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

Citation: [1991] SUPP. 3 S.C.R. 121

Court: Supreme Court of India

Bench: M.H. KANIA, K. JAGANNATHA SHETTY, N.M. KASLIWAL, M. FATHIMA BEEVI, YOGESHWAR DAYAL

Case summary

04 The access to academic institutions maintained or aided by the State funds is the special concern of Article 29(2).

Judgment text

ST. STEPHEN'S COLLEGE ETC. ETC. V. UNIVERSITY OF DELHI ETC. ETC. DECEMBER 6, 1991 [M. H. KANIA, K. JAGANNATHA SHETTY , N. M. KASLIWAL, M. FATHIMA BEEVI AND YOGESHWAR DAYAL, JJ. ] Constitution ofIndia, 1950-Article 30(1}-Minority educational institution-Constitutional safe-guards-Object and purpose of. Constitution ofIndia, 1950-Articles 30(1), 29(I), 29(2}-Minority edu- • cational institution-Religious autonomy in education and constitutional guarantee-Construction-Rights under the Articles-Distinction. Constitution ofIndia, 1950-Articles 30(1), 29, 14, 15-Minorityeduca- . tional institution-Admission on the basis of religion-Legality of. Constitution ofIndia, 1950-Article 30(1}-Minority educational institution claiming protection under~equirements. Constitution of India, 1950-Articles 30, 29-St. Stephen's College, whether a religious minority institution.

Constitution ofIndia, 1950-Article 30(I)-" Management ofthe affairs 11 11 ofthe institution", establish", administer"-Construction-Minorityeducational institution-Right to administer-Nature and scope of-Delhi University Act, Statutes, Regulations/State control-Effect and legality of Constitution ofIndia, 1950-Article 30(1}-Minority educational institution-Right to administer-Admission programme ofa college-Selection of students-Vniversity regulations/directions-Application/effect of Constitution ofIndia, 1950-Article 30(1}-Minority educational institution-Admission-Selection-Interview-Purpose of--J'rocedure adopted, whether reasonable. Constitution ofIndia, 1950-Articles 30(1), 30(2), 337-Minority educational institution-State aid-Object and ambit of-State control in admission matter-Effect of. 121 Constitution ofIndia, 1950-Articles 14, 15, 30, 29-Minority educational institution-Admission--Reservation to socially and educationally backward classes and equality concep1-eonstruction.

Interpretation ofStatutes-Kinds ofconstruction-Constitution ofIndia, 1950-Articles 30(1) and 29(2}-Method of Construction. WPN0. 186811980 The petitioner- college was a constituent college or the respondent- Delhi University. It also was affiliated to the University. The College, belonging to a religious minority community, was an aided educational institution. The college offered three-years Degree Course in B. AJB. Sc. (Hons. ), B. A. (Pass) and B. Sc. (General) and two years Post-graduate degree course in M. A. and M. Sc. The college had its own admission programme. The Christian students were given preference in admission. On 25. 5. 1980, the college published "Admissions Prospectus" for the academic year 1. 980-81. It was stated therein that ror admission for the first year course, the last date of receipt ofapplications would be 20. 6. 1980 and that there would be an interview prior to final selection or students. On 5. 6.

1980, the University issued a circular to all affiliated colleges, notifying the last date for receipt of applications at the colleges as 30. 6. 1980 and programme of admission was also phased therein. On 9. 6. 1980, the University in another circular provided certain guidelines for admission, that admission to B. A. (Pass)IB. A. Vocational (Studies) courses should be based on merit or the percentage of marks secured by students in the qualifying examination; that the admission to B. Com. (Pass), B. A. (Hons. ) and B. Com(Hons. ) courses should also be on the basis or marks; that if a college proposed to give weightage to marks obtained in one or more individual subjects in addition to aggregate marks of the qualifying examination, it should b~ notified in advance through the College Prospectus or Notice Board. The Delhi University Students Union complained to the University ST. STEPHEN'S COLLEGE v.

UNNERSITY OF DELHI 123 that the petitioner-college was violating the University Statutes and Ordi· nances, as it had fixed its own time schedules for receipt of applications for admission and conducting interview before admission-. The University requested the petitioner-college to conform to the University schedule as per its circular dated 5. 6. 1980. The Petitioner-college informed the University that no changes in its admission programme could be made. When the University by its letter dated 7/9. 6. 1980, asked the peti· tioner-college to conform to the dates prescribed for the dates of the University for admission, the petitioner-college replied that it was not possible to adhere to the University circulars. But it assured the University that no admission list would be put up before the date prescribed by the University. On 16. 6.

1980 a student, seeking admission for under-graduate course in the petitioner-college, filed a writ petitionin the High Court challenging the admission schedule of the college. On 30. 6. 1980 the High Court directed that as the college had not challenged the Validity ofUniversity circulars dated 5. 6. 1980 and 9. 6. 1980, the college to receive the applications for admission till 30. 6. 1980. (The __writ petition was the subject matter in the T. C. No. 3 of 1980 before this Court). The petitioner-college moved this Court (by filing W. P. (Civil) No. 1868) under Art.

