ANAND VARDHAN CHANDEL v. UNIVERSITY OF DELHI — 1978 DIGILAW 69 (DEL)

V. S. DESHPANDE, J.- ( 1 ) IS there a fundamental right to education to be spelt out of clauses (a), (b) and (c) of Article 19 (1) and Article 21 of the Constitution ? Does it include participation by a student in the activities of the University Students Union ? Does the denial of this right to the petitioner by the University sustain this petition under Article 226 (l) (a) of the Constitution? These somewhat novel questions arise in this writ petition on the following facts. ( 2 ) THE University of Delhi is constituted by the Delhi University Act, 1922. Under section 3 the University is constituted by the Chancellor, Vice-Chancellor, the Court, the Executive Council and the Academic Council. Under section 4 it has power to provide for instruction, etc. and to do all such acts and things whether incidental to the powers aforesaid or not as may be requisite in order to further the objects of the University as a teaching and examining body and to cultivate and promote Arts, Science and other branches of learning. Under section 21 the Executive Council shall be the executive body of the University. For the academic year 1977-78 the University Bulletin of Information sets out the method by which students are admitted to the M. A. classes in order of merit. The petitioner was an applicant for admission to M. A. (Philosophy ). The number of seats in each of the M. A. courses is fixed. According to the number of seats and the merits of the candidates the first list of admissions was notified for M. A. (Philosophy) on the 21st July, 1977. It is common experience that all the applicants to whom admissions are offered do not take them up. Some seats remain vacant after the first batch of students accept some of the admissions offered in the first list. The remaining seats are notified in the second list to candidates next below in merits. Out of them also not all accept the seats offered and so a third list is also issued. In the present case the third list for M. A. (Philosophy) for admission was issued on the 9th August, 1977 and the candidates were told to collect the admission slips between the 9th and 11th August, 1977. Out of them also not all accept the seats offered and so a third list is also issued. In the present case the third list for M. A. (Philosophy) for admission was issued on the 9th August, 1977 and the candidates were told to collect the admission slips between the 9th and 11th August, 1977. ( 3 ) THE petitioner availed himself of the admission given to Turn on the 10th August, 1977. On the basis of this admission the petitioner was entitled to participate in the activities of the University Students Union. He wanted to contest the election to the post of Vice-President of the Union. His nomination paper for that purpose was, however, not accepted by respondent No. 2, Chief Election Officer, Delhi University Students Union, because it was submitted after 2. 00 p. m. , while nominations could not be accepted beyond 10th August, 1977 after 2. 00 p. m. according to the programme of holding the Students Union elections already fixed. This brings us to the consideration of what the University Students Union is and how the election of its office bearers is held. ( 4 ) THOUGH the Delhi University Act does not refer to the University Students Union, probably because in the year 1922 they had not become an integral part of the students academic life at the Universities, the University Students Union was subsequently established at the Delhi University. On 2nd August, 1973 the Executive Council abrogated the then existing constitution of the Delhi University Students Union and promulgated an interim constitution for it. Under paragraph 22 of the interim constitution, a constituent body consisting of two elements, namely, (1) the students represented by the Presidents of the College Unions and the office bearers of the University Students Union, and (2) the University represented by the Staff Adviser of the Union, the Treasurer of the Union, ten nominees of the Executive Council, five nominees of the Delhi University Teachers Association and the Chairman appointed by the Vice-Chancellor acting as the Patron of the Union framed a new constitution which exists today. The Executive Council approved it on 1-7-1974. The Executive Council approved it on 1-7-1974. ( 5 ) PARAGRAPH 15 of the constitution of the Union says that the official year of the Union will be from the 16th August of every year to the 15th August of the following year and that the election of the office bearers of the Union should be completed at the latest by the 16th August every year. In the academic year of 1977-78 due to the delay in publishing results and consequent delay in admissions, the Patron of the Union acting under paragraph 27 of the constitution notified that the official year for 1977-78 would be from 22nd August, 1977 instead of 16th August, 1977. He appointed respondent No. 2 as the Chief Election Officer for conducting the election of the office bearers of the Union. The last date for the receipt of nominations was 2. 00 p. m. 10th August, 1977. The nomination paper filed by the petitioner was rejected by respondent No. 2 as it was tendered to him after 2. 