Jagdish Saran & Ors Vs. Union of
India & Ors [1980] INSC 11 (28 January 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 820 1980 SCR (2) 831 1980
SCC (2) 768
CITATOR INFO :
RF 1980 SC 838 (4) RF 1980 SC1230
(10,14,17,18,35) R 1981 SC2045 (10,25) R 1984 SC1420 (10,12,13,18,20,22) RF
1984 SC1534 (13) F 1985 SC1059 (2) RF 1986 SC1362 (3,4,5) E&D 1989 SC1194
(9,10,18)
ACT:
Constitution of India 1950, Articles 15 and
16- Admission to post-graduate course in medicine-Rule of Delhi
University-Reservation of 70 per cent of seats at post graduate level for its
own university graduates-Validity of.
Practice and Procedure-Litigation on
socio-legal issue- Brief to be well researched and factually detailed.
HEADNOTE:
The University of Delhi has many
post-graduate and diploma courses in the faculty of medicine but all of them
put together provide 250 seats. The three medical colleges in Delhi turn out
annually 400 medical graduates who get 'house' jobs in the local hospitals and
qualify themselves for post-graduate courses. As the graduates from the Delhi
University could not be accommodated fully or even in part for the
post-graduate courses in medicine and as these graduates were not considered
for admission into other universities on account of various regional hurdles
such as prescription of domicile, graduation in that very university,
registration with the State Medical Council, service in the State Medical
service etc., the Delhi University had earmarked some seats at the
post-graduate level in medicine for the medical graduates of Delhi University.
Until April 1978, the rule for selection of
candidates for admission into the post-graduate classes in medicine provided
that selection for 52% of the total number of seats was to be made on the basis
of combined merit of Delhi University and other university medical graduates,
and 48 per cent from the Delhi University graduates only. The rule was amended,
reserving 70% of the seats at the post-graduate level to Delhi graduates and
30% being open to all, including graduates of Delhi.
The petitioner who was a medical graduate
from the Madras University applied for the post-graduate degree in Dermatology
in the University of Delhi. He passed the common entrance test for admission,
but his admission was turned down because of the rule of the University
reserving 70% of the seats at the post-graduate level to Delhi University
graduates.
The petitioner in his writ petition under
Article 32 challenged the rule as violative of Articles 14 and 16 of the
Constitution and sought the court's writ to direct the University to admit him
to the M.D. Course in Dermatology.
It was contended that the University was
sustained by Central Government finances, collected from the whole country and
the benefits must likewise belong to all qualified students from everywhere.
The University justified the reservation on the ground of exclusivism practised
by every other University by forbidding Delhi University graduates from getting
admission in their colleges and also on account of the reasonableness of
institutional continuity in educational pursuits for students who enter a
university for higher studies.
832 Dismissing the writ petition.
HELD: (per Krishna Iyer & Chinnappa
Reddy, JJ.)
1. Reservation of 70% is too high at the
post-graduate level. But the rule is not invalidated because the facts are
imperfect, the course has already started and the court must act only on sure
ground, especially when matters of policy, socio-educational, investigation and
expert evaluation of variables are involved. When fuller facts are placed, the
court will go into this question more confidently. [858 D-E]
2. If 70% reservation is on the high side and
the petitioner is hopefully near 'admission' going by marks it is but just that
he is given a chance to do his post- graduate course. His coming to Delhi
itself was a compulsion beyond his control. [858 F]
3. Petitioner directed to be admitted to the
degree course this year, if the rules of attendance etc., do not stand in the
way and the Medical Council makes an exception by agreeing to addition of one
seat as a special case for this year. [858 G]
4. (i) The University forthwith-not later
than two months from today-to appoint a time-bound committee to investigate in
depth the justification for and the quantum of reservation at the post-graduate
level from the angle of equality of opportunity for every Indian. That
committee will study facts and figures and the reservation realities of other
universities and make recommendations on the question of university-based
reservations and allied aspects as well as modus operandi for implementation.
The Committee will benefit if it has a constitutional expert and a
representative of the Indian Medical Council on it. Its report shall be
considered by the University as soon as may be, so that, if possible, the
admissions for the next year may be governed by the revised decisions of the
concerned organs informed by the report. [858 H-859 C] (ii) The Union of India has
a special responsibility to ensure that in higher education provincialism does
not erode the integrity of India. Anyone who lives in India can never be
considered an 'outsider' in Delhi. Blind and bigoted local patriotism in
xenophobic exclusivist is destructive of freedom and only if compelling
considerations of gross injustice, desperate backwardness and glaring
inequality desiderate such a course can protective discrimination gain entrance
into the portals of college campuses. [859 D, 860 A, B]
5. The philosophy and pragmatism of universal
excellence through universal equal opportunity is part of our culture and
constitutional creed. [843 A]
6. The Indian Constitution is wedded to equal
protection and non-discrimination. Arts. 14, 15 and 16 are inviolable and Art.
29(2) strikes a similar note though it does not refer to regional restrictions
or reservations.
Art. 15 saves the State's power to make
special provisions for women and children or for advancement of socially and
educationally backward classes. [842 B]
7. University-wise preferential treatment may
still be consistent with the rule of equality of opportunity where it is
calculated to correct and imbalance or handicap and permit equality in the
larger sense. [849 F] 833 8. What is fundamental is equality, not
classification.
What is basic is equal opportunity, for each
according to his ability, not artificial compartmentalization and institutional
apartheidisation, using the mask of handicaps.
A clanish exclusivism based upon a particular
university cannot be contemplated as consistent with Article 14. [852 A]
9. A blanket ban which is the indirect result
of a wholesale reservation is constitutional heresy. There must be substantial
social justice as raison d'etre for a high percentage of alumni reservation.
[853 H]
10. If equality of opportunity for every
person in the country is the constitutional guarantee, a candidate who gets
more marks than another is entitled to preference for admission. Merit must be
the test when choosing the best, according to this rule of equal chance for
equal marks. This proposition has greater importance when we reach the higher
levels of education like postgraduate courses. The role of high grade skill or
special talent may be less at the lesser levels of education jobs and
disciplines of social inconsequence, but more at the higher levels of
sophisticated skills and strategic employment. To devalue merit at the summit
is to temporise with the country's development in the vital areas of
professional expertise.
[854 E-G]
11. The class which enjoys reservation must
be educationally handicapped. The reservation must be geared to getting over
the handicap. The rationale of reservation must be in the case of medical
students, removal of regional or class inadequacy or like disadvantage. The
quantum of reservation should not be excessive or societal injurious, measured
by the over-all competency of the end-product, viz.
degree-holders. A host of variables influence
the quantification of the reservation. [855 B-C]
12. The higher the level of the speciality
the lesser the role of reservation. M.B.B.S. is a basic medical degree and
insistance on the highest talent may be relaxed by promotion of backward
groups, institution-wise chosen, without injury to public welfare. It produces
equal opportunity on a broader basis and gives hope to neglected geographical
or human areas of getting a chance to rise.
Moreover, the better chances of candidates
from institutions in neglected regions getting down for practice in these very
regions also warrants institutional preference because that policy helps the
supply of medical services to these backward areas. [855 D, F]
13. It is difficult to denounce or renounce
the merit criterion where the selection is for post-graduate or post- doctoral
courses in specialised subjects. There is no substitute for sheer flair, for
creative talent, for fine- tuned performance at the difficult heights of some
disciplines where the best alone is likely to blossom as the best. [856 F-G]
14. Neither Delhi nor the Delhi University
medical colleges can be designated as categories which warrant reservation.
Reservation for Delhi graduates is not that invidious, because the students are
from families drawn from all over India. Not sons of the soil' but sons and
daughters of persons who are pulled into the capital city for reasons beyond
their control. This reservation, is, therefore, qualitatively different. [857
D-E]
15. Institution-wise reservation is
constitutionally circumscribed and may become ultra vires if recklessly
resorted to. But even such rules, until revised 834 by competent authority or
struck down judicially, will rule the roost. Until the signpost of 'no
admission for outsiders' is removed from other universities and some fair
percentage of seats in other universities is left for open competition, the
Delhi students cannot be made martyrs of the Constitution. Reservation must be
administered in moderation, if it is to be constitutional. [858 B-C]
16. Litigation, on a socio-legal issue of critical
constitutional moment, should not end with general assertions, affidavits of
formal denials and minimal materials, but needs feeding the court with
nutritive facts which build the flesh and blood of the administrative or
legislative action under challenge and all other surrounding and comparative
data which legitimate the 'reservation' or other procedure under attack from
the constitutional angle.
