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

A -applied to socially and educatioally backward classes, that is the principle of protective discrimination. In Balaji v. State of Mysore [1963) Supp. 1 S.C.R. 43 while .examining the validity of reservation to socially and educationally backward classes under Artide 15(4) Gajendragadkar, J., as he then was, pointed out that the reservation to socially and educationally backward classes would serve the interests of the society at large by promoting the advancement B . of _the weaker elements in the society.

In State ofKeralav.N.M. Thomas and Ors., [1976) 1SCR906, 933 Ray, CJ., while dealing with the concept of equality guaranteed by Article 14, 15(1) and 16(1) with reference to the preferential treatment for backward classes ob- . served that preferential treatment for members of the backward classes with C due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality for opportunity for unequals can only mean aggrava- tion of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible objects. Preferential representation for the back- D ward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.

In Akhil Bhartiya Soshii Karamchari Sangh (Railway) v. Union of India E and Ors.,[1981) 2 SCR 185 Chinnappa Reddy, J., while explaining the inter- c relationship of Article 16(1) and 16(4) said the Article 16(4) is not in the·nature of an exception tO Article 16(1). It is a facet of Article 16(1) which fosters and · furthers the idea of equality of opportunity 'with special reference to an under- privileged and deprived classes of citizens. It is illustrative of what the State must do to wipe out the distinction between egalite to droitarid egalite de fait. F It recognises that the right to equality of opportunity in~ludes the right of the under priviieged to conditions comparable to or compensatory of those enjoyed by the privileged. Equality ofOpportunity must be such as to yield equality of results and not that which simply enables people, socially and economically better placed to win against the less fortunate, even when the competition is itself otherwise inequitable. ·

It is now an accepted jurisprudence and practice that the concept of equality before the Jaw and the prohibition of certain kinds of discrimination do not require identical treatment. The equality means the relative equality, namely the principle to treat equally what are equal and unequally what arc unequal. To treat unequals differently according to their inequality is not only permit~d but required.

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIWAL, J.] 183

Laws carving out the rights of minorities in Article 30(1) however, must not be arbitrary, invidious or unjustified; they must have a reasonable relation between the aim and the means employed. The individual rights will necessar- ily have tO be balanced with competing minority interests. In Sidhajbhai case the Government order directing the minority run college to reserve 80 per cent of seats for Government nominees and permitting only 20 per cent of seats for the management with a threat to withhold the grant-in-aid and recognition was B Struck dowri by the Court as infringing the fundamentai freedom guaranteed by Article 30(1). Attention may also be drawn to Article 337 of the Constitution which provided a special concession to Anglo-Indian community for ten years from the commencement of the Constitution. Unlike Article 30(2) it conferred a positive right on the Anglo-Indian community to get grants from the Govern- ment for their educational institutions, but subject to the condition that at least forty per cent of annual admission were made available to members of other communities.

In the light of all ·these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minori- ties under Article 30( 1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed fifty per cent of the annual admission. The minority institutions shall make available at least fifty per cent of the annual admission E. to members of communities otherthan the minority community. The admission of other community candidates shall be done purely on the basis of merit.

In the result and for the reasons stated, the Writ Petition (Civil) No. 1868 of 1980 filed by St. Stephen's College is allowed. The W.P. Nos. 13213-14 of F 1984 and T.C. No. 3of1980 are dismissed. The appeals against the judgment of the Allahabad High Court are allowed modifying the judgment of the High Court to the extent indicated above. However, the admissions made hitherto by Allahabad Agricultural Institute shall not be disturbed. The students who have been admitted pursuant to the direction issued by this Court or ihe High Court shall be allowed to complete their courses. G In the circumstances of the case, we make no order as to costs.

KASLIWAL, J. I had the advantage of going through the Judgment of my Learned ·brother K.J. Shetty, J. with due deference I am unable to agree. H

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A In view of the fact that Shelly, J. in his Judgment has set out the facts in detail, I am mentioning such facts which are necessary in order to grapple with the questions raised in. these cases.

W.P. No. 1868 of 1980, W.P. Nos. 13213-14 of 1984 and Transferred Case No. 3 of 1980. B All these cases relate 10 St. Stephen's College (in short 'College') and the facts of these cases are stated in short as under :-

St. Stephen's College is affiliated to Delhi University and is one of its three original constituent colleges. For the academic year 1980-81, the College C published 'Admissions Prospectus' which inter a/ia provided that applications for admission to the first year must be received in the college office on or before 20th June, 1980. It was also mentioned in the prospectus that there would be interview prior 10 final selection for admission to the college. The Vice Chancellor of the Delhi University on May 22, 1980 constituted an Advisory Committee to consider and recommend the dates for admission/ D registration 10 various courses for the academic session 1980-81 and for other related matters concerning admissions. The Constitution of the Advisory Committee was also approved by the Academic Council. Advisory Committee constituted by the Vice Chancellor of Delhi University laid down as follows:-

· For matters concerning admissions for the academic session 1980-81. E "(i) Admission to B.A. (Pass)/B.A. Vocational Studies Courses be based on the merit of the percentage of marks secured by students in qualifying examination.

(ii) The admission to B.Com (Pass) B.A. (Hons) and B.Com F (Hons.) Courses be also on the· basis of marks. However, the College may give weightagc to marks obtained in one or more individual subjects in addition to the· aggregate marks of the qualifying examination. But whenever weightage is proposed to be given to individual subjcct(s) by the college, it should be notified G in advance to the students through the college Prospectus/Notice Board so that applicants seeking admission know in advance the basis of admission.

(iii) That last date for receipt of applications to all the under- graduate courses will be June 30, 1980 and this would be uni- H formly adhered to by all the colleges".

ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI [KASLIWAL, J.] 185

.., I The above recommendations were accepted by the Central Admission A Committee and also by the Vice Chancellor. .,

On June 5, 1980 the University issued Circular to all affiliated colleges prescribing the last date for the receipt of applications as June 30, 1980. The Circular also provided phased programme of admission. On June 9, 1980 the University issued another Circular to Principals of all the colleges stating inter B alia, that admission to B.A. (Pass)/B.A. Vocational Study Courses be based on the merit of percentage of marks secured by students in the qualifying exami- nation. The admission to B.Com. (Pass)/ B.A. (Hons.) and B. Com. (Hons.) Courses shall be on the basis of marks. However, the College may give weightage to marks obtained in one or more individual subject(s) in addition to the aggregate marks of the qualifying examination. But whenever the c weightage is proposed to be given to individual subject(s) by the College, it should be notified in advance to the students· through the college Prospectus/ Notice Board so that applicants seeking admission kno_w in advance the basis ~ of admission. This Circular also provided certain guidelines for admission to sportsmen and co-curricular distinctions. D On a complaint made by the Delhi University Students Union that the college was violating the University's Statutes and Ordinances by fixing its own time Schedule for receipt of applications as well as by stimulating interview before admission, some correspondence took place between the university and the College, but the College authorities did not agree to adhere to the University's Circular. At this stage Rahul Kapoor a student seeking E admission to the college filed a writ petition No. 790of1980 in the Delhi High Court challenging the admission schedule prescribed by the College as well as the Policy of interview test prescribed by the college. This Writ petition is the subject matter of the Transferred Case No. 3 of 1980. The St. Stephen's .. College filed a writ petition No. 1868 of 1980 before this Court under Art. 32 of the Constitution. The college in substance took the stand that it was a F religious minority-run institution and the Circulars dated 5th and 9th June, 1980 issued by the University were violative of the fundamental right guaran- teed under Art. 30 of the Constitution. The Delhi University Students Union became an intervener in the writ petition No. 1868of1980 filed by the College. Subsequently for the admission year 1984-85, the Delhi University Students G Union and Dr. Mahesh C. Jain filed writ petition Nos.13213-14 of 1984 under Art. 32 of the Constitution against the College. It was maintained in these writ petitions that the College was bound to follow all university policies, rules, regulations, Ordinances regarding admission and that the College be restrained from giving preference in favour ·of Christian students in the matter of admission to the College. It was alleged that the college is not a minority H

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A institution and in the alternative it was further pleaded that even assuming that the College was a minority institution, it was not entitled to discriminate students on grounds of religion as the college was receiving grant-in-aid from the Government. Such discrimination was violative of Art. 2!)(2) ·Of the Constitution.