32 of the Constitution stating that the college was a religious minority run institution; that though it was a constituent college of the University and affiliated to the :respondent-University, it was not a maintained college; that since the commencement of the college it was exercising inherent managerial powers, like fixing reasonable dates for admission and conducting interview of the candidates all over the country which were not questioned or interfered by the respondent-University; that the University's circulars would amount to ex-facie violative of the fundamental.

right of the petitioner-college, as fixing of the admission schedule was ex-facie managerial; that no part of the management could be taken away and invested in another body without an encroachment upon the guaranteed right; that the selection of the students for admission on the basis of marks, would be unreasonable and violative offundamental · right of the college guaranteed under Article 30 of the Constitution and that the University circulars dated 5. 6. 1980 & 9. 6. 1980 should be declared void qua the college in view of its minority status. In this writ petition, (WP (C) No. 1868of1980), the. Delhi University Students Union became an intervener. W. P. Nos. 13213-14/84 Under Art. 32 of the Constitution, the Delhi University Students Union and another filed two writ petitions in connection with admission year 1984-85 seeking a direction from this Court to the college to follow all University policies, Rules, Regulations Ordinances regarding admissions etc. They also prayed this .

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

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

of admission; and that the college's fundamental right ender Article 30 of the Constitution was not affected. CA. Nos. 1830-41 of1989; C. A. No. 1786 of1989 and CANo. 2829 of 1989. ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 125 The students, who were denied admission by The Allahabad Agricultural Institute which was established and administered by the Christian religious minority filed writ petitions under Art. 226 of the Constitution challenging the reservation and admission of Church sponsored Christian students. The High Court, declaring that the policy of reservation for Christian students was contrary to the equality guaranteed to citizens under Article 29(2) of the Constitution, allowe() the writ petitions. The Institute, obtaining certificate under Article 133(1)(a) of the Constitution filed C. A. Nos. 1831-41of1989 challenging the High Court's decisions. CANos. 1786/89 and 2829/89 were filed against the same judgment of the High Court, by the aggrieved students.

On the questions, (1) whether St. Stephen's College was a minority- I run institution? (ii) whether St. Stephen's College as a minority institution was bound by the University Circulars dated 5. 6. 1980 and 9. 6. 1980, directing that the College should admit students on the basis of merit of the percentage of marks secured by the students in the qualifying exami~ nations? and (iii) whether St. Stephen's College and the AIJahabad Agricultural Institute were 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? , this Court, allowing the W. P. (C) No. 1868/1980 filed by the College and the appeals filed against the judgment of the Allahabad High Court, and dismissing the W. P. Nos. 13213-14 of 1984 and T. C. No. 3/1980, HELD : (M. H. Kania, K. Jagannatha Shetty, M. Fathima Beevi and Yogeshwar Dayal, JJ. Majority-Per K. Jagannatha Shetty, J. ) 1.

01 India is a multi-cultural and multi-religious society. It is an extra-ordinary pluralistic and complex society with different religious minorities. Besides, there are linguistic aspirations and caste 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. [178 C-EJ ... ,·- 1. 02 The minorities cannot be treated in a religious neutral way in the educational institutions established and administered by them. Clearly that was not the aim of Article 30(1). Article 30(1) was 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 statesmen-like vision. The catholic approach that led to the drafting of the provisions dealing with the minority rights should not be set at naught. It must be ensured that nothing is done to deprive the minorities of a sense of belonging and of a feeling of security. (180 D-E] 1. 03 The minorities bav~ the right to admit their own candidates to maintain the minority character of their institutions. That is a necessary concomitant right which flows from the right to establish and administer educational. institution in Article 30(1). There is also a related right to the parents in the minority communities. The parents are entitled to have their children educated in institutions having an atmosphere congenial to their own religion. [181C-D] 2. 01.

The constitutional concept or religious autonomy in education in Article 30(1) bas to be balanced wah the constitutional guarantee under Article 29(2). Both the Articles operate in the same field namely, 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). (173 F-G] 2. 02. Under Article 29(1) every section of the citizens having a distinct language, script or culture of its own has the right to conserve the same. Under A. rticle 29(1), the minorities-religious or linguistic-are entitled to establish and administer educational institutions to conserve their distinct language, script or culture. The right to establish an educational institution is not confined to purposes of conservation of language, script or culture. The rights in Article 30(1) are of wider amplitude.

The width of Article 30(1) cannot be cut down by the considerations on which Article 29(1) is based. The words "of their choice" in Article 30(1) leave vast options to the minorities in selecting the type of educational institutions which they wish to establish. They can establish institutions to conserve their distinct language, script or culture or for imparting general secular education or for both the purposes. [17SH-176C] ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 127 2. 03. The collective minority right is required to be made functional and is not to be reduced to useless number. A meaningful right must be shaped, moulded and created under Article 30(1), while at the same time affirming the right of individuals under Article 29(2). There is need to . strike a balance between the two competing rights.

It is necessary to mediate between Article 29(2) and Article 30(a) between letter and spirit of these Articles, between traditions or the past and the convenience of the present, between society's need fC? r stability and its need for change. [181 E~F) , 3. 01. The institutional preference to minority candidates based on religion is apparently an institutional discrimination on the forbidden ground of religion•. It operates to stigmatise or single out candidates from non-minority communities on the ground only of religion. If an educational institutions says "yes" to one candidate but says "no" to another candidate on ground of religion, it amounts to discrimination on ground of religion. The mandate of Article 29(2) is that there shall not be any such discrimination. [176E-F] 3. 02. The choice of institution provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. Indeed, they cannot.