Ingenious or imaginative morality in court
can never be a substitute for well-researched down-to-earth factuality in the
brief. In the adversary system, advocacy in the superior courts which by their
decisions, declare the law for all must broaden beyond the particular lis into
a conspectus of sociological facts, economic factors and educational conditions
so that other persons aggrieved who will potentially be bound by the decision,
do not suffer by not being so nomine parties. [841 F-G, H 837 E] (Per Pathak
J.)
1. Classification is a feature of the very
core of equality. It is a vital concept in ensuring equality, for those who are
similarly situated form a class between themselves, and the classification is
not vulnerable to challenge if its constituent basis is reasonably related to
achieving the object of the concerned law. An institutional preference as in
the instant case does not offend the constitutional guarantee of equality. [861
D-E]
2. The basis of the reservation is that the
candidate for admission to the post-graduate classes is a medical graduate of
the same university. The relation-ship is institutional. There is sufficient
validity in that criterion as a basis of classification under Article 14.
[860 F, G] It is not beyond reason that a
student who enters a medical college for his graduate studies and pursues them
for the requisite period of years should prefer on graduation to continue in
the same institution for his post- graduate studies. There is the strong
argument of convenience, of stability and familiarity with an educational
environment which in different parts of the country is subject to varying
economic and psychological pressures. But much more than convenience is
involved. There are all the advantages of a continuing frame of educational
experience in the same educational institution. In the post- graduate class, it
is not an entirely different course of studies which is contemplated; it is a
specialised and deeper experience in what has gone before. The student has
become familiar with the teaching techniques and standards of scholarship, and
has adjusted his responses and reactions accordingly. The continuity of studies
ensures a higher degree of competence in the assimilation of knowledge and
experience. Not infrequently some of the same staff of Professors and Readers
may lecture to the post-graduate classes also. Over the under-graduate years
the teacher has come to understand the particular needs of the student, where
he excels and where he needs an especial encouragement in the removal of
deficiencies. There is good reason in an educational institution extending a
certain degree of preference to its graduates for admission to its post-
graduate classes. [860 C] 835
3. Medical courses are not all necessarily to
be found only in New Delhi. They are located in other parts of India and some
are well-known centers of medical education. The proposition that because New
Delhi is the political, legislative and judicial capital of India, an education
of quality is not to be found in other cities is not acceptable. Merely because
New Delhi is the new Capital of Delhi does not justify a disproportionate
treatment of the claim to equality on a national level made by its medical
graduates. [862 C-D]
4. But too excessive a reservation could
result in preference to graduate candidates of severely limited aptitude and
competence over meritorious candidates from other institutions whose exclusion
could result in aborting a part of the national talent. [861 F]
5. Whether or not a reservation of 70% was
called for has not been established conclusively. There is hardly anything to
show that the authorities applied their mind to a cool dispassionate judgment
of the problem facing them.
The judgment and decision of the authority
must be evolved from strictly concrete and unemotional material relevant to the
issue before it. [862 F]
ORIGINAL JURISDICTION: Writ Petition No. 214
of 1979.
(Under Article 32 of the Constitution) S.
Balakrishnan and M. K. D. Namboodiri for the Petitioners.
Lal Narain Sinha Attorney General and Miss A.
Subhashini for Respondent No. 1.
Shanti Bhushan, Jitendra Sharma, V. P.
Choudhry and R. L. Gupta for the Respondents Nos. 3, 4 & 5. The Judgment of
Krishna Iyer, and O. Chinnappa Reddy, JJ was delivered by Iyer, J., R. S.
Pathak, J. gave a separate concurring Opinion.
KRISHNA IYER, J.-Many a case in this Court is
the dramatisation. On the forensic stage, of social stress or community
conflict which seeks resolution or release through the litigative process. This
Writ Petition turns the focus on one such tense issue and ventilates a
widespread grievance which deserves constitutional examination.
The petitioner, Dr. Ramesh, is a medical
graduate from the Madras University. His father, an officer under the Central
Government, was transferred to Delhi and the son, desirous of taking a
post-graduate degree in Dermatology, applied for admissions to the University
of Delhi which offers that course. He took the common entrance test and secured
enough marks to qualify for admission but was turned down because of a rule
reserving 70% of the seats, at the post-graduate level, to Delhi graduates (if
we may use that abbreviation for describing student-applicants who have taken
their M.B.B.S. degree from the University of Delhi).
The remaining 30% was open to all, including
836 graduates of Delhi. This rule was made in April 1978 in modification of the
earlier reservation of 48%.
Had this inflation (from 48% to 70% plus) not
been made, the petitioner admittedly would have been granted admission. So what
blocked his right to post-graduate entry was this rule of institutional quota
of 70% which accorded a disproportionate premium in favour of Delhi graduates.
The other petitioners are no longer in the race having secured lesser marks at
the entrance test, and so the judicial lens must be fixed on the validity of
such a considerable reservation or virtual monopoly for the Delhi graduates.
The petitioner challenges its vires as violative of Arts. 14 to 16 and seeks
the court's writ to direct the respondent University to admit him to the M.D.
course (Dermatology).
While litigating for his right to a seat in
the postgraduate degree course in dermatology, he is now doing his diploma
course in the same subject in the same University, which is inferior to his
aspiration and entitlement if the right to equality is fatal to the quota
policy.
We are not investigating the plea based on
Art. 16 because it is not clear whether the stipend paid to a post- graduate
student makes the course an employment and, apart from that, the meat of the
matter is whether there is discrimination. If there is, Arts. 14 and 15 are
lethal enough, without resort to Art. 16.
The University of Delhi (we may use the
shorthand form 'Delhi University' hereafter) refutes this challenge and
justifies the reservation in the concrete educational plight of Delhi graduates
as an inevitable evil, if it be evil because of the exclusivism practised by
every other university. An institutional quota is not invariably a
constitutional anathema and, in the present case, the Delhi University offers
an explanation for this recourse to higher institutional reservation. Many
universities now adopt the exclusionary or segregative device of de facto
monopoly of seats for higher medical courses to its own alumni, Indians from
other Indian Universities being treated as aliens. This xenophobic trend has
forced the Delhi University to reciprocate with high reservation.
If reservation of seats, as a strategy of
admission to technical colleges, is void there may be a wider impact on a
number of the institutions and individuals than on the parties here. The law
laid down by this Court binds other institutions because Art. 141 is
imperative. Sri Shanti Bhushan, appearing for the University, assertively
suggested to the contrary remembering only the rule of res judicata, but later
realised the obvious error and recanted. He agreed that if 837 this Court
invalidated reservation, as such, many universities would be upset in their
admission processes, although they were not party-a weakness of the adversary
system which needs remedying. So, we invited the learned Attorney General also
to help the Court, which he did and we record our gratitude. Unfortunately, the
petitioner has not been able to present, the social facts, the educational
milieu, the statistical materials and other vital data bearing on the constitutional
vice of the rule of excessive reservation, and the respondent University,
despite our repeated suggestions to its counsel, has not enriched its brief
with sufficient facts which enlighten the court, although some additional
information has been brought in. On the other hand, counsel's submissions were
scary, if we may say so with respect, to the effect that when students went on
a fast unto death, Government had to intervene and save the situation and
provide larger reservation. As the Attorney General agreed, hunger strikes
cannot amend the Constitution, and Government, if impressed with the grievance
which has led to the protest fast, must set in motion changes in the basic law,
as was done in the first constitutional amendment and later for States
Reorganisation. When this flaw was pointed out to the respondent, some more
materials were placed before the court in justification of the increase in the
reservation quota from a constitutional angle, and we will deal with them. In
the adversary system, advocacy in the superior courts, which, their decisions,
declare the law for all must broaden beyond the particular lis into a
conspectus of sociological facts, economic factors and educational conditions
so that other persons aggrieved who will potentially be bound by the decision,
do not suffer by not being co-nominee parties.
Surely, on the available material, counsel
have done their best.
This preliminary narration leads upto the
constitutional problem that confronts the court in this petition under Art. 32
and stresses how it deserves, for its solution, serious and sensitive judicial
and administrative statesmanship enlivened by legal fundamentals, since the
crucial issue springs from the pervasive and protective tendency for
institutional reservation of post-graduate seats, which, if left uncanalised
and indulged in excess, may well imperil the integrated status of higher
national education and make a mockery of equal opportunity.
