' SHAFIUR RAHMAN, J.--Leave to appeal was granted in twelve cases to examine the question relating to the applicability and enforcement of Fundamental Rights under Articles 25 and 22 of the Constitution of the Islamic Republic of Pakistan, 1973, there being a difference of opinion between the Judges of the High Court in the Intra-Court Appeal Bench and the judgment pronounced by the learned Judge in Chambers. An authoritative pronouncement was in the circumstances, called for.
2. There is also a petition (C.P.L.A. No,133/88) on the same subject. It is shown to be barred by 203 days and there is a formal application for condonation of delay on the ground that the petitioner was ill, had to undergo surgery more than once and could not in the interregnum attend to the normal routines of life. Civil Appeal No,428 of 1987 is shown to be barred by four days and Civil Appeal No,430 of 1987 to be barred by 37 days and in these also applications have been made for condoning the delay.
3. The appeals and the petition are of girl students who cleared their F.Sc. (Medical Group)
Examination with credit. They obtained marks which would have entitled them on merit to admission in one of seven Medical Colleges of which a combined prospectus alongwith the Application Form was issued to the students. There were in all 1085 seats for admission to the Medical Colleges. After excluding the reserved seats for additional categories numbering 227, there were left 858 open seats of which 677 were allocated to the boys and 181 seats were allocated to the girls. As the girls were required to compete within their quota, the last girl entitled to get admission was required to secure 820 marks in the session 1986-87 to which the case relates. As against this the boys competing on merit within their allocated seats could get admission on as low a mark as 731. Thus the appellants concerned felt discriminated against, not warranted by the constitutional provisions guaranteeing them equal rights as citizens of Pakistan. They and many others instituted a number of Constitution Petitions and as many as 74 of them came up for disposal after notice to the concerned before the learned Judge in Chambers. The objection to the competence of the petitions was raised on the ground that the male students who had, according to the appellants, usurped their entitlement, had not been impleaded in the Constitution Petitions and in their absence no judgment could be delivered declaring the appellants' entitlement to admission. On merits it was contended that no violation of the entitlement of the appellants had taken place in the process and Article 22 of the Constitution being a special article completely covered the case and no discrimination had taken place adverse to the appellants. In fact concessional treatment had been afforded to the girls in the matter.
4. The learned Judge in Chambers accepted all the petitions. As regards the preliminary objection to the non- impleading of the male students, the learned Judge held as follows:- "Since the boys admitted are not likely to be affected and they are in large number more than 64)0 and their individual impleadment would have caused delay so as to defeat the very purpose of the petitions, their non-implement is not fatal there are only 95 candidates who have to be adjusted in seven Colleges, if their petitions succeed--13/14 in each college which will by no means disturb the arrangements or require creation of additional seats as these have been there since 1974. Only the authorities have recently chosen not to fill them which they may not. Some inconvenience, if there be any, will have to he borne by the authorities because of their own action contrary to the Constitution, if the petitions succeed. Therefore, there is not justifiable or good ground to dismiss these petitions for the technical reasons of non-impleading of the boys who have already been admitted".
' As regards the merits of the case, the learned Judge laid emphasis on Article 25 of the Constitution and interpreted it as hereunder:-- "The provision is clear, categorical and unambiguous altogether. It lays down that all are equal, there shall be no discrimination on the basis of sex alone and that the State may make laws for the protection of women. All are equal, man and woman, neither man nor woman shall be discriminated against, laws may be made for protection of woman--not against them. How the petitioners, girls are being treated equally wkn they are being denied admission even though they have nearly hundred marks more than the boys? Are they not being discriminated against only because they are girls? If they were boys with their marks they would have been given admission.
They are not being given their due-muchless is law made for their protection. There is clear violation of the Constitutional mandate".
' As regards the application and effect of Article 22 of the Constitution, the learned Judge gave three reasons, the first two being as hereunder:-- "Not only the Heading of the Article, and Heading can be referred to for understanding the provisions, though it cannot derogate from the express enactment, but three and half parts of the Article itself relate to religious matters in educational institutions. The one-sixth of the Article deals with simple educational institutions, if this is not to relate to the earlier parts of the Article and is taken as independent separate entity. Even if this be so, the provision applies to educational institutions "receiving aid from public revenue". Ms. Hina Jillani is quite right that this provision does not quite clearly apply to private institutions not receiving aid from public revenue, nor to Governmental institutions which are owned, run and managed by the Government. The Government institutions are by no means aided by Government".
