Dr. Pradeep Jain Vs. Union of India
& Ors [1984] INSC 115 (22 June 1984)
BHAGWATI, P.N.
BHAGWATI, P.N.
SEN, AMARENDRA NATH (J) MISRA RANGNATH
CITATION: 1984 AIR 1420 1984 SCR (3) 942 1984
SCC (3) 655 1984 SCALE (1)894
ACT:
Constitution of India-Art. 14-Equal
opportunity- Reservation of seats in medical colleges for M.B.B.S. and
post-graduate medical courses on basis of domicile or residential qualification
and institutional preference-By State and Union Territories-If valid. What
should be the extent of such reservation. For admission to M.B.B.S. and Higher
courses-Merit only consideration-Whether and when departure can be made.
Constitution of India-Art. 141-Judgment in
this case applicable to all States and Union Territories except the State of
Andhra Pradesh and Jammu & Kashmir.
Constitution of India-Art. 5-Only one
domicile-Domicile in the territory of India-To say domicile in one State or
another-Not right.
Words and Phrases-'Domicile'-Concept
of-Basically a legal concept.
Words and Phrases-'Merit'-What is.
HEADNOTE:
In regard to admission to M.B.B.S. and
post-graduate medical courses, a somewhat uniform and consistent practice had
grown in almost all the States and Union Territories to give preference to
those candidates who had their domicile or permanent residence within the State
for a specified number of years ranging from 3 to 20 years and to those who had
studied in educational institutions in the State for a continuous period
varying from 4 to 10 years. Sometimes the requirement was phrased by saying
that the applicant must have his domicile in the State. The petitioners and the
appellant who sought admission in M.B.B.S. and M.D.S.
courses in different universities of
different States and Union Territory of Delhi challenged the residential
requirement and institutional preference on the ground of being violative of
Constitution. The question which arose for consideration was whether,
consistently with the constitutional values, admissions to a medical college or
any other institution of higher learning situate in a State could be confined
to those who had their 'domicile' within the State or who were resident within
the State for a specified number of years or can any reservation in admissions
be made for them so as to give them precedence over those 943 who do not
possess 'domicile' or residential qualification within the State, irrespective
of merit.
Disposing of the writ petitions and the civil
appeal.
^ HELD:
(Per Bhagwati and Ranganath Misra, JJ.) The
entire country is taken as one nation with one citizenship and every effort of
the Constitution makers is directed towards emphasizing, maintaining and
preserving the unity and integrity of the nation. Now if India is one nation
and there is only one citizenship, namely, citizenship of India, and every
citizen has a right to move freely throughout the territory of India and to
reside and settle in any part of India, irrespective of the place where he is
born or the language which he speaks or the religion which he professes and he
is guaranteed freedom of trade, commerce and intercourse throughout the
territory of India and is entitled to equality before the law and equal
protection of the law with other citizens in every part of the territory of
India, it is difficult to see how a citizen having his permanent home in Tamil
Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh
or a citizen having his permanent home in Maharashtra or speaking Marathi
language be regarded as an outsider in Karnataka. He must be held entitled to
the same rights as a citizen having his permanent home in Uttar Pradesh or
Karnataka, as the case may be. To regard him as an outsider would be to deny
him his constitutional rights and to derecognise the essential unity and
integrity of the country by treating it as if it were a mere conglomeration of
independent States. [954F-H; 955A-B] Article 15, clauses (1) and (2) bar
discrimination on grounds not only of religion, race, caste or sex but also of
place of birth. Art. 16(2) goes further and provides that no citizen shall, on
grounds only of religion, race, caste, sex, descent, place of birth, residence
or any of them be ineligible for or discriminated against in respect of, any
employment or office under the state. Therefore, it would appear that
residential requirement would be unconstitutional as a condition of eligibility
for employment or appointment to an office under the State which also covers an
office under any local or other authority within the State or any corporation,
such as, a public sector corporation which is an instrumentality or agency of
the State.
