In 1950, the year in which the Constitution came into operation, one Champakam Dorairajan, a Brahmin candidate, filed a petition for
issuance of a Writ of mandamus restraining the (then composite) state of Madras from enforcing a communal Government Order that provided for reservation in electoral constituencies. A full bench of the Madras High Court upheld the petitioner's plea. The state appealed in the Supreme Court. A seven-judge bench dismissed the appeal. It was this judgment that necessitated the Constitution First Amendment, which added Clause (4) to Article 15. (It was later found that the woman had filed the writ petition under a false affidavit. She was never contesting from the seat.)
Case Notes:
With regard to admission of students to the Engineering and Medical Colleges of the State, the Province of Madras had issued an order which, fixed number of seats for particular communities- It was held that the communal G.O. constituted a violation of the fundamental right guaranteed to the citizens of India by Article 29(2) of the Constitution of India and was therefore void under Article 13- The directive principles of State Policy laid down in Part IV of 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.
Facts:
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 Art. in Part III. The directive principles of State policy cannot override the provisions found in Part III but have to conform to and run as subsidiary to the Chapter of Fundamental Rights. Hence, the argument that having regard to the provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing proportionate seats in State Colleges for different communities and if as a result certain individual citizens are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights cannot be sustained.
The classification in the said Communal G. O. proceeds on the basis of religion, race and caste and is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Art. 29 (2).
However, so long as there is no infringement of fundamental rights as conferred by Part III of the Constitution there can be no objection to the State acting according to the directive principles set out in Part IV subject to the legislative and executive powers and limitations conferred on the State under different provisions of the Constitution.
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.
On 7-6-1950, Smt. Champakam Dorairajan made an appln. to the H. C. of Judicature at Madras under Art. 226 of the Constitution for protection of her fundamental rights under Art.15 (1) and Art.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 notfn. or order generally, refd. 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 petn. it does not appear that the petnr. 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 petn. on the ground of absence of any actual appln. 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 appln. before the H. C. 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 Ct. complaining of infringement of any fundamental right under Art. 29 (2). The H. C. by its judgment delivered on 27-7-1950 allowed this appln. of Sm. Champakam Dorairajan.
Issues Raised:
Petitioner’s Issues:
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 to maintain the Communal 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 Part 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 III, 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.
Respondent’s Issues:
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 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.
Judgment:
S. R. Das J - This judgment covers both case No. 270 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 H. C. of Judicature at Madras on 27-7-1950, on two separate apples. under Art. 226 of the Constitution complaining of breach of the petnrs.' 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.
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-Brahmins (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 vis-a-vis the men candidates in accordance with the general principles governing such 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 26-1-1950. Indeed, G. O. No. 2208, dated l6-6-1950, 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.
Sri Srinivasan who had actually applied for admission into the Govt. Engineering College at Guindy, filed a pettn. praying for a writ of mandamus or any other writ restraining the State of Madras 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 petnr. under Art. 15 (1) and Art. 29 (2) of the Constitution, in the affidavit filed in support of his petn. the petnr. has stated that he had passed the Intermediate Examination held in March 1950 in Group 1, passing the said examination in first class and obtaining marks set out in para. 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 petnr. Srinivasan secured 369 marks out of a maximum of 450 marks. The H. C. has by the same judgment allowed this appln. 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.
Art.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.(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 Cl. (1) protects the language, script or culture of a section of the citizens, cl. (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in Cl. (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 Art. 46 charges the State with promoting with special care the educational and economic interests of the weaken 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 Ct. the principles therein laid down are nevertheless fundamental for the governance of the country and Art. 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 Art. 46, the State is entitled to maintain the Communal 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 petnrs. 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 Art. 46 override the provisions of Art. 29 (2). We reject the above noted contentions completely. The directive principles of the State policy, which by Art. 37 are expressly made unenforceable by a Ct. cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under Art. 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 Art. 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 III, 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 Art. 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 clauses 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 of citizens which, in the opinion of the State , is not adequately represented in the services under the State."
If the argument founded on Art. 46 were sound then cl. (4) of Art. 16 would have been wholly unnecessary and redundant. Seeing, however, that cl. (4) was inserted in Art. 16, the omission of such an express provision from Art. 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 Art. 29 of a clause similar to cl. (4) of Art, 16.
Take the case of the petnr. 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 petnr. 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 petnrs. are not denied admission only because they are Brahmins but for a variety of reasons, e. g. (a) they are Brahmins, (b) Brihmins 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 petnrs. 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 for whom those reservations have been made. The classification in the Communil 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 Art. 29 (2) In this view of the matter, we do not find it necessary to consider the effect of Art. 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 Art. 29 (2) in Part III of the Constitution is void under Art 13. The result, therefore, is that these appeals stand dismissed with costs.
