protected by it and declared
fundamental so that they may not be discriminated against, cannot be converted
by them into a weapon to exact unjustifiable preferential or discriminatory
treatment for minority institutions so as to obtain the benefit but to reject the
obligation of statutory rights.20
Third, the right conferred on minorities under article 30(1) is also subject to
the right of a citizen not to be denied adminission on grounds only of religion,
race, caste, language or any of them.
Fourth, one of the underlying features of the Indian Constitution is that it sets
up a secular state, and a secular state is incompatible with communal educational
institutions. It is open to any community to have a school of its own and restrict
it to members of its own community, but if it chooses to take grant from the state,
then the community cannot deny the opportunity to any citizen of studying in its
institution merely because he does not belong to the community which founded
the school. The right of the citizen arises by virtue of the fact that it is the state
funds that are helping to maintain the school, and if such funds are helping to
maintain a school, that school cannot refuse admission to any citizen on the
ground of religion race, caste or language.21
Fifth, article 29(2) as originally recommended by the Minority, sub-commit
tee and approved by the Advisory Committee was drafted s follows :
21. Bombay v Bombay Edu. Society, A.l.R. 1954 Bom. 468 at 474.
12 CAD vol VII, p 898.
Lastly, it would have been better for the Supreme Court to construe articles
29 and 30 in the light of the intention of the framers of the Constitution which is
very aptly reflected in the observation made by Sardar Patel "In the long run, it
would be in the interest of all forget that there is anything like majority and
minority in this country and (to realize) that there is only one community." 23
Anil Kaushik*