Basically, great constitutional issues cannot
be divorced, even while being viewed from a legal perspective, from their
national overtones and individual impact, since passionate provincialisation
and addiction to institutional xenophobia, even in higher education, have a
suicidal fascination beyond myopic political perception. And, on the contrary,
elitist exaggeration of 'national' considerations and personal merit, where
local protection is essential for the humbler people's interests, has a
depressing repercussion if pushed beyond a point-an aspect which expert policy-makers
838 sometimes overlook in unwitting promotion of their group interest. The
problem is complex and thorny, charged with practical difficulties and fraught
with explosive possibilities. A short cut, in such situations may well prove a
wrong cut and so we are circumspect in our assessment and tentative in our
conclusions, especially because counsel, in our adversary system, often do not
travel beyond the narrow needs of the case and, despite our prodding, we have
not received the social-statistical wealth of material to help us take a
comprehensive overview of the issue. Law, constitutional law, is not an
omnipotent abstraction or distant idealisation but a principled, yet pragmatic,
value-laden and result-oriented, set of propositions applicable to and conditioned
by a concrete stage of social development of the nation and aspirational
imperatives of the people. India To-day-that is the inarticulate major premise
of our constitutional law and life. We highlight these basics because Shri
Shanti Bhushan, for the University, pleaded for a practical appreciation of the
lot of the Delhi graduates excluded from everywhere else while Shri
Balakrishnan for the petitioner, pressed for a national approach to high-grade
talent vis-a-vis courses in specialities. A synthesis of both is where the
truth lies.
The key to this case, if we may anticipate
ourselves, is in harmoniously blending developmental necessities of backward
regions via institutional reservations-and national considerations of
everybody's equal opportunity for higher education being ensured regardless of
geographical, institutional or other inhibition. We must never forget two
values synthesised in our constitutional culture, as set out in the
Preamble-unity and integrity of the nation and equality of opportunity of
weaker sections. Without the latter becoming a sure reality the former may be
mere rhetoric ! An epitome of the social background leading up to the
controversy will give a hang of the case and elaboration may await a later
stage. Post Independence India has many universities with facilities for higher
learning. Most of them give institutional preferences in the allocation of
seats for technical courses and this tendency sometimes reaches the morbid
point of total cornering of seats at post-graduate level, especially in the
coveted and competitive branches like medicine.
The Delhi University which has M.B.B.S. and
post- graduate medical courses, exercises academic jurisdiction over the
affiliated colleges in the capital of the country, enjoys great prestige for
its schools of learning and excellence in teaching and is founded by the
Central Government. It has at once a territorial limitation and national
complexion and it caters to a population, by and large, drawn from all over the
country because of the vast official, political, parliamentary judicial,
educational, commercial and other gravitational pulls which the capital of the
839 country inevitably exerts. This population is fluid because of movements,
transfers and a host of other factors. The indigenous denizens of Delhi are
perhaps over-run by these super-imposed layers and the student community of the
Delhi University is not made up so much by the 'sons of the soil' as in
universities in other places but is accounted for by the inflow of groups drawn
from all over the country. In a limited sense, it is a microcosm if India is a
macrocosm.
This national demographic composition is
relevant to the examination of the 'reservation' problem.
The capital city is not just a part of India.
It is miniaturised India, a fact often forgotten by the administration in the
field of culture and education, especially vis-a-vis regional minorities. It is
magapolitan and people from all parts flock to this outsized city. But we
cannot exaggerate this factor, for the presence of the farther regions like the
South and the North East, population-wise, is minimal and precarious. Shri
Balakrishnan insisted that the University was sustained by Central Government
finances, collected from the whole country, and the benefits must likewise
belong to all qualified students from everywhere. These are valuable aspects to
shape policy but the court must test constitutionality and no more. To that
extent alone we will weigh these factors in moulding our verdict.
We will now identify the issues emerging from
the matrix of facts. Since Shri Shanti Bhushan laid stress on these factors,
viz. the satyagraha crisis created by the students, the obdurate, may be, even
obscurantist, exclusiveness of other Universities forbidding Delhi graduates
from getting admission in their colleges and the reasonableness of
institutional continuity in educational pursuits for students who enter a
university for higher studies, we must dilate on the foundational facts more
fully. Since Sri Balakrishnan emphasised the pathetic plight of meritorious
students if 'apartheid' policies were practised by universities, contrary to
the cultural unity and constitutional mandates of our nation, we must weave
into the legal fabric of 'admission' regulations strands of national
integration and equal opportunity for higher education. These rival contentions
justify, albeit a little repetitively, the recapitulation of recent events,
parochial realities and institutional behaviour, bearin on admissions to
colleges in the Delhi University, with some comparative glance at others in the
country.
We are concerned with three medical colleges,
two being affiliated to, and one being maintained, by the Delhi University.
Together they turn out annually around 400 medical graduates. These graduates
get house jobs in the local hospitals and qualify themselves for 840
post-graduate courses. The University has many post-graduate degrees and
diploma courses but all of them put together come to only 250 seats. Naturally,
the graduates from the Delhi University cannot be accommodated fully or even in
part for the post-graduate degree courses. If, out of the available seats for
the post-graduate courses, a large slice is thrown up for open competition and
students from all over the country swarm to take the entrance examination, the
Delhi graduates' prospects become bleaker. The further case of the University
is that there is a harsh handicap for these graduates in that they are not
considered for admission in other universities on account of various regional
hurdles such as prescription of domicile, graduation in that very university,
registration with the State Medical Council, service in the State Medical
Service and the like. The necessary consequence of these road-blocks in the way
of getting into post-graduate courses is dissatisfaction frustration, fury and
pressure for exclusive earmarking of all seats at the post-graduate level in
the Delhi University for the Delhi graduates. Reservation elsewhere breeds
reservation here. Good and evil become contagious and indivisible and
eventually over powering. The chain reaction had led to the principle of
reservation being accepted by the Delhi University, first in moderate measure
and next immoderately, maybe, because the pressure of militant Delhi graduates
forced the University's hands or because Government, which virtually forced
this solution of 70% plus reservation, acted on the easy guidelines : Nothing
succeeds like excess. Reservation begins as a mild remedy but becomes, unless
leashed, a Frankensteins monster.
The rule for selection of candidates until
April 1978 was as follows :
(a) For the first 52% seats of the total
number of seats available, the selection was to be made on the basis of
combined merit of Delhi University and other Universities medical graduates.
(b) The selection of the remaining 48% seats
was to be made from the Delhi University graduates only.
By this method, approximately half the number
of seats were reserved for the Delhi graduates. But having regard to the
figures of seats and turn-out of graduates earlier mentioned, this did not meet
the requirements of the aspirants for post-graduate degrees from Delhi. It must
be remembered that Delhi is the seat of the elite, of high officials, of
prosperous professionals, of rich businessmen, of important politicians and
echelons of consequence and other men of money-power.
841 Their sons and daughters, already fed on
superior facilities and coached in special schools beyond the reach of most
other students in the rest of the country, have an appetite and opportunity for
excellence in education ahead of others and wish to lap up all the
post-graduate seats, if possible.
The cream must belong to the cream,
generation to generation, may be a cynical social scientists 'comment,'
Inevitably, a larger number of Delhi medical graduates, relatively speaking,
must be ambitiously wanting to continue their studies in post-graduate medical
courses which are prized for their career potential. It is significant that
these courses are not easily available elsewhere and the standards and prestige
of these degrees in the Delhi University are high. Taking a post-graduate
medical degree thus opens up further vistas for studies abroad or employment at
home. When we remember these factors and the reduced chance for bright Delhi
graduates to gain admission into the Delhi post-graduate courses in the face of
All- India competition, we can mildly appreciate the mood and demand of the
student community for enlargement of their quota. But all grievances are not
constitutional. Also, by remedying one group's misfortune other groups may be
hurt.
The Court can only view rights and wrongs,
through the constitutional prism. The various universities show concern for
their backward regions and alumni in the name of equal opportunity. But the
Indian Medical Council, apprehensive of fall of standards lays stress on
academic merit. This dilemma of the law between equality of opportunity and
excellence of performance leads us to a demand for full facts, but, of course,
we are left to speculate on many aspects of the problem because even the Delhi
University and the Union of India have left us in the lurch. Litigation, on a
socio-legal issue of critical constitutional moment, should not end with
general assertions, affidavits of formal denials and minimal materials but, as
stated earlier, needs feeding the court with nutritive facts which build the
flesh and blood of the administrative or legislative action under challenge and
all other surrounding and comparative data which legitimate the 'reservation'
or other procedure under attack from the constitutional angle. 'Reservation'
jurisprudence is a tangled knot carefully to be developed and counsel cannot
invite judges to make hunches as a cover- up for party's failure. And ingenious
or imaginative orality in court can never be a substitute for well-researched,
down-to-earth factuality in the brief. Many a case is lost or won because
counsel and court engage in the game of blind man's bluff since investigative
undertakings and presentation of constitutionally vital data do not find a
place in the brief and our forensic process inhibits travels beyond the 842
paper books in court ! Nevertheless, for the nonce, we have to make do with the
record.
