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

- **Citation:** [1991] Supp. 3 S.C.R. 121
- **Court:** Supreme Court of India
- **Decided:** 1991-12-06
- **Bench:** M. H. Kania, K. Jagannatha Shetty, N.M. Kasliw Al, B M. Fathima Beevi, Yogeshwar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/st-stephen-s-college-etc-etc-v-university-of-delhi-etc-etc-11472
- **Pages:** 95

## Headnote

Constitution of India, 1950-Article 30( 1 }-Minority educational institution-Constitutional safe-guards-Object and purpose of.
Constitution of India, 1950-Articles 30( 1 ), 29( I), 29(2 }-Minority edu- • C
cational institution-Religious autonomy in education and constitutional guarantee-Construction-Rights under the Articles-Distinction.
Constitution of India, 1950-Articles 30(1), 29, 14, 15-Minorityeduca-
. tional institution-Admission on the basis of religion-Legality of.
Constitution of India, 1950-Article 30(1}-Minority educational institution claiming protection under~equirements.
Constitution of India, 1950-Articles 30, 29-St. Stephen's College,
whether a religious minority institution.
Constitution of India, 1950-Article 30( I)-" Management of the affairs
of the institution",
11 establish",
11 administer" -Construction-Minority educational institution-Right to administer-Nature and scope of-Delhi University Act, Statutes, Regulations/State control-Effect and legality of
Constitution of India, 1950-Article 30(1}-Minority educational institution-Right to administer-Admission programme of a college-Selection of
students-Vniversity regulations/directions-Application/effect of
D
E
F
Constitution of India, 1950-Article 30(1}-Minority educational institution-Admission-Selection-Interview-Purpose of--J'rocedure adopted, G
whether reasonable.
Constitution of India, 1950-Articles 30(1), 30(2), 337-Minority educational institution-State aid-Object and ambit of-State control in admission matter-Effect of.
121
H
122
. SUPREME COURT REPORTS
[1991) SUPP. 3 S. C.R.
A
Constitution of India, 1950-Articles 14, 15, 30, 29-Minority educaB
tional institution-Admission--Reservation to socially and educationally backward classes and equality concep1-eonstruction.
Interpretation of Statutes-Kinds of construction-Constitution of India,
1950-Articles 30(1) and 29(2}-Method of Construction.
WP N0.186811980
The petitioner- college was a constituent college or the respondentDelhi University. It also was affiliated to the University. The College,
belonging to a religious minority community, was an aided educational
C institution.
D
E
F
The college offered three-years Degree Course in B.AJB.Sc.(Hons.),
B.A.(Pass) and B.Sc.( General) and two years Post-graduate degree course
in M.A. and M.Sc.
The college had its own admission programme. The Christian students were given preference in admission.
On 25.5.1980, the college published "Admissions Prospectus" for the
academic year 1.980-81. It was stated therein that ror admission for the
first year course, the last date of receipt of applications would be 20.6.1980
and that there would be an interview prior to final selection or students.
On 5.6.1980, the University issued a circular to all affiliated colleges,
notifying the last date for receipt of applications at the colleges as
30.6.1980 and programme of admission was also phased therein.
On 9.6.1980, the University in another circular provided certain
guidelines for admission, that admission to B.A.(Pass)IB.A. Vocational
(Studies) courses should be based on merit or the percentage of marks
secured by students in the qualifying examination; that the admission to
B.Com.(Pass), B.A.(Hons.) and B.Com(Hons.) courses should also be on
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.
The Petitioner-college inf

## Text

_Characters 0–39,990 of 258,738. This is a partial read: ask again with offset=39990 for what follows._

ST. STEPHEN'S COLLEGE ETC. ETC.
A
V.
UNIVERSITY OF DELHI ETC. ETC.
DECEMBER 6, 1991
[M. H. KANIA, K. JAGANNATHA SHETTY , N.M. KASLIW AL,
B
M. FATHIMA BEEVI AND YOGESHWAR DAYAL, JJ.]
Constitution of India, 1950-Article 30( 1 }-Minority educational institution-Constitutional safe-guards-Object and purpose of.
Constitution of India, 1950-Articles 30( 1 ), 29( I), 29(2 }-Minority edu- • C
cational institution-Religious autonomy in education and constitutional guarantee-Construction-Rights under the Articles-Distinction.
Constitution of India, 1950-Articles 30(1), 29, 14, 15-Minorityeduca-
. tional institution-Admission on the basis of religion-Legality of.