00 p. m. on 10th August, 1977. ( 6 ) THE writ petition had to be filed in a hurry. Shri Ram Panjwani, learned counsel for the petitioner, therefore, wanted to raise pure questions of law on the basis of the admitted facts, though he had had no time to plead them in the writ petition. Since the facts were not disputed and the questions are substantial and of general importance Shri Panjwani was allowed to argue them. He contends that the petitioner has a fundamental right to education which includes participation in the activities of the University Students Union and, therefore, the right to contest the election of the office bearers of the Union. He says that this right was denied to him because sufficient time was not available after his admission to file a nomination paper. He says that the denial of this right by respondent No. 2, appointed by the Vice-Chancellor acting as the Patron of the Union was an act of the University, respondent No. 1, which is "state" within the meaning of Article 12 of the Constitution. Respondent No. 1 is also a public authority. The writ petition is, therefore, maintainable against the respondents under Article 226 (l) (a) of the Constitution. Respondent No. 1 is also a public authority. The writ petition is, therefore, maintainable against the respondents under Article 226 (l) (a) of the Constitution. ( 7 ) SHRI Sultan Singh for the University in his oral argument denied that the petitioner had any fundamental right to an opportunity to seek election as an office bearer of the University Students Union. Consequently, the writ petition was not maintainable under sub-clause (a) of Article 226 (1) of the Constitution. Further, the constitution of the Union was not law. Any alleged contravention of it, such as the action of the Patron purporting to be under paragraph 27 thereof to postpone the elections or the rejection of the nomination paper of the petitioner was not a contravention of any law within the meaning of sub-clause (b) of Article 226 (1 ). Lastly, the rejection of the nomination paper by respondent No. 2 was not an action by theState, namely, the University, because respondent No. 2 was acting under constitution of the Union which is not law. ( 8 ) IT is in the light of the above argument that the questions set out at the beginning of the judgment mav now be considered. Is there a fundamental right to education ? ( 9 ) FUNDAMENTAL right (also called human rights or basic rights) are of two kinds: (1) the classical rights, and (2) the economic (and social) rights. As a former Chief Justice of India observed: "every human being,. . . . . . . . . . . . can think speak, move about, associate with others, pray in his own way, and in olden days eked out his livelihood by cultivating a piece of land occupied by him. A State could therefore easily make them enforceable rights. But the economic rights do not exist in nature. They have to be created. A right to work, to education, to livelihood, to equal pay, to equal work, to security, to leisure and such others are very desirable rights. But unless a State creates conditions by positive action, such rights cannot come into existence". (K. Suboa Rao, Enforcement of Basic Human I Rights, in Law and the Commonwealth, published by the Fourth Commonwealth Law Conference, New Delhi, 1971, page 61 at 62 ). But unless a State creates conditions by positive action, such rights cannot come into existence". (K. Suboa Rao, Enforcement of Basic Human I Rights, in Law and the Commonwealth, published by the Fourth Commonwealth Law Conference, New Delhi, 1971, page 61 at 62 ). Article 41 of the Constitution of India, therefore, provides that "the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education," etc. The University of Delhi is an institution established to provide education. After the facilities for education have been provided by the State, the difference between natural rights already possessed by the individual and the man-made rights given by the State to every individual to educate himself and avail of the educational facilities given by the State ceases to be material. In the Universal Declaration of Human Rights, 1948 no difference was made between these two kinds of rights. All of them were regarded as equally fundamental rights. The distinction was later made between political and civil rights, on the one hand, and the economic (and social) rights on the other hand, in the human rights covenants primarily because the former were more easily enforceable than the latter. In drafting the Constitution of India also initially the rights embodied in Part III and Part IV of the Constitution were all listed as fundamental rights. Later they were divided into two for the same reason. However, once the State takes action by legislation or otherwise to make the right to education available to every eligible person the statutory right or statutory facility should stand in practice (if not in theory) on the footing of a fundamental right. ( 10 ) BUT even in the narrower sense right to education would appear to be a fundamental right which can be spelt out of the provisions of sub-clauses (a), (b) and (c) of Article 19 (1) read with Article 21 independently of Article 41 and the Delhi University Act. What is education ? It is both the development of the mind and personality of the individual and his development as a useful member of the society. If education had consisted only of the former, then there would have been no need for Schools, Colleges and Universities. Every person would educate himself by self-study or correspondence with educating bodies. What is education ? It is both the development of the mind and personality of the individual and his development as a useful member of the society. If education had consisted only of the former, then there would have been no need for Schools, Colleges and Universities. Every person would educate himself by self-study or correspondence with educating bodies. But this would not fulfil the other equally important aspect of education, namely, the social one. The primary social function of education is to prepare the individual to participate in the democratic process which is the very life of the nation. The training of students in the democratic process is achieved partly through students unions. The Kothari Commission has this to say :- "11. 