B A Bench of two Judges of this Court by order dated 9th December, 1987 held that the Stephen's College, Delhi being a religious minority educational institution, the right to administer the institution guaranteed under Art. 30(1) of the Constitution carries with it the right to regulate the admission of students of its own choice, involves a substantial question of law ·as to the interpretation of the Constitution, and, therefore, the petitions be laid before the Hon 'ble the C Chief Justice of India for being placed for hearing before a Constitution Bench. In view of the above order these matters were placed for hearing before the Constitution Bench. So far as the question whether St. Stephen's Coliege is a minority run institution Hon 'ble Shetty, J. after considering the pleadings as well as the various factors has held that St. Stephen's College was established and administered by a minority community, viz. the Christian Community D which is indisputably a religious minority in India a5 well as in the Union Territory of Delhi where the College is located. I am in full agreement with the above conclusion and have nothing to add.

The next question which calls for consideration is whether the College was bound, by the University's Circulars dated 5th and 9th June, 1980? The E College has challenged these notifications as infringing the rights of the College of administering and managing the affairs as being violative of their right conferred under Art. 30(1) of the Constitution. The first objection. relates to the Circular of University dated June 5, 1980 which prescribed the last date for receipt of applications as June 30, 1980 instead of June 20, 1980 prescribed by the College. The second relates to Circular dated June 9, 1980 by which the F University had given a direction to all the Colleges to admit students solely on the basis of merit to be determined- on the basis of the percentage of marks secured in the qualifying examination. According to the College they were en- titled to hold interview and thereby select candidates for admission to the college. So far as the first controversy relating to fixing of last date for receipt of applications for admission to the College is concerned, it does not appear to be of much consequence as the same can be regulated by adjustment with the University. In any case the fate of the first question is dependant on the second question of interview inasmuch as if the college is held entitled to hold interviews before admission, then the last date for receipt of the applications has to tie kept early giving sufficient time for interviews before finalising· the admissions, as scheduled by the college. ·

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIW AL, J.] 187

The contention on behalf of the college in this regard is that it has been following its own admission programme for more than 100 years and the method of interview has been followed without any objection from any quarter and this has resulted in promoting the all round image and excellence of the institution. There is no allegation of any malafides in holding interviews and it is done to test the candidate's knowledge of the subject together with his general awareness of the current problems. According to the College such interview fulfils its twin objects of giving preference to Christian Students by granting relaxation up to 10% which subserves the interest of the minority commuriity of Christians for whose benefit the College has been established and secondly, to select the best talent for future academic performance. It has been further contended in this regard that the right to select students for admission is a part of administration. The management of the College has the full say in the admission of students and it should be left free from control so that the minority institutions may admit the students in accordance with their ideas as to how the interests of the community in general and the institution in particular will be best served. The interview is also necessary because of fantastically high marking given by some examining Boards and it would not be in the interest of the college to admit students solely on the basis of marks secured by the candidates in the qualifying examination.

- It was contended on behalf of ihe University as well as the students Union that the first Circular dated 5th June, 1980 fixing the last date for receipt of applications for admission was done in order to ensure uniformity in the admission dates in all the affiliated colleges of the University and it was considered beneficial in the interest of students community as a whole. So far as the second Circular dated 9th June, 1980 was concerned University was justified in applying a uniform standard that the admission should be made on - the basis of marks secured by the applicants in the qualifying examinations and this would exclude arbitrariness in the selection and ensure fairness to all the applicants. It has been submitted that the Circulars in question were regulatory in character and did not impinge upon any right guaranteed under Art. 30(1) of the Constitution to St. Stephen's College as a minority institution. It was further contended that once an educational institution is affiliated to the University or becomes a constituent of such University it has .to abide by the regulation framed by the University relating to admissions in such institutions irrespective of their being a minority or non-minority institution. The Univer- sity has the right to regulate the standard of education and the admission of students in an educational institution is a part and parcel of such right St. Stephen's College cannot adopt a different standard for admitting students, under the guise of exclusive right of management given to a minority institu- tion. It has been contended that the uniformity in the matter of admission is a H

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

A necessary concomitant of the right to seek higher education by joining a college and uniform pattern would better serve the interest of the student community as a whole. The college has not pointed out as to which examining Boards are giving fantastically high marks and it has not been shown by the college as to · how and in what manner they are able to cope with such problem by resorting to the method of interview. It has also not been shown by the college as to how many percentage of marks have b~n kept for interview and whether it is in consonance with the norms and principles laid down by this Court in large number of cases restricting the maximum percentage of marks for interview. It has been submitted that the aim of minority institutions is also to maintain uniformity in standards of education. To qualify for studies at graduate level the only relevant consideration should be the academic performance shown by the candidate in his qualifying examination. If the candidflte has shown his ability and distinction in academic standards at. the level of Higher Secondary or 10+2 examination he cannot be denied the right of persuing higher studies by resorting to the method of interview. It has been further contended that once the St. Stephen's College, though being a minority institution, gets grant-in-aid from the State, it has to fall in line with the other non-minority institutions in the matter of admitting the students and has to abide by a uniform rule prescribed by the Delhi University.

The question of gnmting benefit or preference to the candidates belong- ing to Christian Community shall be examined separately while dealing with the provisions of Art. 29(2) and Art. 30(1) of the Constitution. I would presently deal with the validity of interview kept as a rule for admission by the St. Stephen's College independently of the above articles of the Constitution.

The College in its counter"affidavit in Writ petitions (Civil) Nos. 13213- 14 of 1984 has justified the method of interview on grounds inter alia that there are more than 26 Higher Secondary Examining bodies with widely diseparate standards of marking and different grading systems. Interview provides a valuable method of equivalence in determining the real merit of students coming from different examining/grading system. It has been further alleged that malpractice, are adopted in examinations and taking of fake and forged certificates and mark-sheets are widely prevalent. The college by the method of interview provides an important corrective for assessing the real merit in place of paper merit of a candidate. Applicants have different combination of subjects and tough one may have secured very high percentage of marks in science subject but may be seeking admission in subjects like History or English. A personal interview helps in finding out his interest and aptitude for such subject. By interview, it can be found out whether the applicant would be able to follow lectures through the medium of English. By interview, it is

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIW AL, J.] 189

decided whether the candidate has an aptitude to contribute to the richness and A· variety of the corporate life of the academic community of the College. Ii has been further submitted that the founders of the college never mant it to be a mere teaching shop but as an academic community based on faith, fellowship and fruitful studies in an atmosphere in which the college could serve as a national microcosm and students of different cast and creed and belonging to all parts of the country could learn and live together, interact together and B thereby bring about a real national integration.

It has been further submitted on behalf of the college that the process of selection for admission by the college is not arbitr~y. It is an extremely elaborate and carefully planned process, details of which have been given in the reply. In the selection process, each member of the Selection Committee C grades performance of the candidates and after the end of the interview for such course of study, the opinion of the members is taken into account and by consensus the final list of candidates selected for admission is put up. The above procedure is applied without any discrimination in case of Christian as well as non-Christian candidates or one who has stood first in the All India Examination or one who might be seeking admission· on the basis of a D sportsman. These modalities of admission in the college have been followed for more than 100 years and there is no reason to discontinue such a policy which has proved so valuable for such a long time and have stood the test of time.