Constitution of India, 1950-Article 30(1}-Minority educational institution claiming protection under~equirements.
Constitution of India, 1950-Articles 30, 29-St. Stephen's College,
whether a religious minority institution.
Constitution of India, 1950-Article 30( I)-" Management of the affairs
of the institution",
11 establish",
11 administer" -Construction-Minority educational institution-Right to administer-Nature and scope of-Delhi University Act, Statutes, Regulations/State control-Effect and legality of
Constitution of India, 1950-Article 30(1}-Minority educational institution-Right to administer-Admission programme of a college-Selection of
students-Vniversity regulations/directions-Application/effect of
D
E
F
Constitution of India, 1950-Article 30(1}-Minority educational institution-Admission-Selection-Interview-Purpose of--J'rocedure adopted, G
whether reasonable.
Constitution of India, 1950-Articles 30(1), 30(2), 337-Minority educational institution-State aid-Object and ambit of-State control in admission matter-Effect of.
121
H
122
. SUPREME COURT REPORTS
[1991) SUPP. 3 S. C.R.
A
Constitution of India, 1950-Articles 14, 15, 30, 29-Minority educaB
tional institution-Admission--Reservation to socially and educationally backward classes and equality concep1-eonstruction.
Interpretation of Statutes-Kinds of construction-Constitution of India,
1950-Articles 30(1) and 29(2}-Method of Construction.
WP N0.186811980
The petitioner- college was a constituent college or the respondentDelhi University. It also was affiliated to the University. The College,
belonging to a religious minority community, was an aided educational
C institution.
D
E
F
The college offered three-years Degree Course in B.AJB.Sc.(Hons.),
B.A.(Pass) and B.Sc.( General) and two years Post-graduate degree course
in M.A. and M.Sc.
The college had its own admission programme. The Christian students were given preference in admission.
On 25.5.1980, the college published "Admissions Prospectus" for the
academic year 1.980-81. It was stated therein that ror admission for the
first year course, the last date of receipt of applications would be 20.6.1980
and that there would be an interview prior to final selection or students.
On 5.6.1980, the University issued a circular to all affiliated colleges,
notifying the last date for receipt of applications at the colleges as
30.6.1980 and programme of admission was also phased therein.
On 9.6.1980, the University in another circular provided certain
guidelines for admission, that admission to B.A.(Pass)IB.A. Vocational
(Studies) courses should be based on merit or the percentage of marks
secured by students in the qualifying examination; that the admission to
B.Com.(Pass), B.A.(Hons.) and B.Com(Hons.) courses should also be on
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.
The Petitioner-college informed the University that no changes in its
admission programme could be made.
B
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
maintained college; that since the commencement of the college it was
exercising inherent managerial powers, like fixing reasonable dates for
admission and conducting interview of the candidates all over the country
which were not questioned or interfered by the respondent-University;
that the University's circulars would amount to ex-facie violative of the
fundamental. right of the petitioner-college, as fixing of the admission
schedule was ex-facie managerial; that no part of the management could
be taken away and invested in another body without an encroachment
upon the guaranteed right; that the selection of the students for admission
on the basis of marks, would be unreasonable and violative of fundamental
· right of the college guaranteed under Article 30 of the Constitution and
F
G
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 preference in favour of Christian students.
The petitioners-students Union contended that the College was not
declared to be a minority college by any Court nor it was recognised as a
minority college by the University; that the College was not entitled. to
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.
E
F
The University contended that every college should comply with the
Statutes, Ordinances and Regulations of the University; that the college
was required to comply with the directions given by the University
regarding admission ~f students; that under clause 6-A(5) of Ordinance
XVIII; the Staff Council was to make recommendations regarding formulations of admission policy within the framework of the policy laid down
by the University; that the College could not lay down its own admission
policy so as to be in conflict with the policy laid down by the University;
that since the College was receiving aid out of State funds, it was not
entitled to practice discrimination in the matter of admission on the
ground or religion or language, which was contrary to the mandate of
Article 29(2) of the Constitution; that the circulars of the University did
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.
·-
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ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI
125
The students, who were denied admission by The Allahabad AgriA
cultural Institute which was established and administered by the Christian religious minority filed writ petitions under Art. 226 of the Constitution challenging the reservation and admission of Church sponsored
Christian students.
