By: Sarabjit Kaur* |
The factual background of the Case:
In the present case, Anjali Roy had applied for admission in the third-year class of Honors in Economics of the Hooghly Mohsin College (hereinafter “HMC”) on 9-7-1951. However, the Principal of Hooghly Mohsin College refused admission on 10-7-1951. He stated the order of the Director of Public Instruction (hereinafter “DPI”). It was clarified in the order that no woman who had secured second division would be admitted in the Honors Course in Hooghly Mohsin College and, hence, the appellant should seek admission in the Women’s College.
Following the written representation to the DPI by the appellant’s father on 19.7.1951, the former wrote to the Principal of the Hooghly Mohsin College. He clarified that the admission of women students in HMC is allowed in courses in which Women’s College is not yet affiliated and hence, the appellant should be allowed admission, if otherwise found suitable.
On 21.7.1951, the appellant’s admission was still refused by the Principal of HMC, stating that he needed to consult the Divisional Commissioner before passing any orders concerning the admission of the appellant.
On 26.7.1951, after the passing of final orders by the District Magistrate, HMC put up a list of nine women students who had passed the I.A Examination in the second division. It specified that they would be admitted to HMC if they had obtained 50% of the marks in the subject in which they proposed to take Honours. However, the appellant did not visit the college that day and other women students were admitted.
The appellant sought admission on 29.7.1951 which was refused by the Principal of HMC without giving any cogent reason. The Principal, however, allowed the appellant to attend classes in HMC until the issue of the appellant’s admission was resolved.
On 17-08-1951, the DPI sent a letter to the Principal to allow admission to the remaining eligible women candidates whose names appeared on the list published on 26-07-1951. On 18-8-1951, the appellant saw the Principal again for admission. However, she was directed to come on 22-08-1951 which was the date fixed by the Principal for such admission. On 22-8-1951 the appellant and her father went to the college but the admission was again refused by the Vice-Principal. He stated that a new telegram from DPI prohibited HMC from taking any further admissions. As a result, the appellant had to seek admission to another college.
Hence, the appellant challenged the refusal of admission as unreasonable, arbitrary, and mala fide. The appellant also challenged the refusal for being contradictory to Article 15(1) read with Article 29(2) of the Constitution of India.
Additionally, it was specified that such women students were eligible for attending Honors classes in HMC until the final decision of the Government and the University concerning whether students of the Women's College could be allowed to read for Honours in HMC. Hence, the appellant was attending classes accordingly after 18.8.1951 and subsequently filed an application u/s 226 of the Constitution before the Hon’ble High Court of Calcutta for an appropriate writ directing the Principal of the Hooghly Mohsin College to consider and deal with the petitioner's application for admission to the said college according to law.
The Impugned Judgement:[1]
A Single Judge Bench comprising Hon’ble J. Bose had passed an order in the concerned application. The Court observed that the allegations of malafide against the Principal could not be proved. It was held that the petitioner’s admission was restricted by the new Government Order that allowed the students of the women’s college to read honors at HMC. Accordingly, the Principal could not have given admission to the petitioner in HMC.
The Court further observed that there was no violation of Article 15(1) of the Indian Constitution. The women’s college constituted a ‘special provision’ within the meaning of Article 15(3) as it was started for the benefit of women. Additionally, the women students were allowed to read such courses in HMC which were not available in the women’s college. Hence, there was no discrimination against the petitioner on the grounds of ‘sex’ under Article 15(1) of the Indian Constitution.
Issues:
The impugned Judgement was challenged by the appellant through the present appeal before a larger bench, seeking issuance of writs of prohibition and mandamus for the enforcement of Article 15(1) of the Constitution. Two questions of law were raised via the present appeal:
1) Whether the DPI order restricting admission of women students in the HMC was violative of Article 15(1) read with Article 29(2) of the Constitution of India?
2) Whether the denial of admission to the appellant in HMC solely on the grounds of her sex arbitrary and malafide?
Arguments on behalf of the Appellant:
The appellant argued in her application that denial of her admission in HMC was based only on the grounds of sex. Since the Women’s College was much inferior to HMC regarding the standard of teaching and its equipment, it amounted to a violation of her fundamental right to equal opportunity. She also alleged that the refusal was arbitrary and mala fide.
The appellant sought a writ of prohibition against the State of West Bengal, the DPI, and the Principal of HMC to prohibit them from giving effect to the DPI order dated 21-8-1951.
Additionally, the applicant asked for the issuance of a writ of mandamus directing the Principal of HMC to consider and deal with her application for admission according to law.