Let us go back to the basics. The Indian
Constitution is wedded to equal protection and non-discrimination. Arts.
14, 15 and 16 are inviolable and Art. 29(2)
strikes a similar note though it does not refer to regional restrictions or
reservations. Art. 15 saves the State's power to make special provisions for
women and children or for advancement of socially and educationally backward
classes. Reservations under Art. 15(4) exist and are applied. There is no
dispute about that and the whole debate has left that pattern and policy of
'reservation' out of controversy. We zero-in only university-wise quotas,
reservations and preferences from the constitutional stand- point.
The primary imperative of Arts. 14 and 15 is
equal opportunity for all across the nation to attain excellence- and this has
burning relevance to our times when the country is gradually being 'broken up
into fragments by narrow domestic walls' in politics, economics and education,
undoing the founding faith of an undivided integrated India by surrender to lesser
appeals and grosser passions. What is fundamental, as an enduring value of our
polity, is guarantee to each of equal opportunity to unfold the full potential
of his personalities. Anyone anywhere, humble or high, agrestic or urban, man
or woman, and whatever his religion or irreligion, shall be afforded equal
chance for admission to any secular educational course or school for cultural
growth, training facility, speciality or employment. Each according to his
ability, is of pervasive validity, and it is a latent, though radical,
fundamental that, given propitious environments, talent is more or less evenly
distributed and everyone has a prospect of rising to the peak. Environmental
inhibitions mostly 'freeze the genial current of the soul' of many a humble
human whose failure is 'inflicted', not innate. Be it from the secular
perspective of human equality or the spiritual insight of divinity in everyone,
the inherent superiority cult with a herrenvolk tint, is contrary to our axiom
of equality. That is why 'equal protection of the laws' for full growth is
guaranteed, apart from 'equality before the law'. Even so, in our imperfect
society, some objective standards like common admission tests are prescribed to
measure merit, without subjective manipulation or university-wise
invidiousness. In one sense, it is a false dilemma to think that there is
rivalry between equality and excellence, although superficially they are
competing values. In the long run, when every member of the society has equal
opportunity, genetically and environmentally, to develop his potential, each
will be able, in his own way, 843 to manifest his faculty fully. The philosophy
and pragmatism of universal excellence through universal equal opportunity is
part of our culture and constitutional creed.
This norm of non-discrimination, however,
admits of just exceptions geared to equality and does not forbid those basic
measures needed to abolish the gaping realities of current inequality
afflicting socially and educationally backward classes' and 'the Scheduled
Castes and the Scheduled Tribes'. Such measures are rightly being taken by the
State and are perfectly constitutional as the State of Kerala v. N. M.
Thomas(1) has explained. Equality and steps towards equalisation are not idle
incantation but actuality, not mere ideal but real, life. But can a university,
acting within the constitutional parameters, create a new kind of
discrimination viz., reservation for students of a particular university? The
literal terms of Art. 14 do not tolerate it, the text of Art. 15 does not
sanction it. Can we carve out a fresh ground of preference? Delhi University
students, as such, are not an educationally backward class and, indeed,
institution-wise segregation or reservation has no place in the scheme of Art.
15, although social and educational destitution may be endemic in some parts of
the country where a college or university may be started to remedy this glaring
imbalance and reservation for those alumi for higher studies may be
permissible. We will explain this further but, speaking generally, unless there
is vital nexus with equal opportunity, broad validation of university-based
reservation cannot be built on the vague ground that all other universities are
practising it-a fact not fully proved before us either. Universality of
illegality, even if the artists of discrimination are universities, cannot
convert such praxis into constitutionality. Nor, indeed, can the painful
circumstance that a batch of medical graduates demonstratively fasted in front of
the Health Minister's house, ipso facto, legalise reservation of seats in their
favour. Shri Shanti Bhushan vividly described his role as Law Minister in
meeting the student satyagrahis who were honestly hungry for post- graduate
seats and the crisis which stampeded government to intervene and make the
University revise its reservation upward to save the lives of the 'fasters'. We
have sympathy for students, especially for those who sacrifice their comforts
to claim an opportunity to take post-graduate medical degrees. We even feel
that the student community often resorts to direct action of the satyagraha
model when the pachydermic disposition of authorities drives them to such
drastic heroics. But what if non-Delhi students 844 start a rival starvation exercise
? That will lead to testing the rule of law on the immolative or masochist
capabilities of affected groups and not on the Articles of the Constitutional
or provisions of the legislation. Protest fasting, a versatile weapon in our
cultural armoury, is meant to sensitize or conscientize the soul of the
Administration when it is too paper-logged or callous to look at human problems
from the angle of human justice.
Beyond that, this great Gandhian technique
cannot be blunted by promiscuous use, so long as democratic mechanisms are
alive and not impervious to legitimate grievances and can be sparked into
action not merely by sensational, though sincere, tactics like fasting unto
death. While recognising, even reverencing, the role of soul force in quickening
the callous conscience of authorities to grave injury and need for urgent
remedy, we cannot uphold the Delhi University's 'reservation' strategy merely
because Government was faced with student 'fasts' and ministers desired a
compromise formula and the University bodies simply said 'Amen'. The
constitutionality of institutional reservation must be founded on facts of
educational life and the social dynamics of equal opportunity Political panic
does not ipso facto, make constitutional logic.
Prima facie, equal marks must have equal
chance for medical admissions, as urged by the practitioner. And neither
university based favoured treatment nor satyagraha- induced quota policy can
survive the egalitarian attack. To repulse the charge, equality oriented grounds
must be made out. Constitutional equality itself is dynamic, flexible, and
moulded by the variables of life. For instance, if a region is educationally
backward or woefully deficient in medical services, there occurs serious
educational and health-service disparity for that human religion which must be
redressed by an equality and service minded Welfare State. The purpose of such
a policy is to remove the existing inequality and to promote welfare-based
equality for the denizens of the backward regions. The specific strategy to
ameliorate the unequal societal condition is left to the State, provided it is
geared to producing equality in the quality of life of that handicapped area
subject, of course, to basic recognition of individual quality and criteria of
efficiency.
If the State, for example, seeks to remove
the absence of opportunity for medical education of adivasis or islanders who
have no inclination or wherewithal to go to far-off cities and join medical
colleges, by starting a regional university and medical college in the heart of
such backward region and reserves a high percentage of seats there to 'locals'
i.e. students from that university, it cannot be 845 castigated as
discriminatory. What is directly intended to abolish existing disparity cannot
be accused of discrimination.
Again, if the State finds that only students
from the backward regions, when given medical graduation, will care to serve in
that area, drawn towards it by a sense of belonging, and those from out-side
will, on graduation, leave for the cities or their own regions, it may evolve a
policy of preference or reservation for students of that University. That
strategy ensures the probability of their serving the backward people for whose
benefit the medical courses were opened. Such measures which make for equality
of opportunity for medical education and medical service for backward human
sectors may be constitutionalised even by Arts. 14 and 15. But it must be
remembered that exceptions cannot over-rule the rule itself by running riot or
by making reservations as a matter of course, in every university and every
course. For instance, you cannot wholly exclude meritorious candidates as that
will promote sub- standard candidates and bring about a fall in medical
competence, injurious, in the long run, to the very region.
It is no blessing to inflict quacks and
medical midgets on people by wholesale sacrifice of talent at the threshold.
Nor can the very best be rejected from
admission because that will be a national loss and the interests of no region
can be higher than those of the nation. So, within these limitations, without
going into excesses, there is room for play of the State's policy choices.
Before moving to the next aspect we may touch
upon a slightly different angle which opens up a new point of view.
What is merit or excellence ? If potential
for rural service or aptitude for rendering medical attention among backward
people is a criterion of merit and it, undoubtedly, is in a land of sickness
and misery, neglect and penury, wails and tears-then, surely, belonging to a
university catering to a deprived region is a plus point of merit. Excellence
is composite and the heart and its sensitivity are as precious in the scale of
educational values as the head and its creativity and social medicine for the
common people is more relevant than peak performance in freak cases. Marks on
this basis will take us to the same preference as reservations for
in-university candidates. Here we are not preferring one with less marks, but
adopting a holistic manner of marking linked up with backward settings,
institution oriented and like considerations has some meaning.