The minorities cannot establish educational institution only for the benefit of their community. Ifsuch 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. [176G-177A] 3. 03. Even in practice, such claims are likely to be met with considerable hostility. It may not be conclusive tQ'have relatively a homogeneous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges; segregated faculties or universities for imparting general secular education are undesirable and that may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution.

Every educational institution irrespective of community to which it belongs is a 'melting-pot'. In our national life, the students and teachers are the critical ingredients. It is there they develop respect fo}, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions. [177U-C] 3. 04 The access to academic institutions maintained or aided by the State funds is the special concern of Article 29(2). It 1·ecognises the right of an individual not to be discriminated based solely on the ground or a citizen's particular religion, race, caste, or having any particular language is absolutely prohibited in educational institutions maintained by the State or receiving aid out of State funds. It applies to minorities as well as to non-minorities.

When other qualifications being equal the religion, race, caste, language of a citizen shall not be a ground of preference or disability. Similarly, the words "any of them" as used in Article 29(2) are intended to give further emphasis that none of the grounds mentioned in the Article can be made the sole basis of discrimination. [177 F-H] 3. 05. The fact that Article 29(2) applies to minorities as well as nonminorities does not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1). Article 29(~) 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. [178 A-B] 3. 06. The minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject, of course, in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institutions is intended to serve. But in no ca,se such intake shall exceed fif-ty per cent of the annual admission. The minority institutions shall make available at least fifty per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit. [183 D-E] 4. 01.

The minority competent to claim the protection of Article 30(1) (] of the Constitution, and on that account the privilege of establishing and maintaining educational institutions of its choice, must be a minority of persons residing in India. They must have formed a well-defined religious or linguistic minority. It does not envisage the rights of the foreign missionary or institution, however, laudable their objects might be. After the Constitution, the minority . under Article 30 must necessarily mean those who form a distinct and identifiable group of citizens oflndia. Whether it ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI 129 \ is "old stuff'' or "new product", the object of the institute should be genuine, and not devices. There should be nexus between the means employed and the ends desired. [156 D-F] 4. 02:There must exist some positive index to enable the educational institution to be identified with religious or linguistic minorities.

Article 30(1) is a protective measure only for the benefit of religious and linguistic minorities and it is essential, to make it absolutely clear that no ill-tit or camouflaged institution should get away with the constitutional protection. [156 F] 5. The College has been constituted as a self-contained and autonomous institution. It has preserved the right to choose its own Governing: Body, and select and appoint its own Principal both of which have a great' contributing factor to maintain the minority character of the institution. It may also be noted that the Constitution of the College has been duly registered with the Registrar of Joint Stock Companies, Delhi Province~ as also the University of Delhi. The University has at no stage raised any objection about any of the provisions of the Constitution of the College. From these facts and circumstances it becomes abundantly clear that St. Stephen's College was established and administered by a minority community, viz.

, the Christian community which is indisputably a religious minority in India as well as in the Union Territory of Delhi where the College is located. [163 B-D] 6. 01. The minorities whether based on religion or language have the. right to establish and administer educational institutions of their choice. The administration of education;tJ1 institutions of their choice under Article 30(1) means 'management of the affairs of the institution'. This management must be free from control so that the founder of their nominees can mould the institution as they think tit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. But the standards of education are not a part of the management as such. The standard concerns the body politic, and is governed by considerations or the advancement of the country and . ,I its people.

Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore, has the right to regulate the standard of education and allied matters. Minor. ity institutions cannot be permitted to fall below the standards . of excellence expected of educational institutions. They cannot decline to follow the general pattern of education under the guise ofe. xclusive right of management. While the management must be left to them, they may be compelled to keep in step with others. [165H-166C] . ;....... ·"" .. 6. 02. The words" establish" and "administer" used in Article 30(1) \ are to be read conjunctively. 'Jhe right claimed by a minority community to administer the educational institution depends upon the proof of estab- ,_ lishm~nt of the institution. The proof of establishment of the institution, is thus a 'condition precedent for claiming the right to administer the institution. [156 CJ · 6. 03.

The State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational i! tStitutions of their ctioice. The minority institution has a distinct identity and the right to administer with continuance ofsuc,h identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutiona. 1 guarantee. The·~ight to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be. displaced or reorganised if the right is to be recognised and maintained. Reasonable regulations, however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Article 30(1). [160 H-16f BJ· 6. 04.

Though Article 30(1) is couched in absolute terms in marked contrast with other fundamental rights in Part III of the Constitution, it has to be read subject to the power of the State to regulate education, educational standards and allied matters. [166 EJ 6. 05. The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities.

So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shaU not have the effect of depriving the right ofminorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30{1). [168 F-H] ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 131 6. 06. Laws carving out the rights of minorities in Article 30(1) ', ' however, must not be arbitrary, individual or unjustified; they must have a reasonable relation between the aim and the means employed. The individual rights will necessarily have to be balanced with competing minority interests. [183 A] 6. 07. There is no provision in the Delhi University Act with overriding powers precluding the management of the College from exercising its right to administer the College as a minority institution. [161 CJ 7. 01.