[955H; 956A-C] Ramana Dayaram Shetty v.
International Airport Authority of India & Ors., [1979] 3 S.C.R. 1014,
referred to.
So far as admissions to an education
institution such as a medical college are concerned, Art. 16(2) has no
application. If, therefore, there is any residence requirement for admission to
a medical college in a State, it cannot be condemned as unconstitutional on
ground of violation of Art, 16(2). Nor can Article 15 clauses (1) and (2) be
invoked for invalidating such residence requirement because these clauses
prohibit discrimination on ground of residence and, as pointed out by this
Court in D.P. Joshi v. State 944 of Madhya Bharat, residence and place of birth
are "two distinct conceptions with different connotations both in law and
in fact". The only provision of the Constitution on the touch-stone of
which such residence requirement for admission to a medical college in a State
can be required to be tested is Art. 14 and that is precisely the challenge
which falls to be considered in these writ petitions. [957C- E] D.P. Joshi v.
State of Madhya Bharat, [1955] 1 SCR 1215, referred to.
The word 'domicile' is to identify the
personal law by which an individual is governed in respect of various matters
such as the essential validity of a marriage, the effect of marriage on the
proprietory rights of husband and wife, jurisdiction in divorce and nullity of
marriage, illegitimacy, legitimation and adoption and testamentary and
intestate succession to moveables. [957F-G] Halsbury's Laws of England (Fourth
Edition) vol. 8, paragraph 421 & 422 and Wicker v. Homes, [1858] 7 HL Cases
124, referred to.
Domicile is basically a legal concept for the
purpose of determining what is the personal law applicable to an individual and
even if an individual has no permanent home, he is invested with a domicile by
law. There are two main classes of domicile: domicile of origin that is
communicated by operation of law to each person at birth, that is the domicile
of his father or his mother according as he is legitimate or illegitimate and
domicile of choice which every person of full age is free to acquire in
substitution for that which he presently possesses. The domicile of origin
attaches to an individual by birth while the domicile of choice is acquired by
residence in a territory subject to a distinctive legal system, with the
intention to reside there permanently or indefinitely. Now the area of
domicile, whether it be domicile of origin or domicile of choice, is the
country which has the distinctive legal system and not merely the particular
place in the country where the individual resides. [958B-E] Whether there can
be anything like a domicile in a state forming part of the Union of India ? The
Constitution recognises only one domicile, namely, domicile in India.
Art. 5 of the Constitution is clear and
explicit on this point and it refers only to one domicile, namely,
"domicile in the territory of India. "The legal system which prevails
throughout the territory of India is one single indivisible system. It would be
absurd to suggest that the Legal system varies from State to State or that the
legal system of a State is different from the legal system of the Union of
India, merely because with respect to the subjects within their legislative
competence, the States have power to make laws. The concept of 'domicile' has
no relevance to the applicability of municipal laws, whether made by the Union
of India or by the States. It would not, therefore, be right to say that a
citizen of India is domiciled in one state or another forming part of the Union
of India. The domicile which he has is only one domicile, namely, domicile in
the territory of India. When a person who is permanently resident in one State
goes to another State with intention to reside there permanently or
indefinitely, his domicile does not undergo any 945 change: he does not acquire
a new domicile of choice. His domicile remains the same, namely, Indian
domicile. Moreover to think in terms of state domicile with be highly
detrimental to the concept of unity and integrity of India.
[958H; 959A; D;F-H] The argument of the State
Governments that the word 'domicile' in the Rules of some of the State
Governments prescribing domiciliary requirement for admission to medical
colleges situate within their territories, is used not in its technical legal
sense but in a popular sense as meaning residence and is intended to convey the
idea of intention to reside permanently or indefinitely, is accepted.
