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

A The Principal of the College was not available at that time and in his absence, the Vice-Chairman of the College replied by letter dated June 12. 1980 to the Vice-Chancellor stating that "the interview of prospective students by a competent body is 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 B 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

c 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 D 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 E 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 of the 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 B 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 C 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 D 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 E 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 F 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 Consti- tution seeking a direction to St. Stephen's College to follow all University G policies, rules, regulations, ordinances regarding admissions etc. and further for a direction restraining College from giving preference in favour of Chris- tian students in the matter of admission to the College. It was alleged in the Writ Petition that the College has not been declared to be a minority college by any Court nor it is recognised as a minority college by the University. It was alternatively contended that even assuming that it is a minority college, it is not H

148 SUPREME. COURT REPORTS (1991] SUPP. 3 S. C.R.

A 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 B 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, C 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. D 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 E 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 col- F leges 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 ..,-G power under the relevant Ordinances of the University.

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 admini- H stered 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 A right bank of Jamuna 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 imparts edu- cation in several courses of study, like Jilter Agriculture, Inter Home Science, Indian Dairy Diploma (IDD), B.Sc. in Agriculture, B.Sc. Home Economics, B 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 of admission to 1st year of each degree/diploma programme as follows:-

1 Church Sponsored students from the whole country of which at least I/5th C shall be from U.P. Miniffium 50%

2Copy pinpoint2. Students of U.P. Domicile including Church spol)sored coming on merit. ranking 40%

3Copy pinpoint3. Students from other States including foreign students but excluding U.P. and D Church-sponsored students 5% 0

4Copy pinpoint4. 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, F Bihar, Bengal and Delhi 40%

South : Orissa, Andhra, Tamil Nadu, Kerala, Kamataka, Pondicherry, Goa, Andaman & Nicobar 30%

West : Gujarat, Maharashtra, Madhya Pradesh · 10% G 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. H

150 SUPREME COURT REPORTS [1991] SUPP. 3 s. C.R.

A (3) In each of the categories only those who have qualified in the entrance testwillbe 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. B (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 C students. The High Court has allowed the writ petitions declaring that the policy of reservation for Christian students is contrary to the equality guaran- teed 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 D · 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

E 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 G 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. B 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 com- munity 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 minorityc ,, institution entitled to protection under Article 30(1) of the Constitution. In Sidhajbhai.Sabhai v. State of Bombay 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 D 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 ad- mission 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 of Bihar and E 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 of Ranchi, 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. F 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. G This conclusion was reached on a rapid glance at the evolution of the Institu- tion. 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 H

152 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A to be a linguistic minority was, however, contested. This Court observed that linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language; but it is not necessary that that language .. should also have.a distinct script of its own. The Sections of people who speak a language which has no script will also be a linguistic minority entitled to protection of Article 30(1). Since Arya Samaj have a distinct script of their own, namely Devnagri, this Court held that they are entitled to invoke the right guaranteed under Article 29 (1) because they are a section of citizens having a distinct script. They are also held entitled to the right under Article 30 (1) because of their being a religious minority in the State of Punjab. It was also observed that the religious or linguistic minorities need not be so in relation to the entire population of the country and it is enough if they are so in relation to the particular legislation or the State concerned. After referring to the history of Arya Samaj, it was stated that though the Hindu Community is a majority community in the whole of India, the Arya Samaj which comprise of members of the Hindu Community, is a. religious minority in Punjab and that they are entitled to claim the right under Articles 29 (1) and 30 (1) since the College was established 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 of Andhra Pradesh, [19S6] 2 SCR 749 the appellant was a regis- tered society. It claimed to have establishe<.Yand administered a medical college ·- as a Christian Minorities Educational Institution. It went on admitting students for the medical college and claimed protection under Article 30 (1). The State E Government refused_ permission to establish the College. The University also refused affiliation. When the matter came before this Court, it was observed that the Government, the University and ultimately the Court have the un- doubted right to pierce the 'minority veil' and discover whether there is lurking behind it no minority at all and in any c:ase no minori)y institution. The minority institutions must be educational institutions of the minorities in truth and in F reality and not ·mere masked phantoms. It was emphasized that what is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institutioh of t the minorities. .•

G In C hikkala Samuel v. District Educational Officer Hyderabad and Anr., AIR 1982 A.P. 64 the Andhra Pradesh High Court observed that minority in- stitution imparting general secular education in order to claim the benefit of Article 30 (1) must show that it serves or promotes in some manner, the interest of the minority community or a considerable section thereof. Without such proof, it was said that th.ere would be no nexus between the institution and the H minority as sue!!:_

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 153

In Rajershi Memorial Basic training School v. The State of Kera/a and A Anr.. AIR 1973 Kerala 89 the Kerala High Court said that the mere fact that the school was founded by a person belonging to a particular religious

- persuation is not at all conclusive on the question. The petitioner h_as to prove by production of satisfactory evidence that the school in question was one established and administered by a minority whether based on religion or language. B In Azeez Basha v. Union of India [1968] 1 SCR 833 the challenge was mainly dirt:_eted to certain amendments made in the Aligarh Muslim University Act. 1920 by the Amendment Act of 1951 and also of 1965. The petitioners took the plea that by the amendments made in 1965, the management was deprived of the right to administer Aligarh Muslim University and that this c deprivation was in violation of Article 30 (1) of the Constitution. Having regard to the nature of the contention raised, it was found necessary for this court to make a detailed study of the history of the Aligarh Muslim University in the light of the ·provisions of the University Act. 1920. The Court observed that although the nucleus of Aligarh Muslim University was the Mohammadan Anglo-Oriental College which was till 1920 a teaching institution, the conver- D sion of that College into the University was not by the Muslim minority but it took place by virtue of the Act of 1920 which was passed by the then Central Legislature. As there was no Aligarh Muslim University existing till the Act of 1920 and since it was brought into being by the Act of Central Legislature, the Court refused to hold that it was established by the Muslim minority. It was also concluded that there is no proof to justify the claim that the Aligarh E Muslim University owed its establishment to the Muslim minority and they, therefore, have no right to administer the University by virtue of the fundamen- ta¹ right guaranteed under Article 30 (1).