The admission programme of the College has become a crucial instrument to promote the excellence of the institution and it forms part of the administration which the Coll. ege is entitled to have as a ntinority institution under Article 30(1) of the Constitution. The University cannot direct the College the dispense with its admission programme in the absence of proof of maladministration of the College. [163 G-H] ·7. 02. The right to select students for admission is a part of admini~ stration. It is indeed an important facet of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. [169 A-B] 7. 03. In the instant case, also the impugned directives of the University to select students on the uniform basis of marks secured in the qualifying examii:tations would deny the right of St.

Stephen's College- to admit students belonging to Christian community. It has been the experience of the College that unless some concession is provided to Christian students they will have no chance of getting into the College. If they are thrown into the competition with the generality of students belonging to other communities, they cannot even be brought within the zone of consideration for the interview. Even after giving concession to a certain extent, only a tiny number of minority applicants would gain admission. [170 C-D] . 8. 01. The purpose of the interview is not to reassess or remeasure the merits of the applicants in the qualifying examinations. The marks secured in the qualifying examinations are indeed relevant for selection and the interview is only supplementary test. The College fixes different cutoffpercentage qfmatks in different subjects.

The candidates are called for interview in the ratio of 1:4 or 1:5 depending upon the candidates choice of selection of courses of study. The interview is conducted by men of high integrity, calibre and qualification. They are men who deal with education -----... --~·-· -- '" \ . A and the students. During the interview, questions are asked to test the cand. idate's knowledge of the subject and his general awareness of the current problems. The student is also required to· furnish in the application form his intei:est, hobbie, values; career plan etc. Each member of the Interview Committee grades the performance of the candidates and the seltc'tiop is made for each course of study by taking into consideration the opinion expressed by all tbe members of the Interview Committee. By consensus_ ~he final list of candidates is prepared.

The selection is thus made on the basis of the candidate's academic record and performance at the interview keeping in mind his/her ~II rom1d competence, capacity to benefit from being in the College as well as potential to contribute to the life of College. Judging the performance by grading is a well known method followed in the academic field. [170F-171AJ 8. 02. The admission solely determined by the marks obtained by students, cannot be the best available objective guide to future aca~emic \ " performance. The College Admission Programme on the other hand, based on the test of promise and accomplishment of candidates seems to be better than the blind ~ethod of selection based on the marks secured in the qualifying examinatiotis. St. Stephen's College is not bound by the impugned circulars of the University. [172 B-C] . 9. 01. The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid.

Ther~ is also restraint on coltection of fees with the restraint on collection of fees, the minorities cannot'be saddled with the burden of maintaining educational institutions without grant-in-aid. They do not have economic advantage over others. It is not possible to have educational institutions without State aid. The minorities cannot therefore, be asked to maintain ed. ucational institutions on their own. [179 D-E) 9. 02. There is no entitlement to State grant for minority educational r institutions. There ~as only a stop-gap arrangement under Article 337 for the Anglo-Indian community to receive State grants. There is no similar provision for other minorities to get grant from the State. But under Article 30(2), the State is under an obligation to maintain a quality of treatment in granting aid to educational Institutions. Minority institutions are not to b{! treated differently while giving financial assistance.

They are entitled 'to get the financial assistance much the same way as the institu- ;tions of tlfo majority communities. [178G-179A] 9. 03. The rec~ipt of State aid does not impair the rights in Article _, -- ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI 133 30(1). The State can lay down reasonable conditions for obtaining grantin-aid and for its proper utilisation. The State has no power to compel minority institutions to give up their rights under Article 30(1). [179 BJ 9. 04. The rights under Article 311~1) remain unaffected even after securing financial assistance from the Government. [179 DJ 10. 01. The Constitution establishes secular d~mocracy. The animat- - , ing principle of any democracy is the equality of the people. But the idea that all people are equal is profoundly speculative. In order to treat some .. persons equally, we must treat them differently. We have to recognise a fair degree of discriminations in favour of minorities.

But it is impossible to have an affirmative action for religious minorities in religfous n~utral way. In order to get beyond religion. We cannot ignore religion. We must first take account of religion. [181 GJ 10. 02. The reservation to socially and educationally backward classes would serve the interests of the society at large by promoting the advancement of the weaker elements in the society. [182 BJ 10. 03. The concept of equality before the law and the prohibiti. ori of t certain kinds of discrimination do not require identical treatment. The, 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. - {182 HJ State of Bombay v. Bombay Education Socie,i-y, [1955) 1 SCR 568; Sidhajbhai Sabhai v. State of Bombay and Anr. , [1963) 3 SCR 837; Rev. · Father W. Proost and Ors. v. State of Bihar and . Ors.