' As regards the third reason namely, one provision Article 22(3)(b) being special and the other Article 25(2) being general, the learned Judge held as hereunder:-- "There is no qualm with the first limb of the argument. Special shall prevail over the general. But the special has to be applied in its own terms. It will be applicable to what is specially provided for. As seen above in para. 10, Article 22(3)(b) applies to educational institutions "receiving aid from public revenues" and not to others. It was held as "special" having effect over the "general" in the Indian case of University of Madras v. Shanta Bai and another (AIR 1954 Mad. 67), because of the fact that the "special" Article 29 applied to both kinds of institutions maintained by the State as well as receiving aid out of State funds Both the Articles are there. Neither can be made to evaporate in the thin air nor deemed to be non-existent. They are there and have to be there. Both have to be read and construed. Obviously in a manner that both co-exist. Harmonious construction of statutes is one of the elementary rules of Constitution".
' The grounds, offered for justifying the classification of girls and boys and limiting the girls to their own allocated group and competition within that group, were held to be neither reasonable nor proper. Hence, all the petitions were allowed. The action of the authorities denying them equality before the law, equal protection of law and discrimination on the ground of sex, was held to be contrary to the constitutional mandate. It was directed that "their applications be taken up and those who have got upto 731 marks, the last boy admitted, their names be put on the notice board within a week of this order and the girls so notified if they, within the next week thereafter, pay all their dues, they shall be admitted. This is to avoid delay as the classes have already started and the petitioners have been made to lose precious time. The admission may he, as agreed to by the learned counsel for the petitioners, in any or more of the colleges wherever it is convenient for the authorities. There would be no need or question of creation of seats for them as, those many were already there for the last twelve years. Facilities and premises have come to be more and expanded. Teachers have gained more experience and more appointed. Non-admission of the petitioners was authorities' own decision which cannot now stand because of their own act of violation, of course without intent, of the Constitution. This will be for this year. Henceforth action shall be taken in accordance with the Constitution".
5. Against this decision, Intra-Court Appeals were preferred. They were all allowed. Pending Writ petitions were also disposed of in terms of the judgment in Intra-Court appeals, by which the judgment of the learned judge in Chambers was reversed and set aside. The appeal Bench by reference to a number of cases decided, came to the following conclusion:-- "....In our opinion, because of the failure of the respondents in Intra Court Appeals as well as of the writ petitioners before us, to implead the boys as party, their writ petitions are liable to he dismissed. It may be stated that the respondent in I.C.A. No,200 of 87, during hearing of these cases, moved a C.M. Application to implead the boys as party but in view of the judgment, which we, propose to deliver, there is no use to allow the application".
' On merits, the Appeal Bench came to the following conclusion:-- "A comparison of the language of Article 22(3)(h) with that of Article 25(2) reveals that the latter protects all the citizens against discrimination on the ground of sex but Article 22(3)(h) gives protection against a particular specie of wrong namely, denial of admission into certain type of educational institutions on the grounds of race, religion, caste and place of birth. The grounds of discrimination contemplated by the two Articles are not the same and it, therefore, can well be contended that to this extent their scope in different from one another. Further Article 25(2), is quite wide and general but on the other hand, Article 22(3)(b) confers a special right on the citizens regarding admission into the educational institutions. It is, therefore, legitimate to treat Article 22(3)
(b) as a special provision and Article 25(2) as a general provision. Mr Abid Hassan Minto, Advocate, however, instead of characterising clause 22(3)(b) as a "special provision" which expression is a part of legal vocabulary, wants us to label it as a "specific provision", but in the realm of the rules of construction of statutory instruments, that hardly makes any difference. The comparison of these two provisions brings two questions in the fore front; firstly, what is the effect of the omission of the word "sex" from Article 22(3)(h) and secondly, can the word "sex" be imported into it from Article 25(2)? Being a special provision, Article 22(3)(b) overrides the general provision of Article 25(2). In this view of the matter, the learned Additional Advocate-General's reliance on the doctrine of reasonable classification seems to be ill-grounded and an in-road into the application of rule of "generalia specialibus non-derogant" which he himself forcefully invoked".
