Holding

Aided minority educational institutions may exercise their right to administer but cannot discriminate on the basis of religion; therefore they may not reserve seats for their own community, and the University’s circulars cannot be enforced against St. Stephen’s College, though its interview‑based admission must not result in religious discrimination.

Summary

St. Stephen's College, a constituent and aided college of Delhi University, claimed minority status under Article 30(1) of the Constitution and challenged two University circulars that fixed a uniform admission deadline and required admission solely on the basis of marks. The College also sought to continue its interview‑based admission programme and to give a modest preference to Christian students. The Supreme Court held that the College is indeed a religious minority institution, but because it receives grant‑in‑aid it is bound by Article 29(2) and cannot reserve seats for its own community. The Court further held that the University circulars were not binding on the College as they interfered with its right to administer, yet the College’s interview process could not be used to discriminate on religious grounds. Accordingly, the writ petition of the College was allowed (the circulars were declared void for the College), the students' union petitions were dismissed, and the Allahabad Agricultural Institute’s reservation scheme was struck down. Admissions already made were allowed to continue.

Issues considered

The College’s status as a religious minority institution under Article 30(1).
Whether an aided minority institution is bound by University regulations fixing admission dates and merit‑based selection (circulars dated 5‑June‑1980 and 9‑June‑1980).
The permissibility of giving preference or reservation to Christian students in an aided minority college under Article 29(2).
The validity and reasonableness of the interview‑based admission programme.
The applicability of the same principles to the Allahabad Agricultural Institute’s 50% reservation for Christian students.

Legislation cited

Constitution of Indias. Art.14, s. Art.15, s. Art.15(4), s. Art.28(3), s. Art.29(1), s. Art.29(2), s. Art.30(1), s. Art.30(2), s. Art.33(1)(a)
Delhi University Act, 1922s. Sec.23, s. Sec.2(a), s. Sec.30, s. Sec.4, s. Sec.6, s. Sec.7
University Ordinance XVIII (Delhi University)s. Clause 2(ii), s. Clause 4, s. Clause 6‑A(5)

Subjects

Minority rightsArticle 30Article 29Grant‑in‑aidAdmission policyInterview selectionReservationDelhi UniversityConstitutional lawEqualityDiscrimination

Judgment

ST. STEPHEN'S COLLEGE ETC. ETC. A
V.
UNIVERSITY OF DELHI ETC. ETC.

DECEMBER 6, 1991

[M. H. KANIA, K. JAGANNATHA SHETTY , N.M. KASLIWAL, B
M. FATHIMA BEEVI AND YOGESHWAR DAYAL, JJ.]

Constitution of India, 1950-Article 30(1}-Minority educational insti-
tution-Constitutional safe-guards-Object and purpose of.

Constitution ofIndia, 1950-Articles 30(1), 29(I), 29(2 }-Minority edu- • C
cational institution-Religious autonomy in education and constitutional guar-
antee-Construction-Rights under the Articles-Distinction.

Constitution ofIndia, 1950-Articles 30(1), 29, 14, 15-Minorityeduca-
. tional institution-Admission on the basis of religion-Legality of.
D
Constitution of India, 1950-Article 30(1}-Minority educational insti-
tution claiming protection under~equirements.

Constitution of India, 1950-Articles 30, 29-St. Stephen's College,
whether a religious minority institution.
E
Constitution of India, 1950-Article 30( I)-" Management of the affairs
of the institution", 11 establish", 11 administer" -Construction-Minority educa-
tional institution-Right to administer-Nature and scope of-Delhi Univer-
sity Act, Statutes, Regulations/State control-Effect and legality of
F
Constitution of India, 1950-Article 30(1}-Minority educational insti-
tution-Right to administer-Admission programme ofa college-Selection of
students-Vniversity regulations/directions-Application/effect of

Constitution of India, 1950-Article 30(1}-Minority educational insti-
tution-Admission-Selection-Interview-Purpose of--J'rocedure adopted, G
whether reasonable.

Constitution of India, 1950-Articles 30(1), 30(2), 337-Minority edu-
cational institution-State aid-Object and ambit of-State control in admis-
sion matter-Effect of.
H

121
122 . SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A Constitution of India, 1950-Articles 14, 15, 30, 29-Minority educa-
tional institution-Admission--Reservation to socially and educationally back-
ward classes and equality concep1-eonstruction.

Interpretation of Statutes-Kinds of construction-Constitution ofIndia,
1950-Articles 30(1) and 29(2}-Method of Construction.
B
WP N0.186811980

The petitioner- college was a constituent college or the respondent-
Delhi University. It also was affiliated to the University. The College,
belonging to a religious minority community, was an aided educational
C institution.

The college offered three-years Degree Course in B.AJB.Sc.(Hons.),
B.A.(Pass) and B.Sc.(General) and two years Post-graduate degree course
in M.A. and M.Sc.

D The college had its own admission programme. The Christian stu-
dents were given preference in admission.

On 25.5.1980, the college published "Admissions Prospectus" for the
academic year 1.980-81. It was stated therein that ror admission for the
first year course, the last date of receipt of applications would be 20.6.1980
E and that there would be an interview prior to final selection or students.

On 5.6.1980, the University issued a circular to all affiliated colleges,
notifying the last date for receipt of applications at the colleges as
30.6.1980 and programme of admission was also phased therein.
F
On 9.6.1980, the University in another circular provided certain
guidelines for admission, that admission to B.A.(Pass)IB.A. Vocational
(Studies) courses should be based on merit or the percentage of marks
secured by students in the qualifying examination; that the admission to
B.Com.(Pass), B.A.(Hons.) and B.Com(Hons.) courses should also be on
G the basis or marks; that if a college proposed to give weightage to marks
obtained in one or more individual subjects in addition to aggregate marks
of the qualifying examination, it should b~ notified in advance through the
College Prospectus or Notice Board.

The Delhi University Students Union complained to the University
H
ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI 123

that the petitioner-college was violating the University Statutes and Ordi· A
nances, as it had fixed its own time schedules for receipt of applications for
admission and conducting interview before admission-.

The University requested the petitioner-college to conform to the
University schedule as per its circular dated 5.6.1980.
B
The Petitioner-college informed the University that no changes in its
admission programme could be made.

When the University by its letter dated 7/9.6.1980, asked the peti·
tioner-college to conform to the dates prescribed for the dates of the
University for admission, the petitioner-college replied that it was not C
possible to adhere to the University circulars. But it assured the University
that no admission list would be put up before the date prescribed by the
University.

On 16.6.1980 a student, seeking admission for under-graduate course
in the petitioner-college, filed a writ petition in the High Court challenging D
the admission schedule of the college.

On 30.6.1980 the High Court directed that as the college had not
challenged the Validity of University circulars dated 5.6.1980 and 9.6.1980,
the college to receive the applications for admission till 30.6.1980. (The E
__writ petition was the subject matter in the T .C.No. 3 of 1980 before this
Court).

The petitioner-college moved this Court (by filing W.P. (Civil) No.
1868) under Art. 32 of the Constitution stating that the college was a
religious minority run institution; that though it was a constituent college
of the University and affiliated to the :respondent-University, it was not a
F
maintained college; that since the commencement of the college it was
exercising inherent managerial powers, like fixing reasonable dates for
admission and conducting interview of the candidates all over the country
which were not questioned or interfered by the respondent-University;
that the University's circulars would amount to ex-facie violative of the G
fundamental. right of the petitioner-college, as fixing of the admission
schedule was ex-facie managerial; that no part of the management could
be taken away and invested in another body without an encroachment
upon the guaranteed right; that the selection of the students for admission
on the basis of marks, would be unreasonable and violative of fundamental
· right of the college guaranteed under Article 30 of the Constitution and H
124 SUPREME COURT REPORTS [1991) SUPP. 3 S. C. R.

A that the University circulars dated 5.6.1980 & 9.6.1980 should be declared
void qua the college in view of its minority status.

In this writ petition, (WP (C) No. 1868of1980), the.Delhi University
Students Union became an intervener.

B W.P. Nos. 13213-14/84

Under Art. 32 of the Constitution, the Delhi University Students
Union and another filed two writ petitions in connection with admission
year 1984-85 seeking a direction from this Court to the college to follow all
University policies, Rules, Regulations Ordinances regarding admissions
C etc. They also prayed this .Court to restrain the college from giving pref-
erence in favour of Christian students.

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

The University contended that every college should comply with the
E Statutes, Ordinances and Regulations of the University; that the college
was required to comply with the directions given by the University
regarding admission ~f students; that under clause 6-A(5) of Ordinance
XVIII; the Staff Council was to make recommendations regarding formu-
lations of admission policy within the framework of the policy laid down
by the University; that the College could not lay down its own admission
F ·-
policy so as to be in conflict with the policy laid down by the University;
that since the College was receiving aid out of State funds, it was not
entitled to practice discrimination in the matter of admission on the
ground or religion or language, which was contrary to the mandate of
Article 29(2) of the Constitution; that the circulars of the University did
G not infringe in any manner the fundamental rights of the body administer·
ing the College; that the College like all other colleges was bound to follow
the circulars of the University, which contained directions in the matter. of
admission; and that the college's fundamental right ender Article 30 of the
Constitution was not affected.

H CA. Nos. 1830-41 of 1989; C.A.No. 1786 of 1989 and CANo. 2829 of
1989.
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 125

The students, who were denied admission by The Allahabad Agri- A
cultural Institute which was established and administered by the Chris-
tian religious minority filed writ petitions under Art. 226 of the Constitu-
tion challenging the reservation and admission of Church sponsored
Christian students.

The High Court, declaring that the policy of reservation for Chris- B
tian students was contrary to the equality guaranteed to citizens under
Article 29(2) of the Constitution, allowe() the writ petitions.

The Institute, obtaining certificate under Article 133(1)(a) of the
Constitution filed C.A. Nos. 1831-41of1989 challenging the High Court's
decisions. C
CANos. 1786/89 and 2829/89 were filed against the same judgment
of the High Court, by the aggrieved students.

On the questions, (1) whether St. Stephen's College was a minority-
run institution? (ii) whether St. Stephen's College as a minority institution DI
was bound by the University Circulars dated 5.6.1980 and 9.6.1980,
directing that the College should admit students on the basis of merit of
the percentage of marks secured by the students in the qualifying exami~
nations? and (iii) whether St.Stephen's College and the AIJahabad Agri-
cultural Institute were entitled to accord preference to or reserve seats for E
students of their own community, and whether such preference or reser-
vation would be invalid under Article 29(2) of the Constitution?, this
Court, allowing the W.P.(C) No. 1868/1980 filed by the College and the
appeals filed against the judgment of the Allahabad High Court, and
dismissing the W.P.Nos. 13213-14 of 1984 and T.C.No. 3/1980,

HELD : (M.H.Kania, K. Jagannatha Shetty, M. Fathima Beevi and
F
Yogeshwar Dayal, JJ. Majority-Per K. Jagannatha Shetty, J.)