, [1969] 2 SCR 73; Gandhi Faiz-Am-Col/ege Shahjahanpur v. University ofAgra andAnr. , [1975] 2 SCC 283. DA. V. Col/ege Jullundur v. State ofPunjab, [1971) 2 SCC 269; A. P. Christian Medical Educational Society v. Government ofAndhra Pradesh, (1986] 2 SCR 749; Chikkala Samuel v. District Educational O/ficer, llydetabad and Anr. , AIR 1982 A. P. 64; Rajershi Memoria/ Basic Training School v. The State ofKerala and Anr. , AlR 1973 Ker.. 89; AzeezBasha v~ Union of India, (1968) lSCR 833; S. K. Patro v. State ofBihar, [l970] 1 SCR 112; Re: Kerala Education Bill, 1957, {1959) SCR'99S; Siate ofKtfala v. Mothtr Provincial, [1971] 1 SCR 734; Ahmedabad St. Xaviers College Soaiety v. Slate of Gujarat &Anr.. [1975] 1 SCR 173; Lily Kurian v. Lewina and Ors. , (1979) 2 sec l24;Rt. Rev. MagrMarkNetto v. GovernmemofKera/a, [1979] 1SCR 609; Directorof School Education, Governl'l'llnl ofTamil Nadu v. Rev. Brother G. Arogiasamy, AIR 1971 Madras 440; R. Chitralekha and Ors. v. State of . H Mysore and Ors.

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

p. 280, re- '• ferred to. N. M. Kasliwal, ]. (Dissenting) 1. 01. The aim or our Constitution is unity in diversity. It is to enrich the unity by making it assimilate the diversities, it is not to encourage fissiparous tendencies. The fundamental right guaranteed by Art. 30(1) is not, therefore, to bAxtended so as to encroach upon other fundamental rights or to go contrary to the intentions of the founding fathers. [209 DJ 1. 02. The framers or the Constitution were fuJly knowing the problems of various communities having differentreJigions, distinct languages and diverse cultures. The whole edifice of our Constitution is based on secularism and so far as the minorities are concerned it was considered necessary that they should be aJlowed some rights in respect of 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, scriptor~ure of its own were conferred the right to conserve the same. Education is a stro~g factor to unite the entire country and it was considered necessary that where ~my educational institution is maintained by the State or receives aid out of State funds then the right of equality was guaranteed to every citizen in the matter or admission. in such institution. If the ·minorities, based on religion. or language wanted to run any educational instit;ution without any aid out of State funds, there was no restriction placed upon the IJ! inoritits in· the matter of admission in such education institutions and they were free to ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 135 admit students of their community. But in a case where they were receiving aid out ofState funds which money comes from contributions by, way of ta. ' nal unity as a whole.

It is necessary tJtat minorities should join and be part and parcel of common stream of the country. The framers or the Constitution provided to conserve the distinct language, script or culture ofany section of CitiZfnS-ef-this country and granted right to minorities to establish and -- -administer educational institution of their choice. At. the same time clearly provided in Art. 28 that no religious instruction shall lie provided in any educational institution wholly maintained out of Stat~ funds. While in case of institution maintained or receiving aid out ofstate funds, no citiz~n shall · be denied admission on grounds only of religion, race, caste, language or any of them under Clause(2) of Article 29. Thete is no impedirnellhor obstruction in the right of minorities in imparting education in ·their own language and disseminating their culture by way of extra currkular activities and thus to conserve their own culture.

Clause(l) of Art~ 29 Uo-es · not take away any such right nor puts any restrktion on tht minorities in running the educational institutions of their choice. It would be rather in the interest of the minorities to admit students of otHei' communities and I to disseminate their' own culture in a wider range ot tom. munity. For example, if Christians are running an educationafinstitution, they are free to have English as a medium of instruction. They can also ·teach·the high ideals and values of Christian religion. The· only t~triction is what is contained in Art. 28(3) which applies to any edutktional institution recognised by the State or receiving aid out of State funds irrespective of the same being a minority or majority institution. The restriction under Art.

28(3) is that no person attending such educational institution shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution without his consent and in case such a person is ·minor without t! ie consent of his guardian. [208 F-209 CJ 1. 04. A conspectus of the entire scheme or Part (III) of the Constitution clearly goes . to show that the Constitution makers did not i. ntend to confer absolute rights on a religious or linguistic minority to establish ~nd administer educational institutions. Right to admission is curtailed by Art. 15(4) which enables the State to make any special provision for the advancement of any socially and educationally backward class of citizens or for the Scheduled Caste and Scheduled Tribes in the matter of admission in the educational institutions receiving a. id from the State. Art.

28(3) imposes an other restriction according to which any person attending any educational institution recognised or receiving any aid by the State shall 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 ~rticles 15-(~), 28(3) and 29(2) place express limitations qn the right given to minorities in Art. 30(1). (212 A-D] LOS.

In any view of the matter if the College is receiving aid out of State funds it has to abide by the rigour of Art. 29(2) in the matter of admission of students in the College. [213 E] 1. 06. St. Stephen's College and Allphabad Agricultural Institute are not entitled to claim any preferentiaJ/right of reservation in favour of students of Christian Community as they are getting grant-in-aid. [213 G] 2. 01. The controversy involved in the cases is between clause (2) of Art. 29 and Clause (1) of Art. 30. The framers of the c;onstitution were fully knowing about the necessity ofgranting protection to the 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 ~dmission in any educational institution maintained by the-State-0r receiving aid all citizens would be treated equal and could not be denied admission on grounds only of religion race, caste, language or any of them. The right guaranteed under Art. 29(2) is a special right which would prevail over the general right guaranteed to the minorities under Art. 30(1). [202 F~G] 2. 02 The right conferred on minority to. establish and administer I . ' ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 137 ) It educational institutions under Art. 30(1) of the Constitution is not absolute and is always subject to reasonable regulations. If a minority had estab· lished and is administering educational institution without receiving any aid out of the State funds then clause (2) of Art. 29 will not come into play. However, if such educational institution is receiving aid out of the State funds then it would be subject to the rigour of clause (2) of Art.

