You are on page 1of 8



IN THE case of St. Stephen's College v. University ofDelhi}] the facts were : St.
Stephen's College is affiliated to Delhi University and is one of its three original
constituent Colleges. In the academic year 1980-81, the College published its
admission prospectus on 25 May 1980-providing that application for admission
for the first year course must be received in the College office on or before 20 June
1980. It was also mentioned that there would be an interview prior to final
selection for admission to the college. On 22 May 1980 the Vice-Chancellor of
the Delhi University constituted an Advisory Committee to consider and recom-
mend the dates for admission to various courses. On 29 May, 1980, the Academic
Council approved the constitution of the Advisory Committee and authorised the
Vice-Chancellor to accept the recommendations of the Advisory Committee for
The Advisory Committee made the following recommendations :
(/) Admission to B.A. (Pass)/B.A. Vocational Studies Courses be based on
the merit of percentage of makes secured by students in qualifying

(//) 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) by
the college, it should be notified in advance to the students through its
prospectus/notice board, so that applicants seeking admission may know
in advance the basis of admission.

(Hi) That last date for receipt of applications to all the under-graduate
courses would be June 30, 1980 and this was to be uniformely adhered
to by all the colleges.
The recommendations made by the Advisory Committee were accepted by the
Central Admission Committee and also by the Vice-Chancellor.
On 5 June, 1980 the university issued a circular to all affiliated colleges
prescribing the last date for receipt of applications as 30 June, 1980. The circular
also mentioned a phased programme of admissions. Another circular was issued
on 9 June, 1980 by the university to principals of all colleges intimating 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 examination. The

1. A.l.R. 1992 S.C. 1630: (1992) S.C.C. 559 at 633. © The Indian Law Institute


admission to B.Com. (Pass)/B.A. (Hons.) and B.Com. (Hons.) courses shall be on

the basis of marks.
The Delhi University Students Union made a complaint to the university
authorities that the St. Stephen College was violating the university's statutes and
ordinances by fixing its own time schedule for the receipt of applications as well
as by stipulating interview prior to admission. Some correspondance took place
between the university and the college, the college authorities declined to follow
the circulars of the university. At this stage Rahul Kapoor, a student, seeking
admission to the college filed a writ petition in the Delhi High Court, chellenging
the admission schedule as well as the interview test prescribed by the college. St.
Stephen's College also filed a writ petition before the Supreme Court under article
32. Subsequently two more petitions were also filed under the same article.
A Bench of two judges of the Supreme Court held that the case involves a
substantial question of law, and, therefore, referred the petitions for hearing
before a Constitution Bench, which heard all the writ petitions relating to St.
Stephen's College and also the appeal against the judgment of the Allahabad High
Court which related to Allahabad Agricultural Institute.
The main questions arising for determination before the Supreme Court were
as follows :
(/) Whether St. Stephen's College is a minority run institution.

(//) Whether the circular issued by the University in any way violated the
rights of minorities under article 30(1).

(Hi) Whether St. Stephen's College and the Allahabad Agricultural Institute
are entitled to reserve seats for students of their own community and
whether such reservation would be violative of article 29(2).
A Bench consisting of 5 judges 2 examined the aforesaid questions in the light
of rival contentions. As regards the first question, K. Jagannatha Shetty J., for the
majority, after considering the pleadings as well as the various factors, held 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. Kasliwal,
J, also agreed to the majority view on this point.
The second question was whether St. Stephen's College was bound by the
circulars of the university. The first, prescribed the last date for receipt of
applications for admission whereas according to the second all the colleges of
Delhi University were directed to admit students solely on the basis of merit.
According to the college it has been following its own admission programme for
more than 100 years and the method of interview had been followed without any
objection from any quarter. By this admission programme a relaxation upto 10 per