The High Court, declaring that the policy of reservation for ChrisB
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 minorityDI
run institution? (ii) whether St. Stephen's College as a minority institution
was bound by the University Circulars dated 5.6.1980 and 9.6.1980,
directing that the College should admit students on the basis of merit of
the percentage of marks secured by the students in the qualifying exami~
nations? and (iii) whether St.Stephen's College and the AIJahabad Agricultural Institute were entitled to accord preference to or reserve seats for
E
students of their own community, and whether such preference or reservation would be invalid under Article 29(2) of the Constitution?, this
Court, allowing the W.P.(C) No. 1868/1980 filed by the College and the
appeals filed against the judgment of the Allahabad High Court, and
dismissing the W.P.Nos. 13213-14 of 1984 and T.C.No. 3/1980,
F
HELD : (M.H.Kania, K. Jagannatha Shetty, M. Fathima Beevi and
Yogeshwar Dayal, JJ. Majority-Per K. Jagannatha Shetty, J.)
1.01 India is a multi-cultural and multi-religious society. It is an
extra-ordinary pluralistic and complex society with different religious
minorities. Besides, there are linguistic aspirations and caste consideraG
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 incorporated to secure to the minorities a fair deal in the name of religion.only.
It was guaranteed to them as a fundamental right after a great deal of deliberation by the Framers. It should not be nullified by narrow judicial
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, educational 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]
F
2.02. Under Article 29(1) every section of the citizens having a
distinct language, script or culture of its own has the right to conserve the
same. Under A.rticle 29(1), the minorities-religious or linguistic-are entitled to establish and administer educational institutions to conserve their
distinct language, script or culture. The right to establish an educational
institution is not confined to purposes of conservation of language, script
or culture. The rights in Article 30(1) are of wider amplitude. The width
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 f C?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 educational institutions says "yes" to one candidate but says "no" to another
candidate on ground of religion, it amounts to discrimination on ground
of religion. The mandate of Article 29(2) is that there shall not be any such
discrimination. [176E-F]
3.02. The choice of institution provided in Article 30(1) does not
mean that the minorities could establish educational institution for the
benefit of their own community people. Indeed, they cannot. The minorities cannot establish educational institution only for the benefit of their
community. If such was the aim, Article 30(1) would have been differently
worded and it would have contained the words "for their own community". In the absence of such words it is legally impermissible to construe
the Article as conferring the right on the minorities to establish educational institution for their own benefit. [176G-177A]
3.03. Even in practice, such claims are likely to be met with considerable hostility. It may not be conclusive tQ'have relatively a homogeneous
society. It may lead to religious bigotry which is the bane of mankind. In
the nation building with secular character sectarian schools or colleges;
segregated faculties or universities for imparting general secular education are undesirable and that may undermine secular democracy. They
would be inconsistent with the central concept of secularism and equality
embedded in the Constitution. Every educational institution irrespective
of community to which it belongs is a 'melting-pot'. In our national life,
the students and teachers are the critical ingredients. It is there they
develop respect fo}, and tolerance of, the cultures and beliefs of others. It
is essential therefore, that there should be proper mix of students of
different communities in all educational institutions. [177U-C]
D
E
F
G
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 nonminorities does not mean that it was intended to nullify the special right
guaranteed to minorities in Article 30(1). Article 29(~) deals with non-discrimination and it is available only to individuals. The general equality by
non-discrimination is not the only goal of minorities. The minority rights
under the majority rule implies more than non-discrimination and indeed,
D it begins with non-discrimination. Protection of interests and institutions
and advancement of opportunity are just as important. Differential treatment that distinguishes them from the majority is a must to preserve their
basic characteristics. [178 A-B]
E
F
3.06. The minority aided educational institutions are entitled to
prefer their community candidates to maintain the minority character of
the institutions subject, of course, in conformity with the University
standard. The State may regulate the intake in this category with due
regard to the need of the community in the area which the institutions is
intended to serve. But in no ca,se such intake shall exceed fif-ty per cent of
the annual admission. The minority institutions shall make available at
least fifty per cent of the annual admission to members of communities
other than the minority community. The admission of other community
candidates shall be done purely on the basis of merit. [183 D-E]
4.01. The minority competent to claim the protection of Article 30(1)
(] of the Constitution, and on that account the privilege of establishing and
maintaining educational institutions of its choice, must be a minority of
persons residing in India. They must have formed a well-defined religious
or linguistic minority. It does not envisage the rights of the foreign missionary or institution, however, laudable their objects might be. After the
Constitution, the minority .under Article 30 must necessarily mean those
H
who form a distinct and identifiable group of citizens oflndia. Whether it
I .,
ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI
129
\
is "old stuff'' or "new product", the object of the institute should be
genuine, and not devices. There should be nexus between the means
employed and the ends desired. [156 D-F]
A
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 protection. [156 F]
5. The College has been constituted as a self-contained and autonomous institution. It has preserved the right to choose its own Governing: 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.