' On the strength of Judgments of this Court in Chairman Selection Committee Bolan Medical College, Quetta etc. v. Miss Safia Hameed (1979 SCMR 529) and Government of Baluchistan and others v. Rifat Parveen (1981 SCMR 1002) the Appeal Bench held that addition to the sanctioned seats could not have been ordered while allowing the Constitution petitions. On acceptance of the appeals, the writs were recalled.
6. Mr. Abid Hassan Minto, Advocate the learned counsel for the appellants referred us to the Constitution of 1956 and 1962 to point out that no similar specific provision like clause (2) of Article 25 of the Constitution existed in any one of them. It was for the first time introduced as clause (2) in Article 22 of the Interim Constitution. It was carried forward in Article 25 of the Constitution of 1973 and was further reinforced by Article 37 clause (c), directing that "the State shall make technical and professional education generally available and higher education equally accessible to all on the basis of merit", and Article 34 that "steps shall be taken to ensure full participation of women in all spheres of national life". The learned counsel has relied on the case of Muhammad Arshad and others PLD 1980 Pesh. 208 where the boys were required to compete with girls on merit, apart from making a reservation for girls. The boys felt that it went beyond merely protecting the girls as enjoined by clause (3) of Article 25. The Court upheld the altered procedure, merit criteria and also reservation for girls. What the Court observed, not on legal plane but as a suggestion, was as hereunder:-- "Before parting with the case, we may venture to suggest to the Governing bodies of these two medical institutions to take into consideration the feasibility of discarding, in future, the practice of allocating additional 30/12 seats to the female candidates over and above the number of seats secured by them from the open merit seats' quota by competition with boys in case their number exceeds or equals the number of seats presently reserved for them".
7. The learned counsel for the appellants also referred to the case of Humera Satwat Yusuf (PLD 1971 Lah. 641) at page 660 in the following words:-- "Thus, even if the contention of Mr. M. Anwar that the word "citizen" includes both males and females is accepted as correct, there is no breach of clause (3) of Right 12 even if discrimination on the basis of sex is practised in the matter of admission to the educational institutions in question.
The fact is that the right which could possibly be invoked against the perpetration of discrimination on the ground of sex could only be Right 15, contained in the Fundamental Rights Chapter of the Constitution, which lays down, "All citizens are equal before law who are entitled to equal protection of law", but unfortunately this right stands suspended by Article 3(3) of the Provisional Constitution Order, 1969".
8. The learned counsel also relied on the decision of this Court in the case of Ch. Ata Elahi v. Mst.
Parveen Zohra and others PLD 1958 Supreme Court (Pak.) 298 to highlight why a specific provision with regard to sex came to be made in the Interim Constitution and Constitution of 1973. In that decision the Supreme Court held as hereunder:-- "If keeping in view these factors the Provincial Government had kept alive the 1933 Rules refusing to women the right to vote, it could not possibly have been said that the classification made by the Provincial Government in granting or withholding right to vote had no basis in history, ideology or reason or that the classification was arbitrary, fanciful or unreasonable. Those Rules could well have been defended as not being in violation of Article 5 of the Constitution, because of the reasonableness of the classification. Mr. Brohi has urged that because in the Constitution franchise for elections to the National and the Provincial Assemblies has been granted to women, the Provincial Government should have followed that principle in determining the franchise for District Board elections. There is no force in this argument, since the Constitution itself leaves it to the Provincial Legislature to regulate the franchise for District Board elections. We cannot by logical deductions apply the principle underlying a constitutional provision to similar or analogous situations which the Constitution-makers purposely left for regulation by the Legislature. If the Provincial Government being fully aware of universal suffrage granted by the Constitution for constitution of the Legislature departs from that principle, its action cannot for that reason alone be held to be unconstitutional or unreasonable."
9. The learned counsel in this background invoked the rules of Constitutional interpretation, particularly those requiring that the Constitution should be considered as an organic whole, no part of it being treated as redundant, cancelling, curtailing or diminishing the utility of another provision of equal dignity and equal standing. According to the learned counsel the treatment of one Fundamental Right as general, the other as special, and further to limit one on the strength of other is not warranted by any principle of interpretation. It is only in extreme cases of repugnancy and irreconciliation that one provision may be limited as against the other. The learned counsel referred to the definition of `citizen' in Article 260 of the Constitution to point out that it includes males as well as females. According to him, Article 2 as well as 2A, 22, 25, 27, 34, 37 have all to be read together and given a harmonious meaning and effect.