1.01 India is a multi-cultural and multi-religious society. It is an
extra-ordinary pluralistic and complex society with different religious
minorities. Besides, there are linguistic aspirations and caste considera- G
tions. There may be individuals in the minority group who want to
assimilate into the majority, but the group itself has a collective interest
for non-assimilation. It is interested in the preservation and promotion as
a community. This appears to be the chief reason for which Article 30(1)
was incorporated as a fundamental right. [178 C-EJ
H
...,·-
126 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A 1.02 The minorities cannot be treated in a religious neutral way in
the educational institutions established and administered by them.
Clearly that was not the aim of Article 30(1). Article 30(1) was incorpo-
rated 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 de-
liberation by the Framers. It should not be nullified by narrow judicial
B interpretation or crabbed pedantry. There must be a broad approach and
the statesmen-like vision. The catholic approach that led to the drafting of
the provisions dealing with the minority rights should not be set at naught.
It must be ensured that nothing is done to deprive the minorities of a sense
of belonging and of a feeling of security. (180 D-E]

C 1.03 The minorities bav~ the right to admit their own candidates to
maintain the minority character of their institutions. That is a necessary
concomitant right which flows from the right to establish and administer
educational.institution in Article 30(1). There is also a related right to the
parents in the minority communities. The parents are entitled to have
their children educated in institutions having an atmosphere congenial to
D their own religion. [181C-D]

2.01. The constitutional concept or religious autonomy in education
in Article 30(1) bas to be balanced wah the constitutional guarantee under
Article 29(2). Both the Articles operate in the same field namely, educa-
tional institutions. The right guaranteed to minorities under Article 30(1)
E to establish and administer educational institutions of their choice cannot
be read in isolation, and it has to be interpreted in a manner that it does
not destroy the right in Article 29(2). (173 F-G]

2.02. Under Article 29(1) every section of the citizens having a
distinct language, script or culture of its own has the right to conserve the
F
same. Under A.rticle 29(1), the minorities-religious or linguistic-are en-
titled to establish and administer educational institutions to conserve their
distinct language, script or culture. The right to establish an educational
institution is not confined to purposes of conservation of language, script
or culture. The rights in Article 30(1) are of wider amplitude. The width
G of Article 30(1) cannot be cut down by the considerations on which Article
29(1) is based. The words "of their choice" in Article 30(1) leave vast
options to the minorities in selecting the type of educational institutions
which they wish to establish. They can establish institutions to conserve
their distinct language, script or culture or for imparting general secular
education or for both the purposes. [17SH-176C]
H
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 127

2.03. The collective minority right is required to be made functional A
and is not to be reduced to useless number. A meaningful right must be
shaped, moulded and created under Article 30(1), while at the same time
affirming the right of individuals under Article 29(2). There is need to
. strike a balance between the two competing rights. It is necessary to
mediate between Article 29(2) and Article 30(a) between letter and spirit
of these Articles, between traditions or the past and the convenience of the B
present, between society's need fC?r stability and its need for change.
[181 E~F)
,
3.01. The institutional preference to minority candidates based on
religion is apparently an institutional discrimination on the forbidden
ground of religion •.It operates to stigmatise or single out candidates from C
non-minority communities on the ground only of religion. If an educa-
tional institutions says "yes" to one candidate but says "no" to another
candidate on ground of religion, it amounts to discrimination on ground
of religion. The mandate of Article 29(2) is that there shall not be any such
discrimination. [176E-F]
D
3.02. The choice of institution provided in Article 30(1) does not
mean that the minorities could establish educational institution for the
benefit of their own community people. Indeed, they cannot. The minori-
ties cannot establish educational institution only for the benefit of their
community. If such was the aim, Article 30(1) would have been differently
worded and it would have contained the words "for their own commu- E
nity". In the absence of such words it is legally impermissible to construe
the Article as conferring the right on the minorities to establish educa-
tional institution for their own benefit. [176G-177A]

3.03. Even in practice, such claims are likely to be met with consid-
erable hostility. It may not be conclusive tQ'have relatively a homogeneous
F
society. It may lead to religious bigotry which is the bane of mankind. In
the nation building with secular character sectarian schools or colleges;
segregated faculties or universities for imparting general secular educa-
tion are undesirable and that may undermine secular democracy. They
would be inconsistent with the central concept of secularism and equality G
embedded in the Constitution. Every educational institution irrespective
of community to which it belongs is a 'melting-pot'. In our national life,
the students and teachers are the critical ingredients. It is there they
develop respect fo}, and tolerance of, the cultures and beliefs of others. It
is essential therefore, that there should be proper mix of students of
different communities in all educational institutions. [177U-C] H
128 SUPREME COURT REPORTS (1991) SUPP. 3 S. C.R.

A 3.04 The access to academic institutions maintained or aided by the
State funds is the special concern of Article 29(2). It 1·ecognises the right
of an individual not to be discriminated based solely on the ground or a
citizen's particular religion, race, caste, or having any particular language
is absolutely prohibited in educational institutions maintained by the State
or receiving aid out of State funds. It applies to minorities as well as to
B non-minorities. When other qualifications being equal the religion, race,
caste, language of a citizen shall not be a ground of preference or
disability. Similarly, the words "any of them" as used in Article 29(2) are
intended to give further emphasis that none of the grounds mentioned in
the Article can be made the sole basis of discrimination. [177 F-H]

C 3.05. 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(~) deals with non-dis-
crimination and it is available only to individuals. The general equality by
non-discrimination is not the only goal of minorities. The minority rights
under the majority rule implies more than non-discrimination and indeed,
D it begins with non-discrimination. Protection of interests and institutions
and advancement of opportunity are just as important. Differential treat-
ment that distinguishes them from the majority is a must to preserve their
basic characteristics. [178 A-B]

3.06. The minority aided educational institutions are entitled to
E prefer their community candidates to maintain the minority character of
the institutions subject, of course, in conformity with the University
standard. The State may regulate the intake in this category with due
regard to the need of the community in the area which the institutions is
intended to serve. But in no ca,se such intake shall exceed fif-ty per cent of
the annual admission. The minority institutions shall make available at
F least fifty per cent of the annual admission to members of communities
other than the minority community. The admission of other community
candidates shall be done purely on the basis of merit. [183 D-E]

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

4.02:There must exist some positive index to enable the educational
institution to be identified with religious or linguistic minorities. Article
30(1) is a protective measure only for the benefit of religious and linguistic B
minorities and it is essential, to make it absolutely clear that no ill-tit or
camouflaged institution should get away with the constitutional protec-
tion. [156 F]

5. The College has been constituted as a self-contained and autono-
mous institution. It has preserved the right to choose its own Governing: C
Body, and select and appoint its own Principal both of which have a great'
contributing factor to maintain the minority character of the institution.
It may also be noted that the Constitution of the College has been duly
registered with the Registrar of Joint Stock Companies, Delhi Province~ as
also the University of Delhi. The University has at no stage raised any
objection about any of the provisions of the Constitution of the College. D
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 relig-
ious minority in India as well as in the Union Territory of Delhi where the
College is located. [163 B-D]
E
6.01. The minorities whether based on religion or language have the.
right to establish and administer educational institutions of their choice.
The administration of education;tJ1 institutions of their choice under Ar-
ticle 30(1) means 'management of the affairs of the institution'. This man-
agement must be free from control so that the founder of their nominees
can mould the institution as they think tit, and in accordance with their
F
ideas of how the interests of the community in general and the institution
in particular will be best served. But the standards of education are not a
part of the management as such. The standard concerns the body politic,
and is governed by considerations or the advancement of the country and
.,I its people. Such regulations do not bear directly upon management G
although they may indirectly affect it. The State, therefore, has the right
to regulate the standard of education and allied matters. Minor.ity institu-
tions cannot be permitted to fall below the standards .of excellence ex-
pected of educational institutions. They cannot decline to follow the
general pattern of education under the guise of e.xclusive right of manage-
ment. While the management must be left to them, they may be compelled H
to keep in step with others. [165H-166C]

.;.......·"" ..
130 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 6.02. The words" establish" and "administer" used in Article 30(1)
are to be read conjunctively. 'Jhe right claimed by a minority community \
to administer the educational institution depends upon the proof of estab-
lishm~nt of the institution. The proof of establishment of the institution, is
,_
thus a 'condition precedent for claiming the right to administer the
institution. [156 CJ ·
B
6.03. The State or any instrumentality of the State cannot deprive the
character of the institution, founded by a minority community by compul-
sory affiliation since Article 30(1) is a special right to minorities to
establish educational i!tStitutions of their ctioice. The minority institution
has a distinct identity and the right to administer with continuance of suc,h
C identity cannot be denied by coercive action. Any such coercive action
would be void being contrary to the constitutiona.1 guarantee. The·~ight to
administer is the right to conduct and manage the affairs of the institution.
This right is exercised by a body of persons in whom the founders have
faith and confidence. Such a management body of the institution cannot
be.displaced or reorganised if the right is to be recognised and maintained.
D Reasonable regulations, however, are permissible but regulations should
be of regulatory nature and not of abridgment of the right guaranteed
under Article 30(1). [160 H-16f BJ·

6.04. Though Article 30(1) is couched in absolute terms in marked
contrast with other fundamental rights in Part III of the Constitution, it
E has to be read subject to the power of the State to regulate education, edu-
cational standards and allied matters. [166 EJ

6.05. The right to administer does not include the right to maladmin-
ister. The State being the controlling authority has right and duty to
regulate all academic matters. Regulations which will serve the interests
F 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 stan-
dard or against general laws such as laws relating to law and order, health,
labour relations, social welfare legislations, contracts, torts etc. which are
G applicable to all communities. So long as the basic right of minorities to
manage educational institution is not taken away, the State is competent
to make regulatory legislation. Regulations, however, shaU not have the
effect of depriving the right 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). [168 F-H]
H
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 131

6.06. Laws carving out the rights of minorities in Article 30(1) A
',
' however, must not be arbitrary, individual or unjustified; they must have
a reasonable relation between the aim and the means employed. The
individual rights will necessarily have to be balanced with competing
minority interests. [183 A]

6.07. There is no provision in the Delhi University Act with overrid- B
ing powers precluding the management of the College from exercising its
right to administer the College as a minority institution. [161 CJ

7.01. The admission programme of the College has become a crucial
instrument to promote the excellence of the institution and it forms part
of the administration which the Coll.ege is entitled to have as a ntinority C
institution under Article 30(1) of the Constitution. The University cannot
direct the College the dispense with its admission programme in the
absence of proof of maladministration of the College. [163 G-H]

·7.02. The right to select students for admission is a part of admini~
stration. It is indeed an important facet of administration. This power also D
could be regulated but the regulation must be reasonable just like any
other regulation. It should be conducive to the welfare of the minority
institution or for the betterment of those who resort to it. [169 A-B]
7.03. In the instant case, also the impugned directives of the Univer-
sity to select students on the uniform basis of marks secured in the E
qualifying examii:tations would deny the right of St.Stephen's College- to
admit students belonging to Christian community. It has been the experi-
ence of the College that unless some concession is provided to Christian
students they will have no chance of getting into the College. If they are
thrown into the competition with the generality of students belonging to
other communities, they cannot even be brought within the zone of F
consideration for the interview. Even after giving concession to a certain
extent, only a tiny number of minority applicants would gain admission.
[170 C-D]

.8.01. The purpose of the interview is not to reassess or remeasure the
merits of the applicants in the qualifying examinations. The marks se- G
cured in the qualifying examinations are indeed relevant for selection and
the interview is only supplementary test. The College fixes different cut-
off percentage qf matks in different subjects. The candidates are called for
interview in the ratio of 1:4 or 1:5 depending upon the candidates choice
of selection of courses of study. The interview is conducted by men of high
integrity, calibre and qualification. They are men who deal with education H