It cannot be disputed that the University can lay down regulatory E measures in respect of colleges which are affiliated or constituent of such University, if such measures are reasonable and conducive to making the educational institution an effective vehicle for education, the same cannot be challenged. It may also be noted that the Delhi University is governed by the Delhi University Act 1922, the Statutes and the Ordinances and the Rules and regulations made thereunder. Ordinance XVIII of the University provides for F a Staff Council in every college. The Principal is the ex-officio Chairman of the Staff Council. The functions of the staff Council include making of recommendations regarding formulation of admission policy within the frame- work of the policy laid down by the University. This shows that no college can lay down its own admission policy so as to be in conflict with the policy laid G down by the University. The University has issued a general direction to all the colleges to admit students on the basis of marks secured in the qualifying examination. In the present state of affairs existing in our country there is a great rush of students seeking admission to degree colleges after having passed the qualifying examination of Higher Secondary or 10+2. There is a paucity of such colleges and the number of students being large there is a to,ugh. H

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

A competition for getting admission in the college for higher studies. In these circumstances if the Delhi University has faid down a uniform rule that the ment, for the purpose of admission in its affiliated and constituent colleges, should be determined on the basis of marks secured in the qualifying exami- nation, it cannot be challenged on the ground of being unreasonable. St. Stephen's College is not a professional college in the sense that it does not B impart any technical education like engineering or medical. It is like all other · Arts, Science and Commerce colleges which impart stuqies in these subjects up to graduate or post graduate level and as such cannot claim a different treatment in the matter of admitting students in the college. In case the bodies like the academic council of the University has approved the rule for admission on the basis of marks obtained in the qualifying examination, it cannot be objected by C. taking the stand that it is against the interest of the Christian Community for whose interest the College had been established. Though a detailed reply has been given on behalf of the coltege justifying the method of interview, but, it would be important to note that it does not make a mention as to how much percentage of marks are kept for interview and how much for the qualifying examination. According to the reply submitted by the College in this regard a D list of potential suitable candidates called for inter¥iew is prepared which is normally on the basis of 1 : 4 or 1 : 5 for Arts and higher for Science students. Thus the criteria or basis for calling in interview is nothing else than marks secured in the qualifying examination. Thereafter each member of the Commit- tee grades the performance of the candidates after the end of the interview for each course of study, the opinion of all the members is taken into account and by consensus the final list of candidates selected for admission is put up. This method of interview adopted by the college goes to show that out of the candidates called for interview the final selection is based hundred per centi.e. solely on the basis of interview and at this stage it has not been shown as to how much weight/percentage is given to the marks secured in the qualifying examination and how much to the interview proportionately. In my humble opinion this _method of selection is pound to result in arbitrary selection. According to the College cut-off marks are fixed for calling in interview and according to Annexure I dated 27th June, 1984 in W.P. No. 1868 of 1980 for Science Stream it is 83%, for Commerce Stream 80%, for humanities 77% and so on. Now for each one of these streams candidates are called for interview four or five times the number of available seats. Thereafter, if their selection is made dependent on interview then a highly meritorious student having sec~red even 90% or more marksJmay not get admi_ssi.on ~hile a student just ?ettmg ~arks near the cut-o~f ljvel can. get admission m the co~le~e. To Illustrate 1f there are 50 vacancies m the Science Stream and 200 candidates are .called for interview who have secured not less than 83% marks in the qualifying examination, students standing high in merit even at Nos. 1 to 50

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIWAL, J.] 191 -

may not be selected and those standing at Nos. 150 to 200 may get admission solely on the basis of interview. Admittedly nothing has been said in the prospectus issued by the college as to what percentage of marks are kept for interview. It is totally silent in this regard. It has not been shown in the reply nor made clear during the course of arguments that any marks for interview are added to qualifying marks. The candidates who are not selected are not made aware of such marks. It has only been stated in the prospectus that final selection will be made after interview. This goes to show that the management or the selection body has a full control in admitting or refusing admission according to their own choice and out of the eligible candidates any candidate . can be refused admission on the basis of interview.

In R. Chitralekha & Anr. v. State of Mysore & Ors., [1964) 6 SCR 638 c a Constitution Bench considered the question of selection by viva voce. The Government sent a letter to the Director of Technical Education Mysore.; Bangalore informing him that it had been decided that 25% of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Engineering Colleges shall be fixed as interview marks; it also laid down the criteria for allotting marks D in the interview. The Selection Committee converted the total of the marks in the optional subjects to a maximum of 300 marks and fixed the maximum marks for interview .at 75. Some of the candidates whose applications for admission were rejected filed writ petitions undet;Art 226 of the Constitution in the High Court of Mysore. The High Court after considering the various contentions raised by the petitioners, held that the orders defining backward- E ness were valid and that the criteria laid down for interview of students were good; but it held that the Selection Committee had abused the powers conferred upon it and on that finding set aside the interviews held and directed that the applicants shall be interviewed afresh in accordance with the scheme laid down by the Government Two of the petitioners came to this Court by filing appeals by special leave before this Court It was contended on behalf of the appellants that selection by interviews is inherently repugnant to the doctrine of equality embodied in Art 14 of the Constitution, for, whatever may be the objective test laid down, in the final analysis the award of marks is left to the subjective satisfaction of the selection committee and, therefore, it gives ample room for discrimination and manipulation. The Court did not accept such a wide contention. It was observed that without better and more scientific material placed before the court it cannot be held that selection by interview in addition to the marks obtained in the written examination is itself bad offending Art. 14 of the Constitution.

The matter was again dealt with in detail by a Constitution Bench of this H

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Court in Ajay Hasia v. KhalidMujib Sehravardi & Ors. etc. [1981) 2 SCR 79. ~ f The question in this case was regarding admission to the Regional Engineering College, Srinagar. According to the rules of admission the comparative merit was to be determined by holding a written entrance test and a viva voce examination and the marks allocated for the written test in the subjects of English, Physics, Chemistry and Mathematics were 100, while for viva voce examination, the marks allocated were SO divided as follows : (i) General Knowledge and Awareness-IS; (ii) Broad understanding of Specific Phe- nomenon-IS; (iii) Extra-curricular activities-10 and (iv) General Personal- ity Trait-IO, making up in the aggregate-SO. The Court considered the question regarding the validity of viva voce examination as a permissible test for selection of candidates for admission to college. It was contended on behalf of the petitioners that the viva voce examination does not afford a proper •. criteria of assessment of the suitability of the candidates for admission and it is a highly subjective and impressionistic test where the result is likely to be influenced by many uncertain and imponderable factors such as predilections and prejudices of the· interviewers, his attitudes and approaches, his pre- conceived notions and idiosyncrasies and it is also capable of abuse because it leaves scope for discrimination, manipulation and nepotism which can remain undetected under the cover of an interview and moreover it is not possible to assess the capacity and calibre of a candidate in the course of an interview lasting only for a few minutes and, therefore, selections made on the basis of oral interview must be regarded as arbitrary and hence violative of Art. 14. The \: Court observed : That this criticism cannot be said to be wholly unfounded and it reflects a point of view which has certainly some validity. The Court then quoted the following passage from the book on "Public Administration in Theory and Practice" by M.P. Sharma :

''The oral test of the interview has been much criticised on the ground of its subjectivity and uncertainty. Different interviewers have their own notions of good personality. For some, it consists more in attractive physical appearance and dress rather than any- thing else, and with them the breezy and shiny type of candidate scores highly while the rough uncut diamonds may go unappreci- ated. The atmosphere of the interview is artificial and prevents some candidates from appearing at their best. Its duration is short, the few questions of the hit-or-miss type, which are put, may fail to reveal the real worth of the candidate. It has been said that God takes a whole life time to judge a man's worth while interviewers have to do it in a quarter of an hour. Even at it's best, the common sort of interview reveals but the superficial aspects of the candidate's H personality like, appearance, speaking power, and general address.

ST.STEPHEN'SCOLLEGEv. UNIVERSITYOFDELHI [KASLIWAL,J.] 193

Deeper traits of leadership, tact, forcefulness, etc., go largely undetected. The interview is often in the nature of desullory conversation. Marking differs greatly from examiner to examiner. An analysis of the interview results show that the marks awarded to candidates who competed more than once for the same service vary surprisingly. All this shows that there is a great element of chance in the interview test This becomes a serious matter when the marks assigned to oral test constitute a high proportion of the total marks in the competition".