10. The learned Advocate-General, on the other hand, relied on the reasoning which found acceptance with the Appeal Bench of the High Court. Additionally he stated that the requirements for admission to medical colleges are regulatory in nature and they protect and advance the requirements of equality and the interests of females themselves. According to the learned Advocate-General, even if Article 25(2) is not held displaced to any extent by Article 22, both have been equally preserved and none gets violated by the Scheme of admissions. If however, any likely conflict is found to exist, as has been found by Appeal Bench, then the special provision has to take over and the general provision has to yield.
11. The question as to how a constitutional provision is to be interpreted came up directly for consideration in Special Reference No,1 of 1957 PLD 1957 Supreme Court (Pak.) 219 and the three rules relevant to this case and enunciated therein are reproduced hereunder:-- "Another elementary rule of construction of constitutional instruments is that effect should be given to every part and every word of the constitution. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory (11 Am.Jur., Constitutional Law, Art. 55).
' The next rule in construing a constitutional provision is that it is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. The best mode of ascertaining the meaning affixed to any word or sentence by a deliberative body is by comparing it with the words and sentences with which it stands connected, and a constitutional provision or a phrase in a constitutional provision must he read in connection with the context. Nascitur a sociis is the rule of construction applied to all written instruments.Therefore, particular phrases of a constitution must be construed with regard to the remainder of the instrument and to the express intent of the constitutional convention in adopting it (11 Am.Jur., Constitutional Law. Art. 53).
' And the last rule which needs statement for purposes of this case is that if there be any apparent repugnancy between different provisions, the Court should harmonize them if possible. The rules of construction of constitutional law require that two sections be so construed, if possible, as not to create a repugnancy, but that both he allowed to stand, and that effect given to each. Cases may, however, arise where it is impossible to harmonize or reconcile portions of a constitution. In such a case, if there is a conflict between a general and a special provision, the special provision must prevail in respect of its subject-matter, as it will be regarded as a limitation on the general grant (Am, Jur., Constitutional Law Art. 53).
12. The principles of constitutional interpretation were further explained in The State v. Zia-ur- Rahman and others (PLD 1973 SC 49) and summarized in Federation of Pakistan v. Saeed Ahmad Khan and others (PLD 1974 SC 151), as hereunder.
"(i) The Constitution is a fundamental or organic or Supreme Law standing on a somewhat higher position than the other laws of the country.
(ii). The Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere.
(iii) The Courts are creatures of the Constitution; they derive their powers and jurisdictions from the Constitution and must confine themselves within the limits set by the Constitution.
(iv) Under a Constitution prescribing a system where there is a trichotomy of sovereign powers the judicial power must from the very nature of things be vested in the judiciary.
(v) Thus the judiciary does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction.
(vi) In the latter case an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that provisions seeking to oust the jurisdiction of superior Courts, even by a constitutional provision, are to be construed strictly with pronounced leaning against ouster.
(vii) It is not, however, the function of the judiciary to legislate or to question the wisdom of the law- giver if the law has been competently made without transgressing the limitations of the Constitution. If a law has been competently made the judiciary cannot refuse to enforce it even if the result be to nullify its own decisions.
(viii) The law-giver has also every right to change, amend or clarify the law if the judiciary has found that the language used conveys an intent different from that which was sought to be conveyed by the law-giver. The Constitution has to be construed like any other document reading it as a whole giving to every part thereof a meaning consistent with the other provisions of the Constitution.
(x) As far as possible each provision of the Constitution should be construed so as to harmonize with all the others."
13. From the Indian jurisdiction, the comments made in paragraphs 2.11 and 2.12 of the Constitutional Law of India by H.M. Seervai (Reprint with Supplement 1968) in the words that follow, are relevant: "2.11. If there is an apparent or real conflict between two provisions of the Constitution, how is that conflict to he resolved? The problem thus raised is not peculiar to the interpretation of a Constitution but is common to the interpretation of all statutes. The principles for resolving such a conflict are well-known and are to be found in standard books on statutory construction, but the Supreme Court of India has compendiously described them as "the principle of harmonious construction." The name is a little unfortunate, for it might suggest that it is the function of the Court somehow to produce harmony between various provisions of a statute. But the principle underlying the rule of harmonious construction is itself correct if certain relevant considerations are borne in mind. The principle of harmonious construction does not require a Court first to produce disharmony by construction in order that it may thereafter resolve it by harmonious construction.