From these facts and circumstances it becomes abundantly clear that
St.Stephen's College was established and administered by a minority
community, viz., the Christian community which is indisputably a religious minority in India as well as in the Union Territory of Delhi where the
College is located. [163 B-D]
6.01. The minorities whether based on religion or language have the.
right to establish and administer educational institutions of their choice.
The administration of education;tJ1 institutions of their choice under Article 30(1) means 'management of the affairs of the institution'. This management must be free from control so that the founder of their nominees
can mould the institution as they think tit, and in accordance with their
ideas of how the interests of the community in general and the institution
in particular will be best served. But the standards of education are not a
part of the management as such. The standard concerns the body politic,
and is governed by considerations or the advancement of the country and
its people. Such regulations do not bear directly upon management
although they may indirectly affect it. The State, therefore, has the right
to regulate the standard of education and allied matters. Minor.ity institutions cannot be permitted to fall below the standards .of excellence expected of educational institutions. They cannot decline to follow the
general pattern of education under the guise of e.xclusive right of management. While the management must be left to them, they may be compelled
to keep in step with others. [165H-166C]
D
E
F
G
H
""
.;.......· ..
130
SUPREME COURT REPORTS
[1991) SUPP. 3 S. C.R.
A
6.02. The words" establish" and "administer" used in Article 30(1)
B
are to be read conjunctively. 'Jhe right claimed by a minority community
to administer the educational institution depends upon the proof of establishm~nt of the institution. The proof of establishment of the institution, is
thus a 'condition precedent for claiming the right to administer the
institution. [156 CJ
·
6.03. The State or any instrumentality of the State cannot deprive the
character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to
establish educational i!tStitutions of their ctioice. The minority institution
has a distinct identity and the right to administer with continuance 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·
E
F
6.04. Though Article 30(1) is couched in absolute terms in marked
contrast with other fundamental rights in Part III of the Constitution, it
has to be read subject to the power of the State to regulate education, educational standards and allied matters. [166 EJ
6.05. The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to
regulate all academic matters. Regulations which will serve the interests
of students and teachers, and to preserve the uniformity in standards of
education among the affiliated institutions could be made. The minority
institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health,
labour relations, social welfare legislations, contracts, torts etc. which are
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
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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 overridB
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 University 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 experience of the College that unless some concession is provided to Christian
students they will have no chance of getting into the College. If they are
thrown into the competition with the generality of students belonging to
other communities, they cannot even be brought within the zone of 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 secured in the qualifying examinations are indeed relevant for selection and
the interview is only supplementary test. The College fixes different cutoff 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
......... ...-----...--~·-· -- '"
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SUPREME COURT REPORTS
[1991) SUPP. 3 S. C.R.