· The Court further observed as under :

','01 Glenn Stahl points out in his book on "Public Personnel Administra· tion" that there are three disadvantages from which the oral test method suffers, namely, (1) the difficulty of developing valid and reliable oral tests; (2) the difficulty of securing a reviewable record on an oral test; and (3) public suspicion of the oral test as a channel for the exertion of political influence" and we may add, other corrupt, nepotistic or extraneous considerations. The learned author then proceeds to add in a highly perceptive and critical passage:

"The oral examination has failed in the past in direct proportion to the extent of its misuse. It is a delicate instrument and, in inexpert hands, a dangerous one. The first condition of its successful use is the full recognition of its limitations. One of the most prolific sources of error in the oral has been the failure on the part of . examiners to understand the nature of evidence and to discriminate between that which was relevant, material and reliable and ·that which was not. It also must be. remembered that the best oral interview provide8 opportunity for analysis of only a very small part of a person's total behaviour. Generalizations from a single interview regarding an individual's total personality pattern have been proved repeatedly to be wrong".

"But, despite all this criticism, the oral interview continues to bP very much in vogue as a supplementary test for assessing the suitability of candi- G dates wherever test of personal traits is considered essential. Its relevance as a test for determining suitability based on personal characteristics has been recognised in a number of decisions of this Court which are binding upon us. In the first case on the point which came before this Court, namely, R. Chitra Lekha and Others v. State of Mysore and Others this Court pointed out: H

194 SUPREME COURT ·REPORTS (1991) SUPP. 3 S. C.R.

A "In the field of education there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modem trend of opinion insists upon other additional tests, such as interview, performance to extra-curricular activities, personality B test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which is the correct one .............................. The scheme of selection, however, per- fect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the busi- c ness of selection to qualified persons, this Court cannot obviously have any say in the matter".

and on this view refused to hold the oral interview test as irrelevant or arbitrary. It was also pointed out by this Court in A. Peeriakaruppan v. State of Tamil Nadu & Ors.: D "In most cases, the first impression need not necessarily be the last jmpression, but under the existing conditions, we are unable to accede to the contentions of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless" E · It is, therefore, not possible to accept the contention of the petitioners that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must beregardedas arbitrary. The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the ,_ absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held . should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men . of high i~tegrity, calibre and qualification".

H The Court then examined the question that even if oral interview may be I

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIW AL, J.] 195

regarded in principle as a valid test for selection of candidates for admission to a college, whether it was arbitrary and unreasonable since the marks allocated for the oral interview were very much on the higher side as compared with the marks allocated for the written test. The marks allocated for the oral interview were 50 as against 100 allocated for the written test, so that the marks allocated for the oral interview came to 33 1/3% of the total number of marks taken into account for the purpose.of making the selection. The Court in this regard held that there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption a and nepotism are very much on the increase, allocation of high percentage of marks for the oral interview as compared to the marks allocated in the written test, cannot be accepted by the Court as free from the vice of arbitrariness. The C Court then took notice of the fact that even in case for selection of candidates for the IAS, IFS and the IPS where the personality of the candidate and his personal .characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination constituting only 12.2% of the total marks taken into consideration for the purpose of making the selection. The Court thus held that the allocation of as high percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure suffered from the vice of arbitrariness. The Court was thus of the view that under the existing circum- stances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid.

It would be important to note that even in Ajay Hasia' s case (supra) their Lordships clearly took the view that having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated in the written test, cannot be accepted by the Court as free from the vice of arbitrariness. It was then held that under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be liable to be struck down as constitutionally invalid. It is further important to note that St. Stephen's G College is a constituent college of Delhi University and the University has issued the impugned notification dated 9th June, 1981 by which a uniform rule has been made that admissions to all the affiliated and constituent colleges of the University should be made on the basis of marks secured in the qualifying examination. According to the stand tak~n by the College itself only 6 to 10% •• .of the students belonging to Christian ¢ommunity get admission and rest are H students belonging to non-christian communities. .

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

.. >;-J\: ·. ;:-' lhus·~c.tfay_e tci.exruniri~ wh~thcr thifmethod of viva voce adopted by :!:~-.~:_·,~.·. ·~.' ·. 1, . .·. 'iti¥·{~Uegec.~.l>ejilsdfied''pt not, \\Jhich gives· a clear free hand to the college _. · ,piaiiag~tjl~nt in a(imitting the students of their own choice out of 90 to 94 % belonging to non-Chri.stian communities. ·As already mentioned above the college has neither mentioned in the prospectus nor in· any counter placed before the Court or even during the course of arguments as to how much .B percentage of marks are kept for interview in comparison to the marks obtained by the candidates in the qualifying examination. I am clearly of the view that •I action of the college in applying the method of interview contrary to the direction given by the University is wholly arbitrary, wrong and illegal and violative of Article 14 of the Constitution. In short I formulate my reasons as under:- c . (a) St. Stephen's college is a constituent of the Delhi University and is bound by the Statutes, Ordinances and other Rules and Regulation made by the University which apply equally to its affiliatecJ and constituent colleges. It is the primary concern of the University to maintain standards of education add in this regard if the advisory committee of the University has made the rule D accepted by the Central Admission Committee and the Vice Chancellor that the admissions to all the affiliated and constituent colleges shall be made on the basis. of marks secured in the qualifying examination it is binding on St. Stephen's College also irrespective of its minority character.

. '(b) The primary concern of the University in the interest of student E CQJTimunity as a whole is to afford equality of opportunity for studies at the . graduate level. The rnethod of interview in the present case results into dis- I! crimination and is violative of Art. 14 of the Constitution as it has no reasonable nexus with the object of affording an equality of opportunity of education at graduate level. F (c) The method of interview adopted by the College 1foes not disclose as to how many percentage of marks are kept for interview in proportion io marks secured in qualifying examination. It is the right of every student to know in advance the ~asis of admission laid down by the College. · .• . J..."' - .~ /

,G ·(d),It has not been shown as to how the minority character of the College will be affected or prejudiced if students belonging to non-Christian commu- nity arc given admission solely on the basis of marks obtained in the qualifying « examination and not by interview. It is understandable if some lee-way is given to the students of Christian Community. in respect of marks secured in qualifying examination or· to make reservation of some seats to a reasonable H ·extent for them.

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIWAL, J.] 197

(e) Even in case of public employment where th~ method of interview may have some importance, this Court in series of cases has laid down that marks for interview should not exceed 15% of the tota~ marks. Irl the present case we are concerned with the admission to graduate codtse in which teen- agers seek admission after finishing their studies at' the school level. .So far as their academic performance is concerned it can only be judged on the basis of marks secured by them in qualifying examination. They are riot being selected for any public employment, but are to be selected for persuing higher studies in the college. It is the fundamental duty of every educational institution in our country to· provide opportunity of education and the suitability for future academic performance can best be judged on the basis of marks secured in the qualifying examination and not by interview. It has not been shown by the College that the method of interview is adopted by any other educational institution affiliated to the Delhi University or in any part of the country at the stage of granting admission to the College in the first year of graduate course.

(t) The college in its counter has taken the stand that it is well known that malpractices in examinations including that of fake and forged certificates and mark-sheets are widely prevalenL Interview as conducted by the respondent college provides an important corrective in the assessment of the real merit of a candidate, in place of what could by only paper merit of a candidate. The candidate has through oral questions as well as in some subjects through solving problems in writing on spot, satisfy a Board of experts, in person, of his academic capacity and potential. If has also been submitted in the reply that there are more than 25 Higher Secondary examining bodies with widely diseparate standards of marking and different grading systems. According to the College Interview provides a valuable method of equivalence to determine the relative merit of students coming from different examining/grading system.

The above grounds taken by the college for justifying the method of interview is neither here nor there. It has not shown us to how the interview provides a valuable method of equivalence in respect of marks awarded by different Higher Secondary examining bodies. This ground of justification is totally vague and carries no weight. The method of interview is no remedy of malpractices in examiQation or obtaining fake and forged certificates and mark-sheets. The College in this regard is entitled to refuse admission to any G . student in whose case such malpractices are detected. .

