PETITIONER:
THE STATE OF MADRAS
Vs.
RESPONDENT:
SRIMATHI CHAMPAKAM DORAIRAJANandTHE STATE OF MADRASv.C.R. SR
DATE OF JUDGMENT:
09/04/1951
BENCH:
DAS, SUDHI RANJAN
BENCH:
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--Invalidi-
ty--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 citi-
zens of India by Art. 29 (2) of the Constitution, namely,
that "no citizen shall be denied admission to any education-
al 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.
13.
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.
JUDGMENT:
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 en-
forcing, 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 Engineer-
ing 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 complain-
ing 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 Engineer-
ing 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 appor-
tioned between the same four distinct groups of districts.
For many years before the commencement of the Constitu-
tion, the seats in both the Medical Colleges and the Engi-
neering Colleges so apportioned between the four distinct
groups of districts used to be filled up according to cer-
tain 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 Janu-
ary 26, 1950. Indeed, G.O. No. 2208, dated June 16, 1950,
laying down rules for the selection of candidates for admis-
sion 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 funda-
mental 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 en-
forcing, 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 deliv-
ered 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 obtain-
ing marks set out in paragraph 1 of his affidavit. It will
appear that in the optionals which are taken into considera-
tion 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 territo-
ry of India or any part thereof having a distinct language,
script or culture of its own shall have the right to con-
serve the same.
530
(2) No citizen shall be denied admission into any educa-
tional 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 con-
tained 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 princi-
ples 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 education-
al institutions, there is no infringement of their fundamen-
tal 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 unen-
forceable 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 direc-
tive 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 limita-
tions 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 oppor-
tunity 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 specif-
ic clause in the following terms:-
” (4) Nothing in this article shall prevent the State
from making, any provision for the reservation of appoint-
ments 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 reser-
vation 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 Chris-
tians 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 admis-
sion cannot but be regarded as made on ground only of his
caste.
It is argued that the petitioners are not denied admis-
sion only because they are Brahmins but for a
533
variety of reasons, e.g., (a) they are Brahmins, (b) Brah-
mins have an allotment of only two seats out of 14 and (c)
the two seats have already been filled up by more meritori-
ous 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 classi-
fication made in the Communal G.O. is opposed to the Consti-
tution 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.
Agent for the respondents: M.S.K. Sastri,
534
