The State of Madras Vs. Srimathi
Champakam Dorairajan [1951] INSC 25 (9 April 1951)
DAS, SUDHI RANJAN KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND BOSE, VIVIAN
MUKHERJEA, B.K.
CITATION: 1951 AIR 226 1951 SCR 525
CITATOR INFO :
F 1954 SC 561 (14,16) F 1958 SC 731 (12) R
1958 SC 956 (8) R 1959 SC 648 (26) R 1962 SC1621 (73,108) R 1963 SC 649 (17) RF
1967 SC1643 (22,164,227) E 1968 SC1379 (2) R 1970 SC2079 (16) RF 1972 SC1375
(81) RF 1973 SC1461 (506,648,1704,1714,1901,1918) RF 1975 SC 563 (13) O 1976 SC
490 (67,69,71,159) R 1979 SC 83 (5) RF 1980 SC1789 (115) RF 1985 SC1495 (8) RF
1988 SC 305 (7)
ACT:
Constitution of India, Arts. 13. 16 (4), 29
(2), 46--Admission to educational institutions--Executive Order fixing number
of seats for particular communities--Invalidity--Fundamental right against
discrimination on the ground of religion only--Directive principles of State
policy--Value of.
HEADNOTE:
With regard to admission of students to the
Engineering and Medical Colleges of the State, the Province of Madras had
issued an order (known as the Communal G. O.) that seats should be filled in by
the selection committee strictly on the following basis, i.e., out of every 14
seats, 6 were to be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2
to Brahmins, 2 to Harijans. 1 to Anglo-Indians and Indian Christians and 1 to
Muslims:
Held by the Full Court (Kania C.J., Fazl Ali,
PatanJali Sastri, Mehr Chand Mahajan, Mukherjea, S.R. Das and Vivian Bose
JJ.).--that the Communal G.O. constituted a violation of the fundamental right
guaranteed to the citizens of India by Art. 29 (2) of the Constitution, namely,
that "no citizen shall be denied admission to any educational institution
maintained by the State or receiving aid out of the State funds on grounds only
of religion, race, caste, language or any of them and was therefore void under
Art.
The directive principles of State policy laid
down in Part IV the Constitution cannot in any way override or abridge the
fundamental rights guaranteed by Part III. On the other hand they have to
conform to and run as subsidiary to the fundamental rights laid down in Part
III.
Judgment of the Madras High Court affirmed.
CIVIL APPELLATE JURISDICTION.--Cases Nos. 270
an d 27 1 of 1951, 526 Appeals under Art. 132 (1) of the Constitution of India
from the Judgment and Order dated 27th July, 1950, of the Madras High Court in
certain applications under Art. 226 of the Constitution for protection of the fundamental
rights of the petitioners under Art. 15 (1) and Art. 29 (2) of the Constitution
and praying for the issue of a writ of mandamus or other suitable prerogative
writ restraining the State of Madras and all officers and subordinates thereof
from enforcing, observing, maintaining or following the order of the Government
known as the Communal G.O. which laid down rules to be observed by the
selection committee in the matter of admission of students to the Medical and
Engineering Colleges of the State.
V.K.T. Chari, Advocate-General, Madras (R.
Ganapathy Iyer, with him) for the appellant.
Aliadi Krishnaswami Aiyar (Alladi Kuppuswami
Aiyar, with him) for the respondents.
1951, April 9. The Judgment of the Court was
delivered by DAS J. --This judgment covers both Case No. 9.70 of 1951 (State of
Madras v. Srimathi Champakam Dorairajan) and Case No. 271 of 1951 (State of
Madras v. C.R. Srinivasan) which are appeals from the judgment passed by the
High Court of Judicature at Madras on July 27, 1950, on two separate
applications under article 226 of the Constitution complaining of breach of the
petitioners' fundamental right to get admission into educational institutions
maintained by the State.
The State of Madras maintains four Medical
Colleges and only 330 seats are available for students in those four Colleges.
Out of these 330 seats, 17 seats are reserved for students coming from outside
the State and 12 seats are reserved for discretionary allotment by the State
and the balance of the seats available are apportioned between four distinct
groups of districts in the State.
527 Likewise, the State of Madras maintains
four Engineering Colleges and the total number of seats available for students
in those Colleges are only 395. Out of these, 21 seats are reserved for
students coming from outside the State, 12 seats are reserved for discretionary
allotment by the State and the balance of the seats available are apportioned
between the same four distinct groups of districts.