(g) It is further important to note that according to its own showing the college authorities call the candidates for interview on the basis of marks awarded in the qualifying examination conducted by the 26 Higher Secondary examining bodies. If the candidates are called for interview on that basis, it H

198 SUPREME COURT REPORTS (1991) SUPP. 3 S. C. R.

A does not stand to reason as to how such marks are not treated as correct at the time of interview. It has nowhere been stated by the College authorities is to which Higher Secondary examining bodies are considered to be below stan- dard by them. From the entire method of interview it appears that out of the candidates called for interview which is four or five times of the available seats, the college on the basis of interview can select anyone out of them irrespective of their marks secured in the qualifying examination. By this method out of 200 candidates called for 40 seats, the college authorities can refuse to admit the candidate placed at No. 1 and admit:a student placed at No. 200 and ignore the merit on the basis of marks secured in the qualifying examination.

(h) This Court in Ajay Hasia' s case (supra) has not approved oral interview test as a satisfactory test specially when it can leave scope for discrimination, manipulation and nepotism which can remain undetacted under the cover of an interview. It has allowed it as a supplementary test and that also wherever test of personal straits is considered essential.

The Court in this regard further held that there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, the allocation of a high percentage of marks for the oral interview as compared to the marks allocated in the written test, cannot be accepted by the court as free from the vice of arbitrariness. Thus the system of interview suffers from inherent weakness and if the Delhi University in its wisdom has arrived to the conclusion that admission should be granted on the basis of marks secured in qualifying examination such decision taken by the University cannot be challenged on the ground of being illegal or arbitrary. ·

F ci.tizen(i)ofThe right to seek higher education in the college is a right of every this country. Those neo rich or having political patronge or pull get preference in admission based on interview.· Those students who come from rural background or belong to weaker section of the society though more meritorious in academic distinction, generally remain at disadvantage in the method of interview .;But those having more attractive physical appearance and G dress rather thaQ rutything else or tltose breezy and shiny type of candidate scores highly in ~ef· intei;vie~ while the rough uncut diamonds may go unappreciated as srud, by ·M.P. S~a and quoted in Ajay Hasia' s case. '·. (J) The primary aim of the St Stephen's college as mentioned in the Memorandum of SL Stephen's Co~ege, Delhi, Society is to prepare students of H.

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIW AL, J.j 199

the college for University degrees and examinations and to offer instruction in doctrines of Christianity, which instruction must be in accordani::e with the teaching of the Church of North India. This object is fully achieved by admitting students on the basis of marks in qualifying examination rather than by interview.

(k) The selection of students out of the eligible candidates called for interview, is based hundred per cent i.e. solely on the basis of interview and this is clearly in violation of the decision given by the Constitution Bench of this Court in Ajay Hasia' s case which has been consistently followed by this Court in latter cases Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., [1985]vol. 4 SCC 417,Mohinder Sain Garg v. State of Punjab & Ors., [1991] 1SCC562 andMunindraKumar & Ors. v. Rajeev Govil & Ors., [1991] 3 SCC c 368 also. The maximum marks for interview can be 15% and not more. I (I) The remedy for disparate marks, if any given by various Boards in the qualifying examination lies in holding a written examination of its own by the St. Stephen's College and not by the method of interview. Even otherwise it has not been shown as to how this disparity is removed by ·resorting to D interview. I ... ;

(m) Though there is no allegation of any malafides against the college in holding interview, but it cannot be forgotten that there is inherent weakness and infirmity in the system of interview itself in which subjective rather than .. •

objective satisfaction plays a major role. In this background the method of E ,. selection by interview alleged to be in vogue for a long period in St. Stephen's College cannot be considered as so sacrosanct that the same cannot be annulled or changed even when such method does not find approval of the Delhi University. Admittedly the method of viva voce has no statutory or legislative sanction behind it nor is a method approved by any educational.authorities at the stage of admitting students in the College after passing Higher Secondary F or 10+2 examination. If all the other affiliated and constituent colleges of the Delhi University, except St Stephen's College, are admitting students on the basis of marks secured in the qualifying examinations and the University in its wisdom seeks to abolish method of interview and adopt a uniform rule, St. Stephen's College is also bound to follow such rule and cannot object on the ground of long practice.

(n) The students who qualify for seeking admission in the degree course are generally of young age of 15 to 17 years and the personality of such studentS still remains to be developed and as such the only consideration.for their admission to degree courses should be their academic performance in the qualifying examination.

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

A The next important question for consideration in this case is the validity of the college admission programme giving preference, to Christian students or in other words whether the St. Stephen's College being a minority institution, in spite of receiving grant in aid from the Government, has any right to select students of Christian Community in exercise of its fundamental right conferred under Art. 30(1) or whether such preference or reservation would be invalid B under Art. 29(2) of the Constitution? It is an admitted fact that St. Stephen's College is getting grant~in-aid Lo the extent of 95% of the annual deficit from the University Grants Commission. In order Lo consider the above controversy it would be necessary t.o refer Lo the provisions of Articles 29 and 30 of the Constitution of India. The said Articles read as under :

C CULTURAL AND EDUCATIONAL RIGHTS

Art. 29 :- PROTECTION OF INTERESTS OF MINORITIES :-

(1) Any section of the citizen residing in the territory of India or any part thereof having a distinct language, script or cullure of its D own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of Stale funds on grounds only of religion, race, caste, language or any of them. E Art. 30 :- RIGHT OF MINORITIES TO ESTABLISH AND AD- MINISTER EDUCATIONAL INSTITUTIONS :-

~· (I) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions F of their choice.

(IA) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in Clause (I) the State shaJI G ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions, discriminate against any educationaJ institution on the grounci that it is under the management of a minority, whether based on religion or language.

ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI [KASLIWAL, J.] 201

The right conferred on minority to establish and administer educational institutions under Art. 30(1) of the Constitution is not absolute and is always subject to reasonable regulations. If a minority had established and is admini- stering educational institution without receiving any aid out of the State funds then clause (2) of Art. 29 will not come into play. However, if such educational institution is receiving aid out of the State funds then it would be subject to the rigour of clause (2) of Art. 29 and it cannot deny admission on grounds only of religion, race, caste, language or any of them. If such institution gives preference or makes reservations for the candidates belonging lo its own religion, then it is bound to cause inequality and discrimination with a candidate belonging to another religion and it would be a denial of admission on the ground of religion and would be hit by Art. 29(2). The right conferred under Art 30 is a general right granted to all minorities, but if any educational institution established and administered by such minority also gets the benefit of grant-in-aid out of the State funds then it has to fall in line equally with all other educational institutions in the matter of admitting students in such insti- tution and cannot prefer or reserve any seats for students of its own religion.

Clause (2) of Art. 29 is a counterpart of the equality clause of Art. JS. D There should be no discrimination against any citizen on the ground of religion, • race, caste or language or any of them in the matter of admission into any educational institution maintained or aided by the State. While clause (1) of Art. 29 protects the rights of a section of the citizens having a distinct language, script or culture of its own, the right conferred by clause (2) is an individual right given to the citizen as such and not as a member of any community. This E clause (2) offers protection to all citizens, whether they belong to majority or minority groups. It may be noted that compared with Art. 15(1), it appears that 'sex' and 'place of birth' are omitted from. Art. 29(2). Hence, educational institution intended exclusively for men or women could be maintained by the State without a violation of the Constitution. · F So far as Clause (1) of Art. 30 is concerned, it grants a rightof minority community to impart instruction to the children of its own community in institutions run by it and in its own language. It confers two rights (a) the right to establish an institution, (b) the right to administer it. The right of establish- ment means the bringing into being of aq)nstitution by a minority community. G It matters not if a single philanthropic individual with his own means funds the institution or the community at large contributes the funds. The next part of right relates to the administration of such institution. Administration means management of the affairs of the insl.ilution. This management must be free of ccintrol so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the community in general H

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

A and the institution in particular will be best served. There is, however,. an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are adopted by considerations of the advancement of the country and its people. Therefore, if university established syllabi for examination that must be followed, subjeet however to special subjects which the institution may seek to teach, and to a · B certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management, although they may indirectly affect it. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern while the management C must be left to them, they may be compelled to keep in step with others. The above propositions have been laid down in the following cases : - State of .Bombay v. Education Society, [1955] l S.C.R. 568, The State of Madras v. Shrimathi Champakam Dorairajan,[1951], S.C.R. 525, in Re. Kera/a Educa- tion Bill AIR 1965 SC 956, Sidhrajbhai v. ~tatepfGujarat, [1963] 3 SCR 837, Katra Educaiton Society v. State of U.P. and Others, [1966] 3 SCR 328 and D Gujarat University Ahmedabad v. Ranganath Madholkar, [1963] suppl. SCR 112.