A caveat or two may be sounded even in this
approach lest exception should consume the rule. The first caution is that
reservation must be kept in check by the demands of competence. You cannot
extend the shelter of reservation where minimum qualifications are 846 absent.
Similarly, all the best talent cannot be completely excluded by wholesale
reservation. So, a certain percentage, which may be available, must be kept
open for meritorious performance regardless of university, State and the like.
Complete exclusion of the rest of the country
for the sake of a province, wholesale banishment of proven ability to open up,
hopefully, some dalit talent, total sacrifice of excellence at the altar of
equalisation-when the Constitution mandates for every one equality before and
equal protection of the law-may be fatal folly, self- defeating educational
technology and antinational if made a routine rule of State policy. A fair
preference, a reasonable reservation, a just adjustment of the prior needs and
real potential of the weak with the partial recognition of the presence of
competitive merit-such as the dynamics of social justice which animates the
three egalitarian articles of the Constitution.
Flowing from the same stream of equalism is
another limitation. The basic medical needs of a region or the preferential
push justified for a handicapped group cannot prevail in the same measure at
the highest scale of speciality where the best skill or talent, must be
handpicked by selecting according to capability. At the level of Ph.D., M.D.,
or levels of higher proficiency, where international measure of talent is made,
where losing one great scientist or technologist in the making is a national
loss the considerations we have expanded upon as important lose their potency.
Here equality, measured by matching excellence, has more meaning and cannot be
diluted much without grave risk. The Indian Medical Council has rightly
emphasised that playing with merit for pampering local feeling will boomerang.
Midgetry, where summitry is the desideratum, is a dangerous art. We may here
extract the Indian Medical Council's recommendation, which may not be the last
word in social wisdom but is worthy of consideration:
Student for post-graduate training should be
selected strictly on merit judged on the basis of academic record in the
undergraduate course. All selection for post-graduate studies should be
conducted by the Universities.
Another casuistry needs to be exposed before
we proceed. Backward regions and universities in consequence are miles away
from forward cities with sophisticated institutions. The former, for a
equalisation, need crutches and extra facilities to overcome injustices. The
latter already enjoy all the advantages of the elite and deserve no fresh
props. That will be double injury to claims of equality of the capable
candidates coming from less propitiously circumstanced universities and
societies. Law is no absolute logic but the handmaid of current social facts of
life.
847 We hasten to keep aloof from reservations
for backward classes and Scheduled Castes and Tribes because the Constitution
has assigned a special place for that factor and they mirror problems of
inherited injustices demanding social surgery which if applied thoughtlessly in
other situations may be a remedy which accentuates the malady.
At this stage it is appropriate to refer to
one ruling of this Court which relates partly to university-wise reservation in
the context of backward areas. Support from precedents for the propositions
implicit in the above discussion can be derived, but we need not cover many
rulings and may confine ourselves to one or two which have closer bearing than
the rest. In Chanchala's case(1) university-wise reservation was challenged as
unconstitutional. There was reference to earlier decisions such as Rajendran v.
Madras(2) and Periakaruppan v. Tamil Nadu(3) and their ratio was distinguished
to reach the conclusion that under certain circumstances university-wise
classification and reservation was constitutionally permissible. In Rajendran's
case (supra) district-wise quota for medical college admissions was struck down
notwithstanding the argument that "if selection was made districtwise,
those selected from a district were likely to settle down as practitioners in
that district, so that the districts were likely to benefit from their
training".(4) The Court did not consider this to be intrinsically
irrelevant but negatived the contention.
"On the ground that it was neither
pleaded in the counter-affidavit of the State, nor had the State placed any
facts or figures justifying the plea that students selected district-wise would
settle down as medical practitioners in the respective district where they
resided." The emphasis in both the cases (Rajendran and Periakaruppan) was
on the reasonable nexus with the object of the rules of selection, namely, to
get the most meritorious among the candidates for imparting medical education.
In Chanchala's case the basis of classification was different: "in that it
is neither district-wise nor unit-wise, but is university- wise."(5) The
justification for university-wise reservation was the educational need and
paucity of medical service in the area where the university was set up. Certain
regions poorly served with medical facilities and with few doctors needed to
produce more medical men 848 who would settle down there. Likewise, in those
backward regions the absence of medical colleges effectively inhibited the
needs of medical education of the local student community. The question was
whether these grounds would suffice for providing reservation institution-wise.
In this setting, the Court observed:
"Since the universities are set up for
satisfying- the educational needs of different areas where they are set up and
medical colleges are established in those areas, it can safely be presumed that
they also were so set up to satisfy the needs of medical training of those
attached to those universities. In our view there is nothing undesirable in
ensuring that those attached to such universities have their ambitions to have
training in specialised subjects, like medicine, satisfied through colleges affiliated
to their own universities. Such a basis for selection has not the disadvantage
of district-wise or unit-wise selection as any student from any part of the
state can pass the qualifying examination in any of the three universities
irrespective of the place of his birth or residence, Further, the rules confer
a discretion on the selection committee to admit outsiders upto 20% of the
total available seats in any one of these colleges, i.e. those who have passed
the equivalent examination held by any other university not only in the State
but also elsewhere in India."(1) In the course of the Judgment, Shelat, J.
speaking for the Court, was inclined to broaden the principle of equalisation
implied in Art. 15(4).(2) "Once the power to lay down classifications or
categories of persons from whom admission is to be given is granted, the only
question which would remain for consideration would be whether such
categorisation has an intelligible criteria and whether it has a reasonable
relation with the object for which the Rules for admission are made. Rules for
admission are inevitable so long as the demand of every candidate seeking
admission cannot be complied with in view of the paucity of institutions
imparting training in such subjects as medicine. The definition of a 'political
sufferer' being a detailed one and in certain terms, it would be easily
possible to distinguish children of such political sufferers from the rest as
possessing the criteria laid down by the definition. The object of the rules
for admission can obviously 849 be to secure a fair and equitable distribution
of seats amongst those seeking admission and who are eligible under the
University Regulations. Such distribution can be on the principle that
admission should be available to the best and the most meritorious. But an
equally fair and equitable principle would also be that which secures admission
in a just proportion to those who are handicapped and who, but for the
preferential treatment given to them, would not stand a chance against those
who are not so handicapped and are, therefore, in a superior position. The
principle underlying Art. 15(4) is that a preferential treatment can validly be
given because the socially and educationally backward classes need it, so that
in course of time they stand in equal position with the more advanced sections
of the society. It would not in any way be improper if that principle were also
to be applied to those who are handicapped but do not fall under Art.
15(4)." Another observation by Dua, J. in his separate opinion also has
pregnant meaning (1):
"The object of selection for admission
to the Medical Colleges, considered in the background of the directive
principles of State policy contained in our Constitution, appears to be to
select the best material from amongst the candidates in order not only to
provide them with adequate means of livelihood, but also to provide the much
needed medical aid to the people and to improve public health generally."
(emphasis added) The conclusion that we reach from this ruling which adverts to
earlier procedents on the point is that university-wise preferential treatment
may still be consistent with the rule of equality of opportunity where it is
calculated to correct an imbalance or handicap and permit equality in the
larger sense.
This extensive excursion is necessitated by
the subtle tendency of advantage groups to exploit propositions applicable to
disabled categories to good account. Now, let us look at the raw realities of
the Delhi University medical graduates and their claim for larger reservation
for M.D.
and M.S. Facts, and only facts, must be the
guide, of course, within the framework of Part III, and this Court has to play
the role not only of the sentinel on the qui vive but also 850 of the 'hound of
heaven', not merely watch but chase, to set things right if any constitutional
wrong has been committed.
So we must enquire whether 70% reservation
for Delhi graduates which is prima facie discriminatory can be extricated by
any amelioratory constitutional logic or ethic implicit in Arts. 14 and 15. We
have set out the parameters within which alone reservation is permissible.
We must go to the roots of the creed of
equality and here the case of State of Kerala v. N. M. Thomas(1) has critical
relevance. That decision dealt with the Scheduled Castes and Art. 16 and
certain facilities other than reservation. But the core reasoning has crucial
significance in all cases of protective discrimination. The process of
equalisation and benign discrimination are integral, and not antagonistic, to
the principle of equality. In a hierarchical society with an indelible feudal
stamp and incurable actual inequality, it is sophistry to argue that
progressive measures to eliminate group disabilities and promote collective equality
are anathema on the score that every individual has entitlement on pure merit
of marks.