73. Students Unions.-Student unions represent an important way of providing student participation in university life outside the classroom. Properly organized, they help in self-government and self-discipline, provide a healthy outlet for students energies and give the students useful training in the use of democratic methods. " (Report of the Education Commission, 1964-66 on Education and National Development para 11. 73 page 295 ). The Gajendragadkar Committee devoted an entire Chapter to "student Participation" for which the students unions provide an important forum. [report of the Committee on Governance of Universities and Colleges, (1971) Part I, Chapter VIII]. The importance of what is called "academic freedom" or "educational democracy" has been widely realised. These expressions do not mean that apart from freedom or democracy proper there are other kinds of freedom and democracy. "political discourse will be much clearer, however, if such adjectives are not used to modify democracy. More accurately we should speak of democracy in the educational system, or in the school or classroom. . . . . . . . . None of these is a condition of democracy ; they are all applications of it. " [carl Cohen, "democracy", (1971- paragraph 9. 7]. ( 11 ) IF educational democracy or dernocracy in education is an integral part of all round education then participation in the activities of the students, union including contesting election to its office bearers is a much the right of a student as is the admission to a University. " [carl Cohen, "democracy", (1971- paragraph 9. 7]. ( 11 ) IF educational democracy or dernocracy in education is an integral part of all round education then participation in the activities of the students, union including contesting election to its office bearers is a much the right of a student as is the admission to a University. Participation in the students Union established and run by the University which is "state" under Article 12 of the Constitution appears to be a fundamental right for the following reasons : Firstly, it involves the right to assemble peacefully within the meaning of Article 19 (1) (b ). Without an assembly there can be no social education or preparation of a student to be a useful member of society and a participator in the democratic process. The democracy in education leads to democracy in Government. Students receiving education first participate in the former and after emerging from the Universities become participators in the latter. Secondly, it involves the right to form associations or unions within the meaning of sub-clause (c) of Article 19 (1 ). It needs no argument that students union cannot come into existence unless the students are allowed to form an association or a union. THE new meaning of freedom of speech: ( 12 ) THIRDLY, the right to education through participation in the students union also involves freedom of speech and expression guaranteed by Article 19 (l) (a ). This needs some explanation. When the fundamental right to freedom of speech was first guaranteed in 1789 by the United States Constitution, First Amendment, the concept of this right was simple and direct. Every individual was to be allowed to express himself freely. Since then social conditions have been transformed beyond recognition by developments in technology, science, communication and international relations and co-operation. A reassessment of "freedom of speech" today involves much more than what was understood when it was first guaranteed in the Constitution of the United States. Today we have to define it and seek to secure it in a world in which most means of communications are controlled by very few people. This basic right today must be understood and interpreted not as freedom to say what one wants to say, but as the right of men to hear the truth. Today we have to define it and seek to secure it in a world in which most means of communications are controlled by very few people. This basic right today must be understood and interpreted not as freedom to say what one wants to say, but as the right of men to hear the truth. We must develop processes and procedures and rules so that, at least, the greatest measure of truth that is available may be given to people for their judgment and their consideration. [the Great Ideas Today, (1968) Eugene J. Mccarthy, "reassessment", pages 8. and 9]. Free expression today is not merely the fundamental right of the individual. The movement is "toward a general theory of the first amendment" or free expression. [thomas 1. Emerson in Vol. 72, Yale Law Journal, (1962-63) page 877]. In considering the right guaranteed by Article 19 (l) (a) we have to visualise the whole system of freedom of speech. We must realise that the system attempts to maintain the function of freedom of expression in a democratic society. It takes note of the practical difficulties in its working and attempts of Government towards its regulation. It also notes the role of the law and legal institutions in developing and supporting the system of free expression (ibid page 897 ). ( 13 ) THE kind of free speech and expression sought by the petitioner is the participation in the students union. It is no use to him to be told that he is free to speak what he likes. It is not effective. According to Prof. Meikiejohn, the First Amendment [corresponding to our Article 19 (l) (a)] denies the State all power to interfere with "speech" which is defined by its processes of self-government. The function of the first amendment is not so much to protect "speech" in its normal connotative sense, but to preserve "the freedom of those activities of thought and communication by which we govern". (Meikiejohn, First Amendment. Is it An Absolute? 