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St. Stephen’s College & Ors Vs. The University of Delhi & Ors.
AIR 1992 SC 1630, 1991 (2) SCALE 1217, (1992) 1 SCC 558
Hon’ble Judges/Coram: K. Jagannatha Shetty, H.J. Kania, N.M. Kasliwal, M. Fathima Beevi and Yogeshwar Dayal, JJ.
Date of Decision: 06.12.1991
FACTS: –
St. Stephen’s College is affiliated to Delhi University. Upon affiliation to the Delhi University it became one of its three original constituent colleges. For the academic year 1980-81, the College published “Admissions Prospectus”. In the prospectus, it was also provided that there would be interview prior to final selection of students for admission to the College. The Vice-Chancellor of the Delhi University in exercise of his emergency powers under Statute 11-G (4) of the Statutes of the University, constituted an Advisory Committee to consider and recommend the dates for admission/registration to various undergraduate/post graduate courses in the Faculties of Arts and Social Sciences/Mathematics and Science for the academic session 1980-81 and for other related matters concerning admissions. On June 9, 1980, the University issued another circular to Principals of all Colleges intimating inter-alia, that Admission to B.A. (Pass)/B.A. Vocational study courses be based on the merit of the percentage of marks secured by students in the qualifying examination. The admission to B.Com, B.A. and B.Com courses shall be on the basis of marks.
On the basis of complaint of students regarding interview before admission, the Registrar of the University via a letter requested the Principal of the College to conform to the University schedule communicated to the College. But college did not consider the request.
A student seeking admission to the College for under-graduate course filed a in the High Court of Delhi under Article 226 of the Constitution, challenging the admission schedule of St. Stephen’s College and the interview test prescribed for candidates. The High Court passed on order directing the College, to receive the applications for admission till June 30, 1980 and also prohibiting the College from announcing the admission list, for which the prescribed date was 2nd July 1980 till the disposal of the Writ Petition. College approached this court against the order of the Delhi high court. St. Stephens college contented that it is a minority institution and it has every right to administer the minority educational institution in view of the protection afforded under Article 30 (1) of the Indian Constitution.
ISSUES: –
- Whether St.Stephen’s College is a minority-run institution?
- Whether St. Stephen’s College as minority institution was bound by the University circulars?
- Whether St. Stephen’s College and other minority institutions are entitled to accord preference in favour of or reserve seats for candidates belonging to their own community and whether such preference or reservation would be invalid under Article 29(2) of the Constitution?
JUDGMENT: –
The words “establish” and “administer” used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution is thus a condition precedent for claiming the right to administer the institution. Prior to the commencement of the Constitution of India, there was no settled concept of Indian citizenship. This Court, however, did reiterate that the minority competent to claim the protection of Article 30(1) of the Constitution, and on that account the privilege of establishing and maintaining educational institutions of its choice, must be a minority of persons residing in India. They must have formed a well-defined religious or linguistic minority. It does not envisage the rights of the foreign missionary or institution, however, laudable their objects might be. After the Constitution, the minority under Article 30 must necessarily mean those who form a distinct and identifiable group of citizens of India. Whether it is “old stuff or “new product”, the object of the institute should be genuine, and not devices or dubious. It would thus appear that since its foundation in 1881, St. Stephen’s College has apparently maintained its Christian character and that would be evident from its very name, emblem, moto, the establishment of a Chapel and its religious instruction in the Christian Gospel for religious assembly. These are beyond the pale of controversy. The composition of the Society indicates the presence of a large number of Christian members of the Church of North India on it. The management of the college is being looked after by the Supreme Council and the Governing Body. The Supreme Council consists of some members of the society, all of whom must be members of the Church of North India or some other Church in communion therewith, or any other duly constituted Christian Church. Out of thirteen categories, only three categories might be non-Christians and therefore, it makes little difference in the Christian character of the Governing Body of the College. The Principal of St. Stephen’s College is appointed by the Supreme Council and he must be a Christian belonging to Church of North India
State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational institutions of their choice. The minority institution has a distinct identity and the right to administer with continuance of such identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutional guarantee. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be displaced or reorganised if the right is to be recognised and maintained. Reasonable regulations however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Article 30(1).
From the relevant provisions of the Act and Ordinances, no indications either in the general scheme or in other specific provisions which would enable to come to the conclusion that the College is legally precluded from maintaining its minority character. That in matters of admission of students to Degree Courses including Honours courses, the candidates have to apply to the College of their choice and not to the University and it is for the Principal of the College or Dean of Faculties concerned to take decision and make final admission. It is, therefore, wrong to state that there is no admission to the College but only for the University.
The College has been constituted as a self-contained and autonomous institution. It has preserved the right to choose its own Governing Body, and select and appoint its own Principal both of which have a great contributing factor to maintain the minority character of the institution. It is not disputed that the University has at no stage raised any objection about any of the provisions of the Constitution of the College. From these facts and circumstances it becomes abundantly clear that St. Stephen’s College was established and administered by a minority community, viz., the Christian community which is indisputably a religious minority in India as well as in the Union Territory of Delhi where the College is located.