';"" A couple of years after the Azeez B.-isha decision, this Court had another occasion to determine the nature of an ancient institution claiming to be a minority institution. The decision has been reported in S.K. Patro v. State of Bihar. [1970] 1 SCR 172 Since it appears to be in close parallel with the case on hand, it will be useful to have the consideration of rival contentions raised therein. There the Education Department directed the C.M.S. School to reconstitute the Managing Committee and that direction was challenged before the High Court of Patna on the ground that the school was a Christian minority institution and entitled to have its own management body without interference '- by the State. The High Court did not accept that claim of the institution and rounded off its conclusion :

"Nowhere in the petition or in the affidavit in reply it is asserted H

154 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A by the petitioners that the School was opened, started, founded or - brought into existence, and thus established by Indian Church. Surprisingly enough even in regard to the present ownership and a9ministration, nowhere i_t is stated by the petitioners that it is the . Christian minority of the Indian Citizens who are seeking protec- tion of their School under Article 30 _of the Constitution. It is not B the case of the petitioners anywhere that the Indian Christians were · members of the Church Missionary Society, London, or the.Chris- tians residing or domiciled in India had any hand in the establish- ment of the educational institution .... In such a situation it has got to be elder that the petitioners have failed to prove that C.M.S. School was established by the minority, which is entitled to c protection under Article 30 of the Constitution.

The High Court further observed that the word 'minority' in Article 30 did not mean a minority with reference to the world population but had reference to the population of the Indian Citizens. If aliens residing in India claiming to constitute a minority on the basis bf religion or language want to establish and administer an educational institution, they cannot claim protec- tion under Article 30, for, the benefit of Article 30 was confined to persons of Indian origin. It was noted that the school was started in 1854 by the Church Missionary Society, London, and such a Society, could not be said to be a citizen of India and that in any event the persons who constituted the society being aliens, the C.M.S. School established by them could not get the benefit of Article 30 (1).

On appeal, the Judgment of the High Court was reversed by this Court mainly on two grounds : (i) the High Court did not pay sufficient attention to that part of the evidence supplied by the petitioners which was sufficient to justify their claim that the local citizens had participated in the establishment of the school in question, and (ii) Indian Citizenship not being a condition for · the application of Article 30; the protection thereunder could not be denied on that basis. Regarding the first ground, the Court examined the material on record and found it sufficient to prove that the local Christians of Bhagalpur took a leading role in establishing and maintaining the school. Record book of the Church Missionary Association at Bhagalpur, the copies of letters written to the Church Missionary Society by the Calcutta Corresponding Committee (of the Church Missionary Society) atBhagalpur, minutes of the meetings held and the resolutions passed by the Local Council of Bhagalpur were all relied ~- / upon in support of the conclusion. It was also found that the assistance for es- tablishing the institution was obtained from either bodies including the Church H Missionary Society, London. On this material, it was held that the school was

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 155

set up by the Christian Missionaries and the local residents of Bhagalpur with th~ aid of funds part of which were contributed by them. On the Second ground "this Court observed (at 179) :

"It is unnecessary to enter upon an enquiry whether all the persons who took part in establishing the school in 1854 were 'Indian citizens'. Prior to the enactment of the Constitution there was no settled concept of Indian citizenship, and it cannot be said that Christian Missionaries who had settle in India and the local Christian residents of Bhagalpur did not form a minority commu- nity. It is true that the minority competent to claim the protection of Article 30(1) and on that account the privilege of establishing and maintaining educational institutions of its choice must be a mi- C nority of persons residing in India. It does not confer upon foreigners not resident in India the right to set up educational institutions of their choice. Persons setting up educational institu- tions must be resident in India and they must form a well-defined religious or linguistic minority. It is not however, predicated that protection of the right guaranteed under Article 30 may be availed of only in respect of an institution established before the Constitu- tion by persons born and resident in British India.

xxxxx xxxxx xxxxx

"Article 30 guarantees the right of minorities to establish and administer educational institutions: the article docs not expressly refer to citizenship as a qualification for the members of the minorities."

And later (at 180):

"We are also unable to agree with the High Court that before any protection can be claimed under Article 30(1) in respect of the Church Missionary Society High Secondary School it was required to be proved that all persons or a majority of them who established the institution were 'Indian citizens' in the year 1854. There being no Indian citizenship in the year 1854 independently of the citizen- G ship of the British Empire, to incorporate in the interpretation of Article 30 in respect of an institution established by a minority the condition that it must in addition be proved to have been estab- lished by persons who would, if the institution had been set up after the Constitution, have claimed Indian citizenship, is to whittle down the protection of Article 30 in a manner not warranted by the H provisions of the Constitution."

156 SUPREME. COURT REPORTS [1991] SUPP. 3 S. C.R.

A There is py now, fairly abundant case law on the questions as to "minority", the minority's right to "establish", and their right to "administer" educational institutions. These questions have arisen in regard to a variety of institutions all oyer the country. They have arisen in regard to Christians, Muslims and in regard to certain sects of Hindus and linguistic groups. The ·~' Courts in certain cases have accepted without much scrutiny the version of the claimant that the institution in question was founded by a minority community while in some cases the Courts have examined very minutely the proof of the establishment of the institution. It should be borne in mind that the words "establish" and "administer" used in Article 30(1) are to beread conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proofof establishment of the institution. The proof of establishment of the institution, is thus a condition precedent for claiming the right to administer the institution. Prior to the commencement of the Constitution of India, there was no settled concept of Indian citizenship. This Court, however, did reiterate that the minority competent to claim the protec- tion of Article 30(1) of the Coostitution, and on that account the privilege of establishing and maintaining educationru institutions of its choice, must be a D 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 of India. Whether it is "old stuff' or "new product", the object of the institute should be genuine, and not E devices or dubious. There should be nexus between the means employed and the ends desired. As pointed out in AP.Christian Educational Society case [1986] 2 SCR 749 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 absolutCly clear that no ill- F fit or camollflaged institution should get away with the constitutional protec- ti on.

With these prefatory remarks, we may now examine the claim of St. Stephen's College in the light of the submissions made by the parties.

G FIRST QUESTION ORIGIN AND PURPOSE OF ST. STEPHEN'S COLLEGE

Surprisingly, the Delhi University in the pleading, has neither denied nor admitted the minority character of the· College. But the counsel for the H University have many things to contend which will be presently considered.