Now, so far Clause (1) of Art. 29 is concerned, it is complementary to the right conferred by Clause (1) of Art. 30. A minority can effectively I conserve its distinct language, script or culture only if it has the right to 'E establish educational institutions of its choice. Hpwever, the right under Art. 30(1) is a separate right independent of the considerations under Art. 29(1).

The controversy involved in the cases in hand before us is between clause (2) of Art. 29 and Clause (1) of Art. 30. The framers of the Constitution were fully knowing about the necessity of granting protection of interests of minorities but at the same time they wanted. that if any educaiional institutions are run by receiving aid out of State funds then no citizen could be denied admission on grounds only of religion, race, caste, language or any to them. The rights conferred to the minorities under Art. 29(1) or Art. 30(1) are enabling ones while clause (2) of Art. 29 is a mandate that in the matter of admission in any educational instituti~n maintained by the State or receiving aid all citizens would be treated equal and could not be denied admission on grounds only of religion, race, caste, language or any of them. The right guaranteed u11der Art; 29(2) is a special right which would prevail over the general right° guaranteed to the minorities under Art. 30(1). It is a well known rule of constructfon that special law prevails over the general law as contained in the maxim "generalia specialibus non derogant". It may also be noted that·

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIW AL, J.] 203

• while interpreting a provision of the constitution no words can be imported or added. If the contention raised on behalf of the college is accepted then it would necessarily involve the importation of the words "for their own community" in Art. 30(1). Clause (2) of Art. 29 does not make any exception to any ~ educational institutioa established by the minorities and it clearly provides in unmistakable terms that it applies to any educational institution maintained by the State or receiving aid out of State funds whether_ run by a minority or majority. In TheAhmedabad St. Xaviers College Society and Anr. etc. v. State of Gujarat an4 Anr. [1975] 1 S.C.R. 173 at p. 298, Dwivedi, J. observed as under:

"A glance at the context and scheme of Part III of the Constitution would show that the Constitution makers did not intend to confer c absolute rights on a religious or linguistic minority to establish and administer educational institutions. The associate Art. 29(2) im- poses one restriction on the right in Art. 30(1). No religious or linguistic minority establishing, and administering an educational institution which receives aid from the state funds shall deny admission to any citizen to the institution on grounds only of religion, race, caste, language or any of them. The right to admit to an educational institution is admittedly comprised in the right to administer it This right 'is partly curtailed by Art. 29(2).

The right of admission is further curtailed by Art. 15(4) which provides an exception to Art 29(2). Art. 15(4) enables the State to make any special provision for any advancement of any socially and educationally backward class citizens· or for the Scheduled Castes and Scheduled Tribes 1n the matter of admission in the educational institutions maintained by the State or receiving aid from the State. F Art. 28(3) imposes a third restriction on the right in Art 30(1). It provides that no person attending any educatio~al institution rec- ognised or receiving any aid by the State shall be required to take . '

part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be con- G ducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Obviously, Art 28{3) prohibits a relig- ious minority establishing and administering an educational insti- tution which receives aid or is recognised by th'e State froll! compelling any citizen reading in the institution to receive relig- H

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

A ious instruction against his wishes or if minor against the wishes of his guardian. It cannot be disputed that the right of a religious minority to impart religious instruction in an educational institu- tion forms part of the right to administer the institution. And yet Art. 28(3) curtails that right to a certain extent.

To sum up, Articles 29(2), 15(4) and 28(3) place certain express ' B limitations on the right in Art. 30(1). There arc also certain implied limitations on this right. The right should be read subject to those implied limitations."

While dealing with the scope of Art. 29(2) Das, J. (as he then was) in the C State of Bombay v. Bombay Education Society and Ors., [1955] 1 S.C.R. 568 observed as under :

The Learned Attorney General then falls back upon two conten- tions to avoid the applicability of Art. 29(2). In the first place he contends that Art. 29(2) does not confer any fundamental right on all citizens generally but guarantees the right of citizens of minor- ity groups by providing that they must not be denied admission to educational institutions maintained by the State or receiving aid out of the state funds on grounds only of religion, race, ca._te, language or any of them and he refers us to the marginal note to the Article. This is certainly a new contention put forward before us for the first time. It docs not appear to have been specifically taken in the affidavits in opposition filed in the High Court and there is no indication in the judgment under appeal that it was advanced in

... F this form before the High Court. Nor was this point specifically made a ground of appeal, in the petition for leave to appeal to. this Court. Apart from this, the contention appears to us to be devoid of merit. Art. 29(1) gives protection to any section of the citize'iis having a distinct language, script or culture by guaranteeing their right to conserve the same. Art. 30(1) secures to all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. Now suppose the State maintains an educational institution to help conserving the distinct language, script or culture of a section of the .citizens or makes grant in aid to an educational institution established by a minority community based on religion or language to conserve their distinct language, script or culture who can claim the protec- tion of Art. 29(2) in the' matter of admission into any such institution? Surely, the citizens of the very section whose language,

ST. STEPHEN'S COLLEGE v. tJNlVERSITY OF DELHI [KASLIWAL, J.] 205

script or culture is sought to be conserved by the institution or the citizens \_VhO belong to the very minority group which has estab- lished and is administering the institution, do not need any protec- tion against themselves and therefore. Art. 29(2) is not. designed for the protection of this section or this minority. Nor do we see any reason to limit Art. 29(2) to cjtizens belonging to a minority group other than the section or the minorities referred to in Art. 29(1) or B Art. 30(1), for the citizens, who do not belong to any minority group, may quite conceivably need this protection just as much as the citizens of other minority groups. If it is urged that the citizens of the majority groups are amply protected by Art. 15 and do not require the protection of Art 29(2), then there are several obvious answers to ~t argument The language of Art. 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Art. 15 protects all citizens against the State whereas the protection of Att 29(2) extends against the State or anybody who denies the right conferred by it. Further Article 15 protects all citizens against discrimination generally but Art. 29(2) is a protection against a particufar species or wrong namely denial of admission into educational institutions of the speciijed kind. In the next place Art. 15 is quite general ~d wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Art. 29(2) confers a special right on citizens- for admission to educa- E tional institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational right in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination. The heading tJnder which Articles 29 & 30 are grouped together - namely, "Cultural and Educational Rights" is quite general and does not in terms contemplate such differentiation. If the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens, irrespective of whether they belong to the majority or minority groups, are alike entitled to the protection of this fundamental right. In view of all these consideration the marginal note alone, on which the attorney general relies, cannot be read as controlling the plain meaning ·of the language in which the Art. 29(2) has been couched. Indeed in H

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

A the State of Madras v. Shrimathi Champakam Dorairajan, this Court has already held as follows :-

"It will be noticed that while Clause (1) protects the language, script or culture of a section of the citizens, clause (2) guarantees the fundamental right of an individual citizen. The right to get B admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizen.

In our Judgment this part of the contention of the Learned Attorney General cannot be sustained". c , A Constitution Bench of this. Court in DAV College etc. v. State of Punjab & Ors .. [1971] suppl. SCR 688 at p. 695 through Jaganmohan Reddy, J. for.the Court observed as under:-

"It will be observed that Art 29(1) is wider than Art. 30( 1), in that, while any section of the citizens including the minorities, can invoke the rights guaranteed under Art. 29(1) the rights guaranteed under Art. 30(1) are only available to the minorities based on religion or language. ·It is not necessary for Art.· 30(1) that the minority should be both a religious minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two articles would need us to concurred that a religious or linguistic minority has a right to establish and administer educa- tional institutions of its choice for effectively conserving its dis- tinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standard. This right is further subject to clause F (2) of Art. 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of state funds, on grounds only of religion, race, caste language or any of them. While this is so these two articles are not interlinked nor does it permit of their being read together".