29 and it cannot deny admission on grounds only of religion, race, caste, language or any of them. If such institution gives preference or makes reservations for the candidates belonging to its own religion, then it is bound to cause inequality and discrimination with a candidate belonging to another religion and it would be a denial of admission on the ground of religion and . would be hit by Art. 29(2). [201 A-C] 2. 03. The right conferred under Art. 30 is a general right granted to all minorities, but if any educational institution esta~lished and administered by such minority also gets the benefits of grant-in-aid out of the State funds then it has to fall in the line equally with all other educational institutions in the matter of admitting students in such institution and . cannot prefer or reserve any seats for students of its own religion. [201CJ 2. 04. Clause(2) of Art. 29 is a counterpart of the equality clause of Art. 15.

There should be no discrimination against any citizen on the ground of religion, race, caste or language or any of them in the matter of admission into any educational institution maintained or aided by the State. Which clause(l) of Art. 29 protects the rights of a section of the citizens having a distinct language, script or culture of its own, the right conferred by clause (2) is an individual right given to the citizen as such an i:o.. spectus" 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 I 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 irt exercise of his emergency powers under Statute ll-G(4) of the Statutes of tbe 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 a/ia, laid down as follows: "(l) Admission to B. A. (Pass) ffl. /\. 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) l? Y the College, it should be notified in advance to the students through the College Prospectus/Notice J \. - Board so that applicants seeking admission know in advance the basis of admission. (iii) That last date for receipt of applications to all the undergraduate courses will be June 30, 1980 and this would be uniformly adhered to by all the Colleges. " ,· These recommendations were accepted by the Central Admission Committee and also by the Vice-Chancellor. THE CIRCULARS OF THE UNIVERSITY 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 r ~ (i) Notification of first admission Wednesday 2nd July, == list by the colleges 1980 Payment of fees (up to) Friday 4th July 1980 upto 4 PM General note : The number of names in all admission lists shall correspond to the )= number of seats a. vailable in the courses concerned. No student whose name appears in an admission list (or who qualifies on the basis of the percentage indicated in the list) shall be denied admission provided he/she pays the fees t by the date and time stipulated. (ii) Notification of second· Friday 4th July 1gso Admission List by the Colleges 6PM ST. STEPHI;N'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J. ] 145 Payment of fees Saturday 5th- Monday 7th July 1980 upto 4 PM B.

Second phase of admission For students securing below 45% but above 40% marks Notification of Third Tuesday 8th July 1980, Admission List by the Colleges 12. 00 Noon Payment of fees (upto) Thursday iO July 1980, 4. 00PM On June 9, 1980, the University issued another circular to Principals of all Colleges intimatinginter-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 examinatiQn. The admission to B. Com (Pass), B. A. (Hons) and B. Com (Hons) courses shall be on the bas-is 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 i_n advance to the students through the College Prospectus/Notice Board so that applicants seeking admission know in advance the basis ofadmission. This circular also provides certain · guidelines ~or admission to sportsmen and persons with other distinctions. 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 ofadmission forms for under-graduate courses should be June 30, I980 and the stipulation of the College as Jurie 20, 1980 for that purpose would be very embarrassing to the University authorities. The Vice-Chancellor again ~sked the College manage~ ment to conform ~o the dates prescribed by the University. 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 ofprospective students by a competent body is as 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 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 on 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, th. e High Court also observed that it had no option but to issue such an order since SL Stephen's College had not challenged the validity of the University circulars dated 5th and 9th June, 1980. This Writ Petition had been the subject matter in the Transferred case No. 3 of 1980. ST. STEPHEN'S COLLEGE MOVES THE SUPREME COURT fi,> 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 ofthe University, but not a maintained college. From the very beginning, the College has been exercising certain obvious and inhere! lt managerial powers: one of them was to fix reasonable dates for admissfon 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 d~te 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 ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J. ] l47 be free of control so that the founders or their nominees can mould the ,A 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. , 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 about40% of the applicants are from outside; of the 300 to be admitted lOOare 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. 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 The Delhi University Students'- Union is an intervener in the Writ Petition No. 1868of1980 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 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 theUniversity. 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 oh religion is contrary to the provisions of Article 29(2) of the Constitution.

THE CASE OF THE DELHI UNIVERSITY The Del_hi 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 n 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 practice 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 entit!

ed to claim a fundamental right under Article30 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. .. ,-G THE ALLAHABAD AGRICULTURAL INSTITUTE 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 Chris- ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETIY, J. ] l49 tians under the leadership of Dr. Sam Higginbothom. It is now located on the right bankofJamuna river at a tiny place called Naini in the famou8 pilgrimage and education centre of Allahabad It has 600 acres campus including staff quarters, men's and wom~n's hostels, library and administration buildings with ten departments and auxiliary units of the Institute.