The right to minority whether religious or linguistic, to administer educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister. The State being he controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1).
The right to select students for admission is a part of administration. It is indeed an important facet of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. In the instant case also the impugned directives of the University to select students on the uniform basis of marks secured in the qualifying examinations would deny the right of St. Stephen’s College to admit students belonging to Christian community. It has been the experience of the College as seen from the chart of selection produced in the case that unless some concession is provided to Christian students they will have no chance of getting into the college. If they are thrown into the competition with the generality of students belonging to other communities, they cannot even be brought within the zone of consideration for the interview. Even after giving concession to a certain extent, only a tiny number of minority applicants would gain admission. This is beyond the pale of controversy. The purpose of the interview is not to reassess or remeasure the merits of the applicants in the qualifying examinations. The marks secured in the qualifying examinations are indeed relevant for selection and the interview is only supplementary test. The College fixes different cut-off percentage of marks in different subjects. The candidates are called for interview in the ratio of 1: 4 or 1: 5 depending upon the candidate’s choice of selection of courses of study. The interview is conducted by men of high integrity, calibre and qualification.
The oral interview as a supplementary test and not a exclusive test for assessing the suitability of candidates for college admission has been recognised by this Court. But at the same time, to avoid arbitrariness in the selection it has been repeatedly held that there shall not be allocation of high percentage of marks for oral interview test. Where candidate’s personality is yet to develop, it has been emphasised that greater weight has per force to be given to performance in the written examination and the importance to be attached to the interview test must be minimal. The Court has generally indicated that interview marks should not be more than 15 per cent of the total marks.
There is nothing on record to suggest that the interview conducted by the Selection Committee was contrary to the principles laid down by this Court in the aforesaid decisions. Neither any arbitrariness nor any vice or lack of scientific basis in the interview or in the selection. The interview confers no wide discretion to the Selection Committee to pick and choose any candidate of their choice. They have to select the best among those who are called for interview and the discretion is narrowly limited to select one out of every 4 or 5. Therefore, St. Stephen’s College is not bound by the impugned circulars of the University.
It is not in dispute that St. Stephen’s College is receiving grant-in-aid from the Government. St. Stephen’s College gives preference to Christian students. The Christian students admitted by preference or against the quota reserved are having less merit in the qualifying examination than the other candidates. The other candidates with more merit are denied admission on the ground that they are not Christians. The important question before the court is to deal with discrimination on ground of religion in the aided educational institutions. The issue involves the citizen’s entitlement as a part of his personal liberty not to be discriminated on the ground of religion as against the minority’s right in their own educational institution.
The access to academic institutions maintained or aided by the State, funds is the special concern of Article 29(2). It recognises the right of an individual not to be discriminated under the aegis of religion, race, caste, language or any of them. This is one of the basic principles of a secular State. The discrimination based solely on the ground of a citizen’s particular religion, race, caste or having any particular language is absolutely prohibited in educational institutions maintained by the State or receiving aid out of State funds. It applies to minorities as well as to non-minorities.
The fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1). Article 29(2) deals with non-discrimination and it is available only to individuals. The general equality by non-discrimination is not the only goal of minorities. The minority rights under the majority rule imply more than non-discrimination and indeed, it begins with non-discrimination. Protection of interests and institutions and advancement of opportunity are just as important. Differential treatment that distinguishes them from the majority is a must to preserve their basic characteristics. The problem in India is not quite different. India is a multi-cultural and multi-religious society. There may be individuals in the minority group who want to assimilate into the majority, but the group itself has a collective interest for non-assimilation. It is interested in the preservation and promotion as a community. This appears to be the chief reason for which Article 30(1) was incorporated as a fundamental right. The minorities cannot be treated in a religious neutral way in the educational institutions established and administered by them. Clearly that was not the aim or Article 30(1). Article 30(1) was incorporated to secure to the minorities a fair deal in the name of religion only. It was guaranteed to them as a fundamental right after a great deal of deliberation by the Framers. It should not be nullified by narrow judicial interpretation or crabbed pedantry. There must be a broad approach. A meaningful right must be shaped, moulded and created under Article 30(1), while at the same time affirming the right of individuals under Article 29(2). There is a need to strike a balance between the two competing rights. The Constitution establishes secular democracy. The animating principle of any democracy is the equality of the people. But the idea that all people are equal is profoundly speculative. It is well said that in order to treat some persons equally, there is a must need to treat them differently. It is impossible to have an affirmative action for religious minorities in religious neutral way. In order to get beyond religion, religion cannot be ignored.
The equality means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal. To treat unequals differently according to their inequality is not only permitted but required. Laws carving out the rights of minorities in Article 30(1) however, must not be arbitrary, invidious or unjustified; they must have a reasonable relation between the aim and the means employed. The individual rights will necessarily have to be balanced with competing minority interests.
HELD: –
In view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed fifty per cent of the annual admission. The minority institutions shall make available at least fifty per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.
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