For many years before the commencement of the
Constitution, the seats in both the Medical Colleges and the Engineering
Colleges so apportioned between the four distinct groups of districts used to
be filled up according to certain proportions set forth in what used to be called
the Communal G. O. Thus, for every 14 seats to be filled by the selection
committee, candidates used to be selected strictly on the following basis:-Non-Brahmin
(Hindus) ... 6 Backward Hindus ... 2 Brahmins ... 2 Harijans ... 2
Anglo-Indians and Indian Christians .... 1 Muslims ... 1 Subject to the
aforesaid regional and what have been claimed to be protective provisions
selection from among the applicants from a particular community from one of the
groups of districts used to be made on certain principles based on academic
qualifications and marks obtained by the candidates. In the case of the Medical
Colleges, not less than 20 per cent. of the total number of seats available for
students of the State were filled by women candidates separately for each
region, it being open to the selection committee to admit a larger number of
woman candidates in any region if qualified candidates were available in that
region and if they were eligible for selection on merits visa vis the men
candidates in accordance with the general principles governing such 528
admissions as laid down in those rules. It appears that the proportion fixed in
the old Communal G.O. has been adhered to even after the commencement of the
Constitution on January 26, 1950. Indeed, G.O. No. 2208, dated June 16, 1950,
laying down rules for the selection of candidates for admission into the
Medical Colleges substantially reproduces the communal proportion fixed in the
old Communal G.O. On June 7, 1950, Srimathi Champakam Doratrajan made an application
to the High Court of Judicature at Madras under article 226 of the Constitution
for protection of her fundamental rights under article 15 (1) and article 29
(2) of the Constitution and prayed for the issue of a writ of mandamus or other
suitable prerogative writ restraining the State of Madras and all officers and
subordinates thereof from enforcing, observing, maintaining or following or
requiring the enforcement, observance, maintenance or following by the
authorities concerned of the notification or order generally referred to as the
Communal G.O. in and by which admissions into the Madras Medical Colleges were
sought or purported to be regulated in such manner as to infringe and involve
the violation of her fundamental rights. From the affidavit filed in support of
her petition, it does not appear that the petitioner had actually applied for
admission in the Medical College. She states that on inquiry she came to know
that she would not be admitted to the College as she belonged to the Brahmin
community. No objection, however, was taken to the maintainability of her
petition on the ground of absence of any actual application for admission made
by her. On the contrary, we have been told that the State had agreed to reserve
a seat for her, should her application before the High Court succeed. In the
peculiar circumstances, we do not consider it necessary to pursue this matter
any further. But we desire to guard ourselves against being understood as
holding that we approve of a person who has not actually applied for admission
into an educational institution coming to Court complaining of infringement of
any fundamental right 529 under article 29 (2). The High Court by its judgment
delivered on July 27, 1950, allowed this application of Srimathi Champakam
Dorairajan. The State of Madras has now come up before us on appeal which has
been numbered Case No. 270 of 1951.
Sri Srinivasan who had actually applied for
admission into the Government Engineering College at Guindy, filed a petition
praying for a writ of mandamus or any other writ restraining the State of
Madras and all officers thereof from enforcing, observing, maintaining or
following the Communal G.O. in and by which admission into the Engineering
College was sought to be regulated in such manner as to infringe and involve
the violation of the fundamental right of the petitioner under article 15 (1)
and article 29 (2) of the Constitution. In the affidavit filed in support of
his petition, the petitioner has stated that he had passed the Intermediate
Examination held in March, 1950, in Group 1, passing the said examination in
the first class and obtaining marks set out in paragraph 1 of his affidavit. It
will appear that in the optional which are taken into consideration in
determining the academic test for admission in the Engineering College the
petitioner Srinivasan secured 369 marks out of a maximum of 450 marks. The High
Court has by the same judgment allowed this application also and the State has
filed an appeal which has been numbered 271 of 1951. The learned counsel
appearing for the State of Madras conceded that these two applicants would have
been admitted to the educational institutions they intended to join and they
would not have been denied admission if selections had been made on merits
alone.
Article 29 which occurs in Part III of the
Constitution under the head "Cultural and Educational Rights" runs as
follows:
"(1) 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 shall have the right to conserve the same.
530 (2) 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." 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 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 citizens. This right is not to be denied to the citizen on grounds
only of religion, race, caste, language or any of them. If a citizen who seeks
admission into any such educational institution has not the requisite academic
qualifications and is denied admission on that ground, he certainly cannot be
heard to ,complain of an infraction of his fundamental right under this
article. But, on the other hand, if he has the academic qualifications but is
refused admission only on grounds of religion, race, caste, language or any of
them, then there is a clear breach of his fundamental right.