The Institution impartseducation in several courses of study, like Jilter Agriculture, Inter Home Science, Indian Dairy Diploma (IDD), B. Sc. in Agriculture, B. Sc. Home Economics, B. Tech. in AgriculturaJ. 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 centers. It has prescribed the rules ofadmission to 1st year of each degree/diploma programme as follows:- 1 Church Sponsored students from the whole country of which at least I/5th shall be from U. P. Miniffium 50% 2. Students of U. P. Domicile including Church spol)sored coming on merit. ranking 40% 3. Students from other States including foreign students but excluding U. P. and Church-sponsored students 5% 0 4.

Tribals 5% 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, Kamataka, Pondicherry, Goa, Andaman & Nicobar 30% West : Gujarat, Maharashtra, Madhya Pradesh · 10% North-West : Assam, Arunachal, Mizoram, Nagaland, Manipur, Meghalaya, Tipura 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 tp any course in this Institute.

(5) Not less than 25% of the enrolment shall be women students. " The students who have been denied admission by this Institute filed Writ Petitions und_er Article 226 of the Constitution in the Allahab,ad High Court ~hallenging 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 io citizens under Article 29(2) of the Constitution. l3eing 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 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 StStephen'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? 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 ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHEITY, J. ] i51 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. We may take up these questions in turn, but before doing so, we may briefly refer to some to the cases where similar problem came up for consid- / eration. In State ofBombay v. Bombay Education Society [1955) 1 SCR 568 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 ofBombay and Anr.

[1963) 3 SCR 837 this Comt 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 do donations received from the Irish Presbyterian Mission, fee from- scholars and grant-in-aid under the Education Code of the State Government The CoJlege and other forty-twO,i primary schools are run for the benefit of the religious denomination of ttie · 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 administeredlby the Christian minority. In Rev. Father W. Proost and Ors. v. State ofBihar and Ors, [1969] 2 SCR 73 there was again no serious dispute that the institution concerned i. e. St. Xavier's College was founded by Jesuits ofRanchi, who were a Christian minority. In Gandhi Faiz-Am-College Shahjahanpur v.

University of Agra and Anr. , [1975) 2 SCC 283 the appellant was a registered society formed by the memb~rs 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 DA. V. College Jullundur v. State of Punjab, [1971] 2 SCC 269 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 miiiority 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 ofits own. The Sections ofpeople 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 the adininistered by that religious minority with a script of its own. ,. D In ·i. t more recent case A. P. Christian Medical Educational Society v. Government ofAndhra Pradesh, [19S6] 2 SCR 749 the appellant was a regis- ·tered society. It claimed to have establishe n or affiliation.

There will be borderline cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect 1he question of. principle. In . every case when the. rasonableness of a regulation comes up for consideration before. the court, the question to. · be. asked and answered is whether the regulation is cakulated to. subserve or will in effect subservethe purpose of recognition or affiliation, namely . the excellence. of the institution as a vehicle for general secular education to . the min9rity community and to other persons who resort to it:The question wheth~r a regulation is in the 'general interest of the,public ha. s.

no relevance, if it does not advance the excellence ,of the institution as a vehick for general secular education as, ex-hypothesi, the only permissible regulations a~e those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a panicular regulation is calculated to advance the gc11eral public interest is of no consequences if it is not conducive to the interest of the minority community and those persons who resort to it. " ln Lily Kurian v. Lewina and Ors. , [1979] 2SCC124 it was pointed out (at 137): "Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority's choice enshrined in Arl. icle 30(1) means 'management ofthe affairs' of the institution.

This right is, however, subject to the regula~ory power of the State. Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution, is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justifird by pleading the interests of the general public; the interests justifying interference can only be the interests of the minority concerned. " The need for a detailed study on this aspect is indeed not necessary. The right to minority whether religious or linguis'tic, to administer educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister.

The State being he controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, Jabour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1). · ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI [SHETTY, J.

] 169 The right to select students for admission is a part of administration. 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 Bombay Government order which prevented the schools using English as the medium of instruction from admitting students who have a mother-tongue other than English was held to be invalid since it restricted the admission pattern of the schools. (State ofBombay v. Bombay Education Society, [1955] 1 SCR 568). The Gujarat Government direction to the minority run college to reserve 80 per cent of seats for Government selected candidates with a threat to withdraw the grant-in-aid and recognition was struck down as infringing the fundamental right guaranteed to minorities under Article 30(1) of the Constitution. (Sidhajbhai Sabhai v.

State ofBombayandAnr, [1963] 3 SCR 837). In Rt. Rev. Mager. Mark Netto v. Government ofKera/a, [1979] 1SCR609 the denial of permission to the management of a minority school to admit girl students was held to be bad. The Regional Deputy Director in that case refused to give sanction for admission of girl students on two grounds; (i) that the school was not open as a mixed school and that the school has been run purely as a boys school for 25 years; and (ii) that there was facility for the education of girls of the locality in a nearby girl . school which was established by the Muslims and was also a minority institution. This Court noted that the Christian community in the locality wanted their girls also to receive ecrucation in the school maintained specially by their own community. They did not think it in their interest to send their children to the Muslim girls school run by other minority community.