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 157

· '·Mr. Gupta, counsel for the petitioner in T.C. No. 3/1980 has specifically urged that the College was established not by Indian residents, but by foreign Mission from the Cambridge and therefore, it is not entitled to claim the benefit of Article 30(1). From the counter-affidavit filed by Dr. J.H. Hala-the Principal of the College in W.P. Nos.13213-14of1984 and from the publication of"The History of the College" the following facts and circumstances could be noted : The College was founded in 1881 as a Christian Missio~ary College by the Cambridge Mission in Delhi in collaboration with the society for the Propa- gation of the Gospel (SPG) whose members were residents in India. The College was founded in order to impart Christian religious instruction and education based on Christian values to Christian students as well as others who may opt for the said education. The Cambridge Brotherhood with Plans of establishing the Christian College in Delhi sent the Cambridge Mission whose c members were : Rev. J.D. Murray, Rev. E. Bickarsteth, Rev. G.A. Lafroy, Rev. H.T. Blackett, Rev. H.C. Carlyon and Rev. S.S. Allnutt. Of the said members of the Cambridge Mission, Rev. Allnutt, Re'v. Blackett and Rev. Lefroy teamed up with Rev. R.R. Winter of the SPG to establish the College. It will be seen that Cambridge Mission alone did not establish the College. The Cambridge mission with the assistance of the members of the SPG who were residents in D India established the College. The contention to the contrary urged by Mr. Gupta, counsel for the petitioner in T.C. No. 3 of 1980.is, therefore, incorrect. The purpose of starting the College could be .seen from the Report of 1878 to Cambridge Brotherhood and it states "the students after leaving St Stephen's Mission School joined non-Christian Colleges and lost touch with Christian teachings .... the case would be otherwise if we were able to send them from our school to a College, where the teachings would be given by Christian professors and be permeated with Christian ideas." (F.F. Monk in:'A·history of St. Stephen's College, Delhi Calcutta, 1935, p³). In October 1879 the Cambridge Committee expressed the desirability of imparting instructionalso in secular subjects. "It was also felt that the influence of the missionaries would be greatly increased if they held classes in some secular subjects and did not conform their teachings to strict religious instruction". (Ibid p. 5)

BUILDING.

Originally, the College building was housed in hired premises paid for by the SPG. A new building was eventually constructed by the Society for the G ·Propagation of Gospel wherein the foundation stone bore the folloWing inscription :

To the Glory of God And the Advancement of Sound Leaming H

- And Religious Education

158 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A The new building of the College was eventually opened on 8th Decem- ~ ber, 1881, by Rev. Allnutt. On the said building on the front of the porch, at the top of the parapet, a 'CROSS' in bas-relief was placed and immediately under the bracket the words "Ad Dei Gloriam" had been inscribed which have since been adopted as the College Moto.

B Today the new College building in the University campus has also a large 'Cross' at the top of the main tower and in the front porch is inscribed the St. Stephen's Moto "Ad Dei Gloriam" to perpetuate and remind the students the motive and objective of the College, namely, ''The Glory of God".

There is also a Chapel in the College campus where religious instruction c in the Christian Gospel is imparted for religious assembly in the morning.

It would thus appear that since its foundation in 1881, St. Stephen's College has apparently maintained its Christian character and that would be evidenffrom its very name, emblem, moto, the establishment of a Chapel and its religious instruction in the Christian Gospel for religioµs assembly. These D are beyond the pale of controversy.

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 159

. persons to be appointed by the Executive Committee of the Diocese, one of A ' whom shall be a Presbyter, shall also be members of the Society [Rule 1 (i)]. · ' The composition of the Society, therefore, indicates the presence of a large number of Christian members of the Church of North India on it.

MANAGEMENT B The management of the college is being looked after by the Supreme Council and the Governing Body. The Supreme Council consists of some members of the society, all of whom must be members of the Church of North India or some other Church in communion therewith, or any other duly constituted Christian Church. They are : · c (a) The Bishop of the Diocese of Delhi, who shall be the Chairman.

(b) Two persons appointed by the Bishop of the Diocese (under Rule 1-b).

(c) The person appointed by the Church of North India Synodical D Board of Higher Education (under Rulel-g).

(d) The person appointed by the Diocese Board of Education (under Rule 1-h).

(e) The Principal of the College (Member-Secretary,). E

Rule 3 of the Society provides that the Supreme Council mostly looks after the religious and moral instruction to students and matters affecting the · religious character of the college. The Principal of the College is the Member- Secretary of the Supreme Council. Rule 4 provides that the Principal shall be a member of the Church of North India or of a Church that is in communion with the Church of India. The Vice-Principal shall be appointed annually by the Principal. He shall also be a member of the Church of North India or of some other Church in communion therewith.

True, Rule 5 provides that the Supreme Council of the College has no jurisdiction over the administration of the College and it shall'be looked after by the Governing Body. But the Governing Body is not a secular body as argued by learned counsel for the University. Rule 6, provides that the Chairman of the Society (Bishop of Diocese of Delhi) shall be the Chairman of the Governing Body. The Members of the society as set out in categories, a,.b', c, d, e, f, g, h, i, j, k, land m of Clause (1) shall be the members of the H

160 SUPREME COURT REPORTS [1991) Sl]PP. 3 S. C.R. I A Governing Body. The Chainnan and the Vice-Chairman of the Governing . Body shall be the members of the Church of North India. Out of categories (a) to (m) in clause (1), qnly category (k) may be a member of the· teaching staff whd may not be a Christian. Two members referred under category (1) to be appointed by the Delhi University may not be Christian and likewise, under the category (n) may not be Christian. But the remaining members shall be B Christians. Out of thirteen categories, only three categories might be non- Christians and therefore, it makes little difference in the Christian character of the Governing Body of the College. A comparison of Statute 30(c) of the Delhi University at pages 127-128 of Calendar Volume I will show the difference between the Governing Body of 9ther Colleges under the Statute as contrasted with St. Stephen's College. c PRINCIPAL

It is again significant to note the difference between the nie1hod of appointment of the Principal of St. Stephen's College and all other Colleges. The Principal of St. Stephen's College is appointed by the Supreme Council D and he must be a Christian belonging to Church of North India (Rule 4). He will exercise control, and maintain discipline and regulation of the College. he will be in complete charge of the admissions in the College assisted by admission committee. But the Principals of other affiliated colleges under Ordinance XVIII Clause 7(2) [pages 335 Calendar Volume I] are to be appointed by the Governing Body of the College. · E The immovable property of the College shall be vested in the Indian Church trustees, who shall merely act as Trustees.• and shall have no power of management whatsoever. All other property connected with the CoJJege shall be vested in the Society (rule 21). F DELHI UNIVERSITY ACT AND ORDINANCE c It was contended that St. Stephen's College after being affiliated to the Delhi University has lost its minority characteL The argument was based on some of the provisions in the Delhi University Act and the Ordinances made G thereunder. It was said that the students are admitted to the University and not to the College as such. But we find no substance in the contention. In the first place, it may be stated that 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 institutions of their choice. The minority institution has } H a distinct identity and the right to administer with continuance of such identity

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 161

. cannot be denied by coercive action. Any such coercive action would be void A being contrary to the constitutional guarantee. Th right 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 abridg- B ment of the right guaranteed under Article 30(1).