The learned Advocate-General appearing for
the State contends that the provisions of this article have to be read along
with other articles in the Constitution. He urges that article 46 charges the
State with promoting with special care the educational and economic interests
of the weaker sections of the people, and, in particular, of the Scheduled
Castes and the Scheduled Tribes, and with protecting them from social injustice
and all forms of exploitation. It is pointed out that although this article
finds a place in Part IV of the Constitution which lays down certain directive
principles of State policy and though the provisions contained in that Part are
not enforceable by any Court, the principles therein laid down are nevertheless
fundamental for the governance of the country and article 37 makes it
obligatory on the part of the State to apply those principles in making laws.
The argument is that having regard to the provisions of article 46, the State
is entitled t0 maintain the Communal 531 G.O. fixing proportionate seats for
different communities and if because of that Order, which is thus contended to
be valid in law and not in violation of the Constitution, the petitioners are
unable to get admissions into the educational institutions, there is no infringement
of their fundamental rights. Indeed, the learned Advocate-General of Madras
even contends that the provisions of article 46 override the provisions of
article 29 (2). We reject the above noted contentions completely. The directive
principles of the State policy, which by article 37 are expressly made unenforceable
by a Court, cannot override the provisions found in Part III which,
notwithstanding other provisions, are expressly made enforceable by appropriate
Writs, Orders or directions under article 32. The chapter of Fundamental Rights
is sacrosanct and not liable to be abridged by any Legislative or Executive Act
or order, except to the extent provided in the appropriate article in Part III.
The directive principles of State policy have to conform to and run as
subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the
correct way in which the provisions found in Parts III and IV have to be
understood. However, so long as there is no infringement of any Fundamental.
Right, to the extent conferred by the provisions in Part 1II, there can be no
objection to the State acting in accordance with the directive principles set
out in Part IV, but subject again to the Legislative and Executive powers and
limitations conferred on the State under different provisions of the
Constitution.
In the next place, it will be noticed that
article 16 which guarantees the fundamental right of equality of opportunity in
matters of public employment and provides that no citizen shall, on grounds only
of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of any employment
or office under the State also includes a specific clause in the following
terms:" (4) Nothing in this article shall prevent the State from making,
any provision for the reservation of appointments of posts in favour of any
backward class 532 of citizens which, in the opinion of the State, is not
adequately represented in the services under the State." If the arguments
founded on article 46 were sound then clause (4)of article 16 would have been
wholly unnecessary and redundant. Seeing, however, that clause (4) was inserted
in article 16, the omission of such an express provision from article 29 cannot
but be regarded as significant. It may well be that the intention of the
Constitution was not to introduce at all communal considerations in matters of
admission into any educational institution maintained by the State or receiving
aid out of State funds. The protection of backward classes of citizens may
require appointment of members of backward classes in State services and the
reason why power has been given to the State to provide for reservation of such
appointments for backward classes may under those circumstances be understood.
That consideration, however, was not obviously considered necessary in the case
of admission into an educational institution and that may well be the reason
for the omission from article 29 of a clause similar to clause (4) of article
16.
Take the case of the petitioner Srinivasan.
It is not disputed that he secured a much larger number of marks than the marks
secured by many of the Non-Brahmin candidates and yet the Non-Brahmin
candidates who secured less number of marks will be admitted into six out of
every 14 seats but the petitioner Srinivasan will not be admitted into any ,of
them. What is the reason for this denial of admission except that he is a
Brahmin and not a Non-Brahmin. He may have secured higher marks than the
Anglo-Indian and Indian Christians or Muslim candidates but, nevertheless, he
cannot get any of the seats reserved for the last mentioned communities for no
fault of his except that he is a Brahmin and not a member of the aforesaid
communities. Such denial of admission cannot but be regarded as made on ground
only of his caste.
It is argued that the petitioners are not
denied admission only because they are Brahmins but for a 533 variety of
reasons, e.g., (a) they are Brahmins, (b) Brahmins have an allotment of only
two seats out of 14 and (c) the two seats have already been filled up by more
meritorious Brahmin candidates. This may be true so far as these two seats
reserved for the Brahmins are concerned but this line of argument can have no
force when we come to consider the seats reserved for candidates of other
communities, for, so far as those seats are concerned, the petitioners are
denied admission into any of them not on any ground other than the sole ground
of their being Brahmins and not being members of the community lot whom those
reservations have been made.
The classification in the Communal G.O.
proceeds on the basis of religion, race and caste. In our view, the classification
made in the Communal G.O. is opposed to the Constitution and constitutes a
clear violation of the fundamental rights guaranteed to the citizen under
article 29(2). In this view of the matter, we do not find it necessary to
consider the effect of articles 14 or 15 on the specific articles discussed above.
For the reasons stated above, we are of
opinion that the Communal G.O. being inconsistent with the provisions of
article 29 (2) in Part III of the Constitution is void under article 13. The
result, therefore, is that these appeals stand dismissed with costs.
Appeals dismissed.
Agent for the appellant: P.A. Mehta.
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