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TMI Blog1953 (5) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... s also began to admit girls. Co-education became so general that by 1943 the Syndicate considered it desirable to frame certain rules for regulating the admission of women students in such mixed colleges. Women could be admitted only with the prior sanction of the Syndicate and the maximum number that could be admitted was fixed by the Syndicate on the basis of the amenities and facilities such as separate hostel, playgrounds and the like provided by the college. In 1945 a Commission was appointed in accordance with Section 16 (12) of the Madras University Act to report on the state of higher education and its progress in the State of Madras. The Commission went into the question of women's education and set out its views in Chapter VIII of the report. It noted with gratification that the education of women had advanced rapidly in recent years' and observed that notwithstanding the increase in the number of women's colleges they have been unable to accommodate the rapidly increasing number of applicants seeking collegiate education in every branch. Next, after referring to the Rules prescribed by the Syndicate in 1943, the report went on to state that most colleges ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ediate course in this college, but her application was refused by the Principal on the ground that girl students would not be admitted, Thereupon, she filed the petition out of which the present appeal arises for the issue of a writ of mandamus against the Principal of the College to admit her to the Intermediate course. The first respondent to this application was the University of Madras and the second, the Principal of the college. The affidavit in support of the petition stated that the second respondent had refused to admit the petitioner as a result of the directions given by the first respondent not to admit women into the college; that those directions were opposed to Section 5(1) of the Madras University Act, 7 of 1923 and that they were also repugnant to Article 15(1) of the Constitution, in that they discriminated against the applicant on the ground of sex and therefore void. On these allegations it was prayed that a writ of mandamus be issued directing the second respondent to admit the petitioner in the college. No relief was claimed against the University of Madras, but its Joinder as the first respondent was obviously with a view to obtain a Judicial determination in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 15(1), but by Article 29 and that Article does not prohibit any restriction based on the ground of sex. (3) The directions given by the University do not deny the right of women to be admitted into colleges, but only regulates the exercise of that right and that having regard to the nature of the right, the restrictions are reasonable and not discriminatory. 5. (1) On the first question. Article 15(1) enacts The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. This provision is directed only against the State. The State is defined in Article 12 as including The Government and Parliament of India and the Government and the Legislature of each of the state and all local or other authorities within the territory of India or under the control of ,the Government of India. The question is whether the University can be held to be local or other authority as defined in Article 12. These words must be construed 'ejusdem generis' with Government or Legislature and so construed can only mean authorities exercising governmental functions. They would not Include persons natural or Juristic who c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her way. The constitutional provision therefore must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State Government, deprives another of property, life or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power his act is that of the State. The question has also been considered in America with special reference to Universities. Where the University is maintained by the State any regulation or law made by the University which is repugnant to the 14th Amendment has been held to be unconstitutional and appropriate writs have been issued. Such for example are the decisions in -- 'Missouri Ex rel Gaines v. Canada', (1939) 83 Law Ed. 208 (F), -- 'Sipuel v. University of Oklahoma', (1948) 92 Law Ed. 247 (G), -- 'Sweatt v. Painter', (1950) 94 Law Ed. 1114 (H), -- Mclaurin v. Oklanoma S. Regents', (1950) 94 Law Ed. 1149 (D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in part 3. that the Indian Constitution has also recognised the distinction between State-maintained institutions and State-aided institutions. Thus, while Article 28(1) enacts that no religious instruction shall be provided in any educational institution wholly maintained out of State funds, Article 28(3) provides that religious instruction might be given in educational institutions recognised by the State or receiving aid out of State funds, but that no person should be compelled to take part in such instructions. Article 29(2) also recognises that educational institutions might be either state-maintained or State-aided. Adopting therefore the principles laid down in the American authorities, it must be held that educational institutions will be within the purview of Article 15(1), only if they are State-maintained and not otherwise; and that the regulations of the University of Madras, which is state-aided not State-maintained are not within the prohibition enacted in Article 15(1). 8. (2)It is also urged on behalf of the appellant that the matter is governed not by Article 15(1), but by Article 29(2) which runs as follows: No citizen shall be denied admission into any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 29(2) would appear to be a deliberate departure from the language of Article 15(1) and its object must have been to leave it to the educational authorities to make their own rules suited to the conditions and not to force on them an obligation to admit women. 9. Some argument was addressed before us on the exact significance of Article 15(1) which enacts that Nothing in this Article shall prevent the State from making any special provision for women and children . The true scope of Article 15(3) is that notwithstanding Article 15(1), it will be lawful for the State to establish educational institutions solely for women and that the exclusion of men students from such institutions would not contravene Article 15(1). That is not inconsistent with the authorities of educational institutions not falling within Article 15(3) from being clothed with power to admit or exclude women students from those institutions. The combined effect of both Articles 15(3) and 29(3) is that while men students have no right of admission to women's colleges, the right of women to admission in other colleges is a matter within the regulation of the authorities of these colleges. In -- 'Anj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved for White students, was valid. From 1938 there came a change in the perspective through which the question was viewed. The theory that equal protection of laws meant only a pledge of equal laws and not identical laws still stands. But the interpretation of what is an equal law has been liberalised so as to narrow the distinction between equal laws and identical laws. Thus, in -- '(1939) 83 Law. Ed. 208 (P)' it was held that there was no substantial equality in a Negro student being required to attend college in another district, while White students were admitted in a local institution. In -- '(1948) 92 Law. Ed. 247 (G)' it was held that the provision of a separate college for Negro students could not be said to be substantially equal where the college was not in existence and available at the same time as the college for Whites and that a promise to start a college with equal facilities was not a ground for excluding the applicants from a college which was .then in existence. In -- '(1950) 94 Law. Ed. 1114 (H)' it was further held that there was no substantial equality when the new college had not the same facilities in the matter of variety of courses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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