1961 Sup. Ct. Rev. 245 at 255 ). This new concept of freedom of speech was largely accepted by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U. S. 254 (1964) at 273, 276 and 280 (1 ). No less a person than Justice Brennan, who wrote the opinion of the court, intimated that such may have been the case. This new concept of freedom of speech was largely accepted by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U. S. 254 (1964) at 273, 276 and 280 (1 ). No less a person than Justice Brennan, who wrote the opinion of the court, intimated that such may have been the case. (The Supreme Court and the Meimejohn Interpretation if the First Amendment), 79 Harv. L. Rev. 1 (1965) (2 ). In Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U. S. 367 (1969) at 388, 389, (3) the court said that the First Amendment has a major role to play in public broadcasting as the Congress itself recognised when it forbade F. C. C. interference with the "right to free speech by means of radio communication". In elaborating the court s views, Mr. Justice White said "it is the right of the public to receive suitable access to social, political aesthetic, moral and other idea s and experiences which is crucial here" The transformation of the right of the individual to free speech into the right of the public to be informed and giving constitutional protection to this new right, not of the individual but of the public, dramatically brings out the revolutionary change in the meaning of freedom of speech. The petitioner before us wants to participate in this new freedom of speech-a right enjoyed by the students union of which he has a right to become a member if the freedom of speech is construed as the right of the union including its office bearers to corporate activity, discussion and participation. ( 14 ) MATHEW J. in Bennet Coleman and Co. and others v. Union of India and others, AIR 1973 S. C. 106, (4), developes this view as follows : ". . the freedom of speech protects two kinds of interest. There is an individual interest, the need of men to express their opinion on matters vital to them and a social interest in the attainment of truth so that the country may not only accept the wisest course but carry it out in the wisest way. Now, in the method of political Government, the point of ultimate interest is not the words of the speakers, but the minds of hearers. . . . . . . . Now, in the method of political Government, the point of ultimate interest is not the words of the speakers, but the minds of hearers. . . . . . . . The welfare of the community requires that those who decide issues shall understand them (Meikiejohn, Political Freedom, p. 26) . the general principles underlying first amendment safeguards may , for present purposes, be reduced to three, judicially recognised specifics. First, Professor Alexander Meikiejohn s assertion that the first amendment was intended to define not an individual right to speak, but rather a community right to hear has been assumed by modern constitutional decision Rosenblatt v. Baer, 383 U. S. 74, (5) Lament v. Postmaster, 381 US 301 (6), Roth v. United States 354 US 476 (7), Stromberg v. California, 283 US 359 (8), (see Paul Goddstein, Copyright and the First Amendment, Columbia Law Review. Vol. 70, 983) (. 9), That the right of the public to hear is within the concept of the freedom of speech is also clear from the pioneering opinion of Justice Burger, as he then was, in Office of Communication of United Church of Christ v. F. C. C. Federal Reporter 359 (10 ). The learned Judge emphasised "principally the primary status of" the right of the public to be informed, rather than any right of the Government, any broadcasting licensee or any individual member of the public to broadcast his own particular views on any matter . IF the right of the public to hear and be informed is also within the concept of the freedom of speech, the Government, when it insists upon the newspapers concerned maintaining their present level of circulation does not abridge the freedom of speech but only enriches and enlarges it. In other words, under the theory of the freedom of speech which recognises not only the right of the citizens to speak but also the right of the community to hear, a policy in the distribution of newsprint for maintenance of circulation at its highest possible level, as it furthers the right of the community to hear, will only advance and enrich that freedom". ( 15 ) IT is the public discussion of public issues together with spreading of information which is the function of corporate activities like those of the students union. ( 15 ) IT is the public discussion of public issues together with spreading of information which is the function of corporate activities like those of the students union. In the new concept