Critical Analysis
In a judgment delivered three days before Independence Day, 2005, in the case of Inamdar and Ors vs. State of Maharashtra and Ors (Case No. Appeal (civil) 5041 of 2005), the seven-judge constitution bench of the Supreme Court of India frequently used the word appropriation (by the State). The word was used each time to denote the role of the State in allotting quotas for reservation of seats in educational institutions. It said, "Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution".
The Supreme Court judgment reduced the role of the State to an ‘appropriationist’ when it comes to imposing any quota of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes (add Physically Handicapped and Ex-Servicemen). The natural outcome of this judgment was a raging controversy between the Supreme Court and Parliament. Members of Parliament cutting across party lines unequivocally criticized the judgment which pronounced that the State cannot impose any reservations in the case of private unaided educational institutions whether minority or non-minority establishments. The criticism evoked a sharp reaction from the Chief Justice of India on the parliamentarians’ response during a case related to reservations for Dalit Christians.
The Inamdar case judgment of 2005 was a logical continuation of the TMA Pai Foundation case on the issue of admissions and administration in minority educational institutions. Interestingly, the Constitution makes special provisions for the minorities under Article 30, to establish and administer their educational institutions. In the Inamdar judgment, the Supreme Court extends the protection awarded to minority institutions to non-minority institutions as well. This is a significant departure in jurisprudence whereby unaided minority institutions have been equated with unaided non-minority institutions.
The judgment extends the rights available under Article 19(1)(g) to "practice any profession or to carry on any occupation, trade or business", to non-minority institutions. In the judgment, under the sub-heading Backdrop, education was described as an occupation:
"Backdrop: Education used to be charity or philanthropy in good old times. Gradually it became an ‘occupation’. Some of the judicial dicta go on to hold it as an ‘industry’. Whether to receive education is a fundamental right or not has been debated for quite some time. But it is settled that establishing and administering of an educational institution for imparting knowledge to the students is an occupation protected by Article 19(1)(g) and additionally by Article 26(a), if there is no element of profit generation. As of now, imparting education has come to be a means of livelihood for some professionals and a mission in life for some altruists".
The judgement also mentions that the State cannot ‘appropriate’ seats to provide them to reserved categories that are given admission with lower marks. "So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions, which receive no aid from the State, to implement State policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit".
The 1954 United States Supreme Court decision in Oliver L. Brown et al vs. The Board of Education of Topeka (KS) et al is among the most significant judicial turning points in the development of that country. It dismantled the legal basis for racial segregation in schools and other public facilities. By declaring that the discriminatory nature of racial segregation "violates the 14th amendment to the US Constitution, which guarantees all citizens equal protection of the laws", Brown vs. Board of Education laid the foundation for shaping future national and international policies regarding human rights.
Brown vs. Board of Education was not simply about children and education. The laws and policies struck down by the US Supreme Court decision were products of the human tendencies to prejudge, discriminate against and stereotype other people by their ethnic, religious, physical, or cultural characteristics. Ending this behavior as a lawful practice caused far-reaching social and ideological implications that continue to be felt throughout the USA.
One must remember that the Civil Rights Movement of the 1960s led by Martin Luther King Jr. and others happened subsequent to the Brown judgement. The Brown verdict inspired and galvanised human rights struggles across the United States. It is little wonder that the USA celebrates it. The judgement initiated educational and social reform throughout the United States and was a catalyst in launching the modern Civil Rights Movement. Bringing about change in the years since the Brown case continues to be difficult. But the Brown vs. Board of Education victory brought USA one step closer to living up to its democratic ideals.
The US Supreme Court decision in Brown began a critical chapter in the maturation of their democracy. For the underprivileged Blacks, it reaffirmed the sovereign power of the people of the United States in the protection of their natural rights from arbitrary limits and restrictions imposed by State and local governments. These rights are recognised in the Declaration of Independence and guaranteed by the US Constitution.
But in societies that are ravaged by social inequities, the victory and the goodwill of such judgements have had to withstand the times to come. The United States has its own history of judicial interventions at crucial stages from issues related to admissions in educational institutions to equal employment opportunity laws. After almost 50 years of the Brown judgement, the issue of admissions came up in a big way to the Supreme Court in 2003 in the case of Grutter vs. Bollinger and Gratz vs. Bollinger in the Michigan University Law School admission case.
The courts of a capitalistic country like the USA, notwithstanding President George Bush’s anti-affirmative action affidavit of 2003, delivered a judgement in the Michigan University Case that sustained access to education. In unfortunate contrast, the judgement in the Inamdar case blocks Indian State intervention providing for the underprivileged classes to enter so-called privately managed institutions. This case comparison throws new light on the role of crucial judicial interventions in the evolution of those democracies that strive to provide equity in access to education. Today the underprivileged Dalits, tribes and backward classes of this country await a decision from the Supreme Court that would instead give cause for celebration.
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