This narrow 'unsocial' pedantry subverts the
seminal essence of equal opportunity even for those who are humble and
handicapped. Meritocracy cannot displace equality when the utterly backward
masses labour under group disabilities. So we may weave those special
facilities into the web of equality which, in an equitable setting, provide for
the weak and promote their levelling up so that, in the long run, the community
at large may enjoy a general measure of real equal opportunity. So we hold,
even apart from Art.
15(3) and (4), that equality is not negated
or neglected where special provisions are geared to the larger goal of the
disabled getting over their disablement consistently with the general good and
individual merit. Indeed, Art. 14 implies all this, in its wider connotation,
and has to inform the interpretation of Art. 15.
Mathew J. in Thomas's case (supra) quoted
from the Moynihan Report and continued with some insightful comments which we
may excerpt: (2) "Here a point of semantics must be grasped. The demand
for equality of opportunity has been generally perceived by White Americans as
a demand for liberty, a demand not to be excluded from the competition of life-
at the polling place, in the scholarship examinations, at the 851 personnel
office, on the housing market. Liberty does, of course, demand that everyone be
free to try his luck, or test his skill in such matters. But these
opportunities do not necessarily produce equality. On the contrary, to the
extent that winners imply losers, equality of opportunity almost insures
inequality of results.
The point of semantics is that equality of
opportunity now has a different meaning for Negroes than it has for Whites. It
is not (or at least no longer) a demand for liberty alone, but also for
equality-in terms of group results. In Barard Rustin's terms, 'It is now
concerned not merely with removing the barriers to full opportunity but with
achieving the fact of equality.' By equality Rustin means a distribution of
achievements among Negroes roughly comparable to that among Whites.(1)
Beginning most notably with the Supreme Court's condemnation of school
segregation in 1954, the United States has finally begun to correct the
discrepancy between its ideals and its treatment of the black man.
The first steps, are reflected in the
decisions of the courts and the civil rights laws of Congress, merely removed
the legal and quasi-legal forms of racial discrimination. These actions while
not producing true equality, or even equality of opportunity, logically
dictated the next steps: positive use of government power to create the
possibility of a real equality. In the words of Professor Lipset: "Perhaps
the most important fact to recognise about the current situation of the
American Negro is that (legal) equality is not enough to insure his movement
into larger society."(2) (emphasis added) We agree with this approach and
feel quite clearly that the State's duty is to produce real equality, rather
egalitarian justice in actual life.
If university-wise classification for
post-graduate medical education is shown to be relevant and reasonable and the
differential has a nexus to the larger goal of equalisation of educational
opportunities the vice of discrimination may not invalidate the rule.
852 Even so, what is fundamental is equality,
not classification. What is basic is equal opportunity, for each according to
his ability, not artificial compartmentalisation and institutional
apartheidisation, using the mask of handicaps. We cannot contemplate as
consistent with Art. 14 a clanish exclusivism based upon a particular
university, without more. Alive to these major premises let us examine the
merits of the charge of 'admission' discrimination in the present case, Justice
Brennan, in a different social milieu, but with a spiritual secular meaning
which may not be lost on us, stated:(1) "Lincon said this Nation was
'conceived in liberty and dedicated to the proposition that all men are created
equal'. The Founders' dream of a society where all men are free and equal has
not been easy to realize. The degree of liberty and equality that exists today
has been the product of unceasing struggle and sacrifice. Much remains to be done-so
much that the very institutions of our society have come under challenge.
Hence, today, as in Lincoln's time, a man may ask 'whether (this) nation or any
nation so conceived and so dedicated can long endure'. It cannot endure if the
Nation falls short on the guarantees of liberty, justice, and equality embodied
in our founding documents. But it also cannot endure if our precious heritage
of ordered liberty be allowed to be ripped apart amid the sound and fury of our
time. It cannot endure if in individual cases the claims of social peace and
order on the one side and of personal liberty on the other cannot be mutually
resolved in the forum designated by the Constitution. If that resolution cannot
be reached by judicial trial in a court of law, it will be reached elsewhere
and by other means, and there will be grave danger that liberty, equality, and
the order essential to both will be lost." Another national risk we run
was sounded in words of caution in Khosa's case by Chandrachud, J. (as he then
was):(2) ".....let us not evolve, through imperceptible extensions, a
theory of classification which may subvert, perhaps submerge, the precious
guarantee of equality. The eminent spirit of an ideal society is equality and
so we must not be left to ask in wonderment: what after all is the operation
residue of equality and equal opportunity?" 853 Thus the constitutional
principles and limitations are clear and the norms are belighted by the
precedents but their application to the specific situation is an exacting task.
The burden, when protective discrimination promotional of equalisation is
pleaded, is on the party who seeks to justify the ex facie deviation from
equality. What has the Delhi University stated here? The learned Attorney
General frankly admitted that student agitation, without more, could not
validate 'reservation' and that excessive reservation was an obvious
inequality. Nor, indeed, is it a good plea that illegal reservation is being
practised by other universities and the Delhi University is forced to act
illegally in self-defence. Lawlessness, under our system, is corrected by the
law, not by counter-lawlessness. So it is strange for the Delhi University to
say our disorderly behaviour is orderly because other universities behave
similarly. Once these misguided defences of direct action by students or
reprisals against other universities are brushed aside, we come to grips with
the real issues. Is there circumstantial justification for constitutionalising
the rservation strategy, especially of 70% plus? The case for reservation
argues itself once we establish an operational relationship between the benign
basis of such classified quota or like preference and the object to be achieved
viz. promotion of better opportunities to the deprived categories of students
or better supply of medical service to neglected regions of our land. But the
Delhi University, city or students, do not fit into the criteria.
When a university or other institution may
usefully be made the instrument for promotion of facilities for equal
educational opportunity for a class or a region, the State may legitimately
resort to institutionally classified reservation but Delhi fails to quality.
Again, the integral yoga of equality and excellence at the service of society
as already stated, has another rider. In the higher scales of specialised
knowledge, be it art, science or technology, superior performance must be
accorded recognition, for a variety of consideration. Who but humanity suffers
if a rare genius, with a greater flair for or mastery of a key branch of
natural or social science, is forced to wither away by a rule of total
reservation for its own alumni and proscription of outsiders, by a house of
higher learning ? Can 'unapproachability', a cultural anathema now in India,
attain respectability by being labelled as 'reservation ? No. Therefore, a
blanket ban which is the indirect result of a wholesale reservation is
constitutional heresy. There must be substantial social justice as raison
d'etre for a high percentage of alumni reservation 854 The argument urged in
answer is that the doors for admission to post-graduate medical courses are
almost completely closed for Delhi graduates by all other universities. So,
protective reservation becomes necessary as the only hope of Delhi students for
post graduate studies. Those real-life factors which show that Delhi graduates
are denied de facto equality on a national scale by the exclusionism of other
universities and that, therefore, they deserve sheltered equal opportunity in actuality
by barriers of reservation of a high percentage of seats-such being the
University's defence must be made out and not merely asserted. This contention
deserves close examination, not summary rejection.
The mechanics of merit measurement is simple.
All applicants, whichever the University from where they have taken M.B.B.S.
degree, must apply for a common entrance test. The yard-stick of merit is the
marks obtained.
Thereafter 70% of the seats is allotted to
Delhi graduates and the balance 30% is selected from out of all the remaining
applicants, Delhi graduates included. So much so, Delhi graduates get much more
than 70% of the total seats.
Although the stage of application of
reservation may bear upon the effective quantum of advantage, the principal
question is as to whether a minimum of 70% for the Delhi graduate alone is not
far too excessive, based on extraneous agitational factors and essentially
contradicting Arts. 14 and 15? If equality of opportunity for every person in
the country is the constitutional guarantee, a candidate who gets more marks
than another is entitled to preference for admission. Merit must be the test
when choosing the best, according to this rule of equal chance for equal marks.