......... ...-----...--~·-· -- '"
\

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

.A and the students. During the interview, questions are asked to test the
cand.idate's knowledge of the subject and his general awareness of the
current problems. The student is also required to· furnish in the applica-
tion form his intei:est, hobbie, values; career plan etc. Each member of the
Interview Committee grades the performance of the candidates and the
seltc'tiop is made for each course of study by taking into consideration the
B opinion expressed by all tbe members of the Interview Committee. By
consensus_ ~he final list of candidates is prepared. The selection is thus
made on the basis of the candidate's academic record and performance at
the interview keeping in mind his/her ~II rom1d competence, capacity to
benefit from being in the College as well as potential to contribute to the
life of College. Judging the performance by grading is a well known
c method followed in the academic field. [170F-171AJ

8.02. The admission solely determined by the marks obtained by
students, cannot be the best available objective guide to future aca~emic
\" performance. The College Admission Programme on the other hand,
based on the test of promise and accomplishment of candidates seems to
D be better than the blind ~ethod of selection based on the marks secured
in the qualifying examinatiotis. St. Stephen's College is not bound by the
impugned circulars of the University.[172 B-C]

. 9.01. The educational institutions are not business houses. They do
not generate wealth. They cannot survive without public funds or private
E aid. Ther~ is also restraint on coltection of fees with the restraint on
collection of fees, the minorities cannot'be saddled with the burden of
maintaining educational institutions without grant-in-aid. They do not
have economic advantage over others. It is not possible to have educational
institutions without State aid. The minorities cannot therefore, be asked to
maintain ed.ucational institutions on their own. [179 D-E)
F
9.02.r There is no entitlement to State grant for minority educational
institutions. There ~as only a stop-gap arrangement under Article 337 for
the Anglo-Indian community to receive State grants. There is no similar
provision for other minorities to get grant from the State. But under
G Article 30(2), the State is under an obligation to maintain a quality of
treatment in granting aid to educational Institutions. Minority institutions
are not to b{! treated differently while giving financial assistance. They are
entitled 'to get the financial assistance much the same way as the institu-
;tions of tlfo majority communities. [178G-179A]

H 9.03. The rec~ipt of State aid does not impair the rights in Article

_, --
ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI 133

30(1). The State can lay down reasonable conditions for obtaining grant- A
in-aid and for its proper utilisation. The State has no power to compel
minority institutions to give up their rights under Article 30(1). [179 BJ

9.04. The rights under Article 311~1) remain unaffected even after
securing financial assistance from the Government. [179 DJ

10.01. The Constitution establishes secular d~mocracy. The animat-
ing principle of any democracy is the equality of the people. But the idea
that all people are equal is profoundly speculative. In order to treat some
B
- f, -
persons equally, we must treat them differently. We have to recognise a ..
fair degree of discriminations in favour of minorities. But it is impossible
to have an affirmative action for religious minorities in religfous n~utral c
way. In order to get beyond religion. We cannot ignore religion. We must
first take account of religion. [181 GJ

10.02. The reservation to socially and educationally backward classes
would serve the interests of the society at large by promoting the advance-
ment of the weaker elements in the society. [182 BJ D

10.03. The concept of equality before the law and the prohibiti.ori of
t
certain kinds of discrimination do not require identical treatment. The,
to
equality means the relative equality, namely the principle treat· equally·
what are equal and unequally what are unequal. To treat unequals differ-
ently according to their inequality is not only permitted but required. E
- {182 HJ
State of Bombay v. Bombay Education Socie,i-y, [1955) 1 SCR 568;
Sidhajbhai Sabhai v. State of Bombay and Anr., [1963) 3 SCR 837; Rev. ·
Father W.Proost and Ors. v. State of Bihar and .Ors., [1969] 2 SCR 73;
Gandhi Faiz-Am-Col/ege Shahjahanpur v. University ofAgra andAnr., [1975] F
2 SCC 283. DA. V.Col/ege Jullundur v. State of Punjab, [1971) 2 SCC 269;
A.P.Christian Medical Educational Society v. Government ofAndhra Pradesh,
(1986] 2 SCR 749; Chikkala Samuel v. District Educational O/ficer, llydeta-
bad and Anr., AIR 1982 A.P. 64; Rajershi Memoria/ Basic Training School
v. The State of Kerala and Anr., AlR 1973 Ker.. 89; AzeezBasha v~ Union of
India, (1968) lSCR 833; S.K.Patro v. State ofBihar, [l970] 1 SCR 112; Re: G
Kerala Education Bill, 1957, {1959) SCR'99S; Siate of Ktfala v. Mothtr Pro-
vincial, [1971] 1 SCR 734; Ahmedabad St. Xaviers College Soaiety v. Slate of
Gujarat & Anr.. [1975] 1 SCR 173; Lily Kurian v. Lewina and Ors., (1979)
2 sec l24;Rt.Rev.MagrMarkNetto v.Governmemof Kera/a, [1979] 1 SCR
609; Director of School Education, Governl'l'llnl of Tamil Nadu v. Rev. Brother
G. Arogiasamy, AIR 1971 Madras 440; R.Chitralekha and Ors. v. State of .H
134 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A Mysore and Ors., [1964) 6 SCR 308: A.Peeriakaruppan v. State of Tamil
Nadu, [1971) 2 SCR 430; Miss Nishi Maghu and Ors. v. State of Jammu and
Kashmir, [19~0) 4 SCR 95; Ajay Hasia etc. v. V.Khalid Mujib Sehravardi,
.[1981) 2 SCR 79; Lila Dhar v. State of Rajasthan arid Ors., [1982) .1SCR320,
Koshal Kumar Gupta v. State of,Jammu & Kashmir, [1984) 3 SCR 407;
DN.Chanchala v. State of Mysore. [1971) Supp. SCR 608, State of Madras
B v. Champakam Dorajrajan, [1951) 2 SCR 525; Mc Cullock v. Marryland, 4
Wheat 316 at 407; Cohens v. Virgina, 6 Wheat 264 at 387; University of
California v. Allen Bakke, 438 U.S~265; Balaji v. State of Mysore, [1963) 1
· '~, Supp. SCR 43; Akhil Bhartiya Soshit Karamchari Sangh(Railway) v. Union
ofIndia and Ors., [1981) 2SCR185; State of Kerala v.N.M.Thomasand Ors.,
[1976) 1 SCR 906, 933, referred to.
c
B.Shiva Rao: Framing ofIndia's Constitution - Select Documents,
Vol.II P.298; CAD Vol VII 1949 pp. 895, 925; B.Shiva Rao:
Framing of India's Constitution A Study, 1969 Ed.p.280, re-
'•
ferred to.

D N.M. Kasliwal, ].(Dissenting)

1.01. The aim or our Constitution is unity in diversity. It is to enrich
the unity by making it assimilate the diversities, it is not to encourage
fissiparous tendencies. The fundamental right guaranteed by Art.30(1) is
not, therefore, to bAxtended so as to encroach upon other fundamental
E rights or to go contrary to the intentions of the founding fathers. [209 DJ

1.02. The framers or the Constitution were fuJly knowing the prob-
lems of various communities having differentreJigions, distinct languages
and diverse cultures. The whole edifice of our Constitution is based on
secularism and so far as the minorities are concerned it was considered
F necessary that they should be aJlowed some rights in respect of establish-
ing and administering educational institutions of their choice. Any section
of the citizens residing in the territory of India or any part thereof having
a distinct language, scriptor~ure of its own were conferred the right
to conserve the same. Education is a stro~g factor to unite the entire
G country and it was considered necessary that where ~my educational
institution is maintained by the State or receives aid out of State funds
then the right of equality was guaranteed to every citizen in the matter or
admission. in such institution. If the ·minorities, based on religion. or
language wanted to run any educational instit;ution without any aid out of
State funds, there was no restriction placed upon the IJ!inoritits in· the
H matter of admission in such education institutions and they were free to
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 135

admit students of their community. But in a case where they were A
receiving aid out of State funds which money comes from contributions by,
way of ta.'<es from every citizen of this cot:"'ltry~ then sut:h educational
institutions 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 or religion, race, caste, language or any of them.
(208 C-EJ B

1.03. We cannot overlook that religious fundamentalism and linguis-
tic parochialism leads to fissiparous tendencies and obstru,c~ the natk>nal
unity as a whole. It is necessary tJtat minorities should join and be part and
parcel of common stream of the country. The framers or the Constitution
provided to conserve the distinct language, script or culture of any section c
of CitiZfnS-ef-this country and granted right to minorities to establish and
-- -administer educational institution of their choice. At.the same time clearly
provided in Art. 28 that no religious instruction shall lie provided in any
educational institution wholly maintained out of Stat~ funds. While in case
of institution maintained or receiving aid out of state funds, no citiz~n shall
· be denied admission on grounds only of religion, race, caste, language or D
any of them under Clause(2) of Article 29. Thete is no impedirnellhor
obstruction in the right of minorities in imparting education in ·their own
language and disseminating their culture by way of extra currkular
activities and thus to conserve their own culture. Clause(l) of Art~ 29 Uo-es ·
not take away any such right nor puts any restrktion on tht minorities in
running the educational institutions of their choice. It would be rather in E
the interest of the minorities to admit students of otHei' communities and I
to disseminate their' own culture in a wider range ot tom.munity. For
example, if Christians are running an educationafinstitution, they are free
to have English as a medium of instruction. They can also ·teach· the high
ideals and values of Christian religion. The· only t~triction is what is
contained in Art. 28(3) which applies to any edutktional institution
F
recognised by the State or receiving aid out of State funds irrespective of
the same being a minority or majority institution. The restriction under
Art.28(3) is that no person attending such educational institution shall be
required to take part in any religious instruction that may be imparted in
such institution or to attend any religious worship that may be conducted G
in such institution without his consent and in case such a person is ·minor
without t!ie consent of his guardian. [208 F-209 CJ
1.04. A conspectus of the entire scheme or Part (III) of the Constitu-
tion clearly goes .to show that the Constitution makers did not i.ntend to
confer absolute rights on a religious or linguistic minority to establish ~nd
administer educational institutions. Right to admission is curtailed by Art. H
136 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 15(4) which enables the State to make any special provision for the
advancement of any socially and educationally backward class of citizens
or for the Scheduled Caste and Scheduled Tribes in the matter of admis-
sion in the educational institutions receiving a.id from the State. Art. 28(3)
imposes an other restriction according to which any person attending any
educational institution recognised or receiving any aid by the State shall
B not be required to take part in any religious instruction or to attend any
religious worship imparted or conducted in such institution without the
consent of such person or if such person is a minor without the consent of
his guardian. Thus, even though a minority may have established an
educational institution but if it receives aid or is recognized by the State,
it is bound by the mandate of Art. 28(3). The third restriction is put by Art.
C 29(2) according to which if such minority educational institution receives
aid from the State funds then it cannot deny admission to any citizen on
grounds only of religion, race, caste, language or any of them. Thus
~rticles 15-(~), 28(3) and 29(2) place express limitations qn the right given
to minorities in Art. 30(1). (212 A-D]

D LOS. In any view of the matter if the College is receiving aid out of
State funds it has to abide by the rigour of Art. 29(2) in the matter of
admission of students in the College. [213 E]

1.06. St. Stephen's College and Allphabad Agricultural Institute are
not entitled to claim any preferentiaJ/right of reservation in favour of
E students of Christian Community as they are getting grant-in-aid. [213 G]

2.01. The controversy involved in the cases is between clause (2) of
Art. 29 and Clause (1) of Art. 30. The framers of the c;onstitution were
fully knowing about the necessity of granting protection to the interests of
F · minorities but at the same time they wanted that if any educational
institutions are run by receiving aid out of State funds then no citizen
could be denied admission on grounds only of religion, race, caste,
language or any of them. The rights conferred to the minorities under Art. ·
29(1) or Art> 30(1) are enabling ones while clause (2) of Art. 29 is a
mandate that'·in ·the matter of ~dmission in any educational institution
G maintained by the-State-0r receiving aid all citizens would be treated equal
and could not be denied admission on grounds only of religion race, caste,
language or any of them. The right guaranteed under Art. 29(2) is a special
right which would prevail over the general right guaranteed to the
minorities under Art. 30(1). [202 F~G]