For, as the Judges said in the House of Lords in Warburton v. Loveland [(1832) 2 D. & Cl. 480, 500, 5 E.R. 4991, "No rule of construction can require that when the words of one part of a statute convey a clear meaning ... It shall be necessary to introduce another part of a statute which speaks with less perspicuity to diminish the efficacy of the first part."
' The above passage was cited and applied by Barton J. In construing the provisions of sections 89, 92 and 93 of the Commonwealth of Australia Act. He said.
"Applying those expressions to these sections I should say they amount to this: Seeing that section 89 has an absolutely clear meaning, the rules of construction do not require us to introduce another part of the Statute which speaks with less perspicuity, and to apply that part to the construction of section 89. That would have the effect of diminishing the clearness of section 89, and appears to me to be an absolute inversion of the rule which is applicable in such a case.
Hardcastle, in his work on the Interpretation of Statutes (3rd Edn.), p.111, says. "It is only when, as the Court said in Palmer's case, (1784) 1 Leach., 355, 'any part of an Act of Parliament is penned obscurely, and other passages can elucidate that obscurity, recourse ought to be had to such context for that purpose. "[State of Tasmania v. Commonwealth of Australia (1904) 1 CLR 329 at 357].
' Secondly, the conflict between two provisions may he merely apparent as when their objects or subjects are different: "...It is sometimes found that the conflict of two statutes is apparent only, as their objects are different and the language of each is restricted, .... To its own object or subject. When their language is so confined, they run in parallel lines, without meeting"; (Maxwell, Interpretation of Statutes, 11th Edn., pp. 162-3).
"...Distinct provisions of the Constitution are repugnant to each other in such a way as to be irreconcilable only when they are related to the same subject or adopted for the same purpose and cannot he enforced without material and substantial conflict." (American Jurisprudence 2nd Vol. 16, p. 247).
2.12. If, however, the conflict is not apparent but is real, the principle of harmonious construction comes into play. That principle was clearly enunciated by Venkatarama Aiyar, J. In Sri Venkataramana Devaru v. State of Mysore [(1958) S.C.R. 895 at p. 918] and may he stated thus: When there are in an enactment two provisions which cannot be reconciled with each other, they should he so interpreted that, if possible, effect can he given to both. It follows from this that a construction which would render one provision wholly nugatory must be rejected in favour of a construction which gives effect to both provisions
14. Article 25 of the Constitution of 1973 had its counterpart in the Constitution of 1956 in Article 5, which read as hereunder: "5. Equality before Law. --(1) All citizens are equal before law and are entitled to equal protection of law.
(2) No person shall be deprived of life or liberty save in accordance with law."
In the Constitution of 1962 the same subject was dealt with in Article 15, which is reproduced a.s hereunder: "15. Equality of citizens.-- All citizens are equal before law and are entitled to equal protection of law."
In the Interim Constitution the same subject was dealt with in Article 22 and a material addition came to be incorporated therein in clause (2) as hereunder: "22. Equality of citizens. -- (1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from enacting any special provision for the protection of women.'
' In the Constitution of 1973, the Article remained in the same form as it was incorporated in the Interim Constitution. It was renumbered as Article 25 and the words "and children" were added in clause (3).
15. The words relevant for understanding the full impact of Article 25(2) of the Constitution of 1973 are "discrimination" and "alone". The ordinary meaning of "discrimination" is very inoffensive. It means "making a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observing differences accurately, or of making exact distinctions; discernment". The Oxford English Distionary, Volume III).
16. Clause (2) of Article 25 prohibits distinction on the basis of sex alone. However, the very next clause (3) controls the rest of Article 25 by providing that "nothing in this Article shall prevent the State from enacting any special provision for the protectom of women and children". It implies, therefore, that while the difference on the basis of sex can be created and maintained, it shall be done only in those cases where it operates favourably as a protective measure for and not against women and children. The field of prohibition, of adopting sex, as a criteria for making a distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if it is not as a measure protective of females.