of the freedom of speech and expression developed within the ambit of Article 19 (1) (c) the petitioner has a right to participate in these activities because he has a right to hear what other participants have to say and to make his own contribution to the discussion. All the paricitpants are that way trained in the democratic process. The education of the electrorate is said to be the very foundation of the democratic system which is the objective of our Constitution. The aims and objects of the University Students Union are stated in Article 3 of the constitution of the union. They are as follows : " (I) To promote mutual contact, a democratic outlook and a spirit of oneness among the students of the University of Delhi. (II) To promote the social, cultural and intellectual development of the students of the University of Delhi. (III) To promote consciousness among the students of the University of Delhi of the events taking place around them with a view to better equipping them as responsible and educated citizens and to build up a healthy students movement. (IV) To promote among the students of the University of Delhi a sense of service to the people and duty towards the State. (V) To promote harmonious relations among all sections of the University community. (VI) To meet discuss and make representations to the University authorities on matters concerning common interests of the students. " THE activities of the union are described in Article 4 of the constitution as follows : " (I) Debates, lectures, discussions, study circles, essay competitions, etc. (II) Cultural performance and contests. (iii) Indoor games. (IV) Publication of magazine, bulletin and wall newspapers. (v) Trips and tours to places of historical and educational importance. (VI) Social Service and Social Relief Activities. (vii) Organising and running co-operatives. (VIII) Organise poor Boys Fund and Bock Bank to help needy students. (IX) Such other activities as will further the realisation of the above aims and objects. " ( 16 ) IT will be seen that the participation in the union activities for the promotion of its declared aims and objectives is an integral part of the education of the petitioner. (IX) Such other activities as will further the realisation of the above aims and objects. " ( 16 ) IT will be seen that the participation in the union activities for the promotion of its declared aims and objectives is an integral part of the education of the petitioner. We find, therefore, that the petitioner has a fundamental right to educate himself by participating in the activities of the students union including election of its office bearers, not only under sub-clauses (b) and (c) but also under sub-clause (a) of Article 19 (1 ). MEANING of "life and Personal Liberty" under Article 21 : ( 17 ) TWO approaches to the construction of fundamental rights have been discernible. One approach is to take each right or part of that right separately and to distinguish it from other fundamental rights, as was done by the majority in A. K. Gopalan v. State of Madras, AIR 1950 S. C. 27 (11), and All India Bank Employees Association v. The National Industrial Tribunal (Bank Disputes), Bombay and others, AIR 1962 SC 171 (12 ). The other approach was to consinder the related fundamental rights together and to spell out their emanations so that certain fundamental rights, though not enumerated in Part III of the Constitution, would also amerge out of them. This approach was enunciated by the minority in Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 ( 13), and the majority in Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, AIR 1967 SC 1836 (14 ). The latest decision of the seven-Judges Bench of the Supreme Court in Smt. Menaka Gandhi v. Union of India and another, AIR 1978 SC 597 (15), has preferred the minority decision in Kharak Singh to that of the majority. The law is, therefore, now settled that the expression "life and personal liberty" in Article 21 of the Constitution includes variety of rights, though they are not enume-ated in Part III of the Constitution, provided that they are necessary for the full development of the personality of the individual and can be included in the various aspects of the liberty of the individual. If the right to free speech, assembly and association are necessary for the development of human personality, they are liberties which are spelt out not only by Article 19 (1) (a), (b) and (c) but also Article 21 of the Constitution. Human liberty is incomplete if man is denied the right to associate with others and discuss corporate problems with colleagues and participate in the corporate life. The aims and objects and the activities of the union are stated above. Since the education is not complete without these activities the liberties of the petitioner must include the opportunity to participate in them. The right to education is, therefore, also included in Article 21 of the Constitution. DID the University deny this right to the petitioner ? ( 18 ) THE University is not only a public authority for the purpose of Article 226, but also "state" under Article 12 of the Constitution. This was not disputed by the parties. The argument centered round the question whether the rejection of the petitioner s nomination paper by respondent No. 2 was action of the State against which the fundamental right to education could be enforced. Action of the State may be legislative or executive. Shri Sultan Singh argued that the constitution of the Students Union was not