Secondly, we find 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. Section 2(a) of the Delhi University Act defines 'college' to mean 'an institution maintained or c admitted to its privilege by the University and includes an affiliated college and a Constituent College'. Under Section 4, the University has powers to hold examinations and to grant to, and confer degrees and other academic distinc- tions on, persons who have perused a course of study in the University or in any college. Section 6 provides that the University shall be open to all persons of either sex and of whatever race, creed, caste or class. Under Section 7 it is D necessary that all recognised. teaching in connection with the· University Courses shall be conducted under the control· of the Academic Council. By Section 23, the Academic Courn:il has been constituted as the Academic Body of the University, and it shall, subject to the provisions of the Act, Statutes and Ordinance, have the control and general regulation, and be responsible for the maintenance of standards of instruction etc. ·

Section 30 provides power to promulgate Ordinances which may provide procedure for the admission of students to the University and their enrolment as such. Ordinance I prescribes qualification for admission. Clause 4 of Ordinance 1 states that the candidates seeking admission to a course of study F: must satisfy .the rules and conditions made in that behalf; ..

Ordinance II' provides for constitution of Admission Committees and procedure for admission for different courses. Clause 2(ii) Of this Ordinance is important and so far is relevant reads : G "Application for admission/registration shall be made on a pre- scribed form. Applications by students seeking admission to Master's courses in Faculties of. Arts, Mathe111atical Science~. Social Sciences, Music and Science shall be sent to the Deans of Faculties, concerned direct Applications for admission to course8 H

162 '' · SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A ·· other than those mentioned above shall be made to the Principal of ,j ' the college concerned."

xxxxx xxxxx xxxxx

Clause (3) of the Ordinance II is equally relevant and it B provides :

"Admissions shall be finalised by the Principals of Colleges and Deans ·of Faculties concerned, as the case may be,. not later than such last date as may be prescribed by the Academic Council from time to time. c 'l' Provided,that the Vice-Chancellor may, at his·discretion, allow ad-· rnis'sioh to any cours~s after tbe prescribed date as aforesaid, for every exceptional reasons, such as· late declaration of results or such~otherreasons considered satisfactory by tbe Vice-Chancellor up to the dates !bought reasonable by him in each case : D Provided further that no admissions will be made by a College prior to the date to be fixed by tbe Academic Council each year :

xxxxx xxxxx xxxxx

E Ordinance XVIII Clause 6-A(l) provides that there shall be a Staff Council in every College. Subject to tbe provisions of the Act, the ·.¹ Statutes and the Ordinances of tbe University, the Staff Council shall take a decision in respect of matters, among others, organis- ing admission of students." F From these and other relevant provisions of the Act and Ordinances, we have not been able to find any indications either in tbe general scheme or in other specific provisions which woul.d enable us to say that the College is legally precluded from maintaining its minority character. That in matters of admission. of students to Degree Courses inducting Honours ·courses, the G candidates have to apply to the College of their choice and not to the University and it is for tbe Principal of tbe:Collegc or' Dean of Faculties concerned to take detision and make final admission:tlt is,;tficrefore: wrong to state tbat there is no adinission to the College but onl)'foNhe'University. The procerfore for admis'sion to Post--'-Graduate courses is 1 of'course, different but we are not concerned witb that matter in these cases.· · . ' • H

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 163

• ' It is equally important to note that under Rule (8) of the Rules of the A College Society, the management has not accepted all rules and regulations relating to composition of Governing Bodies, management of Colleges, ap- pointment of Principals etc. as prescribed by the relevant Statutes, Ordinances and Regulations of the University but has reserved its rights to accept only such directions which are not contrary to its Constitution, and which it has found suitable for the better management of the College and improvements of B academic standards.. The College has been constituted as a self-contained and autonomous institution. It has preserved the right to choose its own Governing Body, and seleet 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 C of Delhi. It is not disputed that 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. D

SECOND QUESTION

Whether St. Stephen's College as minority institution was bound by the University circulars dated June 5, i980 and June 9, 1980? E The first circular of the University dated June 5, 1980 has prescribed the last date for receipt of applications for admission. By the second circular dated June 9, 1980 al! the Colleges· of Delhi University were directed to admit students solely on the basis of merit determined by the percentage of marks secured by the students in the qualifying examinations. The first circular left by itself could not haye been complained of, but it is so closely connected with the directive in the second circular. If the last date fixed in the first circular for receipt of applications was followed·, then the College coul.d not have selected applicants by following its· own admission programme. It is the case of the College that it has been following its own admission programme for more than 100 years and over the years it has built up a corporate image in a ~umber of distinctive activities. The admission programme of the College has become a crucial instrument to promote the excellence of the institutibn and ~t forms part 1

of the administration which the College is entitled to have as a minority institution under Article 30(1) of the Constitution. The University cannot direct the College to dispense with its admission programme in the absence of proof of maladministration of the College. The circulars have ~een challenged also H 1• I '

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

A on the ground that they are not regulative in nature. It is said that if students arc admitted purely on the basis of marks obtained by them in µte qualifying examination it would be not possible for any Christian student to get admis- sion. It has been found that unless concession is afforded, the Christian students cannot be brought within the zone of consideration. They generally fack merit when compared with the Other applicants. B ADMISSION PROGRAMME OF ST. STEPHEN'S COLLEGE

The applications are sorted out for· each course of study under the direct supervision of the Tutor of admission, and are then sent to two teachers of the department concerned for scrutiny. These applications are then further scruti~ c nised in relation to the combination of subjects taken by the students at Jlis last examination and the order of preference indicated 'by him regarding the course in which admission is sought by him. At this stage in accordance with the cut- off percentage giyen by the departments for different 'combination of subjects, the two teachers of the department concerned, out, of whom one is the Head o( the Department and the other is a nominee of the Department, prepare a list of potential suitable Car)didates'which is normally on the basis· of~ :4 or i : 5 fo~ Arts and Science students respectively. The lists of names of the applicanl.s called for interview for each subject is put upon the no.Lice board separately with the date and time at which they would be interviewed. Those living outside the Union Territory of Delhi are informed by post. The applicant selected for the interview has to appear before a Selection Committee normally consisting of the Principal, the Tutor for admissions, two members of the dep<).rtment concerned, and the President of Games (a senior member of the faculty): Each !Uember of the Committee has a complete list of the candidates invited for interview with their aggregate percentage.of marks, .marks obtained in individual subjects, interests and proficiency in sports and extra-curricular activities etc. Questions are asked to test the candidate's knowledge of the subje~t together with his general awareness of the current problems. The interview is conducted orally.but ·if and when necessary, problems are given to be solved in writing. Each application form has also space provided whe~e the applicant is required to write about his interest, hobbies, values, career plan etc. This is carefully studied while determining the suitability of a _candidate for a G particular course. Each member of the Committee grades the performance of tlie candidates and at the end of the in'tervfow for each course of study. the opinion of all the members is taken' into account and by consensus the final list of candidates select~d ~or ~dm_ission is. put up.. . ·., , · , ·