The Judgement:
Hon’ble Chakravartti, Ag. C.J delivered the judgement in agreement with Hon’ble Sinha, J. The different contentions put forth by the appellant have been dealt with under separate sub-headings below -
1. Malafide Conduct not proved
Although Hon’ble Chakravartti, Ag. C.J., strongly condemned the conduct of the Principal, it was held that the allegations of malafide remained disproved.[2] The Hon’ble C.J., while reiterating with Hon’ble J. Bose, stated that the Principal was responsible to a large extent for the loss of opportunity of the appellant in getting admission in HMC. However, nothing has been established against the Principal to prove that such actions were in bad faith.
2. No violation of Article 15 (1)
Article 15 (1) clearly provides that the ‘discrimination’ cannot be done ‘only’ on the grounds of religion, race, caste, sex, or place of birth. The appellant in the present case was not refused admission solely on the grounds of sex, as other women students were granted admission on the designated dates subject to the meeting of eligibility requirements.[3] It was held that:
“All ‘differentiation’ is not discrimination, but only such differentiation as is invidious and as is made, not because any real difference in the conditions or natural difference between the persons dealt with which makes different treatment necessary, but because of the presence of some characteristic or affiliation which is either disliked or not regarded with equal favour but which has no rational connection with the differentiation made as a justifying reason.”
3. Lack of due-diligence on the part of the appellant
Despite the Principal’s conduct and the changing mind of the Government, it was further held that the appellant lost the opportunity at two occasions[4]. Firstly, due to the lack of diligence on her part. Secondly, it was pointed out that on 26.7.1951, other women students who presented themselves in HMC along with their marksheets and tendered the admission fee were granted admission in HMC. The Hon’ble C.J. observed that the above-mentioned facts clearly establish that there was no discrimination against the appellant solely on the grounds of sex and hence, there has been no violation of Article 15 (1)[5] of the Constitution.
4. Article 15(1) subject to Article 15(3)?
The ratio of the impugned judgement that Article 15(1) was subject to Article 15(3) was not accepted in the present judgment.[6] Bose J., in the impugned order, expressed his inclination that “special provision for women” meant ‘in the case of’ or ‘concerning’ women and would thus cover both provisions in favour of women and provisions against them.[7] Additionally, Bose J., citing Mahadeb Jiew v. B. B. Sen[8], accepted that “special provision for women” in the present case meant provision in favour of women.
5. No Violation of Article 29(2) of the Constitution of India
Article 29(2) of the Indian Constitution states 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”. It is significant to note that ‘sex’ as one of the grounds has not been mentioned in Article 29(2).[9] It was observed that:
“The framers of the constitution may have thought that because of the physical and mental differences between men and women and considerations incidental thereto, exclusion of men from certain institutions serving women only and vice versa would not be hostile or unreasonable discrimination.”
It was observed that the subject of admission to educational institutions is not outside the ambit of Article 15 after the addition of clause (4) to it. Hence, to a certain extent, Article 29(2) is now linked to Article 15. The Court further observed that:
“Article 15(4) was added as an exception to that part of Article 15(1) which forbids discrimination on the ground of race or caste and as an amendment of that part of Article 29(2) which forbids denial of admission into educational institutions on the same grounds; but since no such provision regarding educational institutions has been made in Article 15 in the case of the ground of sex, Article 29(2), in so far as it does not mention sex as a forbidden ground of discrimination in regard to admission into educational institutions, remains unaffected.”
Consequently, the present application was dismissed by the Hon’ble High Court of Calcutta stating that refusal of admission to the appellant in HMC was “not mala fide and was not solely on the ground that she was a woman”.[10] The Court further observed that the appellant did not suffer any prejudice as she was granted the benefit of a regular student for her Honors classes in HMC. Furthermore, the appellant failed to allege any inconvenience on her part to attend two Colleges. Hence, the Hon’ble C.J. dismissed the present application.[11]
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*The author is a student at Lloyd Law College, Noida.
[1] Anjali Roy v. State Of West Bengal and Ors. AIR 1952 Cal 822.
[2] Anjali Roy v. State of West Bengal AIR 1952 Cal 825, para 13.
[3] Ibid.
[4] Id. at para 14.
[5] Article 15 (1) states that "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."
[6] Supra note 2 at para 18.
[7] Anjali Roy vs State Of West Bengal And Ors. AIR 1952 Cal 822.
[8] Sri Mahadeb Jiew And Anr. vs Dr. B.B. Sen AIR 1951 Cal 563.
[9] Supra note 2, para. 22.
[10] Supra note 2, para. 23.
[11] Supra note 2, para. 24.