H 2.02 The right conferred on minority to. establish and administer
.I
' ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 137
)
.It educational institutions under Art. 30(1) of the Constitution is not absolute A
and is always subject to reasonable regulations. If a minority had estab·
lished and is administering educational institution without receiving any
aid out of the State funds then clause (2) of Art. 29 will not come into play.
However, if such educational institution is receiving aid out of the State
funds then it would be subject to the rigour of clause (2) of Art. 29 and it
cannot deny admission on grounds only of religion, race, caste, language B
or any of them. If such institution gives preference or makes reservations
for the candidates belonging to its own religion, then it is bound to cause
inequality and discrimination with a candidate belonging to another
religion and it would be a denial of admission on the ground of religion and .
would be hit by Art. 29(2). [201 A-C]
c
2.03. The right conferred under Art. 30 is a general right granted to
all minorities, but if any educational institution esta~lished and admini-
stered by such minority also gets the benefits of grant-in-aid out of the
State funds then it has to fall in the line equally with all other educational
institutions in the matter of admitting students in such institution and
. cannot prefer or reserve any seats for students of its own religion. [201CJ D

2.04. Clause(2) of Art. 29 is a counterpart of the equality clause of
Art. 15. There should be no discrimination against any citizen on the
ground of religion, race, caste or language or any of them in the matter of
admission into any educational institution maintained or aided by the
State. Which clause(l) of Art. 29 protects the rights of a section of the E
citizens having a distinct language, script or culture of its own, the right
conferred by clause (2) is an individual right given to the citizen as such
an<J not as a member of any community. This clause (2) offers protection
to all citizens, whether they belong to majority or minority groups.
Compared with Art. 15(1), it appears that 'sex' and 'place of birth' are
omitted from Art. 29(2). Hence, educational institution intended exclu·
F
sively for men or women could be maintained by the State without
vfolation of the Constitution. (201 D-FJ

2.05. Clause(l) of Art.30 grants a right to minority community to
impart instruction to the children of its own commun.ity in institutions run G
by it and in its own language. It confers two rights, (a) the right to establish
an institution, (b) the riglit to administer it. The right of establishment
means the bringing into being of an institution by a minority community.
It matters not, if a single philanthropic individual with his own mearis
funds the institution or the community at large contributes the funds. The
next part of right relates to the administr~tion of such institution. Ad mini- H
138 SUPREME COURT REPORTS [1991) SUPP. 3 S. C. R.

A stration means management of the affairs of the institution. This manage- 41.;
ment must be free of control 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 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
B standards concern the body politic and are adopted by considerations of
the advancement of the country and its people. Therefore, if university es-
tablished syllabi for examination that must be followed, subject however
to special subjects which the institution may seek to teach, and to a certain
extent the State may also regulate the conditions of employment of
teachers and the health and hygiene of students. Such regulations do not
C 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 must be left to them the·y may be compelled to keep
in step with others. [201 G-202 C]
D
2.06. Clause (l) of Art. 29 is complementary to the right conferred
by clause (1) of Art. 30. A minority can effectively conserve.its distinct
language, script or culture only if it has the right to establish educational
institutions of its choice. However, the right-under Art.30(1) is a separate
right independent of the considerations under Art.29(1). [202 E]
E
3.01. The University can lay down regulatory measures in respect of
colleges which are affiliated or constituent of such University. If such
measures are reasonable and conducive to making the educational institu-
tion an effective vehicle for education, the same cannot be challenged.
F
[189 E]

3.02. 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
secure,d in the qualifying examination a~d not by interview. [197 B]
G 3.03 The right to seek higher education in the college is a right of
every citizen of this country. Those neo rich or having political patronage
or pull get preference iri admission based on interview. Those students
who come from rural background or belong to weaker section of the -.. ;
society though m_ore meritorious in academic distinction, generally remain
at disadvantage in the method of interview. But those having more
H attractive physical appearance and dress rather than anything else or
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 139

those breezy and shiny type of candidate scores highly in the interview A
while the rough uncut diamonds may go unappreciated. (198 F-G]

3.04. The primary aim of the St.Stephen's College as mentioned in
the Memorandum of St.Stephen's College, Delhi, Society is to prepare
students of the college for University degrees and examinations and to
offer instruction in doctrines of Christianity, which instruction must be in B
accordance 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. [198 H-199 A]

3.05. The selection of students out of the eligible candidates caJJed for
interview, is based hundred per cent, i.e. solely on the basis of interview C
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, Mo/Under Sain Garg v. State of
Punjab & Ors., [1991)]1 SCC 662 and Munindra Kumar & Ors. v. Rajeev
Govil & Ors., (1991] 3 SCC 368. The maximum marks for interview can be D
15% and not more • [199 B-C]

3.06. St. Stephen's College is a constituent of the Delhi University
and in bound by the Statutes Ordinances and other Rules and regulations
made by the University which apply equally to its affiliated and constitu-
ent colleges. It is the primary concern of the University to maintain E
standards of education and in this regard if the advisory committee of the
University has made the rule accepted by the Central Admission Commit-
tee 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 irrespec-
F
tive of its minority character. [196 C-D]

3.07. The primary concern of the University in the interest of student
community as a whole is to afford equality of opportunity for studies at the
graduate level' The method of interview in the present case results into
discrimination and is violative of Art. 14 of the Constitution as. it has no G
reasonable nexus with the object of affording an equality of opportunity
of education at graduate level. [196 E]

3.08. St. Stephen's College is a constituent college of Delhi University
and the University has issued the impugned notification dated 9th June,
1980 by which a uniform rule has been made that admissions to all the H
140 SUPREME COURT REPORTS [1991) SUPP. 3 S. C. R.

A affiliated and constituent coJieges of the University should be made on the
basis of marks secured in the qualifying examination. [195 G]

3.09. The method of interview adopted by the CoUege does not
disclose as to how many percentage of marks are kept for interview in
proportion to marks secured in qualifying examination. It is the right of
B every student to know in advance the basis of admission laid down by the
College. [196 F]

3.10. It has not been shown as to how the minority character or the
College will be effected or prejudiced if students belonging to non-
Christian community are given admission solely on the.basis of marks
C obtained in the qualifying examination µnd not by interview. [196 G]

3.11. The method of interview adopted by the college goe.s to show
that out of the candidates called for interview the final selection is based
hundred per cent i.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
D secured in the qualifying examination and how much to the interview
proportionately. This method of selection is bound to result in arbitrar.y
selection. [190 E-F] ..

3.12. Tht: method of interview is no remedy of malpractices in exami·
nation or obtaining fake and forged certificates and mark-sheets. The
E College in this regard is entitled to refuse admission to any student in
whose case such malpractices are detected. [197 G]

3.13. Though there is no allegation of any malafules 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
F
subjective rather than objective satisfaction plays a niajor role. In this
background the method of selection by interview alleged to be in vogue for
a Jong period in St. Stephen's College cannot be considered as so sacro-
sanct that the same cannot be annulled or changed even when such method
does not find approval of the Delhi University. Admittedly the method of
G 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 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
H seeks to abolish method of interview and adopt a uniform rule, St.
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI 141

Stephen's College is also bound to follow such rule and cannot object on A
the ground of Jong practice. [199 E-G]

3.14. 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 considera-
tion for their. admission to degree courses should be their academic B
performance in the qualifying examination. [199 H]

3.lS. It has been stated in the prospectus that final selection will be
made after interview. This goes to show that the management of the
selection body has a full control in admitting or refusing admission
according to their own choice and out of the eligible candidates any C
candidate can be refused admission on the basis of interview. [191 Bl

3.16. Action of the coUege in applying the method of interview
contrary to the direction given by the University is whoJJy arbitrary,
wrong and illegal and violative of Article 14 of the Constitution. [196 B].
D
4.01. It Is a well known rule of construction that special law prevails
over the general law as contained in the maxim generalia specialibus non
derogant. [202 HJ

4.02. The principle of harmonious construction does not require a
Court first to produce disharmony by construction in order to resolve it E
thereafter by harmonious construction. 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
F
over the general. If it is not constructed in that way the result would. be
that the special provision would be whoJJy defeated. [212 D-EJ
. .
4.03. 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 G
"for their own community" in Art. 30(1). Clause(2) of Art. 29 does not
make any exception to any educational institution 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
S!ate funds whether run by a minority or majority. [202 H-203 BJ
H
142 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A R.Chitralekha & Anr. v. State of Mysore & Ors., [1964) 6 SCR 638; Ajay
Hasia v. Khalid Mujib Sehravardi & Ors. etc., [1981) 2 SCR 79;
A.Peeriakii.ruppam v. State of Tamil Nadu & Ors., [1971) 2 SCR 430; Ashok
Kumar Yadav & Ors. v. State of Haryana & Ors., [1985) 4 SCC 417;
Mohinder Sain Garg v. State of Punjab & Ors., [1991) 1 SCC 662; Munindra
kumar & Ors. v. Rajeev Govil & Ors., [1991) 3 SCC 368; State of Bombay v.
B Education Society, [1955) 1 SCR 568; The State of Madras v. Shrimathi
Champakam Dorairjan, [1951) SCR ~25; In Re Kera/a Education Bill, AIR
1965 SC 956; Sidhrajbhai v. State of Gujarat, [1963) 3 SCR 837; Katra
Education Society v. State of U.P. and Others, [1966) 3 SCR 328; Gujarat
University, Ahmedabad v; Ranganath Madholkar, [1961) Suppl. SCR 112;
The Ahmedabad St.Xaviers College Society and Anr. etc. v. State of Gujarat
C and Anr., [1975] 1 SCR 173 at p.298; DAV College etc. v. State of Punjab &
Ors., [1971) Suppl. SCR 688 at p.695; In Re. The Kera/a Education Bill,
1957(Reference Case), [1959) SCR 995 at page 1047; Warbruton v. Love-
land, [1832) 2D & CL. 400, referred to.

Public Personnel Administration: By Glenn Stahl, referred to.
D
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1868of1900-
(under Article 32 of the Constitution) ·

WITH

E W. P. no. 13213-14/84, T.C. no. 3/80

WITH

C.A.Nos. 1831-41/89, 1786/89 and
F
C.A.No. 2829 of 1989.

V.R.Reddy, Additional Solicitor General, Anil B. Diwan,
M.K.Ramamurthi,R.K.Garg and AK.Sen, S.S.Shroff, Mrs. P.S.Shroff,
R.Sasiprabhu, Syed Naqvi, Mrs. C. Ramamurthi, M.A.Krishnamoorthy, Anil
G Kumar Gupta, Manoj Goel, Ashok Grover, H.L.Tiku, P.K.Chakravarti, A.
Mariarputham, Mrs. Aruna Mathur, Narasimha (P.S.V.L.), Harish N. Salve,
(N.P.) and Mrs. Shobha Dikshit for the appearing parties.

The Judgments of the Court were delivered by

H K. JAGANNATHA SHETTY, J. INTRODUCTION: St Stephen's
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 143

College at New Delhi and Allahabad Agricultural Institute at Naini are two of A
our premier and renowned institutions. The former has been affiliated to the
Delhi University and the latter to the U.P. University. Both are aided educa-
tional institutions and getting grant from the State funds. They have their own
admission programme which they follow every academic year. The admission
programme provides for giving preference in favour of Christian students. It is
claimed that they are entitled to have their own admission programme since B
they are religious minority institutions. The validity of the admission pro-
gramme and the preference given to Christian students are the issues that need
to be resolved in these cases. The questions are of great constitutional impor-
tance and consequence to all minority institutions in the country.