legislation. Shri Ram Panjwani had intended to argue that framing of the Constitution by the constituent body consisting of the representatives of the students and the officers of the University amounted to making of regulations under section 32 (1) (c) of the Delhi University Act. But we pointed out to him that there is a clear distinction between making of subordinate legislation and the exercise of executive power (V. S. Deshpande, Judicial review of Legislation, (1975) Chapter I, and Sukhdev Singh and others v. Bhagati ram Sardar Singh Raghuvanshi AIR 1975 S. C. 1331] (16 ). Moreover, section 32 (l) (c) does not refer to making of regulation as such, but only to the constitution of committees, etc. The framing of the constitution of the union and the action of the University authorities under the constitution is not, therefore, regulations, but executive action. How A did respondent No. 2 come to exercise this authority as the Chief Electoral Officer in-charge of the election of the students union? The framing of the constitution of the union and the action of the University authorities under the constitution is not, therefore, regulations, but executive action. How A did respondent No. 2 come to exercise this authority as the Chief Electoral Officer in-charge of the election of the students union? Article 16 of the constitution of the union empowers the Patron, namely, Vice- Chancellor ex-officio to appoint a Chief Electoral Officer and other election officers to arrange to conduct elections. How does the Patron get this authority? Article 5 of the constitution makes the Vice- Chancellor of the University the Patron of the union whose duty is to take all necesary steps to ensure that the union functions in accordance with the constitution. It was faintly argued by Shri Sultan Singh that the Patron and the Chief Election Officer working under the constitution of the union were not acting as the Vice-Chancellor and an officer of the University. Their action was not, therefore, action of the State or a public authority, but that of a Persona designata acting under the constitution of the union. Such a contention would have had some D force if the constitution was self-executing. The constitution was, however, framed by a body consisting of the students representatives and the officers of the University. The authority to frame the constitution was not directly derived from any specific provision of the University Act. It would be difficult to say, therefore, that the constitution as such was subordinate legislation. THE Doctrine of Executive Action : ( 19 ) ON the contrary, just executive power of the Union of India is co-extensive with its legislative power under Article 73 of the Constitution, similarly, the executive authority of the University is co-extensive with its legislative power plus all other powers given to it by section 4 (13) of the Act to do all such other acts and things, whether incidental to the powers aforesaid or not as may be requisite in order to further the objects of the University. It is well settled that instead of exercising legislative power and making sub-ordinate legislation, the Government or the statutory authority may take executive action. It is well settled that instead of exercising legislative power and making sub-ordinate legislation, the Government or the statutory authority may take executive action. Exercise of such executive power would be legal so long as it is within the ambit of the statutory powers of the public authority concerned and so long as it does not contravene any other law or private rights (Ram Jawaya Kapur v. State of Punjab, AIR 1955 S. C. 549 (17), and T. Cajee v. U. Jormanik Siem and another, (1961) I SCR 750] (18 ). The doctrine that a statutory authority is a creature of the statute and cannot have any powers except given to it by the statute does not mean that it is confined only to making of subordinate legislation. On the contrary, it is well settled that instead of making sub-ordinate legislation or until the making of it a statutory authority can act in exercise of its executive power. Section 4 (13) of he Delhi University Act expressly empowers the University to act executively in furtherance of its objects. The object of the University was to establish a teaching and affiliating University. A University by definition is an institution designed for instruction or education. The purpose of education has always been comprehensive enough to include the development of all round personality of the individual. The social side of education was always included in the process of education. Even if it is assumed for the sake of argument that in 1922 when the Delhi University Act was enacted the concept of education did not include participation in the students union, the concept of education today includes participation in the students union. The question is do we interpret the Act in the light of the conditions prevailing in 1922 or in the light of these prevailing today? Considering this question in relation to the interpretation of the U. S. Constitution, a well known authority of American Constitutional law had this to say : "i like to think that what Marshall did was offer us. the people of the United States in whose name the Constitution was Written. the opportunity to sign it, adding our names to those of the Convention. This may be fanciful, but it s none of worse for that. It is a metaphor, and "a world ends", Macleish says, when its metaphor has died . the people of the United States in whose name the