CONCESSION TO CHRISTfAN STUDENTS AND OTHERS·. H To Christian stodents, reiaxatiori up to 10 per cent is' given. The Sched-

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETIY, J.] 165

uled Castes/Scheduled Tribes candidates who are having a minimum of 50 per cent of marks are called for interview for selection to honours courses. For B.A. pass course, a further concession to them is granted and the quatifying marks are reduced even below 50 per cent As far as sportsmen and sports women are . concerned, national or State level players are given concession normally up to 10 per cent and in exceptional cases up to 15 per cent or even more. However, a Christian student, who is below the cut-off percentage by more than 10 per cent is never called for interview.

The actual working of the concession given by the College and the result achieved thereon in several years are set out in Annexure-1 to Writ Petition No. 1868of1980. The Christian students who get concession up to 10 per cent and thereby get preferential admission are only 6 per cent to 10 per cent. They are also admitted in accordance with the standard prescribed by the University and none who falls below the standard has ever been admitted to the College.

THE CONTENTIONS OF DELHI UNIVERSITY AND STUDENTS UNION

On behalf of the Delhi University and the Students' Union the impugned circulars were sought to be· justified on several grounds. The first circular fixing the last date for receipt of applications for admission was sought to be. justified on the ground that it was intended to ensure uniformity in the admission dates in all colleges and it would be beneficial to and in the interests of students who are seeking admission in different colleges. With regard to the second circular of the University it was contended that the admission based on the merit determined by. the marlcs secured by the applicants in the qualifying examinations would exclude arbitrariness in the selection and ensure fairness to all applicants. It· was also submitted that the circulars are regulative in character and do not impinge upon the fundamental rights guaranteed under Article 30(1) to St Stephen's College as a minority institution. F Article 30(1) provides :

"30. Right of minorities to establish and administer educational institutions- G (I) All 'ininorities, whether based on religion or language, shall hav~ the right to establish and administer educational institutions of their choice".

The minorities whether based on religion or language have the right to establish and administer educational institutions of their choice. The admini- H

166 SUPREME COURT REPORTS £1991] SUPP. 3 S. C.R.

A sLration of educational institutions of their choice under Article.30(1) means 'management of. the- affairs . .of the institution' .. This management must be ·free . . ~ .

~r~'!1 conLrol so th<;it the founder or their nominees can mould the institution as ili.cy ,thi~k ·fit, af1d in accordance with their ideas of how ·the interests of the 1 co:nmunity in general and the institution in particular will be best served. But the ;standards' ot"cdlication are not a part of the management as such. The a standard concer!1s the body politic and is governed by considerations or th~ advanccm.ent of the country and its people. Such ~cgulations 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. Minority institutions cannot be permitted to fall below the siandards of excellence expected of educational institutions. They cannot decline to follow C the general pattern of education u~der the guise ~f exclusive right of manage- ment. While the management must be left to them, they may be compelled to keep in sLep with others. There is a wealth of authority on these principles. See: State of Bombay v. Bombay Education Society, [1955) 1 SCR 568 Re: Kera/a Education Bill !957 .• (1959] SCR 995; Sidhajbhai Sabhai v. State of Bombay 11963]3 SCR 837,:Rev. Father Proost & Ors. v. State of Bihar, [1969] 2 SCR .D 73 and State of Kera/av. Mother Provincial, [1971] 1 SCR 734. , )i.,g •. ; '. . ·- ',• '.. . .,., . . ~

''.''ftwugh A'rticlc 30(1) is couched in absolute tcr~s in marked contrast ·with\ othcrfondamcnt.al rights in Part Ill of the Constitution, it has to be read sul;jcct to the pqwcr of the State to regulirtc education, educational standards and allied m·atters. In Ahmedabad St. Xaviers College Society v. Stat.e of E Gujarat &' Anr., [ 1975] 1 SCR 173 which was ihe dccisiori of a nine Judge Bench: Ray, CJ., with whom Palckar, J ., concurred, observed (at pp.197, 200) th<it upon affiliation to a University, the minority and non-'mfnority institutions must agree in the pallern arid standards .of education. Regulations which will serve the interest of the students, regulations which will serve the i'ntcresis of the teachers arc' of pa'l'amount importance in good adminisLration:Regulations ' !n the interest of efficiency of teachers, "discipline and fairness in administration arc necessary for preserving harmony among affiliated institutions. It was further observed:

. ' "That· the ultimate goal of minority institutions too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in cducation'UI ~nd academic mat- ters for achieving excellence and unifortriity in) standards of edu- :~ ~ $ ••• ' ' ••

cation."

f 1-I In the same case Khanna, J., put the principlti; with a different emphasis (at 23-l-35);

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 167

"The right of the minorities to administer educational institutions A does not, however, prevent the making of reasonable regulations in. respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educa- tional institutions can plainly not include the right to maladminis- B ter. Regulations can be made to prevent the housing of an educa- tional institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution w.ithout qualified teachers. The State can prescribe regulations to ensure the excellence o( the institution. Prescription of standards for edu- cational institutions does not militate against the ·right of the c minority to administer the institutions. Regulations made in the true interest of efficiency of instruction, discipline,•health, sanita- tion, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed : they secure the ptoper functioning of the institution, in matters educational." D

Mathew, J., ·had this to state (at 267): I "The heart of the matter is that no educational institution estab- lished by a religious or linguistic minority can claim total immu- nity from regulations by the legislature or the University if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. As we said; such regulations will be permissible if they are relevant to the purpose of securing .or promoting the object of recognitic>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 . G 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 H

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

A 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 regula- tion is calculated to advance the gc11eral public interest is of no consequences if it is not conducive to the interest of the minority B 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 Constitu- c tion of India. The right to the administration of institutions of minority's choice enshrined in Arl.icle 30(1) means 'management of the 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; D 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 justi- fying interference can only be the interests of the minority con- cerned." E 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 F 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, G 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 H 30(1).

· ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI [SHETTY, J.] 169

170 SUPREME COURT REPORTS fl 991 J SUPP. 3 S. C.R.

A 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 Govern- ment order prescribing the uniform method of selection could. not be applied B 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 c 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 recog- nised 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 C 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 of Mysore and Ors, (1964] 6 SCR 368; A. Peeriakaruppan v. State of Tamil Nadu ,(1971] 2 SCR 430; Miss Nishi Maghu and Ors. v. State of Jammu and Kashmir, (1980] 4 SCC 95; Ajay Hasia etc. D 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 E 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

5Copy pinpoint5. In these premises, we would defer to the choice and discretion of the F 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 G 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 . H

172 SUPREME COURT. REPORTS {1991) SUPP. 3 S. C.R.

A 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 on the other hand, based on the test of promise and accomplishment of candidates, seems to be better than the blind method of selection based on the marks secured in the qualifying examinations. We are, therefore, unable to accept the submis- sion that the College Admission Programme is arbitrary and the University criteria for selection is objective.

So in.the end we are driven to conclude that St. Stephen's College is not bound by the impugned circulars of the University. D 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 E preference or reservation would be invalid under Article 29(2) of the Consti- tution?

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<? Christian students. The Allahabad Agricultural Institute F reserves fifty per cent of the seats for Christian students. The Christian students admitted by preference or against the quota reserved are having less merit in the qualifying examination than the other candidates. The other candidates with more merit are denied admission on the ground that they are not Christians. G It was argued for the University and the Students Union that since both the institutions are receiving State aid; the institutional preference for admis- sion based on religion is violative of Article 29(2) of the Constitution. The institutions shall not prefer or deny admission to candidates on ground of religion. For institutions, on the other hand, it was claimed that any preference given to the religious minority candidates in their own institutions cannot be

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 173

a discrimation falling under Article 29(2). ;rhe institutions are established for the benefit of their community and if they are prevented from admitting their community candidates, the purpose of establishing the institutions would be defeated. The minorities are entitled to admit their candidates by preference or by reservation. They are also entitled to admit them to the exclusion of all others· and that right flows from the right to establish and administer educa- tional institutions guaranteed under Article 30(1). B

We are concerned in this question with discrimination, and mainly with discrimination on ground of religion in the aided educational institutions ..The issue involves the citizen's entitlement as a part of his personal liberty not to be discriminated on the ground of religion as against the minority's right in their own educational institution. This is the most difficult and complicated C issue and is seemingly not covered by any authority of this Court. The determination of the issue mainly depends upon the constitutional compass of Articles 29(2) and 30(1) of the Constitution.

TIIE VIEWS EXPRESSED BY THE ALLAHABAD HIGH COURT D Before.grappling with the issue, we may tum to the decision of the High Court of Allahabad which is under appeal before us. The students were denied admission though they had secured a high percentage of marks in the competi- tive test held by the Institute. The denial was in view of the fact that a large number of seats had been reserved for Church sponsored candidates and tribals. The contention of the petitioners was that the reservation was violative of E Article 29(2) since it was based on religion. The High Court accepted the contention and inter alia, held that the denial of admission to more merited candidates on the ground of religion was impermissible. The institution also could not reserve seats for members of its community. The constitutional concept of religious autonomy in education in Article 30( 1) has to be balanced with the constitutional guarantee under Article 29(2). Both the Articles operate in the same field namely; educational institutions. The right guaranteed to minorities under Article 30(1) to establish and administer educational institu- tions of their choice cannot be read in isolation, and it has to be interpreted in . a manner that it does not destroy the right in Article 29(2). The High Court has finally observed that the right of admission which vests in an institution by virtue Of the power of administration under Article 30(1) cannot be in violation of Article 29(2).

. . It seems to ils that the High Court has followed the liberal individualist theory. The liberal individualist theory is generally th.e Western political theory since the period of th~ American. and French revolutions. The High Court gave H

174 SUPREME COURT REPORTS [1991) SUPP. 3 S. C. K

A little or no attention to the positive minority rights with respect to language:, religion, education and cultural rights guaranteed under the Constitution: It has failed to consider the predominating emphasis expressed in Article 30(1). It has overlooked the difference in perspective ~nderlying in Articles 29(2) and 30.(1).

B PRE-NATAL HISTORY OF MINORITY RIGHTS

The minorities do not stand to gain much from the general Bill of Rights or Fundamental Rights which are available only to individuals. The minorities require positive safeguards to preserve their minority interests which are also termed as group rights. The safeguards and group rights have been the part of our Constitution making. It is interesting to observe the history perspective of Articles 29 and 30. The Advisory Committee constituted by the Constituent Assembly dealing with the question of minorities made the following.recom- mendations :

"(i) Minorities in every unit shall be protected in respect of their language, script and culture, and no laws or regulations may be: enacted that may operate oppressively or prejudicially in this respect."

(ii) No minority-whether based on religion, community or lan- guage--shall be discriminated against in regard to admission into state educational institutions, nor shall any religion, instruction be compulsorily imposed on them. ·

(a) All minorities-whether based on religion, community or lan- guage-shall be free in any unit to establish and administer educa- tional institutions of their own choice; and F (b) The State shall not, while providing· State aid to schools discriminate against schools under the management of minorities . whether based on religion,'community or-language." · · ·

.G At the drafting stage, these recommendations were finally reformulated as diaft Article 23 with certain crucial changes. The Drafting Committee itself sought to make a distinction between the right of any section of the citizens to . conserve its language, script or culture, and the right of minorities based on religion or language to establish and administer institution of their choice. With this distinction in view, the word 'minority; had ·been repl<!C~ with the term H 'any section of the citizens', in the earlier part of the diaft Article 23~corre-

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 175

sponding to the present Article 29(1). The Drafting Committee, however, had retained the word 'minority' in the latter part of draft Article, which later became the present Article 30(1). CAD Vol. VII 1949 p. -895

With regard to prohibition of discrimination against minorities in adm is- sion, it was all along felt that the right should extend to State-aided institutions as well. But the Drafting Committee here also made changes and substituted draft clause (2) of Article 23 with the present Article 29(2) and that was accepted CAD Vol. VII 1949 p. 925.