The withholding of permission for admission of girl students in the boys minority school was violative of Article 30(1). It was also observed that the rule sanctioning such refusal of permission crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30(1). The Court restricted the operation of the rule and made it inapplicable to the minority educatio. nal institution. In Director ofSchool Education Government of Tamil Nadu v. Rev. Brother G. Arogiasamy, . AIR 1971 Madras 440 the p Madras High Court had an occasion to consider the validity of an uniform procedure prescribed by the State Government for admission of candidates to the aided training schools. The Government directed that the candidates should be selected by the school authorities by interviewing every candidate eligible for admission and assessing and awarding marks in the interview.

The marks awarded to each candidate in the interview will be added to the marks secured by the candidate in the S. S. L. C. public examination. On the basis of the aggregate of marks in the S. S. L. C. examination and those obtained at the interview the selection was to be made without any further discretion. The High Court held that the method of selection placed serious restrictions on the freedom of the minority institution to admit their . own students. It was found that the students of the minority community could not compete with the students· belonging to other communities. The applications of students from other communities could not be restricted under law. The result was that the students of minority community for whose benefit the institution was founded, had little chance of getting admission. The High Court held that the Government order prescribing the uniform method of selection could. not be applied to minority institutions.

In the instant case also the impugned directives of the University to select students on the uniform ba~is of marks secured in the qualifying examinations would deny the right of St. Stephen's College to admit students belonging to Christian community. It has been the experience of the College as seen from the chart of selection produced in the case that unless some concession is provided to Christian students they will have no chance of getting into the college. If they arc thrown into the competition with the generality of students belonging to other communities, they cannot even be brought within the zone of consideration for the interview. Even after giving concession to a certain extent, only a tiny number of minority applicants would gain admission. This 1) is beyond the pale of controversy. The grievance of the University and the Students' Union is that the Colle_ge Admission Programme is a device to manipulate the.

merits and not a scientific test to assess performance of candidates. The selection is made by judging the_ candidates at the interview and the marks secured in the qualifying examinations arc not taken into account for selection. The marks arc only relevant for calling· the candidates for interview. We have carefully examined the College Admission Programme and in our opinion, the contention urged for the University and students union is misconceived. The purpose of the interview is not to reassess or remeasure the merits of the applicants in the qualifying examinations. The marks secured in the quaiifying examinations arc indeed rcleva_nt for selection and the interview is only supplementary test. The College fixes different cut-off percentage of marks in different subjects. The candidates are called for interview in the ratio of 1 : 4 or 1 : 5 depending upon the candidates choice of selection of courses of study.

The interview is conducted by men of high integrity, calibre and qualification. They arc men who deal with education and the students. During ,the interview, questions arc asked to test the candidate's knowledge of the subject and his general awareness of the current problems. The student is also required to furnish in the application form his interest, hobbies, values, career plan etc. Each member of the Interview Committee grades the performance of the· candidates and: the selection is made for each course ·of study by t. iking into consideration the opinion expressed by all the members of the Interview Committee. By ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J. ) 171 consensus the final list of candidates is prepared.

The selection is thus made on the baSis of the candidate's academic record and perfonnance at the interview keeping in mind·his/her all round competence, capacity to benefit from being in the College as well as potential to contribute to the life of College. Judging the performance by grading is a well known method followed in the academic field. . B The oral interview as a supplementary test and not a' 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. Chitra/ekha and Ors. v. State ofMysore and Ors, (1964] 6 SCR 368; A. Peeriakaruppan v. State ofTamil Nadu ,(1971] 2 SCR 430; Miss Nishi Maghu and Ors. v. State ofJammu and Kashmir, (1980] 4 SCC 95; Ajay Hasia etc. v. V. Khalid M. ujib Sehravardi, [1981] 2 SCR 79; Lila Dhar v. State of Rajasthan and Ors. , [1982] 1 SCR 320 and Koshal Kumar Gupta v. State of Jammu & Kashmir, [1984] 3 SCR 407. 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 arc 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. · 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 arc received every year as against a limited number of 400 seats available for admission. The applicants come from different institutions w. ith djverse standards. The merit judging by percentage of marks secured by applicants in different 1 qualifying examinations with different standards maY, not lead to proper and fair selection. It may not also have any relevance to ~aintain the standards of . .. , excellence of education. As observed by this Couit in D. N.

Chanchala v. Staie of Mysore, (1971} Supp. SCR 608 the result . obtained by . a student in an eamination held ·by one University cannot be comparable with the result obtain'ed by another candidate in an examination of another University. Such standards depend on several human factors, method of teaching, e:J1. amining and evaluation of answer papers. The subjects taught and examined may be the same, but the standard of examination and valuation may vary, and the variations are inevitable. In the premises, the admission solely determined by the marks obtained by students, cannot be the best avaiJable objective guide to futi. Jre academic performance. The College Admission Programme onthe 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. So in. the end we are driven to conclude thatSt. Stephen's College is not bound by the impugned circulars of the University. THIRD. QUESTION Whether St. Stephen's College and the Allahabad Agricultural InstituLe 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? 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 t is available only to individuals. The general equality by non-discrimination is - I 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 musi 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, theJrish Catholics in Ulster, the French Canadians