2. The majority view was taken by Kania MH, K. Jagannatha Shetty, Mrs. M. Fathima Beevi,
Yogeshwar Dayal, JJ., and minority-view by Kasliwal, N.M., J. © The Indian Law Institute


cent was given to Christian students. It had been further contended that the right
to select students for admission was a part of the administration. On the other hand
Delhi University and the Student's Union argued that the circulars were regulative
in character and did not impinge upon the rights guaranteed by article 30(1).
Relating to the second question, the majority came to the conclusion that St.
Stephen's College was not bound by the impugned circulars of the university.
In this connection, it is respectfully submitted that the majority view on the
second question does not seem to be based on the earlier rulings of the Court as
it would be clear from discussion of the principles laid down in the earlier rulings.
Hidayatullah J. in State of Kerala v. Mother provincial? maintains that the
standard of education is not a part of management as such. These standards
concern the body politic and are dictated by considerations of the advancement
of the country and the people. The minority institution can not be allowed to fall
below the standard of excellance expects of educational institution or under the
guise of exclusive right of management, to decline to follow the general pattern,
while the management must be left to them, they may be compelled to keep in step
with others. Likewise, Ray, C.J. (for himself and on behalf of Palekas, J.) in
Ahmeda St. Xavier's College, v. State of Gujarat4 stated that the right conferred
on the religious and linguistic minorities to administer educational institutions of
their choice is not an absolute right. The right is not free from regulations. Just
as regulatory measures are necessary for maintaining the educational character
and content of minority institution, similarly, such measures are necessary for
ensuring orderly, efficient and sound administration. The right to administer is
subject to permissible regulatory measures. A similar view was taken by the
Supreme Court in All Saints High School v. State of A. P.5
The present author feels that by prescribing the last date for the receipt of
application for admission, the University in no way interfered with the right of the
minority to administer educational institutions as it was intended to ensure
uniformity in admission dates in all affiliated and constituent colleges. This
regulation was in the interest of the students and any regulation which serves the
needs of the beneficiaries of the institution comes within the zone of permissible
regulatory measures.
As regards the second circular, Kasliwal J. in his minotiry judgment rightly
held that the action of the college in applying the method of interview contrary
to the direction given by the university is wholly arbitrary, wrong, illegal and
violative of article 14 of the Constitution. He observed:6

[N]o college can lay down its own admission policy so as to be in conflict
with the policy laid down by the University. The University has issued a
general direction to all thexolleges to admit student on the basis of marks
secured in the qualfying examination.... St. Stephen's College is not a
Professional College in the zone that it does not impart any technical

3 (1970) 2 S.C.C. 417 at 420-1.

4. A.l.R. 1974 S.C. 13 at 1398-1401)
5. A.l.R. 1980 S.C. 1042
6 Supra note I, para 120. © The Indian Law Institute


education like Engineering or Medical, It is like all other Arts, Science

and Commerce College which impart studies in these subjects upto
graduate or Post-graduate level and as such can not claim a different
treatment in the matter of admitting students in the College... .

The above mentioned view is well in consonance with the decision of the
Supreme Court, in cases like Ajay Hasia v. Khalid Muzib1, Liladhar v. State of
Rajasthan? A.K. Yadav v. State ofHaryana,9 M.S. Garg v. State of Punjab™ and
Munindar Kumar v. Rajeev Govil,]] wherein it was held that the marks of the
interview should not exceed 15 per cent of the total marks.
It is further submitted that when the marks of the interview in public employ-
ment cannot exceed 15 per cent then, how the admission to an academic course
can be based soley on interview.
The most important question which arose in 5/. Stephen *s College case was
whether the college and the Allahabad Agricultural Institute (another minority
institution) are entitled to reserve seats for student of their own community and
whether such reservation would be violative of clause (2) of article 29.
The majority held that the minority educational institutions were entitled to
reserve fifty per cent of seats for the students of their own community. This view
leads to the conclusion that clause (1) of article 30 is not subject to clause (2) of
article 29 of the Constitution.
It is humbly submitted that the above view taken by majority is contrary to
the law laid down in the previous judgments of the apex court on this point, as
would be clear by examining those judgments.
In Bombay v. Bombay Education Society.12 S.R. Das J. held that article 29(2)
confers a special right on citizens for admission into educational 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 much citizens and to
hold that the citizens of the majority group have no special educational rights in
the nature of a right to be admitted into an educational institution for the
maintenance of which they make contribution by way of taxes. There js no cogent
reason for such discrimination.
Again in Inter Kerala Education Bill13 S.R. Das C.J., made it clear that the
real import of article 29(2) and article 30(1) is that they clearly contemplate a
minority institution with a sprinkling of outsiders admitted into it. By admitting
a non-member into it, the minority institution does not show its character and
cease to be a minority institution. Indeed, the object of conservation of the distinct
language, script and culture of a minority may be better served by propagating the
same amongst non-members of the particular minority community.