In Re. The Kerala Education Bill, 1957 (Reference case) [1959] S.C.R. 995 at page 1047 S.R. Das, C.J. observed as under: j

"Unde~ clause (1) of Article 29 any section of the citizens residing in the territory of India or any part thereof having a distinct

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIWAL, I.] 207

language, script or culture of its own has the right to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve iis distinctive language, script or culture and that is what is conferred on all minorities by Art. 30(1) which has hereinbefore been quoted in full. This right, however, is subject to clause (2) of Art. 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of state funds on grounds of religion, race, caste, language or any of them". c In the same case it was further held (P. 1050-51) :

"The argument is sought to be reinforced by a reference to Art 29(2). It is said that an educaitoal institution established by a minority community which does not seek any aid from the funds of the. State need not admit a single scholar belonging to a D community other than that for whose benefit it was a community other than that for whose benefit it was established seeks and gets aid from the State confers Art. 29(2) will preclude it frorri denying admission to members of the other communities on grounds only of religion, race, caste, language or any of them and consequently it will cease to be an educational institution of the choice of the minority community which established it. This argument does not appear to us to be warranted by the language of the Article itself. There is no such limitation in Article 30(1) and to accept this limitation will necessarily involve the addition of the words "for their own community" in the Article which is ordinarily nor permissible according to well established rules of interpretation. Nor is it reasonable to assume that the purpose of Art. 29(2) was to deprive minority educational institutions of the aid they receive from the State. To. say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member of any other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid. The real import of Art. 29(2) and Art. 30(1) seems to us to be·that they clearly contemplate a minority institution with a sprinkling of outsiders H

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

A admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a miOority institution. Indeed the "Object of conservation of the distinct lan- guage, script and culture of a minority may be better served J>y propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this B condition into Art. 30(1) of the Constitution."

The framers of the Constitution were fully knowing the problems of various communities having different religions, distinct languages, and diverse cultures. The whole edifice of our Constitution is based on secularism and so far as the minorities are concerned it was considered necessary that they should c be allowed some rights in respect of establishing and administering educational mstitutio·ns of their choice. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own were conferred the right to conserve the same. Education is a strong factor to unite the entire country and it was considered necessary that were any edu- · cational institution is maintained by the State or receives aid out of State funds then the right of equality was guaranteed to every citizen in the matter of admission in such institution. If the minorities, based on religion or language wanted to run any educational institution without any aid out of State funds, there was no restriction placed ul>on the minorities in the matter of admission in such educational institutions and they were free to admit students of their community. But in a case where they were receiving aid out of State funds which woney come~ from contributions by way of taxes from every citizen of this country, then such educational institutios run by the minorities had to fall in line with all other· educational institutions and were not entitled to deny admission to any citizen on the ground of religion,· race, caste, language or any r l of them. F We cannot overlook that religious fundamentalism and linguistic paro- chialism leads to fissiparous tendencies and obstructs the national unity as a whole. It is necessary that minorities should join and be part and parcel of common stream of the country. The framers of the Constitution provided to conserve the distinct language, script or culture of any section of citizens of this G country and granted right to minorities to establish and administer educational institution of their choice. At the same time clearly provided in Art. 28 that no religious instruction shall be provided in any educational institution wholly maintained out of State funds. While in case of institution maintained or rec~iving aid out of State funds, no citizen shall be denied admission on grounds on! y of religion, race, caste, language or any of them under Clause (2) H of Article 29. There is no impediment or obstruction in the right of minorities '

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DEUil [KASLIW AL, J.] 209

in imparting education in their own language and disseminating their culture by way of extra curricular activities and thus to conserve their own culture. Clause (2) of Arl 29 does not take away any such right nor puts any re8triction on the minorities in running the educational institutions of their choice. It would be rather in the interest of the minorities to admit students of other communities and to disseminate their own culture in a wider range of commu- nity. For example, if Christians are running an educational institution,.they are free to have English as a medium of instruction. They can also teach the high ideals and values of Christian religion. The only restriction is what is contained in Art.. 28(3) which applies to any educational institution recognised by the State or receiving aid out of State funds irrespective of the same being a minority or majority institution. The restriction under Art. 28(3) is that no person attending such educational institution shall be required to take part in · C 1 any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution without his consent and in case such a person is minor without the consent of his guardian.

The aim of our Constitution is unity in diversity. It is to enrich the unity by making it assimilate the diversities, it is not to encourage fissiparous D tendencies. The fundamental right guaranteed by Art. 30(1) is not, therefore, to be extended so as to encroach upon other fundamental rights or to go contrary to the intentions of the founding fathers. It would be useful to consider the debates of the Constituent Assembly while considering these Articles.

These were Articles 23(1) on the one hand and 23(3)(a) and 23(3)(b) on the other hand in the Draft Constitution. Firstly, Dr. B.R. Ambedkar said in relation to draft Article 23(2) corresponding to the present Article 28 of the Constitution that even in relation to Articles 30 and 29 the State was com- F pletely free to give or not to give aid to the educational institutions of the religious or linguistic minorities. He said :-

"Now, with regard to the second clause I think it has not been sufficiently well-understood. We have tried to reconcile the claim of a community which has started educational institutions for the G advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions; notwithstanding the fact that it receives certain aid from the State. The State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant-in-aid code merely H

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

on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a "further qualification, that while it is free to give re!igious instruc- tion in the institution and the grant made by the State shall not be a bar to the giving of such institution, it shall not give-instruction to; or make it compulsorily upon, the children belonging to other B communities unless and until they obtain the consent of the parents of these children. That, I think, is a salutary provision. It performs two functions : - •' Shri H.V. Karnath :- On a point of clarification what about institutions and schools run by a community or a minority for its c own pupils-not a school where all communities are mixed but a school run by the community for its own pupils?

The Hon'ble Dr. B.R. Ambedkar : If my friend, Mr. Karnath will read the other article he will see that once an institution: whether maintained by the community or not, gets a grant, the condition is that it shall keep the school open to rill communities. That provi- sion he has not read".

(VII C.A.D. 884)

He reaffirmed the freedom of the State to give or not to give aid to these schools when directly referring to draft Article 23 which is the precurser of the present Articles 29 and 30 as follows : -

"I think another thing which has to be borne in reading Article 23 is that it does not impose any obligation or burden upon the State. It does not say that, when for instance the Madras people come to F Bombay, the Bombay Government shall be required by law to · finance any project of giving education either in Tamil "language or in Andhra language or any other language". There is no burden cast upon the State. The only limitation that is imposed by Article 23 is that if there is a cultural minority which wants to preserve its G language, itS script amt its culture, the State shall not by law impose upon it any other culture which may be either local or otherwise". ·

(VII CAD. 923)

H Secondly, the true object of draft Article 23 now corresponding in

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASUW AL, J.] 211

Articles 29 and 30 was brought out by Shri K. Santhanam, A acknowledged to be one of the best infonned and learned member of the Constituent Assembly, He said:-

"Sir, you will remember that throughout Europe, after the first world war; all that the minorities wanted was the right to have their own schools, and to conserve their own cultures which the Fascist B . and the Nazis refused them. In fact, they did not want State aid, or State assistance. They simply wanted that they.should be allowed to pursue their own customs and to follow their own cultures and ·. to establish and conduct their own schools. Therefore, I do not think it is right on the part of any minority to depreciate the rights given in Art 23(1) ......... In this connection we have to hold the c balance even between two different trends. First of all we have to give to a large linguistic minorities their right to be educated- especially in the primary stage-in i.heir own language". At the same time we should not interfere with the historical process of as- similation. We ought not to think that for hundreds and thousands of years to come these linguistic minorities will perpetuate them- D selves as they are. The historical process should be allowed free play. These minorities should be helped to become assimilated with the people of the locality~ They should gradually absorb the language of the locality and become merged with the people there, otherwise they will be aliens, as it were, in those provinces. Therefore, we should not have rigid provisions by which every child is automatically protected in what may be called his mother tongue. On the other hand, this process should not be sudden, it should not be forced. Wherever there are large number of children, they should be given education-primary education-in their mother-tongue. At the same time, they should be encouraged and assisted to go to ordinary schools of the provinces and to imbide the local tongue and get assimilated with the people. I feel this clause does provide for these contingencies in the inost practicable fashion."