Constitution was Written. the opportunity to sign it, adding our names to those of the Convention. This may be fanciful, but it s none of worse for that. It is a metaphor, and "a world ends", Macleish says, when its metaphor has died . Let me show you how good and true my metaphor is by what happens when it is denied. In the Dred Scott case Chief Justice Taney, giving the opinion of the Court, quoted from the Declaration of Independence, we hold these truths to be self evident : that all men are created equal. Then he said : The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included. . . . . . . . . No one, we presume, supposes that any change in public opinion or feeling, in relation to this country, should induce the court to give to the words of the constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. . . . . . . . it must be construed now as it was understood at the time of its adoption ( 20 ) COMMENTING on Dauglas support of this position, Lincoln replied : CHIEF Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Dauglas argues that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. . . I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal-equal in certain analienable rights, among which are life, liberty, and the pursuit of happiness . This they said, and this meant. . . . . They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal-equal in certain analienable rights, among which are life, liberty, and the pursuit of happiness . This they said, and this meant. . . . . . They meant to set up a standard maxim for free society, which could be familiar to all, and revered by all ; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. . . . . They knew the proneness of prosperity to breed tyrants, and they meant when such should reappear in this fair land and commence their vocation they should find left for them at least one hard nut to crack. THOUGH Taney and Lincoln were talking about the Declaralion, they were both construing the Constitution. The difference between them is not only that Taney was wrong and Lincoln right. It is that Taney was ascribing to the words what he thought their authors intended, and Lincoln was giving the authors credit for what their words meant. Men intend, words mean, though our language uses both terms indiscriminately. Lincoln saw the difference; Taney did not. " (Supreme Court; and Supreme Law edited by Edmond Cahn, The Role of the Constitutional Text by Charles P. Curtis pp. 64, 65. ( 21 ) IN Vishnu Agencies (Pvt.) Ltd v. Commercial Tax Officer and others, (1978) I S. C. C. 520 (19 ). Chandrachud J. (as he then was) speaking for the court expressed the same view in relation to the meaning of the word sale , namely, that it has to be construed not always in relation to the conditions existing at the time I the Constitution was framed, but also after taking into account the conditions existing when the need for construction arises at the present time. ( 22 ) WE would be justified, therefore, in construing the wide words used in section 4 (13) of the Act to include as being within the meaning A executive powers of the University to join in framing the constution for the union and to co-operate with them by participating in the running of the union activities. ( 23 ) THE constitution of the union as such is only a paper constitution, unless and until life is put into it by making it enforceable. How is it made enforceable? Obviously by the association of the University authorities with it. It is because the Executive Council approves the constitution that it becomes enforceable. It is because the Patron specifies the date under Article 28 that it comes into force. All this shows that the action taken apparently under the constitution by University authorities is the executive action by the authorities is their official capacity endowed on them by the Delhi University Act. Thus even if the students union Constitution was not there at all, the University authorities could govern the activities of the students union in exercise of the executive power of the University. Such action is, therefore, State action because the University authorities are acting only in exercise of the powers given to the University authorities by the Delhi University Act. They have no other power of action. The constitution is a joint creation of the students and the University. The authorities already existed prior to the union constitution. Their powers were also given to them by the Act. The constitution itself is a creation of the exercise of their executive power. We find, therefore, that respondent No. 2 as authorised by the Vice-Chancellor, was exercising the executive power of the University which is the action of "state" within the meaning of Article 12 of the Constitution. MAINTAINABILITY of the writ petition : ( 24 ) THE writ petition is seeking to enforce the fundamental right of the petitioner to educate himself by participating in the union activities. Its maintainability under clause (a) of Article 226 (1) is established if he shows that this right was denied to him by the action of respondent No. 2. ( 25 ) ONCE the University admits a student, it becomes its duty to educate him or give him equal opportunity with others to educate himself. Its maintainability under clause (a) of Article 226 (1) is established if he shows that this right was denied to him by the action of respondent No. 2. ( 25 ) ONCE the University admits a student, it becomes its duty to educate him or give him equal opportunity with others to educate himself. Since