THE FACTS IN GENERAL c
ST. STEPHEN'S COLLEGE

St. Stephen's College was founded on February 1, 1881. It is the oldest
College fn Delhi. It was first affiliated to Calcutta University and then .ID
Punjab University and thereafter to Delhi University. Upon affiliation to the D
Delhi University it became one of its three original constituent colleges. The
College offers three years degree course in B.A/B.Sc.(Hons), B.A. (Pass) and
B.Sc.General as well as two years Post-graduate degree course in M.A. aijd ·
M.Sc'. For the academic year 1980-81, the College published "Admissions-
J>i:o..spectus" on May 25, 1980, inter alia, providing that applications for
admission for the first year course must be received in the College office on or E
before June 20, I
1980. In the same prospectus, it was also provided that there
would be interview prior to final selection of students for admission to the
College. It appears that on May 22, 1980 the Vice-Chancellor of the Delhi
University irt exercise of his emergency powers under Statute ll-G(4) of the
Statutes of tbe University, constituted an Advisory Committee to consider and
recommend the dates for admission/registration to various undergraduate/post F ·
graduate courses in the Faculties of Arts and Social Sciences/Mathematics and
Science for the academic session 1980-81 and for other related matters
concerning admissions. The Constitution of the Advisory Committee was
approved by the Academic Council in its meeting held on May 29, 1980 and
the Academic Council also authorised the Vice-Chancellor to accept the G
recommendations of the Advisory Committee for implementation. The Advi-
sory Committee, inter a/ia, laid down as follows:

"(l) Admission to B.A. (Pass) ffl./\.Vocational Studies Courses .be
based on the merit of the percentage of marks secured by students
in qualifying examination. H
144 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

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

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

These recommendations were accepted by the Central Admission
,·
Committee and also by the Vice-Chancellor.

THE CIRCULARS OF THE UNIVERSITY
D
That on June 5, 1980 the University issued circular to all affiliated
Colleges prescribing. the last date for the receipt of applications as June 30,
1980. The circular also provided phased programme of admission as follows:

"A. First Phase of admission For Students securing
E 45% of marks or above
r
(i) Notification of first admission Wednesday 2nd July, ~

list by the colleges 1980 ==

Payment of fees (up to) Friday 4th July 1980
F upto 4 PM

General note :

The number of names in all admission lists shall correspond to the
)=
G number of seats a.vailable in the courses concerned. No student whose name
appears in an admission list (or who qualifies on the basis of the percentage
indicated in the list) shall be denied admission provided he/she pays the fees
by the date and time stipulated.
t
(ii) Notification of second· Friday 4th July 1gso
H Admission List by the Colleges 6PM
ST. STEPHI;N' S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 145

Payment of fees Saturday 5th- Monday A
7th July 1980 upto 4 PM

B. Second phase of admission For students securing
below 45% but above
40% marks
B
Notification of Third Tuesday 8th July 1980,
Admission List by the Colleges 12.00 Noon

Payment of fees (upto) Thursday iO July 1980,
4.00PM
c
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 examinatiQn. The admission to B.Com (Pass),
B.A.(Hons) and B.Com (Hons) courses shall be on the bas-is of marks. How-
ever, the College may give weightage to marks obtained in one or more D
individual subjects in addition to- the aggregate marks of the qualifying
examination. But whenever, weightage is proposed to be given to individual
subject(s) by the College, it should be notified i_n advance to the students
through the College Prospectus/Notice Board so that applicants seeking admis-
sion know in advance the basis of admission. This circular also provides certain
· guidelines ~or admission to sportsmen and persons with other distinctions. E

The Delhi University Students Union had complained to the University
authorities that the College was violating the University Statutes and Ordi-
nances by fixing its own time schedule for receipt of applications as well as by
stipulating interview before admission. On the basis of this complaint, the F
Registrar of the University wrote a letter dated June 9, 1980 requesting the
Principal of the College to conform to the University schedule communicated
to the College by the circular dated June 5, 1980. This was followed by some
more correspondence between the College management and the Vice-Chancel-
lor. The college management pointed out that at that late.stage, it would not be
possible to make any changes in their admission programme. There then the G
Vice-Chancellor addressed a letter dated 7/9th June 1980 to the Chairman of
the Governing Body of the College stating that as ·per the decision of the
Central Admission Committee, the last date for receipt of admission forms for
under-graduate courses should be June 30, I980 and the stipulation of the
College as Jurie 20, 1980 for that purpose would be very embarrassing to the
University authorities. The Vice-Chancellor again ~sked the College manage~ H
ment to conform ~o the dates prescribed by the University.
146 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A The Principal of the College was not available at that time and in his
absence, the Vice-Chairman of the College replied by letter dated June 12.
1980 to the Vice-Chancellor stating that "the interview of prospective students
by a competent body is as integral part of admission procedure at St. Stephen's
College and this policy has been followed and highly valued throughout the
history of the college ...". He thus indirectly pointed out that it was not possible
B for the College. to adhere to the University Circulars. He however, assured the
Vice-Chancellor that no admission list would be put up before July 2, 1980, the
date prescribed by the University for publishing the first admission list.

A STUDENT MOVES THE DELHI HIGH COURT

c When the matter thus stood, a student by name Rahul Kapoor seeking
admission to the College for under-graduate course filed a Writ Petition No.
790/80 in the High Court of Delhi under Article 226 of the Constitution,
· challenging the admission schedule of St. Stephen's College and the interview
test prescribed for candidates. The Writ Petition was filed on June 16, 1980. On
June 30, 1980 the High Court passed on order directing the College, to receive
D the applications for admission till June 30, 1980 and also prohibiting the
College from announcing the admission list, for which the prescribed date was
2nd July 1980 till the disposal of the Writ Petition. Incidentally, th.e High Court
also observed that it had no option but to issue such an order since SL Stephen's
College had not challenged the validity of the University circulars dated 5th
and 9th June, 1980. This Writ Petition had been the subject matter in the
E Transferred case No. 3 of 1980.

ST. STEPHEN'S COLLEGE MOVES THE SUPREME COURT
fi,>
That in pursuance of these events, St Stephen's College moved this
Court by means of a Writ Petition under Article 32 of the Constitution. We are
F
primarily concerned with this Writ Petition (Civil) No. 1868 of 1980. The,
averments in the writ petition are these: that St. Stephen's College is a religious ..
minority-run institution. It is a constituent College, like an·affiliated college
admitted to the privileges of the University, but not a maintained college. From
the very beginning, the College has been exercising certain obvious and
G inhere!lt managerial powers: one of them was to fix reasonable dates for
admissfon and the other was for an interview of the candidates. These
managerial functions have never been questioned or interfered with by the
University. That even assuming, without conceding, that within the general
power of the regulations, the University has power to prescribe the d~te for
admission, this would be ex-facie violative of the' fundamental right of the
H college as fixing of this schedule is ex-facie managerial. The management must
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] l47

be free of control so that the founders or their nominees can mould the ,A
institution as they think fit, and in accordance with their ideas of how the
. interests of the community in general and the institution in particular will be
best served. No part of this management can be taken away and vested- in
another body without an encroachment upon the guaranteed right. ,

It is further alleged that approximately 6000 applications are received by B
the College as against its 300 available seats. Because of its pre-eminent
position, applications come from every part of the country. In subsequent
years, more than 12000 applications were received. It would, therefore, be
humanly impossible to process those applications within a day and to select
300 of the most suitable candidates with any semblance of fairness. Usually
about40% of the applicants are from outside; of the 300 to be admitted lOOare C
for admission to the hostel. The provision for the interview, which has been the
procedure followed by the College since its inception, is an integral part of
administration of the College. It is a part of its managerial function and it
cannot be taken away by the University. The selection on the basis of only
marks obtained by the candidates on the face of it would be unreasonable and
violative of the fundamental right of the College guaranteed under Article 30 D
of the Constitution. With these and other contentions, the College prayed for
a declaration that the circulars dated 5th and 9th June, 1980 issued by the
University are void qua the College in view of its minority status.

This Court while issuing Rule Nisi in the said Writ Petition has stayed E
the operation of the circulars. In view of the stay granted by this Court, the
College continued to follow its own admission policy, modality and schedule
in the succeeding years.

THE DELHI UNIVERSITY STUDENTS' UNION APPROACHES THE
SUPREME COURT
F
The Delhi University Students'- Union is an intervener in the Writ
Petition No. 1868of1980 filed by St. Stephen's College. That subsequently for
the admission year 1984-85, the Delhi University Students Union and Dr.
Mahesh C. Jain filed W.P. Nos. 13213-14/84 under Article 32 of the Consti-
tution seeking a direction to St. Stephen's College to follow all University G
policies, rules, regulations, ordinances regarding admissions etc. and further
for a direction restraining College from giving preference in favour of Chris-
tian students in the matter of admission to the College. It was alleged in the
Writ Petition that the College has not been declared to be a minority college
by any Court nor it is recognised as a minority college by the University. It was
alternatively contended that even assuming that it is a minority college, it is not H
148 SUPREME. COURT REPORTS (1991] SUPP. 3 S. C.R.

A entitled to discriminate students on grounds of religion as the College is
receiving maintenance grant from the Government. The discrimination of
students for admission to the College based only oh religion is contrary to the
provisions of Article 29(2) of the Constitution.

THE CASE OF THE DELHI UNIVERSITY
B
The Del_hi University in its affidavit-in-opposition has justified the
issuance of the aforesaid circulars with reference to the provisions of the Delhi
University Act, the Ordinance n and the relevant Statutes of the University.
Reference is made to Statute 30 and the terms and conditions of Government ·
grant to Colleges. It is said that every college shall comply with the Statutes,
C Ordinances and Regulations of the University. The College is required to
comply with the directions given by the University regarding admission of
students. Reliance is also placed on Ordinance XVIII which provides for
constitution of a Staff Council in every college. All the members of the
teaching staff, Librarian and the Director of Physical Education constitute the
Staff Council. The Principal is the ex-officio Chairman of the Staff Council.
D The functions of the Staff Council are provided in sub-clause (5) of Clause
6-A of Ordinance XVIII. One of the functions assigned to the Staff Council is
to make recommendations regarding formulation of admission policy within
the framework of the policy laid down by the University. The College however,
cannot lay down its own admission policy so as to be in conflict with the policy
laid down by the University. Like all other colleges admitted to the privileges
E of the University, St Stephen's College is also in receipt of maintenance grant
from the University Grants Commission. Since the College is receiving aid out
of State funds, it is not entitled to practice discrimination in the matter of
-admission on the ground of religion and /or language. This is plainly contrary
to the mandate of Article 29(2) of the Constitution. The circulars of the
University containing directions as to admission of students to affiliated col-
F
leges do not infringe in any manner the fundamental rights of the body
administering the College, assuming without admitting that such a body is
entit!ed to claim a fundamental right under Article30 of the Constitution. The
College, therefore, is bound to follow the two directions in question which have
been given by the University to all colleges alike in exercise of its statutory
..,-G power under the relevant Ordinances of the University.