This proposition has greater importance when we reach the higher levels of
education like post-graduate courses. After all, top technological expertise in
any vital field like medicine is nation's human asset without which its advance
and development will be stunted. The role of high grade skill or special talent
may be less at the lesser levels of education, jobs and disciplines of social
inconsequence, but more at the higher levels of sophisticated skills and
strategic employment. To devalue merit at the summit is to temporise with the
country's development in the vital areas of professional expertise. In science
and technology and other specialised fields of developmental significance, to
relax lazily or easily in regard to exacting standards of performance may be
running a grave national risk because in advanced medicine and other critical
departments of higher knowledge, crucial to material progress, the people of
India should not be denied the best the nation's talent lying latent can
produce. If the best potential in these fields is cold-shouldered 855 for
populist considerations garbed as reservations, the victims, in the long run,
may be the people themselves. Of course, this unrelenting strictness in
selecting the best may not be so imperative at other levels where a broad
measure of efficiency may be good enough and what is needed is merely to weed
out the worthless.
Coming to brasstacks, deviation from equal
marks will meet with approval only if the essential conditions set out above
are fulfilled. The class which enjoys reservation must be educationally
handicapped. The reservation must be geared to getting over the handicap. The
rationale of reservation must be in the case of medical students, removal of
regional or class inadequacy or like disadvantage. The quantum of reservation
should not be excessive or societally injurious measured by the over-all
competency of the end-product, viz.
degree-holders. A host of variables influence
the quantification of the reservation. But one factor deserves great emphasis.
The higher the level of the speciality the lesser the role of reservation. Such
being the pragmatics and dynamics of social justice and equal rights, let us
apply the tests to the case on hand.
We are aware that measurement of merit is
difficult and the methods now in vogue leave so much to be desired, that
swearing by marks as measure of merit may even be stark superstition. But for
want of surer techniques, we have to make-do with entrance tests, and at any
rate, save in clear cases of perversity or irrationality, this is ordinarily
out of bounds for courts.
M.B.B.S. is a basic medical degree and
insistence on the highest talent may be relaxed by promotion of backward
groups, institutionwise chosen, without injury to public welfare. It produces
equal opportunity on a broader basis and gives hope to neglected geographical
or human areas of getting a chance to rise. Moreover, the better chances of
candidates from institutions in neglected regions setting down for practice in
these very regions also warrants institutional preference because that policy
helps the supply of medical services to these backward areas. After all, it is
quite on the cards that some out of these candidates with lesser marks may
prove their real mettle and blossom into great doctors. Again, merit is not
measured by marks alone but by human sympathies. The heart is as much a factor
as the head in assessing the social value of a member of the profession. Dr.
Samuel Johnson put this thought with telling effect when he said :
"Want of tenderness is want of parts, and
is no less a proof of stupidity than of depravity".
856 We have no doubt that where the human
region from which the alumni of an institution are largely drawn is backward,
either from the angle of opportunities for technical education or availability
of medical services for the people, the provision of a high ratio of
reservation hardly militates against the equality mandate-viewed in the
perspective of social justice.
We have two weighty differentiating factors
here. Delhi is in no sense an educationally or economically backward human
region, measured against the rest of our country. The students of Delhi, who
are likely to seek admission to medical colleges, belong to classes higher in
the scale than in most parts of India. As explained earlier the presence of
huge central administrative establishments and higher echelons of the public
services, members in numbers of the political aristocracy, thanks to Delhi
being the seat of Parliament, countless executives clustering around big
business and industrial houses and offices and many educational, research and
other institutions, professional organisations, the Supreme Court, the High
Court, and their natural human concomitants in the upper socio-educational
scale, make Delhi and the Delhi University the cynosure of the privileged
species in a land of under-privilegd penury.
Of course, like in any megalopolis of a
developing country, slums and other symptoms of deprivation show up and the
desperately poor denizens below the visibility line unbiquitously abound. But
they are not the potential candidates for medical admission or service and
cannot be used as `alibi' for reservation. In what sense, regard being had to
over-all Indian conditions, can it be said that Delhi or the Delhi University,
is backward or serves, through the medical colleges of its University, the
students who will settle down to alleviate suffering in that region, Secondly,
and more importantly, it is difficult to denounce or renounce the merit
criterion when the selection is for post-graduate or post-doctoral courses in
specialised subjects. There is no substitute for sheer flair, for creative
talent, for fine-tuned performance at the difficult heights of some disciplines
where the best alone is likely to blossom as the best. To sympathise mawkishly
with the weaker sections by selecting sub-standard candidates, is to punish
society as a whole by denying the prospect of excellence say in hospital
service. Even the poorest, when stricken by critical illness, needs the
attention of super- skilled specialists, not humdrum second-rates. So it is
that relaxation on merit, by over-ruling equality and quality altogether, is a
social risk where the stage is post- graduate or post-doctoral.
Of course, we should not exaggerate this
factor. Post- graduate studies are not all that great and demanding as to
invite only geniuses.
857 We cannot be scared by glorifying merit
nor be hypnotised by the cult of talent, seeing as we do, crowds of M.Ds, M.Ss
and their foreign analogues. Nor, indeed, are the entrance tests any but the
feeblest yardsticks to measure innate capabilities. Is it not the wildest
hostage to fortune to swear by marks alone which are so freakish and determined
by a chancy variety of variables ? We find different modes of examining faculties
in different universities, commissions and countries and may, on closer
scrutiny, pick holes in the scientific basis of our entrance tests themselves.
We repeat all this only to stress the limitations on the current system of
selection so that we may not be swept off our feet by the elitist feeling that
something sacred or scientific is being jettisoned for the sake of
accommodating nitwits of backward regions institutions or classes when marks
are slightly slurred over. Even so, being realists, we go by existing
methodology until better modes are devised.
In the light of this discussion about the
know-how and know-why of reservations, what are the conclusions that emerge vis
a vis the Delhi graduates ? Neither Delhi nor the Delhi University medical
colleges can be designated as categories which warrant reservation. But there
is one weighty circumstance which must be in our remembrance.
Reservation for Delhi graduates is not that
invidious because, as stated in the beginning, the students are from families
drawn from all over India. Not `sons of the soil' but sons and daughters of
persons who are willy nilly pulled into the capital city for reasons beyond
their control. This reservation is, therefore, qualitatively different.
There is another pathological condition
affecting `medical admissions' which is at the back of the desperate
`satyagraha' of the students and this factor tilts the scale a great deal.
Counsel for the University, supported by fragmentary material pointing to a
pan-Indian tendency, argued that all the country round every university bangs,
bars and bolts the doors of medical admission to outsiders and if Delhi alone
were to keep its doors hospitably ajar where are the Delhi graduates to go for
higher studies if squeezed out by All-India competition ? If reservation is
evil, the embargo everywhere must be lifted, lest evil should beget evil. So
long as other universities are out of bounds for Delhi graduates, exposure to
all-India competition becomes intense and prejudices their chances.
This indirect, real yet heavy handicap
creates an under- current of discrimination and cannot be wished away and needs
to be antidoted by some percentage of reservation or other legitimate device.
Another consideration which justifies some
measure of reservation is the desire of students for institutional continuity
in education.
858 Parents, pupils and teachers will usually
prefer such continuity and it has its own value.
We recognise that institution-wise
reservation is constitutionally circumscribed and may become ultra vires if
recklessly resorted to. But even such rules until revised by competent
authority or struck down judicially, will rule the roost. That is why we have
to concede that until the signpost of `no admission for outsiders' is removed from
other universities and some fair percentage of seats in other universities is
left for open competition the Delhi students cannot be made martyrs of the
Constitution.
Even so, `reservation' must be administered
in moderation, if it is to be constitutional. Some central technical
institutions like the All India Institute of Medical Sciences, Delhi and
Chandigarh and the Pondicherry Medical College have a much smaller fraction.
Their circumstances may be different and we do not have the full facts, neither
side having furnished more than fragments.
Judicial surmise is too weak to be of
decisional certainty.
For reasons we have assigned 70% plus is too
high at the post-graduate level in the half-proved circumstances. But we stop
short of invalidating the rule because the facts are imperfect, the course has
already started and the court must act only on sure ground, especially when
matters of policy, socio-educational investigation and expert evaluation of
variables are involved. Judges should not rush in where specialists fear to
tread. We spare the impugned regulation even though we are, prima facie,
sceptical about the vires thereof. To doubt is not enough to demolish. When
fuller facts are placed, the court will go into this question more confidently.
While reluctantly repelling the challenge of
the petitioner we think two directions must be made in this case. If 70%
reservation is on the high side and the petitioner is hopefully near
`admission' going by marks and reservation, it is but just that he is given a
chance to do his post-graduate course. Indeed, his coming to Delhi itself was a
compulsion beyond his control, as we have noted earlier.
The petitioner, going by marks, deserves
admission to the postgraduate degree course although he is now in the
post-graduate diploma course. So we direct him to be admitted to the degree
course this year, if the rules of attendance etc., do not stand in the way and
the Medical Council makes an exception by agreeing to addition of one seat as a
special case for this year.