7. (1981) 2 S.C.R. 79.

8.(1982) 1 S.C.R. 320.
9. (1982) 4 S.C.C. 417,
10.(1991) 1 S.C.C. 662.
11.(1991)3 S.C.C. 368.
12. A.l.R. 1954 S.C. 561 at 566.
13 A.l.R. 1958 S.C. 956 at 978 © The Indian Law Institute


In P.A. V. College, Jullundar v. State of Punjab,l4 Reddy J. pointed out that

the reading of articles 29 and 30 together would lead to the conclusion that a
religious or linguistic minority has a right to establish and administer educational
institutions of its choice for effectively conserving its distinctive language, script
or culture, which right, however, is subject to the regulatory power of the state for
maintaining and facilitating the excellence of its standards. This right is further
subject to clause (2) of article 29.
Dwivedi J, in Ahmedabad St. Xavior's College case15 observed :
A glance at the context and scheme of Part III of the Constitution would
show that the Constitution makers did not intend to confer absolute rights
on a religious or linguistic minority to establish and administer educa-
tional institutions ... Articles 15(4), 28(3) and 29(2) place certain express
limitations on the rights in Article 30(1).
In All Saints High School v. The Govt ofA.P.16, Kailasam J. classified the
educational institutions established and administered by minorities into three
categories, viz., (i) those which do not seek either any aid or recognition from the
State or affiliation from a University, (ii) those which seek aid; and (Hi) those that
seek either recognition or affiliation but not aid. The institutions which require aid
may again be classified into two classes, namely (a) those which are by Consti-
tution expressly made eligible for receiving grants; and (b) those which are not
entitled to any grant by virtue of the express provisions of the Constitution.
Articles 28(3), 29(2) and 30(2) deal with educational institutions receiving aid out
of state funds. Certain restrictions are placed and obligations cast on institutions
recognised by the state or receiving aid. Article 29(2) 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. Under article 29(2) in institutions receiving aid, a citizen is
entitled to seek admission and the institution is forbiddon to deny admission to a
citizen on grounds of religion, race, caste or language.
In the case of Sheetansu Srivastava v. Principal Allahabad Agricultural
Institute.11 The question that arose was : Whether the right of a minority to
establish and administer an educational institgution of its choice under article
30(1) of the Constitution include a right to reserve seats for students of the
minority community where the institution is maintained by state or receiving aid
out of state funds.
The facts of the case disclose that the Allahabad Agricultural Institute is a
premier and renowned institute of the country which was founded by an American
Christian Philanthropist in 1911. Students are admitted to B.Tech and B.Sc.
(Agriculrural) courses by entrance test, some students appeared in the entrance

14. (1971) 2 S.C.C 269 at 273.

15. A.l.R. 1974 S.C. 1389 at 1463.
16. A.l.R 1980 S.C. 1042 at para 89-90
17. AI.R 1989 All 117. © The Indian Law Institute


test, they were denied admission, inspite of securing a high percentage of marks
in the test because a large number of seats had been reserved for Church sponsored
candidates. The aggrieved students filed a writ petition before the Allahabad High
Court on the ground that denial of admission to them was an unjustified discrimi­
The High Court relying on the observations of Dwivedi J., in St. Xavier
College case pointed out :

[N]either the Government is entitled to intefere with the right of minority

and direct it to admit a student as it may contravene the choice of minority
under Article 30 nor the institution can deny admission to any student
because he is not a member of any community nor it can reserve seats for
members of its community so as to preclude others as it shall be in
violation of Article 29(2). That is, the choice should be of the minority
but within the constitutional framework, namely, without denying admis­
sion on ground of caste or religion etc. )S