THE ALLAHABAD AGRICULTURAL INSTITUTE

This is a professional college which offers several courses of study in
Agricultural Sciences. It is undisputedly an institution established and admini-
H stered by the Christian religious minority. In 1911, it was founded by Chris-
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETIY, J.] l49

tians under the leadership of Dr. Sam Higginbothom. It is now located on the A
right bank of Jamuna river at a tiny place called Naini in the famou8 pilgrimage
and education centre of Allahabad It has 600 acres campus including staff
quarters, men's and wom~n's hostels, library and administration buildings with
ten departments and auxiliary units of the Institute. The Institution imparts edu-
cation in several courses of study, like Jilter Agriculture, Inter Home Science,
Indian Dairy Diploma (IDD), B.Sc. in Agriculture, B.Sc. Home Economics, B
B.Tech. in AgriculturaJ. Engineering, M.Sc. in Agriculture and M.Sc. in
Agricultural Engineering. It claims to be a national institute and every year it
holds entrance test at different centers. It has prescribed the rules of admission
to 1st year of each degree/diploma programme as follows:-

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

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

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

4. Tribals 5%

In order to strengthen the spirit of national integration and to bring about E
the All Indian character of Institute, the distribution of the seats will be as
follows: -

Zones:

North : Himachal Pradesh, Jammu &Kashmir, Punjab, Haryana, Rajasthan, F
Bihar, Bengal and Delhi 40%

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

West : Gujarat, Maharashtra, Madhya Pradesh · 10% G
North-West : Assam, Arunachal, Mizoram, Nagaland, Manipur, Meghalaya,
Tipura and Sikkim 20%

(2) Scheduled Caste students who qualify the Entrance Test and old
students will be adjusted in each of respective quota and zones first. H
150 SUPREME COURT REPORTS [1991] SUPP. 3 s. C.R.

A (3) In each of the categories only those who have qualified in the
entrance testwillbe considered and admitted strictly in order of merit within
each list

(4) Disciplinary action - Any student who has a disciplinary action taken
,. against him/her will not be admitted tp any course in this Institute.
B
(5) Not less than 25% of the enrolment shall be women students."

The students who have been denied admission by this Institute filed Writ
Petitions und_er Article 226 of the Constitution in the Allahab,ad High Court
~hallenging the reservation and admission of Church sponsored Christian
C students. The High Court has allowed the writ petitions declaring that the
policy of reservation for Christian students is contrary to the equality guaran-
teed io citizens under Article 29(2) of the Constitution.

l3eing aggrieved by the decision of the High Court, the Institute by
obtaining certificate under Article 133(1)(a) of the-Constitution has preferred
D · Civil Appeal Nos.1831-41 of 1989. Civil Appeal Nos. 1786/89 and 2829/89 are
by some of the students. They are connected appeals against the same judgment
of the Allahabad High Court.

QUESTION OF LAW

E A great many questions were debated before us in the course of hearing.
The important issues can be grouped under three main heads :

First: Whether StStephen's College is a minority-run institution?

Second: Whether St.Stephen's College as minority institution is bound
F
by the University circulars dated June 5, 1980 and June 9, 1980 directing that
the College shall admit students on the basis of merit of the percentage of
marks secured by the students in the qualifying examinations?

Third: Whether St.Stephen's College and the Allahabad Agricultural
G Institute are entitled to accord preference to or reserve seats for students of their
own community and whether such preference or reservation would be invalid
under Article 29(2) of the Constitution?

The first two questions are relevant only to St. Stephen's· College and
they do not arise in the case of Allahabad Agricultural Institute since· there is
H no dispute as to the minority character of that institute. There is also no
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHEITY, J.] i51

grievance by the U.P. University with the procedure of selection of candidates A
followed by the institute. The third question, of course, is relevant to common
• problems of both the institutions.

We may take up these questions in turn, but before doing so, we may
briefly refer to some to the cases where similar problem came up for consid-
/ eration. B
In State ofBombay v. Bombay Education Society [1955) 1 SCR 568 the
concerned school known as Bernes High School at Deolali in Nasik District in
the State of Bombay was recognised as that of belonging to Anglo-Indian com-
munity whose mother is English. There was thus little difficulty for the Court
to accept the claim of the Anglo-Indian School that it was a linguistic minorityc
,, institution entitled to protection under Article 30(1) of the Constitution. In
Sidhajbhai.Sabhai v. State of Bombay and Anr. [1963) 3 SCR 837 this Comt
was concerned with a Training College for teachers, known as the "Mary
Brown Memorial Training college", at Borsad, District Kaira The cost of
maintaining the training college was met ·out do donations received from the
Irish Presbyterian Mission, fee from- scholars and grant-in-aid under the D
Education Code of the State Government The CoJlege and other forty-twO,i -
primary schools are run for the benefit of the religious denomination of ttie
· United Church of Northern India and Indian Christians generally, though ad-
mission is not denied to students belonging to other communities. The Training
College was therefore, held to have been established and administeredlby the
Christian minority. In Rev. Father W. Proost and Ors. v. State of Bihar and E
Ors, [1969] 2 SCR 73 there was again no serious dispute that the institution
concerned i.e. St.Xavier's College was founded by Jesuits of Ranchi, who were
a Christian minority. In Gandhi Faiz-Am-College Shahjahanpur v. University
of Agra and Anr., [1975) 2 SCC 283 the appellant was a registered society
formed by the memb~rs of the Muslim community at Shahjahanpur.
F
It was running the G.F.College. The management claimed protection of
Article 30(1) against interference by the Agra University. The Court proceeded
on' the basis that the community ranks as a minority in the country and the
educational institution run by it has been found to be what may loosely be
called a 'minority' institution, within the constitutional compass of Article 30. G
This conclusion was reached on a rapid glance at the evolution of the Institu-
tion. In DA.V. College Jullundur v. State of Punjab, [1971] 2 SCC 269 the
College established by Arya Samaj in the State of Punjab claimed protection
under Articles 29(1) and 30(1) of the Constitution. It was conceded by the State
of Punjab that the Hindus of Punjab are a religious miiiority in the State though
they may not be so in relation to the entire country. The claim of Arya Samaj H
152 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

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

G In C hikkala Samuel v. District Educational Officer Hyderabad and Anr.,
AIR 1982 A.P. 64 the Andhra Pradesh High Court observed that minority in-
stitution imparting general secular education in order to claim the benefit of
Article 30 (1) must show that it serves or promotes in some manner, the interest
of the minority community or a considerable section thereof. Without such
proof, it was said that th.ere would be no nexus between the institution and the
H minority as sue!!:_
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 153

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

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

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

"Nowhere in the petition or in the affidavit in reply it is asserted H
154 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

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

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

On appeal, the Judgment of the High Court was reversed by this Court
mainly on two grounds : (i) the High Court did not pay sufficient attention to
that part of the evidence supplied by the petitioners which was sufficient to
justify their claim that the local citizens had participated in the establishment
F of the school in question, and (ii) Indian Citizenship not being a condition for ·
the application of Article 30; the protection thereunder could not be denied on
that basis. Regarding the first ground, the Court examined the material on
record and found it sufficient to prove that the local Christians of Bhagalpur
took a leading role in establishing and maintaining the school. Record book of
G the Church Missionary Association at Bhagalpur, the copies of letters written
to the Church Missionary Society by the Calcutta Corresponding Committee
(of the Church Missionary Society) atBhagalpur, minutes of the meetings held
and the resolutions passed by the Local Council of Bhagalpur were all relied ~-
/
upon in support of the conclusion. It was also found that the assistance for es-
tablishing the institution was obtained from either bodies including the Church
H Missionary Society, London. On this material, it was held that the school was
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 155

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

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

xxxxx xxxxx xxxxx

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

And later (at 180):

"We are also unable to agree with the High Court that before any
F
protection can be claimed under Article 30(1) in respect of the
Church Missionary Society High Secondary School it was required
to be proved that all persons or a majority of them who established
the institution were 'Indian citizens' in the year 1854. There being
no Indian citizenship in the year 1854 independently of the citizen- G
ship of the British Empire, to incorporate in the interpretation of
Article 30 in respect of an institution established by a minority the
condition that it must in addition be proved to have been estab-
lished by persons who would, if the institution had been set up after
the Constitution, have claimed Indian citizenship, is to whittle
down the protection of Article 30 in a manner not warranted by the H
provisions of the Constitution."
156 SUPREME. COURT REPORTS [1991] SUPP. 3 S. C.R.

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

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

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

Surprisingly, the Delhi University in the pleading, has neither denied nor
admitted the minority character of the· College. But the counsel for the
H University have many things to contend which will be presently considered.
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 157

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

BUILDING.

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

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

-
And Religious Education
158 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

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

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

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

CONSTITUTION OF THE COLLEGE
0
It is said that during the early part of the College history, it was managed
by the Mission Council-a totally Christi$} Body. Late in 1913 it was
E registered as a society and a Constitution was formu~ated on November6, 1913
which was· adopted by the SPG Standing Committee and by the Cambridge
Committee. The Constitution as it stands today again maintains the essential
character of the College as a Christian College without compromising the right
to administer it as an educational institution of its choice. The Constitution of
the College consists of Memorandum of the Society and Rules. Clause 2 of
F Memorandum states that "the object is to prepare students of the College for
University degrees and examinations and to offer instruction in doctrines of
Christianity which instruction must be in accordance with the teachings of the
Church of North India." Clause 4 sets out the original members of the Society
who were mostly Christians. The composition of the Society also reflects its
G Christian character in as much as the Bishop of the Diocese of Delhi is the
Chairman of the society [Rule I (a)]: Further, two persons appointed by the
Bish<?P of the Diocese of Delhi, one of whom shall be a senior Presbyter of the
Diocese, sh?ll be members of the Society [Rule I (b)]. One person to be
ap~in~ by the Church of North India Synodical Board of Higher Education
shall also be a member of the Society (Rule I (g)]. Similar is the position of a
H .
person..to be appointed by the Diocesan
. Board of Education [Rule 1 (h)]. Two

; 1
\,
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 159

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

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

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

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

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

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

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

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

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

It is again significant to note the difference between the nie1hod of
appointment of the Principal of St. Stephen's College and all other Colleges.
The Principal of St. Stephen's College is appointed by the Supreme Council
D and he must be a Christian belonging to Church of North India (Rule 4). He will
exercise control, and maintain discipline and regulation of the College. he will
be in complete charge of the admissions in the College assisted by admission
committee. But the Principals of other affiliated colleges under Ordinance
XVIII Clause 7(2) [pages 335 Calendar Volume I] are to be appointed by the
Governing Body of the College. ·
E
The immovable property of the College shall be vested in the Indian
Church trustees, who shall merely act as Trustees.• and shall have no power of
management whatsoever. All other property connected with the CoJJege shall
be vested in the Society (rule 21).
F DELHI UNIVERSITY ACT AND ORDINANCE c
It was contended that St. Stephen's College after being affiliated to the
Delhi University has lost its minority characteL The argument was based on
some of the provisions in the Delhi University Act and the Ordinances made
G thereunder. It was said that the students are admitted to the University and not
to the College as such. But we find no substance in the contention. In the first
place, it may be stated that the State or any instrumentality of the State cannot
deprive the character of the institution, founded by a minority community by
compulsory affiliation since Article 30(1) is a special right to minorities to ·
establish educational institutions of their choice. The minority institution has }
H a distinct identity and the right to administer with continuance of such identity

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

. cannot be denied by coercive action. Any such coercive action would be void A
being contrary to the constitutional guarantee. Th right to administer is the right
to conduct and manage the affairs of the institution. This right is exercised by
a body of persons in whom the founders have faith and confidence. Such a
management body of the institution cannot be ·displaced or reorganised if the
right is to be recognised and maintained. Reasonable regulations however, are
permissible but regulations should be of regulatory nature and not of abridg- B
ment of the right guaranteed under Article 30(1).