the participation in the union activities is a part of the total education given by the University equal opportunity has to be given to all students to participate in the union activities. It is necessary to ensure, therefore, that the students after being admitted will have a reasonable time to join the students union including elections to it. The Bulletin of Information for admission to M. A. Classes at page 3 states that the first admission list of the students to M. A. classes would be notified on the afternoon of 21st July, 1977. It was common ground of the parties in their argument that all students to whom admissions offered in the first list cannot be expected to accept the admissions as some of them either go to other Universities or for other reasons do not avail themselves of the admissions offered to them. It has been the experience of the University, therefore, that the seats which remain vacant are again offered to the remaining applicants in order of merit in a second list of admissions, and to a third list of admissions and so on. This process inevitably takes time. The official year of the University Students Union, according to paragraph 15 of the constitufion begins on the 16th August of every year and ends on the 15th August of the following year. The election of the office bearers of the union have to be completed at the latest by 15th August each year. This made it necessary, therefore, that the nomination papers by candidates for election have to be filed by 1st August each year. It was not disputed by the learned counsel for the University that 1st August each year was too close to the completion of the admissions after the issue of all the admission lists one after the other. The desirability of giving sufficient time to the students after the completion of their admissions to know each other, to be acclamatise to the University life and to prepare for union elections must be allowed before elections are held. The desirability of giving sufficient time to the students after the completion of their admissions to know each other, to be acclamatise to the University life and to prepare for union elections must be allowed before elections are held. Experience has, therefore, proved that the date of the beginning of the official year of the union specified in paragraph 15 does not allow sufficient time to the students for preparing themselves for participation in the union elections. Last year the results were also delayed and therefore, the Vice-Chancellor acting as the Patron had to extend the time to hold elections under paragraph 27. This itself is an admission that the dates of the official year fixed in paragraph 16 are not suitable. The admission of the petitioner at the earliest could have been on the 9th August, 1977. The last date for filing nomination was 10th August. It cannot be said that sufficient time was given to him to know the newly admitted students and to prepare himself for the election and to file nomination paper onany one day. The action of the University authorities firstly in fixing the date of the commencement of the year and secondly, in rejecting the petitioner s nomination paper resulted, therefore, in the denial of the exercise of the fundamental right to education by the petitioner. ( 26 ) DURING the argument by the learned counsel on both sides, it was felt that in Article 15 of the constitution of the union, the substitution of the word "october" in place of the word "august" by an amendment of the constitution should, perhaps, be considered by the appropriate body under Article 23 of the constitution of the union. If this is done students will get sufficient time to prepare themselves for the election of the union after all the admissions are completed and after they had time to know each other. ( 27 ) WE, therefore, hold that the existing date of the commencement of the official year in paragraph 15 of the constitution is an unreasonable restriction on the fundamental right of the petitioner to education. It is, therefore, quashed. At the same time, we observe that the persons who have been elected as office bearers of the University Students Union are not parties to the present writ petition. It is, therefore, quashed. At the same time, we observe that the persons who have been elected as office bearers of the University Students Union are not parties to the present writ petition. Therefore, their tenure of office as office bearers of the union cannot be disturbed as they have not been heard. Further, the academic year of the University has almost ended as final examinations are now going on. Thereafter the University would be closed for the summer vacation. It will not only be futile, but inexpedient to bring to an end the tenure of the present office, bearers of the union. We, therefore, refrain from giving any further? relief to the petitioner as against the present office bearers of the union. We are sure, however, that in view of the quashing of the existing date for the commencement of the official year in paragraph 15 of the constitution of the union, the University in collaboration with other appropriate body will amend the constitution of the union. It will take into account the desirability of fixing a new date for the commencement of the official year which would allow sufficient time to the students to know each other after the admissions are over and then to file their nomination papers, etc. for election to the students union. ( 28 ) THE writ petition is allowed as above with no order as to costs.