Discrimination against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility. All pervasive nature of this constitutional provision is self evident. In interpreting Constitution and also in giving effect to the various legislative measures, one distinction has to be consistently kepi in view and it is that classification based on reasonable considerations is permissible and not violative of the principle. This aspect of the matter was dealt with in a case in the Indian Jurisdiction in Kathi Raning Rawat v. State of Saurashtra (AIR 1952 Supreme Court 123) in the judgment of the Chief Justice in the following words: "Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies."
17. The harmony and the consistency between Article 25 and Article 22 of the Constitution is obvious notwithstanding the generality of the one and the particularity of the other, only if we keep this important fact in view that classification based on intelligible and reasonable standards is permissible within the framework of Article 25 on the ground of sex and sex alone. If in Article 22 the word "sex" had also been introduced then there would have occurred a conflict instead of consistency between Article 25 and Article 22 inasmuch as the classification permissible under Article 25 would have become impermissible in educational institutions with regard to admission therein. The girls would have sought admission in institutions exclusively reserved for boys and the boys would have sought reservation in institutions reserved exclusively for girls unless it was shown as a fact that the institution for girls was kept exclusive for the purpose of and within the limitation of clause (3) of Article 25. As the two Articles 25 and 22 stand at present, the general rule is that "sex" cannot be adopted as the sole criteria for discrimination except for advancing the cause of women and children as permitted by clause (3) of Article 25. On that principle of reasonable and intelligible classification it is possible to have educational institutions exclusively catering to the needs of the male population and also educational institutions catering exclusively the female population in our context and in our society. However, when an educational institution is thrown open for co-education, as has been done in the case of six medical institutions excluding Fatima Jinnah Medical College, then a further restriction of numbers on the ground of sex is permissible only as a protective measure of women and children but in no case so as to protect comparatiycly less meritorious boys to the prejudice and exclusion of women. This amounts to gross violation of constitutional mandate.
18. The Indian case which comes closest to the facts of the present case is that of University of Madras v. Shanta Bai and another (AIR 1954 Madras 67). The facts of that case arc very interesting and the facts themselves establish the distinguishing features of it. As the number of girl students increased and the institutions exclusively meant for girls proved insufficient, their admission into boys institutions was permitted at the level of Intermediate classes. This arrangement proved very unsatisfactory. The Syndicate of the University appointed a Commission to go into the subject of women education at that level and the Commission unanimously reported that "men's colleges should be precluded from admitting women to the Intermediate classes. The difficulties of women students at this stage are much greater because of their age and the time required to get accustomed to the change from school to college conditions of life and instruction." A new college was opened which sought affiliation with the University of Madras. While granting affiliation, the syndicate gave permission for the admission of only 10 girl students in the Junior Intermediate class as a temporary measure for that year making it clear that "in future no women students should be admitted without the special sanction of the Syndicate". It was in this beckground that Shanta Bai, the writ petitioner, applied for admission in that College and was refused the admission. She took the matter to the Court where it was held that Article 29 of the Indian Constitution comparable to our Article 22 in some respects "did not exclude the application of Article 15(1); that the directions given by the University were opposed to that Article as discriminatory against the petitioner on the ground of sex and that they were accordingly void". A Letters Patent Appeal was taken and the High Court reversed that view holding that the University of Madras was not a State and as such was under no compulsion to observe requirements of Article 15 of the Indian Constitution. Additionally, it was held that Article 29(2) dealt with a special subject of admission to educational institutions and to that extent Article 15(1) got excluded. It was further held that within the framework of Article 29(2) of the Indian Constitution the admissions of the girls could be regulated and the purpose behind the impugned instructions was not discriminatory but commendable in the extreme.
19. There are three distinguishing features of that case which must be noticed at once. The first is that in the Indian Constitution it was the State against which there was prohibition. The University of Madras was held to be not a State. In our Constitution the prohibition is against the law which discriminates. If the instructions or the statutory instruments challenged qualifies as law then it is I liable to be struck down under Article 8, if found discriminatory. Who takes the action under it, is immaterial. In this case it is not in dispute that the prospectus qualifies as law on the subject of admission in Medical Colleges. The second feature is that in the Indian Constitution in the relevant provision a distinction has been made between the State-managed institutions and those aided from the public revenues and there was yet another category of public places and having access thereto. That division followed the pattern of American Constitution and the degree of control on each varied relative to the fundamental right invoked. In our Constitution it is only the aid receiving institutions from public revenue which are mentioned, without referring to management or authority in control of it. It follows, therefore, that if the public revenues are coming to the aid of institution J either wholly or in part, then the institution comes within the purview of Article 22(3) (b) and it is immaterial whether the State is managing or someone else. Article 22 of our Constitution is subject to law but in Article 29 of the Indian Constitution no such subordination to law is mentioned.