Secondly, we find no provision in the Delhi University Act with
overriding powers precluding the management of the College from exercising
its right to administer the College as a minority institution. Section 2(a) of the
Delhi University Act defines 'college' to mean 'an institution maintained or c
admitted to its privilege by the University and includes an affiliated college and
a Constituent College'. Under Section 4, the University has powers to hold
examinations and to grant to, and confer degrees and other academic distinc-
tions on, persons who have perused a course of study in the University or in
any college. Section 6 provides that the University shall be open to all persons
of either sex and of whatever race, creed, caste or class. Under Section 7 it is D
necessary that all recognised. teaching in connection with the· University
Courses shall be conducted under the control· of the Academic Council. By
Section 23, the Academic Courn:il has been constituted as the Academic Body
of the University, and it shall, subject to the provisions of the Act, Statutes and
Ordinance, have the control and general regulation, and be responsible for the
maintenance of standards of instruction etc. ·

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

Ordinance II' provides for constitution of Admission Committees and
procedure for admission for different courses. Clause 2(ii) Of this Ordinance is
important and so far is relevant reads :
G
"Application for admission/registration shall be made on a pre-
scribed form. Applications by students seeking admission to
Master's courses in Faculties of. Arts, Mathe111atical Science~.
Social Sciences, Music and Science shall be sent to the Deans of
Faculties, concerned direct Applications for admission to course8
H
162 '' · SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

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

xxxxx xxxxx xxxxx

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

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

xxxxx xxxxx xxxxx

E Ordinance XVIII Clause 6-A(l) provides that there shall be a Staff
Council in every College. Subject to tbe provisions of the Act, the
·.1 Statutes and the Ordinances of tbe University, the Staff Council
shall take a decision in respect of matters, among others, organis-
ing admission of students."
F
From these and other relevant provisions of the Act and Ordinances, we
have not been able to find any indications either in tbe general scheme or in
other specific provisions which woul.d enable us to say that the College is
legally precluded from maintaining its minority character. That in matters of
admission. of students to Degree Courses inducting Honours ·courses, the
G candidates have to apply to the College of their choice and not to the University
and it is for tbe Principal of tbe:Collegc or' Dean of Faculties concerned to take
detision and make final admission:tlt is,;tficrefore: wrong to state tbat there is
no adinission to the College but onl)'foNhe'University. The procerfore for
admis'sion to Post--'-Graduate courses is 1 of'course, different but we are not
concerned witb that matter in these cases.· · . ' •
H
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 163

• '
It is equally important to note that under Rule (8) of the Rules of the A
College Society, the management has not accepted all rules and regulations
relating to composition of Governing Bodies, management of Colleges, ap-
pointment of Principals etc. as prescribed by the relevant Statutes, Ordinances
and Regulations of the University but has reserved its rights to accept only such
directions which are not contrary to its Constitution, and which it has found
suitable for the better management of the College and improvements of B
academic standards.. The College has been constituted as a self-contained and
autonomous institution. It has preserved the right to choose its own Governing
Body, and seleet and appoint its own Principal both of which have a great
contributing factor to maintain the minority character of the institution. It may
also be noted that the Constitution of the College has been duly registered with
the Registrar of Joint Stock Companies, Delhi Province, as also the University C
of Delhi. It is not disputed that the University has at no stage raised any
objection about any of the provisions of the Constitution of the College. From
these facts and circumstances it becomes abundantly clear that St. Stephen's
College was established and administered by a minority community, viz., the
Christian community which is indisputably a religious minority in India as well
as in the Union Territory of Delhi where the College is located. D

SECOND QUESTION

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

of the administration which the College is entitled to have as a minority
institution under Article 30(1) of the Constitution. The University cannot direct
the College to dispense with its admission programme in the absence of proof
of maladministration of the College. The circulars have ~een challenged also H
1• I '
164 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

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

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

CONCESSION TO CHRISTfAN STUDENTS AND OTHERS·.
H
To Christian stodents, reiaxatiori up to 10 per cent is' given. The Sched-
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETIY, J.] 165

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

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

THE CONTENTIONS OF DELHI UNIVERSITY AND STUDENTS UNION

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

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

The minorities whether based on religion or language have the right to
establish and administer educational institutions of their choice. The admini- H
166 SUPREME COURT REPORTS £1991] SUPP. 3 S. C.R.

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

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

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

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

cation."

f 1-I In the same case Khanna, J., put the principlti; with a different emphasis
(at 23-l-35);
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 167

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

Mathew, J., ·had this to state (at 267): I
"The heart of the matter is that no educational institution estab-
lished by a religious or linguistic minority can claim total immu-
nity from regulations by the legislature or the University if it wants E
affiliation or recognition; but the character of the permissible
regulations must depend upon their purpose. As we said; such
regulations will be permissible if they are relevant to the purpose
of securing .or promoting the object of recognitic>n or affiliation.
There will be borderline cases where it is difficult to decide
F
whether a regulation really subserves the purpose of recognition or
affiliation. But that does not affect 1he question of. principle. In
. every case when the.rasonableness of a regulation comes up for
consideration before. the court, the question to.· be. asked and
answered is whether the regulation is cakulated to.subserve or will
in effect subservethe purpose of recognition or affiliation, namely . G
the excellence. of the institution as a vehicle for general secular
education to .the min9rity community and to other persons who
resort to it: The question wheth~r a regulation is in the 'general
interest of the, public ha.s.no relevance, if it does not advance the
excellence ,of the institution as a vehick for general secular
education as, ex-hypothesi, the only permissible regulations a~e H
168 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A those which secure the effectiveness of the purpose of the facility,
namely, the excellence of the educational institutions in respect of
their educational standards. This is the reason why this Court has
time and again said that the question whether a panicular regula-
tion is calculated to advance the gc11eral public interest is of no
consequences if it is not conducive to the interest of the minority
B community and those persons who resort to it."

ln Lily Kurian v.Lewina and Ors., [1979] 2SCC124 it was pointed out
(at 137):

"Protection of the minorities is an article of faith in the Constitu-
c tion of India. The right to the administration of institutions of
minority's choice enshrined in Arl.icle 30(1) means 'management
of the affairs' of the institution. This right is, however, subject to
the regula~ory power of the State. Article 30(1) is not a charter for
maladministration; regulation, so that the right to administer may
be better exercised for the benefit of the institution, is permissible;
D but the moment one goes beyond that and imposes, what is in truth,
not a mere regulation but an impairment of the right to administer,
the Article comes into play and the interference cannot be justifird
by pleading the interests of the general public; the interests justi-
fying interference can only be the interests of the minority con-
cerned."
E
The need for a detailed study on this aspect is indeed not necessary. The
right to minority whether religious or linguis'tic, to administer educational
institutions and the power of the State to regulate academic matters and
management is now fairly well settled. The right to administer does not include
the right to maladminister. The State being he controlling authority has right
F
and duty to regulate all academic matters. Regulations which will serve the
interests of students and teachers, and to preserve the uniformity in standards
of education among the affiliated institutions could be made. The minority
institutions cannot claim immunity against such general pattern and standard
or against general laws such as laws relating to law and order, health, hygiene,
G Jabour relations, social welfare legislations, contracts, torts etc. which are
applicable to all communities. So long as the basic right of minorities to
manage educational institution is not taken away, the State is competent to
make regulatory legislation. Regulations, however, shall not have the effect of
depriving the right of minorities to educate their children in their own
institution. That is a privilege which is implied in the right conferred by Article
H 30(1).
· ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI [SHETTY, J.] 169

The right to select students for admission is a part of administration. It A
is indeed an important facet of administration. This power also could be
regulated but the regulation must be reasonable just like any other regulation.
It should be conducive to the welfare of the minority institution or for the
. betterment of those who resort to it. The Bombay Government order which
prevented the schools using English as the medium of instruction from admit-
ting students who have a mother-tongue other than English was held to be
invalid since it restricted the admission pattern of the schools. (State ofBombay B
v. Bombay Education Society, [1955] 1 SCR 568). The Gujarat Government
direction to the minority run college to reserve 80 per cent of seats for
Government selected candidates with a threat to withdraw the grant-in-aid and
recognition was struck down as infringing the fundamental right guaranteed to
minorities under Article 30(1) of the Constitution. (Sidhajbhai Sabhai v. State
ofBombayandAnr, [1963] 3 SCR 837). In Rt.Rev. Mager. Mark Netto v. Gov- C
ernment of Kera/a, [1979] 1SCR609 the denial of permission to the manage-
ment of a minority school to admit girl students was held to be bad. The
Regional Deputy Director in that case refused to give sanction for admission
of girl students on two grounds; (i) that the school was not open as a mixed
school and that the school has been run purely as a boys school for 25 years;
and (ii) that there was facility for the education of girls of the locality in a D
nearby girl .school which was established by the Muslims and was also a
minority institution. This Court noted that the Christian community in the
locality wanted their girls also to receive ecrucation in the school maintained
specially by their own community. They did not think it in their interest to send
their children to the Muslim girls school run by other minority community. The
withholding of permission for admission of girl students in the boys minority
school was violative of Article 30(1). It was also observed that the rule E
sanctioning such refusal of permission crosses the barrier of regulatory meas-
ures and comes in the region of interference with the administration of the
institution, a right which is guaranteed to the minority under Article 30(1). The
Court restricted the operation of the rule and made it inapplicable to the
minority educatio.nal institution. In Director of School Education Government
of Tamil Nadu v. Rev. Brother G. Arogiasamy, .AIR 1971 Madras 440 the p
Madras High Court had an occasion to consider the validity of an uniform
procedure prescribed by the State Government for admission of candidates to
the aided training schools. The Government directed that the candidates should
be selected by the school authorities by interviewing every candidate eligible
for admission and assessing and awarding marks in the interview. The marks
awarded to each candidate in the interview will be added to the marks secured
by the candidate in the S.S.L.C. public examination. On the basis of the G
aggregate of marks in the S.S.L.C. examination and those obtained at the
interview the selection was to be made without any further discretion. The
High Court held that the method of selection placed serious restrictions on the
freedom of the minority institution to admit their .own students. It was found

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

A that the students of the minority community could not compete with the
students· belonging to other communities. The applications of students from
other communities could not be restricted under law. The result was that the
students of minority community for whose benefit the institution was founded,
had little chance of getting admission. The High Court held that the Govern-
ment order prescribing the uniform method of selection could. not be applied
B to minority institutions.