Dr. Ambedkar explained the reasons for this change, while replying in ·the debate dealing with some of the amendments. He said that the term 'minority' was used in the earlier draft not merely to indicate the minorities in c the technical sense of the word but were minorities nonetheless. Since the word 'minority' was _capable of a narrow interpretation and the intention was to provide protection in the matter of culture, language and script in a wider sense, the Drafting Committee had dropped the word 'minority' and used instead the term 'any section of the citizens'. He pointed out : The framing of India's Constitution-A study By B. Shiva Rao 1968 Ed p. 280. D

"That the Article was an improvement on the draft Article. The original provision only cast a duty upon the State to protect the culture, script and language of the minorities. It gave no fundamen- tal right to these communities. "It only imposed the duty and added a clause that while the State may have the right to impose limita- E tions upon these rights of language, culture and script, the State shall not make any law which may be called oppressive; not that the State has no rightto make a law affecting these matters, but that the law shall not be oppressive .... the protection granted i.n the original article was very insecure. It de~nded upon the goodwill of the State. The present situation ¥ you find it .... is that we have converted that into a fundamental right, so that if a State make any law which was inconsistent with the provisions of this Article, then that ...... law would be invalid." ..

These are the reasons t~at .P,rompted the incorpora.tlon ·of measur~s of fundamental rights for protect~~n of interests of minorities.,

ARTICLES 29(1) AND 30(1) 'op THE CONSTiTUTION .

Having set the scene, we can deal ~ith the provisions ~f Articie 29( 1) and 30(1) rel~tively quickly. JJ,nder Article 29(1) every section of the citizens ·H

176 SUPREME COURT REPORTS [1991] SUPP,. 3 S. C. R.

• A having a distinct language, script or culture of its own has the right to conserve the same. Under Article 29(1), the minorities-religious or linguistic-arc 'r entitled to establish and administer educational institutions to conseryc their distinct language, script or culture. However, it has been consistantly held by the Courts that the right to establish an educational institution is not confined · to purposes of conservation of language, script or; culture. The rights in Article B 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 selecti~g the type of educational institutions which they wish to establish. They can establish institutions to conserve their distinct language, script or culture or for imparting general secular education or for both the purposes. (See: Father.W.. Proost v. C State of !Jihar ,[1969] 2 SCR 73; Ahmedabad St. Xavier's College v, State of Gujarat ,[1975] 1 SCR 173 and Re,: Kerala Education Bill case, [1959] SCR 995.

ARTICLES 29(2) AND 30(1) OF THE CONSTITUTION .. D Indeed, we should steer dear ofthc two extreme arguments urged for the _institutions; Counsel for the institutions contended that the preference given to minority candidates in their own educational institution ·is not violative of Article 29(2). Such preference is not solely on the basis of religion but on the ground that the candidate belongs to a minority community. It was also urged · that the minorities in the exercise of their right in_Article 30(1) are entitled to E establish and administer educational institutions for the exclusive advantage of . their own community candidates. So far as the first point is concerned, it may be noted that the institutional preference to minority candidates based on religion is apparently an institutional discrimination on the forbidden ground of religion. It operates to stigmatise or single out candidates from non-minority· communities on the ground only of religibn. lfan educational institution says F "yes" to one candidate but says "no" to another candidate on ground of ) religion, it amounts to discrimination on gro6nd of religion. The mandate of I= Article 29(2) is that there shall not be any such discrimination.

Equally, it would be difficult to accept the second submission that the minorities are entitled to establish and administer educational institutions for their exclusive benefit. The choice of institution provided in Article 30(1) does

,-[ · not mean that the minorities could establish educational institution for the· benefit of their own community people. Indeed, they cannot. It was pointed out in Re : Kera/a Education Bill [1959] SCR 995 that the minorities cannot establish educational institution only for the benefit of their community. If such was the aim, Article 30(1) would have been differently worded and it would have contained the words "for their own community". In the absence of such

ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI [SHETTY, J.] 177

words it is legally impermissible to construe the Article as conferring the right A ~ on the minorities to establish educational institution for their own benefit. .{ Even in practice, such claims are likely to be met with considerable l• hostility. It may not be conducive to have relatively a homogenous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges; segregated B faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a 'melting-pot' in our national life. The students 1md teachers are the critical ingredients. It is there they developed respect for, and tolerance of, the cultures c and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions.

The core of the argument of counsel for the University and Students Union is that the minority institutions getting Government aid are bound by the mandate of Article 29(2) and they cannot prefer their own candidates. We may D start with Article 29(2).

Article 29(2) provides :

"29(2) No citizen shall be denied adm.ission into any educational institution maintained by the State or receiving aid out of State E funds on grounds only of religion, race, caste, language or any of them."

The access to academic institutions maintained or aided by the State, funds is the special concern of Article 29(2). It recognises the right of an individual not to be discriminated under the aegis of religion, race, caste, language or any of them. This is one of the basic principles of a secular State. The discrimination based solely on the ground of a citizen's particular religion, race, caste or having any particular language is absolutely prohibited in educational institutions maintained by the State or receiving aid out of State funds. It applies to minorities as well as to non-minorities. When other qualifications being equal the religion, race, caste, language of a citizen shall < not be a ground of preference or disability. Similarly, the words "any of them" as used in Article 29(2) are intended to give further emphasis that none of the ---\ grounds mentioned in the Article can be made the sole basis of discrimination. (See : State of Madras v. Champakam Dorairajan [1951] 2 SCR 525 and Bombay Education Society case [1955] 1 SCR 568. H

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

The fact that Article 29(2) applies to minorities as well as non-minorities

- does not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1). Article 29(2) deals with non-discrimination and it > is available only to individuals. The general equality by non-discrimination is 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-discrimi- B nation. 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 c in Ulster, the French Canadians in Quebec, the Albanians in Kosovo, Yugosla- via; the Tamils in Sri Lanka, the Islamic separatists in the Phillipines, and the Animist and Christian minorities in southern Sudan. The problem in India is not quite different. India is a multi-cultural and multi-religious society. It is an extra-ordinary pluralistic and complex society with different religious minori- ties. Besides there are linguistic aspirations and caste considerations. There D 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 fundamen- tal right. Article 27 of the International Covenant on Civil and Political Rights (1966) also lays a foundation in this regard. It states : "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in comnmnity with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language".

Yet another submission which counsel argued is that in a secular democracy the Government fund cannot be utilised to promote the interests of any particular community and Article 29(2) interdicts only when the minority institution seeks and gets State financial aid and the minority institution is not entitled to State aid as of right.