In the present case under discussion Kasliwal J., relying on earlier rulings of
the court, held that the entire scheme of Part III 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 an educational institution. Articles
15(4), 28(3) and 29(2) place express limitation on the right given to the minorities
in article 30(1). He further made it clear that 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 getting19 grant-in-aid.
The present author feels that the construction given by the majority as regards
the relationship of articles 30(1) and 29(2) cannot be accepted for the following
reasons :
First, the rights guaranteed to minorities in educational matters under articles
29 and 30 are not absolute. They are subject to regulatory powers of the state,
regulations can be imposed in the interest of efficiency of institution, discipline,
health, sanitation, morality, public order and the like.
Second, article 30(1) meant to serve as a shield for minority educational
institutions against the invasion of certain rights protected by it and declared
fundamental so that they may not be discriminated against, cannot be converted
by them into a weapon to exact unjustifiable preferential or discriminatory
treatment for minority institutions so as to obtain the benefit but to reject the
obligation of statutory rights.20
Third, the right conferred on minorities under article 30(1) is also subject to
the right of a citizen not to be denied adminission on grounds only of religion,
race, caste, language or any of them.

18. Id. at 122.

19. Supra note 1 at 633.
20. Beg J., in St. Xavier's College Case, A.l.R. 1974 S.C. 1389, at 1450-2. © The Indian Law Institute


Fourth, one of the underlying features of the Indian Constitution is that it sets
up a secular state, and a secular state is incompatible with communal educational
institutions. It is open to any community to have a school of its own and restrict
it to members of its own community, but if it chooses to take grant from the state,
then the community cannot deny the opportunity to any citizen of studying in its
institution merely because he does not belong to the community which founded
the school. The right of the citizen arises by virtue of the fact that it is the state
funds that are helping to maintain the school, and if such funds are helping to
maintain a school, that school cannot refuse admission to any citizen on the
ground of religion race, caste or language.21
Fifth, article 29(2) as originally recommended by the Minority, sub-commit­
tee and approved by the Advisory Committee was drafted s follows :

No minority whether of religion, community or language shall be de­

prived of its right or discriminated against in regard to the admission into
state educational institute.

T.D. Bhargava, suggested three amendments to the above mentioned provi­

sions :
First, to put 'citizen' for the word 'minority',
Second, not only the institutions which are maintained by the state will be
included in it, but also such institutions as are receiving aid out of state funds.
Third, the words "religion, community or language" should be substituted by
the words 'religion, race, caste, language or any of them. Further, Mr. Bhargava
pointed out that the object of the first change was to put the majority and the
minority on an equal status. The second change seeks to include such other
institutions as are aided by state funds. There are a very large number of such
institutions and in future, by this amendment the rights of the minority have been
broadened and the rights of the majority have been secured. He named the
amendment "nation building amendment". For the third change, he said that the
word 'community' ought to be removed from this provision because 'community'
has no meaning and that it ought to be substituted by 'race or caste'. So this
provision is so broadended that on the score of caste, race, language or religion
no discrimination can be allowed.22 Thus it becomes clear that the language of the
original draft of article 29(2) was changed to put the majority and the minority at
Sixth, the rights mentioned in articles 29 and 30 have been conferred on the
minorities in the hope that they may not feel isolated and separate and that in due
course they will assimilate themselves with the majority. If the reservation of seats
by the minorities in their institutions is upheld it would obstruct the process of
assimilation of the minority with the majority community. Obviously, it would be
in the best interests of the nation as a whole that the minorities should join the
mainstream of the country.

21. Bombay v Bombay Edu. Society, A.l.R. 1954 Bom. 468 at 474.
12 CAD vol VII, p 898. © The Indian Law Institute


Lastly, it would have been better for the Supreme Court to construe articles
29 and 30 in the light of the intention of the framers of the Constitution which is
very aptly reflected in the observation made by Sardar Patel "In the long run, it
would be in the interest of all forget that there is anything like majority and
minority in this country and (to realize) that there is only one community." 23

Anil Kaushik*

23. C.A.D. vol. VIII, p. 272.

♦LL.M, Ph.D., Head, Law Deptt., Govt. College, Sri Ganganagar, Rajasthan. © The Indian Law Institute