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

The grievance of the University and the Students' Union is that the
Colle_ge Admission Programme is a device to manipulate the.merits and not a
scientific test to assess performance of candidates. The selection is made by
judging the_ candidates at the interview and the marks secured in the qualifying
E examinations arc not taken into account for selection. The marks arc only
relevant for calling· the candidates for interview. We have carefully examined
the College Admission Programme and in our opinion, the contention urged
for the University and students union is misconceived. The purpose of the
interview is not to reassess or remeasure the merits of the applicants in the
qualifying examinations. The marks secured in the quaiifying examinations arc
F indeed rcleva_nt for selection and the interview is only supplementary test. The
College fixes different cut-off percentage of marks in different subjects. The
candidates are called for interview in the ratio of 1 : 4 or 1 : 5 depending upon
the candidates choice of selection of courses of study. The interview is
conducted by men of high integrity, calibre and qualification. They arc men
G who deal with education and the students. During ,the interview, questions arc
asked to test the candidate's knowledge of the subject and his general
awareness of the current problems. The student is also required to furnish in the
application form his interest, hobbies, values, career plan etc. Each member of
the Interview Committee grades the performance of the· candidates and: the
selection is made for each course ·of study by t.iking into consideration the
H opinion expressed by all the members of the Interview Committee. By
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.) 171

consensus the final list of candidates is prepared. The selection is thus made on A
the baSis of the candidate's academic record and perfonnance at the interview
keeping in mind·his/her all round competence, capacity to benefit from being
in the College as well as potential to contribute to the life of College. Judging
the performance by grading is a well known method followed in the academic
field.
.B
The oral interview as a supplementary test and not a' exclusive test for
assessing the suitability of candidates for college admission has been recog-
nised by this Court. But at the same time, to avoid arbitrariness in the selection
it has been repeatedly held that there shall not be allocation of high percentage
of marks for oral interview test. Where candidate's personality is yet to
develop, it has been emphasised that greater weight has per force to be given C
to performance in the written examination and the importance to be attached
to the interview test must be minimal. The Court has generally indicated that
interview marks should not be more than 15 per cent of the total marks. (See:
R. Chitra/ekha and Ors. v. State of Mysore and Ors, (1964] 6 SCR 368; A.
Peeriakaruppan v. State of Tamil Nadu ,(1971] 2 SCR 430; Miss Nishi Maghu
and Ors. v. State of Jammu and Kashmir, (1980] 4 SCC 95; Ajay Hasia etc. D
v. V. Khalid M.ujib Sehravardi, [1981] 2 SCR 79; Lila Dhar v. State of
Rajasthan and Ors. , [1982] 1 SCR 320 and Koshal Kumar Gupta v. State of
Jammu & Kashmir, [1984] 3 SCR 407.

There is nothing on record to suggest that the interview conducted by the
Selection Committee was contrary to the principles laid down by this Court in E
the aforesaid decisions. We see neither any arbitrariness nor any vice or lack
of scientific basis in the interview or in the selection. The interview confers no·
wide discretion to the Selection Committee to pick and choose any candidate
of their choice. They have to select the best among those who arc called for
interview and the discretion is narrowly limited to select one out of every 4 or
5. In these premises, we would defer to the choice and discretion of the
F
Selection Committee so long as they act properly and not arbitrarily and act
within .the recognised principles. ·

' The College seems to have compelling reasons to follow its own
admission programme. The College receives applications from students all G
over the country. The applications ranging from 12000 to 20000 arc received
every year as against a limited number of 400 seats available for admission.
The applicants come from different institutions w.ith djverse standards. The
merit judging by percentage of marks secured by applicants in different
1
qualifying examinations with different standards maY, not lead to proper and
fair selection. It may not also have any relevance to ~aintain the standards of . H

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

A excellence of education. As observed by this Couit in D .N. Chanchala v. Staie
of Mysore, (1971} Supp. SCR 608 the result .obtained by .a student in an
eamination held ·by one University cannot be comparable with the result
obtain'ed by another candidate in an examination of another University. Such
standards depend on several human factors, method of teaching, e:J1.amining and
evaluation of answer papers. The subjects taught and examined may be the
B same, but the standard of examination and valuation may vary, and the
variations are inevitable. In the premises, the admission solely determined by
the marks obtained by students, cannot be the best avaiJable objective guide to
futi.Jre academic performance. The College Admission Programme on the other
hand, based on the test of promise and accomplishment of candidates, seems
to be better than the blind method of selection based on the marks secured in
C the qualifying examinations. We are, therefore, unable to accept the submis-
sion that the College Admission Programme is arbitrary and the University
criteria for selection is objective.

So in.the end we are driven to conclude that St. Stephen's College is not
bound by the impugned circulars of the University.
D
THIRD. QUESTION

Whether St. Stephen's College and the Allahabad Agricultural InstituLe
as minority institutions are entitled to accord preference in favour of or reserve -
seats for candidates belonging to their own community and_ whether such
E preference or reservation would be invalid under Article 29(2) of the Consti-
tution?

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

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

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

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

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

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

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

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

B PRE-NATAL HISTORY OF MINORITY RIGHTS

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

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

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

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

.G At the drafting stage, these recommendations were finally reformulated
as diaft Article 23 with certain crucial changes. The Drafting Committee itself
sought to make a distinction between the right of any section of the citizens to .
conserve its language, script or culture, and the right of minorities based on
religion or language to establish and administer institution of their choice. With
this distinction in view, the word 'minority; had ·been repl<!C~ with the term
H 'any section of the citizens', in the earlier part of the diaft Article 23~corre-
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 175

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

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

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

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

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

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

Having set the scene, we can deal ~ith the provisions ~f Articie 29( 1) and
30(1) rel~tively quickly. JJ,nder Article 29(1) every section of the citizens ·H
176 SUPREME COURT REPORTS [1991] SUPP,. 3 S. C. R.

•
A having a distinct language, script or culture of its own has the right to conserve
the same. Under Article 29(1), the minorities-religious or linguistic-arc
'r
entitled to establish and administer educational institutions to conseryc their
distinct language, script or culture. However, it has been consistantly held by
the Courts that the right to establish an educational institution is not confined ·
to purposes of conservation of language, script or; culture. The rights in Article
B 30(1) are of .wider amplitude. The width of Article 30(1) cannot be cut down
by the considerations on which Article 29(1) is based. The words ~'of their
choice" in Article 30(1) leave vast options to the minorities in selecti~g the
type of educational institutions which they wish to establish. They can establish
institutions to conserve their distinct language, script or culture or for imparting
general secular education or for both the purposes. (See: Father.W.. Proost v.
C State of !Jihar ,[1969] 2 SCR 73; Ahmedabad St. Xavier's College v, State of
Gujarat ,[1975] 1 SCR 173 and Re,: Kerala Education Bill case, [1959] SCR
995.

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

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

,-[
· not mean that the minorities could establish educational institution for the·
benefit of their own community people. Indeed, they cannot. It was pointed out
in Re : Kera/a Education Bill [1959] SCR 995 that the minorities cannot
establish educational institution only for the benefit of their community. If such
was the aim, Article 30(1) would have been differently worded and it would
H have contained the words "for their own community". In the absence of such
ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI [SHETTY, J.] 177

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

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

Article 29(2) provides :

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

The access to academic institutions maintained or aided by the State,
funds is the special concern of Article 29(2). It recognises the right of an
individual not to be discriminated under the aegis of religion, race, caste,
F
language or any of them. This is one of the basic principles of a secular State.
The discrimination based solely on the ground of a citizen's particular religion,
race, caste or having any particular language is absolutely prohibited in
educational institutions maintained by the State or receiving aid out of State
funds. It applies to minorities as well as to non-minorities. When other G
qualifications being equal the religion, race, caste, language of a citizen shall
< not be a ground of preference or disability. Similarly, the words "any of them"
as used in Article 29(2) are intended to give further emphasis that none of the
---\ grounds mentioned in the Article can be made the sole basis of discrimination.
(See : State of Madras v. Champakam Dorairajan [1951] 2 SCR 525 and
Bombay Education Society case [1955] 1 SCR 568. H
178" SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

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

-
does not mean that it was intended to nullify the special right guaranteed to
minorities in Article 30(1). Article 29(2) deals with non-discrimination and it >
is available only to individuals. The general equality by non-discrimination is
I not the only goal of minorities. The minority rights under the majority rule
implies more than non-discrimination and indeed, it begins with non-discrimi-
B nation. Protection of interests and institutions and advancement of opportunity
are just as important. Differential treatment that distinguishes them from the
· majority is a musi to preserve their basic characteristics. To be blunt, black men
do not wish to be white. Jews do not wish to be Protestants. Serbs do not want
to be Croats. French Canadians do not want to lose their French heritage. There
are many other instances, including the Corsicans in France, theJrish Catholics
c in Ulster, the French Canadians in Quebec, the Albanians in Kosovo, Yugosla-
via; the Tamils in Sri Lanka, the Islamic separatists in the Phillipines, and the
Animist and Christian minorities in southern Sudan. The problem in India is
not quite different. India is a multi-cultural and multi-religious society. It is an
extra-ordinary pluralistic and complex society with different religious minori-
ties. Besides there are linguistic aspirations and caste considerations. There
D may be individuals in the minority group who want to assimilate into the
majority, but the group itself has a collective interest for non-assimilation. It
is interested in the preservation and promotion as a community. This appears
to be the chief reason for which Article 30(1) was incorporated as a fundamen-
tal right. Article 27 of the International Covenant on Civil and Political Rights
(1966) also lays a foundation in this regard. It states : "In those States in which
E ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in comnmnity with the other members
of their group, to enjoy their own culture, to profess and practise their own
religion, or to use their own language".

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

G It is quite true that there is no entitlement to State grant for minority
educational institutions. There wa<; only a stop-gap arrangement under Article
337 for the Anglo-Indian community to receive State grants. There is no
similar provision for other minorities to get grant from the State. But under
Article 30(2), the State is under an obligation to maintain equality of treatment
in granting aid to educational institutions. Minority institutions are not to be
H treated differently
)• .
while giving
. financial assistance. They arc entitled to get the
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETIY, J.] 1n

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

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

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

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

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

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

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

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

H We have been referred to the decision of the American Supreme Court·
ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI [SHETTY, J.] 181

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

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

The collective minority right is required to be made functional and is not
to be reduced to useless lumber. A meaningful right must be shaped, moulded
and created under Article 30(1), while at the same time affirming the right of E
individuals under Article 29(2). There is need to strike a balance between the
two competing rights. It is necessary to mediate between Article 29(2) and
Article 30(1), between letter and spirit of these Articles, between traditions of
the past and the. convenience of the present, between society's need for stability
and its need for change.
F
The Constitution establishes secular democracy. The animating principle
of any democracy is the equality of the people. But the idea that all people are
equal is profoundly speculative. It is well said that in order to treat some
persons equally, we must treat them differently. We have to recognise a fair
degree of discrimination in favour of minorities. But it is impossible to have G
an affirmative action for religious minorities in religious neutral way. In order
to get beyond religion, we cannot ignore religion. We must first take account
of religion. It is exactly in the spirit of these considerations that this Court in
its advisory opinion in Re : Kera/a Education Bill case [1959] SCR 995
·recognised a fair degree of discrimination in favour of religious minorities. In
this respect ·the Court seems to have acted on the same principle which is H
182 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

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
G 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
H 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 A
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 C
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 D
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
184 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

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
186 SUPREME COURT REPORTS [i991] SUPP. 3 S. C.R.

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
G 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
H 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 A
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 B
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 C
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 D
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 F
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 G
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
B 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
C 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
D 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
E 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
F 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
G 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
H 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
E 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
F 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
G 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
H 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 A
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 B
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 F
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 G
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
I

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

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
B 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
C 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
D 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
E 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
F
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
G 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 A
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 B
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 D
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 E
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 F
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
F 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
G 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 A
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 B
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 D
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 E
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 F
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 A
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 B
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 C
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 D
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 E
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 F
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
B 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
C 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,
D 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
E 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 A
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 B
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 G
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 H
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
H 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 A
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 B
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 C
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
F 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
G 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
H 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 A
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 B
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 D
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 E
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
D 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
E 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
G 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
H 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 A
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 C
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 D
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 F
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 G
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,
D 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
E 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
G 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
H 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 A
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 B
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 E
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
F
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 G
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
D 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
E 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 A
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 B
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.

ARTICLES 29 AND 30 OF TIIE CONSTITUTION : "E

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
D 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
E 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 E
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
F
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 G
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
C 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,
D 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
E 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 F
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 G
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.