20. There being no repugnance between Article 25 and Article 22, the two have to be read harmoniously. No discrimination on the ground of sex alone can be permitted except on the ground of reasonable and intelligible classification. Such classification in our Society permits for the present establishment of educational and professional institutions exclusively for the females or exclusively for the males. However, where co-education is permitted and the institution is not reserved for one sex alone, the fixation of number on the ground of sex will directly be opposed to the requirement of Article 25(2) unless it is justified as a protective measure for women and children under Article 25(3). In other words the number of girl students can he fixed as the minimum but not as the maximum particularly so where on merit they are likely to get more than the fixed number of seats. The Constitution assumes that the women and children in our Society need protection and not the males and as long as the Constitution mentions that assumption and basis, we cannot reverse it by affording protection to male and adults at the cost of women and children. That would be opposed to the very fundamental mandate of the Constitution.
21. The Appeal Bench of the High Court has also, it appears, come to a conclusion that in denying admission to the girl students on merit, sex alone has not played a part but there are other factors also which had played a part. What are those other factors have neither been studied in depth nor any conclusion drawn on the record nor there are supporting facts and figures to establish it. It is only a general nebulous assertion made during the course of the arguments that the girls do not enter the profession of medicine in the proportion in which men enter after completing their education. There is no scientific study carried out. It is dangerous to proceed on factual conclusions drawn from arguments and not supported by the scientific study or appropriate data produced and allowed to be contested in Court.
22. Some cases in the Indian jurisdiction have dealt with the question as to how the positive provisions of the constitution particularly the fundamental rights enshrined therein have to be expounded in the light of the principles of policy enshrined in the other Chapters which arc not enforceable by and through the Courts. More such authorities will be coming up in our context also in future. However, the consensus has developed that the basic principles of policy should be considered to be a part of the Constitution and other provisions of the Constitution should not be interpreted totally losing sight of it. A harmony should be struck as far as possible without of course enforcing in positive terms the basic principles of policy or allowing them to supersede the fundamental rights or in any manner curtailing what is mandated in the Constitution. To that extent the learned counsel for the appellants is justified in referring to the affirmative, terms of the basic principles of policy contained in Article 37 calling upon the State to make technical and professional educational institutions generally available and higher education equally accessible to all on the basis of merit.
23. In view of the relief that we are granting and the public nature of the controversy involved, we would condone the delay that has taken place in filing Civil Appeals No, 428 of 1987 and 430 of 1987 and convert the Civil Petition for leave to appeal No, 133/88 into appeal and allow it condoning the delay in terms in which other appeals are being decided.
24. In view of the discussion that has proceeded on merits, the claim of the girl students merited acceptance on the ground that they have been discriminated against in the matter of admission to co-educational medical colleges by suppressing their merit as against the boys admitted thereto. As regards the relief to be granted, certainly these girls students cannot substitute the boys students who have been admitted for more than one reason, the most important being that they have not been impleaded so as to oust them from the seats that they had obtained under the earlier arrangement. Besides, now more than two years have elapsed and they have advanced in their studies and it would be not at all proper and fit to unseat them and let two years of studies go waste without it being availed of by the appellants either. We are also opposed to creating additional seats because that is a matter purely administrative. However, the declaration should be given enabling them to compete on merit with the boys seeking admission in the next session over and above the seats reserved for them whenever admission takes place. On the facts of the case as they stand today that would appear to be the only relief to which the appellants would be entitled.
25. The appeals are accepted. The judgment/orders of the High Court passed in Intra-Court Appeals Nos.200/86, 181/86, 189/86, 188/86, 229/86, 206/86, 243/86, 242/86, 246/86 and Writ Petitions Nos.327/87, 259/87, 455/87 and 433/87 are set aside and that of the learned Judge in Chambers dated 21-121986 is partly modified accordingly. No order is made as to costs.
…and 60 more citing cases