While dealing with the question of the right guaranteed to the minority under Article 30(1) and restriction put on such right under Article 29(2) it cannot be said that we are on virgin soil as we have enough guidance provided in number of earlier Constitution decisions. Those arc Smt. Champakam Dorairajan' s case, State of Bombay v. Bombay Education Society, Kera/a Education Bill, 1957 reference case, DAV College v. State of Punjab & Others an.d (1hmedabad St. Xaviers College Society. I have already quoted the relevant H

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

A passages of these cases on the scope of An. 29(2) and An. 30(1 ). A conspectus of the entire scheme of Part (III) of the Constitution clearly goes to show that the Constitution makers did not intend to confer absolute rights on a religious or linguistic minority to establish and administer educational institutions. Right of adm~ssion is cunailed by Art 15(4) which enables the State _to make any special provision for any advancement of any socially and educationally '' B backward class of citizens or for the Scheduled Caste and Scheduled Tribes in the matter of admission in the educational institutions receiving aid from the State. Art 28(3) imposes other restriction according to which any person attending any educational institution recognised or receiving any aid by the State shall not be required to take part in any religious instruction or to attend any religious worship imparted or conducted in such institution without the consent of such person or if such person is a minor without the consent of his guardian. Thus; even though a minority may have established an educational institution but if it receives aid or is recognised by the State, it is bound by the mandate of An. 28(3). The third restriction is put by An. 29(2) according to which if sush minority educational institution receives aid from the State funds then it cannot deny admission to any citizen on grounds only of religion, race, caste, ·language or any of them. Thus Articles 15(4), 28(3) and 29(2) place express limitations on the right given to minorities in Art 30(1). The principle of harmonious construction does not require a Court first to produce disbar-. mony by construction in order to resolve it thereafter by harmonious construc- tion. The golden rule of interpretation is that words should be read in the ordinary, natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over·the general. If it is not constructed in that way the result would be that the special provision would be wholly defeated. The J-Iouse of Lords observed in Warbruton v. Loveland, (1832) [2 D.& Cl. 400] as' under:- F "No rule of construction can require that when the words of one part of Statute .convey a clear meaning ............ It shall be necessary to introduce another part of statute which speaks when with less perspicuity and of which the words may be capable of such construction as by possibility to diminish the efficacy of the G first part". · Thus in my humble view in the face of clear language of Art 29(2), there is no scope for accepting the contention sought to be put on behalf of the college.

H A.N. Ray, CJ., in the Ahmedabad SI. Xaviers College SocietJ case lai'1

ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI [KASLIW AL, J.] 213

down in the context of the right of administration of the minority educational A institutions that the best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character. Sh. K. Santhanam is his high sounding words of wisdom had told in the Constituent Assembly that first of all we have to give to a large linguistic B . ' minorities their right to be educated-especially in the primary stag~in their own language. At the same time we should not interfere with the historical process of assimilation. We ought not to think that for hundreds and ihousands of years to come these linguistic minorities will perpetuate themselves as they are. The historical process should be allowed free play. These minorities should be helped to become assimilated with the people of the locality. They C should gradually absorb the language of the locality and become merged with the people there, otherwise they will be aliens, as it were, in those provinces. If we consider the case of St. Stephen's College' which may have been initially ,. established to protect the interests of Christian Community in India feeling alien during British Rule, have now completely assimilated and merged with the people of the locality and there does not appear any ground or justification D to stall such process. According to the stand taken by the college itself more than 90% students belonging to non Christian Community are admitted iil the college every year and this clearly shows that the college has already achieved the process of assimilation. In any view of the matter if the College is receiving aid out of state funds it has to abide by the rigour of Art. 29(2) in the matter of admission of students in the College. E

Another important question which arises for consideration is that if a minority educational institution getting ~nt-in-aid is held entitled to admit students of its own community then how inuch percentage can be considered as reasonable. Once we hold that the minority is entitled to admit students of its own choice, the result would be that they would be entitled to admit students of their own community cent per cent and the restriction of Art. 29 (2) will be -J i totally effaced. Learned counsel appearing for the college were unable to state as to what percentage would be reasonable. Evj!n taking the facts of the cases before us St. Stephen's College is claiming 10% preference to the Christian students while Allahabad Agricultural Institute seeks justification for 50% as provided in their prospectus. As already held by me St Stephen's College and Allahabad Agricultural Institute are not entitled to claim any preferential right or reservation in favour of students of Christian Community as they are getting grant-In-aid and as such I do not consider it necessary to labour _any more on the question of deciding as to what percentage can 00 considered as reasonable. H

214 SUPREME COURT REPORTS l1991) SUPP. 3 S. C.R.

A CIVIL APPEAL NOS. 1786 of 1989 & 1830-41OF1989 FILED BY THE ALLAHABAD AGRICULTURAL INSTITUTE : -

This Institution imparts education in several courses of study like Inter Agriculture, Inter Home Science, Indian Dairy Diploma (IDD), B.Sc. in Agri- culture, B.Sc. Home Economics, M. Tech. in Agricultural Engineering. This ·B Institution grants reservation to the extent of 50% of its seals to students belonging to Christian Community. I do not consider it necessary to give details and break up of 50% students belonging to Christian Community as· the details have already come in the Judgment of Shetty, J.

CIVIL APPEAL NO. 2829 OF 1989 c The appellants Shashipal Singh and Tejpal Singh in Civil Appeal No. 2829 of 1989 were granted admission in the Agricultural Institute in the year 1988 by interim orders of the Allahabad High Court After the final decision of the case thei[ admission was cancelled by the Institute by order dated ' 3.4.1989. The appellants were then permitted to prosecute their studies in D B.Tech. Agricultural Engineering course by an order of this court dated 11.5.1989. In view of these circumstances the above appeal No. 2829 of 1980 is also allowed.

The students who were not granted admission by this instifote filed writ petitions in the Allahabad High Court challenging the reservation for Church E sponsored Christian Students. The High Court allowed the writ petitions de- claring that the policy of reservation for Christians was contrary to the right guaranteed under Art. 29(2) of the Constitution. The Allahabad Agricultural Institute by grant of certificate under Article 133(1) of the Constitution has filed Civil Appeal Nos. 1830-41of1989 and Civil Appeal No. 1786 of 1989 before this Court. The controversy arising in these cases is also the same as in F St. Stephen's College case and the same reasoning applies to these appeals. In my view the High Court rightly decided the matter and the Judgment of the ).. High Court does not call for any interference. In the result I find no force in ' the appeals filed by the St. Stephen's College as well as Allahabad Agricultur:.11 Institute. The W.P. No. 1868 of 1980 filed by the St. Stephen's College, Civil G Appeal No. 1786 of 1989 & Civil Appeal Nos. 1830-41 of 1989 filed by Allahabad Agricultural Institute are dismissed and the W.P. Nos. 13213-14 of 1984 filed by Delhi University Students Union, T.C. No. 3 of 1980 filed by Rahul Kapoor one of the students of the University and Civil Appeal No. 2829 of 1989 filed-by some of the students of the University are allowed.

H However, those studcnL'l who had already been admitted persuant to the

ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [KASLIW AL, J.] 215

• direction issued by this Court or the High Court shall be allowed to complete A their courses and any admissions made hitherto by SL Stephen's College and Allahabad Agricultural Institute shall not be disturbed.

ORDER

For the reasons stated by us in our majority judgment dated December B 6, 1991, Writ Petition (Civil) No. 1868of1980 filed by St. Stephen's College is allowed. The W.P.Nos.13213-14 of1984 T.C. No. 3of1980aredismissed. The appeals against the judgment of the Allahabad High Court are allowed modifying the judgment of the High Court to the extent indicated in the majority judgment. However, the admissions made hitherto by Allahabad Agricultural Institute shall not be disturbed. The students who have been C admitted pursuant to the direction issued by this Court of the High Court shall be allowed to complete their courses.,

In the circumstances of the case, we make no order as to costs.

v.P.R. WP No. 1868/80 is allowed. D WP No. 13213-14/84 & TC No. 3/80 is dismissed.