G It is quite true that there is no entitlement to State grant for minority educational institutions. There wa<; only a stop-gap arrangement under Article 337 for the Anglo-Indian community to receive State grants. There is no similar provision for other minorities to get grant from the State. But under Article 30(2), the State is under an obligation to maintain equality of treatment in granting aid to educational institutions. Minority institutions are not to be treated differently )• . while giving . financial assistance. They arc entitled to get the

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETIY, J.] 1n

finaneial assistance much the same way as the institutions of the majority communities.

Second, the receipt of State aid does not impair the rights in Article 30(1). The State can lay down reasonable conditions for obtaining grant-in-aid and for its proper utilisation. The State has no power to compel minority institutions to give up their rights under Article 30(1). (Sec : Re : Kera/a B Education Bill case, [1959] SCR 995 and Sidhajbhai case (1963] 3 SCR 837. In the latter case, this Court observed (at 856-857) that the regulation which may lawfully be imposed as a condition of receiving grant must be directed in making the institution an effective minority educational institution. The regu- lation cannot change the character of the minority institution. Such regulations must satisfy a dual test; the test of reasonableness, and the test that it is C regulative of the educational character of the institution. It must be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. It is thus evident that the rights under Article 30(1) remain unaffected even after securing financial assistance from the Government .· D The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said that there is also restraint on collection of students fees. With the restraint on collection of fees, the minorities cannot be saddled with the burden of maintaining educational institutions without grant-in-aid. They do not have economic advantage over others. It is not possible to have educational institu- E tions without State aid. This was also the view expressed by Das, C.J ., in Re : Kera/a Education BUI case [1959] SCR 995. The minorities cannot therefore, be asked to maintain educational institutions on their own.

It was argued that Article 30(1) is subject to Article 29(2) and in support thereof, the observations in DAV College (1971] 2SCC 269 and Re : Kera/a Education Bill (1959] SCR 995 cases were relied upon. In DAV College case this Court explained the respective scopes of Articles 29(1) and 30(1) and said (at 273) that Article 29(1) is wider than Article 30(1). Rights guaranteed under Article 29(1) are available to any section of the citizens including the minori- ties while the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. The right of a religious or linguistic minority to establish and administer educational institutions of its choice under Article 30(1) is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Article 29(2) which provides that no citizen shall be denied admission into any educational institution which is maintained by the. State or receives aid out of H

180 SUPREME COURT REPORTS [1991]. SUPP. 3 S. C.R.

A State funds, on grounds only of religion, race, caste, language or any of them. In Re :Kerala Education Bill case[1959] SCR 995it was pointed out (at 1047) that the right in Article 30(1) is subject to Article 29(2) which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. B The Court however, was riot deciding the question that has now arisen . before us. The Court only made a passing reference to the right in Article 30( 1). The aspects which now presented were never considered by the Court. In fact the issue which we are called upon to consider as to the right of minorities to prefer their community candidates in their educational institutions did not come up for consideration before the Court We are on virgin soil, not on trodden ground.

The minorities cannot be treated in a religious neutral way in the educational institutions established and administered by them. Clearly that was not the aim or Article 30(1). Article 30(1) was incorporated to secure to the minorities a fair deal in the name of religion only. It was guaranteed to them as a fundamental right after a great deal of deliberation by the Framers. It should not be nullified by narrow judicial interpretation or crabbed pedantry. There must be a broad approach and the Statesman-like vision. The catholic approach that led to the drafting of the provisions dealing with the minority rights, as discussed earlier, should not be set at naught. It must be ensured that nothing is done to deprive the minorities of a sense of belonging and of a feeling of security. [(See: the observations of Khanna, J., in St. Xavier's case [1975] 1 SCR !73 (at 234)]

' much a Nation in the making. There are linkages and India is very F · connections in the multi-layered mix up. There are concern and considerations underlying the provisions relating to minority rights. There are shared under- standing and expectations of the founding fathers. The constitutional construc- tion without such concern and consideration and without such shared under- standing and expectations is bound to be inadequate. It would be profoundly anti-historic and likely to produce ·constitutional nihilism with calamitous G consequences. "We must never forget" said the Chief Justice Marshal "that it . \.

is a Constitution we are expounding" Mc. Cu/lock v. Marryland: 4 Wheat 316 at 407 an instrument "framed for ages to come, and ...... designed to approach immortality as nearly as human institution can approach". Cohens v. Virginia 6 wheat 264 at p. 387.

H We have been referred to the decision of the American Supreme Court·

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 181

in University of California v. Allen Bakke 438 U.S. 265 where the claim of A Bakke for regular admission was rejected by California Medical School, in view of the preference sown in favour of certain disadvantaged candidates who were admitted under the Special Admission Programme ..The American Su- preme Court struck down the Special Admission Programme as unconstitu- tional since it was based on race as a determining factor in admission. The decision in Bakke' s case rested on the Civil Rights Act of 1964 and the B Fourteenth Amendment to the American Constitution. The decision, however, is of little assistance to the case before us since the Constitution of the United States contains no provision similar to Article 30(1) of our Constitution.

THE MINORITY RIGHTS AND BALANCING INTERESTS c We have elsewhere pointed out that the minorities have the right to admit their own candidates to maintain the minority character of their institutions. That is a necessary concomitant right which flows from the right to establish and administer educational institution in Article 30(1). There is also a related right to the parents in the minority communities. The parents are entitled to have their children educated in institutions having an atmosphere congenial to their own religion [See : the observations of Mathew, J '.' at 253 in St. Xavier's case [1975) 1 SCR 173.

The collective minority right is required to be made functional and is not to be reduced to useless lumber. A meaningful right must be shaped, moulded and created under Article 30(1), while at the same time affirming the right of individuals under Article 29(2). There is need to strike a balance between the two competing rights. It is necessary to mediate between Article 29(2) and Article 30(1), between letter and spirit of these Articles, between traditions of the past and the. convenience of the present, between society's need for stability and its need for change. F The Constitution establishes secular democracy. The animating principle of any democracy is the equality of the people. But the idea that all people are equal is profoundly speculative. It is well said that in order to treat some persons equally, we must treat them differently. We have to recognise a fair degree of discrimination in favour of minorities. But it is impossible to have G an affirmative action for religious minorities in religious neutral way. In order to get beyond religion, we cannot ignore religion. We must first take account of religion. It is exactly in the spirit of these considerations that this Court in its advisory opinion in Re : Kera/a Education Bill case [1959] SCR 995 ·recognised a fair degree of discrimination in favour of religious minorities. In this respect ·the Court seems to have acted on the same principle which is H

182 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.