More importantly, we direct the University
forthwith- not later than two months from to-day-to appoint a time- bound
committee to 859 investigate in depth the justification for and the quantum of
reservation at the post- graduate level from the angle of equality of
opportunity for every Indian but taking into consideration other
constitutionally relevant criteria we have indicated in this judgment. That
committee will study facts and figures and the reservation realities of other
universities and make recommendations on the question of university-based
reservations and allied aspects as well as the modus operandi for
implementation. The Committee will be richer if it has a constitutional expert
and a representative of the Indian Medical Council on it. Its report shall be
considered by the University as soon as may be, so that, if possible, the
admissions for next year may be governed by the revised decisions of the
concerned organs informed by the report.
We are disturbed by the tendency to wall of
each university as an insulated island of education, mindless of the integrated
unity and equal opportunity which are an inalienable part of our constitutional
value system. There is good reason for reservation in many cases but the
promiscuous, even profligate application of an exception as a rule of
educational life by forward cities and universities will boomerang on the
nation in the long run.
The Union of India has a special
responsibility to ensure that in higher education provincialism does not erode
the integrity of India. Who lives if India dies, is a poignant interrogation
with cultural projections in many dimensions which our administrators are not,
we hope, innocent off :
Mutations in reservations in other
universities need not await litigation but can be undertaken before the court
process is set in motion. The dialectic of constitutional protection in the
dynamic context of equality in a developing country has been presented by us at
some repetitive length so that the voyage of re-thinking may not suffer from
navigational errors.
The Indian Medical Council is the statutory
body at the national level whose functional obligations include setting
standards for as well as regulation and coordination of medical education. What
with a growing number of universities with divergent settings, standards and
goals and a motley crowd of students with diverse academic and social
backgrounds and ambitions, the prescription and invigilation of flexible yet
principled norms regulating the entrance into medical courses and training of
medical graduates at various levels of specialization are a demanding and
dynamic task. The I.M.A. cannot be a silent spectator or a static instrument
but must initiate, activist fashion, steps to make Indian medical education a meaning
asset to the nation's healing and hospital resources and a discipline with
broad uniformity and assured standard. The Central Government, witness to a
deteriorating situation, cannot but act to negate the confusing trend of fall
in quality and conflict among universities.
860 We may wind up by articulating the core
thought that vitalises our approach. Anyone who lives inside India can never be
considered an `outsider' in Delhi. The people in the States are caught in a
happy network of mutuality, woven into a lovely garment of humanity, whose warp
and woof is India. This is the underlying fundamental of the preambular resolve
registered in our National Parchment. So we insist that blind and bigoted local
patriotism in xenophobic exclusivism is destructive of our Freedom and only if
compelling considerations of gross injustice, desperate backwardness and
glaring inequality desiderate such a purposeful course can protective
discrimination gain entrance into the portals of college campuses. The Administration
has a constitutional responsibility not to be a mere thermometer where mercury
rises with populist pressure but to be a thermostat that transforms the mores
of groups to stay in the conscience of the nation, viz. the Constitution.
We dispose of the petition with these twin
directions leaving the parties to suffer their costs.
PATHAK, J. I have had the benefit of reading
the judgment prepared by my learned brother V. R. Krishna Iyer and while I
agree with him that the writ petition should be dismissed, I propose to state
my own reasons.
The validity of a reservation of 70% of the
seats in the post-graduate classes by the Delhi University in favour of its own
medical graduates is assailed in this writ petition. The basis of the
reservation is the consideration that the candidate for admission to the
post-graduate classes is a medical graduate of the same University. No question
of backward classes, scheduled castes and scheduled tribes, is involved.
Criteria pertinent to reservation concerning them are, it seems to me, not
relevant at all.
Nor strictly is the test requiring a
territorial nexus -the University does not insist that the candidate should
hail from any particular region or State for the purpose of the 70%
reservation. The relationship is entirely institutional- those who have
graduated from the medical colleges run by the Delhi University are favoured
for admission to the post- graduate classes. In my opinion, there is sufficient
validity in that consideration. It is not beyond reason that a student who
enters a medical college for his graduate studies and pursues them for the
requisite period of years should prefer on graduation to continue in the same
institution for his post-graduate studies. There is the strong argument of
convenience, of stability and familiarity with an educational environment which
in different parts of the country is subject to varying economic and
psychological pressures. But much more 861 than convenience is involved. There
are all the advantages of a continuing frame of educational experience in the
same educational institution. It must be remembered that it is not an entirely
different course of studies which is contemplated; it is a specialised and
deeper experience in what has gone before. The student has become familiar with
the teaching techniques and standards of scholarship, and has adjusted his
responses and reactions according. The continuity of studies ensures a higher
degree of competence in the assimilation of knowledge and experience. Not
infrequently some of the same staff of Professors and Readers may lecture to
the post-graduate classes also. Over the under-graduate years the teacher has
come to understand the particular needs of the student, where he excels and
where he needs an especial encouragement in the removal of deficiencies. In my
judgment, there is good reason in an educational institution extending a
certain degree of preference to its graduate for admission to its post-
graduate classes. The preference is based on a reasonable classification and
bears a just relationship to the object of the education provided in the
postgraduate classes. The concept of equality codified in our constitutional
system is not violated. It has been said sometimes that classification
contradicts equality. To my mind, classification is a feature of the very core
of equality. It is a vital concept in ensuring equality, for those who are
similarly situated alone form a class between themselves, and the
classification is not vulnerable to challenge if its constituent basis is
reasonably related to achieving the object of the concerned law. An
institutional preference of the kind considered here does not offend the
constitutional guarantee of equality.
But the question really is : Is the degree of
reservation excessive ? Is 70% too much ? Too excessive a reservation could
result in preference to graduate candidates of severely limited aptitude and
competence over meritorious candidates from other institutions whose exclusion
could result in aborting a part of our national talent. The determining factor,
it appears to me, is the measure of reciprocity prevailing between the
different educational institutions in India regarding the availability of
admission to graduates of other institutions. It can hardly be supposed that if
the medical graduates of the Delhi University are shut out from adequate
consideration for admission to the post-graduate courses of other institutions
merely because they did not graduate from those institutions they should not
think it unjust that the hospitality of their own University to outside medical
graduates leaves insufficient provision for them. Not to be able to take
post-graduate studies at all implies the termination of their medical studies.
This is a problem which can be tackled only on a national level, with all
Universities 862 and other medical institutions coming together around a common
table with the object of fashioning out a mutual reasonable quota reservation.
A wise and far-sighted exercise, eschewing narrow parochial considerations, is
called for. It is only by a joining of hands across the entire nation that a
suitable and enduring solution can be evolved and the turbulence which disturbs
the student body set at rest.
My learned brother has referred to the
considerable attraction which an educational institution in New Delhi exerts
over students from other parts of the country. I confess I do not share the
view entirely. So much, I think, depends on the choice of a particular subject
or course of studies by the candidate. And medical course are not all
necessarily to be found only in New Delhi. They are located in other parts of
India and some of those well-known centers of medical education have at least
an equal reputation in certain fields of specialised study. I am reluctant to
accept the proposition that because New Delhi is the political, legislative and
judicial capital of India, an education of quality is not to be found in other
cities.
Merely because New Delhi is the new Capital
of Delhi does not justify a disproportionate treatment of the claim to equality
on a national level made by its medical graduates.
The question remains : Is a reservation of
70% excessive ? We have travelled through the record, and I agree with my
learned brother that the material is so scanty, fragmentary and unsatisfactory
that we are prevented from expressing any definite decision on the point.
Although we gave sufficient opportunity to the parties, the requisite material
has not been forthcoming. Whether or not a reservation of 70% was called for
has not been established conclusively. Indeed, there is hardly anything to show
that the authorities applied their mind to a cool dispassionate judgment of the
problem facing them. Popular agitation serves at best to arouse and provoke
complacent or slumbering authority; the judgment and decision of the authority
must be evolved from strictly concrete and unemotional material relevant to the
issue before it.
Unfortunately, there is little evidence of
that in this case. For that reason, I join my learned brother in the directions
proposed by him.
The petitioners have raised other contentions
also, principally resting on the allegation that the University of Delhi is a
centrally administered institution, but I see no force in those submissions.
Accordingly, subject to the two directions
proposed by my learned brother the writ petition is dismissed and the parties
shall bear their own costs.
N.V.K. Petition dismissed.
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