TMI Blog1991 (12) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... e and consequence to all minority institutions in the country The Facts in General St. Stephen's College 2. St. Stephen's College was founded on February 1, 1881. It is the oldest College in Delhi. It was first affiliated to Calcutta University and then to Punjab University and thereafter to Delhi University. Upon affiliation to the Delhi University it became one of its three original constituent colleges. The College offers three year 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. and M.Sc. For the academic year 1980-81, the College published Admissions Prospectus 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 before June 20, 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 in exercise of his emergency powers under Statute 11-G(4) of the Statutes of the University, constituted an Advisory Committee to consider and recommend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist by the Colleges Saturday 5th - Monday 7th Payment of fees July 1980 up to 4 p.m B. Second phase of admission For students securing below 45 per cent but above 40 per cent marks Notification of Third Admission Tuesday July 8, 1980, 12 noon List by the Colleges Payment of fees (up to) Thursday July 10, 1980, 4 p.m. 5. On June 9, 1980, the University issued another circular to Principals of all colleges intimating inter alia, that admission to B.A. (Pass)/ B.A. Vocational study courses be based on the merit of the percentage of marks secured by students in the qualifying examination. The admission to B.Com (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 subjects in addition to the aggregate marks of the qualifying examination. But whenever, weightage is proposed to be given to individual subjects (s) by the college, it should be notified in advance to the students through the College Prospectus/Notice Board so that applicants seeking admission know in advance the basis of admission. This circular also provides certain guidelines for admission to sportsmen and pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The writ petition was filed on June 16, 1980. On June 30, 1980 the High Court passed an order directing the College, to receive the applications for admission till June 30, 1980 and also prohibiting the College from announcing the admission list, for which the prescribed date was July 2, 1980 till the disposal of the writ petition. Incidentally, the High Court also observed that it had no option but to issue such an order since St. Stephen's College had not challenged the validity of the University circulars dated June 5 and 9, 1980. This writ petition has been the subject matter in the Transferred Case No. 3 of 1980 St. Stephen's College moves the Supreme Court 9. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cceeding years The Delhi University Students' Union approaches the Supreme Court 12. The Delhi University Students' Union is an intervenor in the Writ Petition No. 1868 of 1980 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 of 1984 under Article 32 of the Constitution seeking a direction to St. Stephen's college to follow all University policies, rules, regulations, ordinances regarding admissions etc. and further for a direction restraining the College from giving preference in favour of Christian 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 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 on religion in contrary to the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourses of study in Agricultural Sciences. It is undisputedly an institution established and administered by the Christian religious minority. In 1911, it was founded by Christians under the leadership of Dr. Sam Higgin-bottom. It is now located on the right bank of Jamuna river at a tiny place called Naini in the famous pilgrimage and education centre of Allahabad. It has 600 acres campus including staff quarters, men's and women's hostels, library and administration buildings within ten departments and auxiliary units of the Institute. The institution imparts education in several courses of study, like Inter Agriculture, Inter Home Science, Indian Dairy Diploma (IDD), B.Sc. in Agriculture, B.Sc. Home Economics, B.Tech. in Agricultural 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 first year of each degree/diploma program as follows (1) Church sponsored students from the whole Minimum 50 country of which at least one-fifth per cent shall be from U.P (2) Students of U.P. domicile including Church sponsored c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 ? 18. 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 no dispute as to the minority character of that Institute. There is also no grievance by the U.P. University with the procedure of selection of candidates followed by the Instituted. The third question, of course, is relevant to common problems of both the institutions 19. We may take up these questions in turn, but before doing so, we may briefly refer to some of the cases where similar problem came up for consideration 20. In State of Bombay v. Bombay Education Society ( 1955 (1) SCR 568 : 1954 AIR(SC) 561) the concerned school known as Bernes High School at Deolali in Nasik District in the State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 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 own, namely Devangri, 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 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 comprises members of the Hindu community, is a reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 662) the challenge was mainly directed 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 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 conversion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cannot claim protection 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 a Article 30(1) 27. 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 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 examine 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 the Church Missionary Association at Bhagalpur, the copies of let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enship in the year 1854 independently of the citizenship 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 established 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 provisions of the Constitution. 28. There is by 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 variety of institutions all over 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 30(1). From the counter affidavit filed by Dr. J. H. Hala - the Principle of the College in W. P. Nos. 13213-14 of 1984 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 Missionary College by the Cambridge Mission in Delhi in collaboration with the Society for the Propagation of the Gospel [SPG] whose members were residents in India. The College was found in order to impart Christian religious instruction and 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 members were : Rev, J. D. Murray, Rev. E. Bickarsteth, Rev. G. A. Lefroy, Rev. H. T. Blackett, Rev. H. C. Carlyon and Rev. S. S. Allnutt, of the said members of the Cambridge Mission, Rev. Allnutt, Rev. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lishment of a chapel and its religious instruction in the Christian Gospel for religious assembly. These are beyond the pale of controversy Constitution of the College 35. It is said that during the early part of the College history, it was managed by the Mission Council - a totally Christian body. Late in 1913 it was registered as a society and a constitution was formulated on November 6, 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 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 Christian character inasmuc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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), (l) and (m) of clause (1) shall be the members of the Governing Body. The Chairman and the Vice-Chairman of the Governing Body shall be the members of the Church of North India. Out of categories (a) and (m) in clause (1), only category (k) may be a member of the teaching staff who may not be a Christian. Two members referred under category (l) 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 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 Statue 30(c) of the Delhi University at pages 127-28 of Calendar Volume I will show the difference between the Governing Body of other colleges under the Statute as contrasted with St. Stephen's CollegePrincipal 39. It is again significant to note the difference between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 distinctions on, persons who have pursued 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 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 Council 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 43. Section 30 provides power to promulgate Ordinances which may provide procedure for the adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dean of Faculties concerned to take decision and make final admission. It is, therefore, wrong to state that there is no admission to the College but only for the University. The procedure for admission to Post Graduate courses is of course, different but we are not concerned with that matter in these cases 46. It is equally important to note that under Rule 8 of the Rules of the College Society, the management has not accepted all rules and regulations relating to composition of Governing Bodies, management of collages, appointment of Principals etc. as prescribed by the relevant Statures, 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 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 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the zone of consideration. They generally lack merit when compared with the other applicantsAdmission Programme of St. Stephen's College 49. 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 scrutinise in relation to the combination of subjects taken by the students at his 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 curt-off percentage given by the departments for different combination of subjects, the two teachers of the department concerned, out of whom one is the Head of the Department and the other is a nominee of the department, prepare a list of potential suitable candidates which is normally on the basis of 1 : 4 and 1 : 5 for Arts and Science students respectively. The lists of names of the applicants called for interview for each subject is put up on the notice board separately with the date and time at which they would be interviewed. Those living outside the Union territory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver been admitted to the College The Contentions of Delhi University and Students Union 52. On behalf of the Delhi University and the Student's Union the impugned 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 or the University it was contended that the admission based on the merit determined by the marks 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 53. Article 30(1) provides 30. Right of minorities to establish and administer educational institutions. - (1) All minorities, whether based on religion or language, shall ha ..... 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