and the students. During the interview, questions are asked to test the
cand.idate's knowledge of the subject and his general awareness of the
current problems. The student is also required to· furnish in the application form his intei:est, hobbie, values; career plan etc. Each member of the
Interview Committee grades the performance of the candidates and the
seltc'tiop is made for each course of study by taking into consideration the
opinion expressed by all tbe members of the Interview Committee. By
consensus_ ~he final list of candidates is prepared. The selection is thus
made on the basis of the candidate's academic record and performance at
the interview keeping in mind his/her ~II rom1d competence, capacity to
benefit from being in the College as well as potential to contribute to the
life of College. Judging the performance by grading is a well known
method followed in the academic field. [170F-171AJ
8.02. The admission solely determined by the marks obtained by
students, cannot be the best available objective guide to future aca~emic
performance. The College Admission Programme on the other hand,
based on the test of promise and accomplishment of candidates seems to
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]
E
F
. 9.01. The educational institutions are not business houses. They do
not generate wealth. They cannot survive without public funds or private
aid. Ther~ is also restraint on coltection of fees with the restraint on
collection of fees, the minorities cannot'be saddled with the burden of
maintaining educational institutions without grant-in-aid. They do not
have economic advantage over others. It is not possible to have educational
institutions without State aid. The minorities cannot therefore, be asked to
maintain ed.ucational institutions on their own. [179 D-E)
9.02. There is no entitlement to State grant for minority educational
r
institutions. There ~as only a stop-gap arrangement under Article 337 for
the Anglo-Indian community to receive State grants. There is no similar
provision for other minorities to get grant from the State. But under
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
t
ST. STEPHEN'S COLLEGE v. UNNERSITY OF DELHI
133
30(1). The State can lay down reasonable conditions for obtaining grantA
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 animating principle of any democracy is the equality of the people. But the idea
that all people are equal is profoundly speculative. In order to treat some
persons equally, we must treat them differently. We have to recognise a
fair degree of discriminations in favour of minorities. But it is impossible
to have an affirmative action for religious minorities in religfous n~utral
way. In order to get beyond religion. We cannot ignore religion. We must
first take account of religion. [181 GJ
B
c
10.02. The reservation to socially and educationally backward classes
would serve the interests of the society at large by promoting the advancement of the weaker elements in the society. [182 BJ
D
10.03. The concept of equality before the law and the prohibiti.ori 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 are unequal. To treat unequals differently according to their inequality is not only permitted but required.
E
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{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 of Agra 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 of Andhra Pradesh,
(1986] 2 SCR 749; Chikkala Samuel v. District Educational O/ficer, llydetabad and Anr., AIR 1982 A.P. 64; Rajershi Memoria/ Basic Training School
v. The State 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. M othtr Provincial, [1971] 1 SCR 734; Ahmedabad St. Xaviers College Soaiety v. Slate of
Gujarat & Anr .. [1975] 1 SCR 173; Lily Kurian v. Lewina and Ors., (1979)
2 sec l24;Rt.Rev.MagrMarkNetto v.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
-
f - ,
..
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 Rajas than 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
of India and Ors., [1981) 2SCR185; State of Kerala v.N.M.Thomasand Ors.,
[1976) 1 SCR 906, 933, referred to.
c
B.Shiva Rao: Framing of India'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, referred to.
D
N.M. Kasliwal, ].(Dissenting)
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1.01. The aim or our Constitution is unity in diversity. It is to enrich
the unity by making it assimilate the diversities, it is not to encourage
fissiparous tendencies. The fundamental right guaranteed by Art.30(1) is
not, therefore, to bAxtended so as to encroach upon other fundamental
rights or to go contrary to the intentions of the founding fathers. [209 DJ
1.02. The framers or the Constitution were fuJly knowing the problems of various communities having differentreJigions, distinct languages
and diverse cultures. The whole edifice of our Constitution is based on
secularism and so far as the minorities are concerned it was considered
necessary that they should be aJlowed some rights in respect of establishing and administering educational institutions of their choice. Any section
of the citizens residing in the territory of India or any part thereof having
a distinct language, scriptor~ure of its own were conferred the right
to conserve the same. Education is a stro~g factor to unite the entire
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 linguistic 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
of CitiZfnS-ef-this country and granted right to minorities to establish and c
-- -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
to disseminate their' own culture in a wider range ot tom.munity. For
example, if Christians are running an educationafinstitution, they are free
to have English as a medium of instruction. They can also ·teach· the high
ideals and values of Christian religion. The· only t~triction is what is
contained in Art. 28(3) which applies to any edutktional institution
recognised by the State or receiving aid out of State funds irrespective of
the same being a minority or majority institution. The restriction under
Art.28(3) is that no person attending such educational institution shall be
required to take part in any religious instruction that may be imparted in
such institution or to attend any religious worship that may be conducted
in such institution without his consent and in case such a person is ·minor
without t!ie consent of his guardian. [208 F-209 CJ
1.04. A conspectus of the entire scheme or Part (III) of the Constitution clearly goes .to show that the Constitution makers did not i.ntend to
confer absolute rights on a religious or linguistic minority to establish ~nd
administer educational institutions. Right to admission is curtailed by Art.
F
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SUPREME COURT REPORTS
[1991) SUPP. 3 S. C.R.
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15(4) which enables the State to make any special provision for the
advancement of any socially and educationally backward class of citizens
or for the Scheduled Caste and Scheduled Tribes in the matter of admission in the educational institutions receiving a.id from the State. Art. 28(3)
imposes an other restriction according to which any person attending any
educational institution recognised or receiving any aid by the State shall
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.