Therefore, the Court would also interpret the word 'domicile' used in the Rules
regulating admissions to medical colleges framed by some of the States in the
same loose sense of permanent residence and not in the technical sense in which
it is used in private international law. But even so the Court wishes to warn
against the use of the word 'domicile' with reference to States forming part of
the Union of India, because it is a word which is likely to conjure up the
notion of an independent State and encourage in a subtle and insidious manner
the dormant sovereign impulses of different regions [959H; 960A-D] D.P. Joshi v
State of Madhya Bharat, [1955] 1 SCR 1215 and Vasundro v. State of Mysore,
[1971] Suppl. SCR 381, referred to.
It is dangerous to use a legal concept for
conveying a sense different from that which is ordinarily associated with it as
a result of legal usage over the years.
Therefore, it is strongly urged upon the
State Government to exercise this wrong use of the expression 'domicile' from
the rules regulating admissions to their educational institutions and
particularly medical colleges and to desist from introducing and maintaining
domiciliary requirement as a condition of eligibility for such admissions.
[960E-G] As the position stands today, there is considerable paucity of seats
in medical colleges to satisfy the increasing demand of students for admission
and some principle has therefore, to be evolved for making selection of
students for admission to the medical colleges and such principle has to be in
conformity with the requirement of Art. 14. Now, the primary imperative of Art.
14 is equal opportunity for all across the nation for education and advancement
and that cannot be made dependent upon where a citizen resides. The philosophy
and pragmatism of universal excellence through equality of opportunity for
education and advancement across the nation is part of our founding faith and
constitutional creed. The effort must, therefore, always be to select the best
and most meritorious students for admission to technical institutions and
medical colleges by providing equal opportunity to all citizens in the country
and no citizen can legitimately, without serious deteriment to the unity and
integrity of the nation, be regarded as an outsider in our constitutional set
up. Moreover, it would be against national interest to admit in medical
colleges or other institutions giving instruction in specialities, less
meritorious students when more meritorious students are available, 946 simply
because the former are permanent residents or residents for a certain number of
years in the State while the latter are not, though both categories are
citizens of India. Exclusion of more meritorious students on the ground that
they are not resident within the State would be likely to promote substandard
candidates and bring about fall in medical competence, injurious in the long
run to the very region.[963G-H; 964D-H] Jagdish Saran v Union of India, [1980]
2 SCR 831, P.
Rajendran v. State of Madras. [1968] 2 SCR
786 and Periakaruppan v. State of Tamil Nadu, [1971]2 SCR 430, referred to.
What is merit which must govern the process
of selection? It undoubtedly consists of a high degree of intelligence coupled
with a keen and incisive mind, sound knowledge of the basic subjects and
infinite capacity for hard work, but that is not enough; it also calls for a
sense of social commitment and dedication to the cause of the poor. Merit
cannot be measured in terms of marks alone, but human sympathies are equally
important. The heart is as much a factor as the head in assessing the social
value of a member of the medical profession. This is also an aspect which may,
to the limited extent possible, be borne in mind while determining merit for selection
of candidates for admission to medical colleges though concededly it would not
be easy to do so, since it is a factor which is extremely difficult to judge
and not easily susceptible to evaluation.[967E-F; H; 968A] Jagdish Saran v.
Union of India, [1980] 2 SCR 831, referred to.
The scheme of admission to medical colleges
may depart from the principle of selection based on merit, where it is
necessary to do so for the purpose of bringing about real equality of
opportunity between those who are unequals.
[969F] Ahmedabad St. Xavier's College Society
and Anr. v State of Gujarat. [1974]1 SCR 717 at 799 and Jagdish Saran v. Union
of India. (1980) 2 SCR 831. referred to.
There are, in the application of this
principle, two considerations which appear to have weighed with the Courts in
justifying departure from the principle of selection based on merit. One is
what may be called State has by and large been frowned upon by the court and
struck down as invalid interest and the other is what may be described as a
region's claim of backwardness. [969G] D.P. Joshi v. State of Madhya Bharat
[1955] 1 SCR 1215, referred to.
Though intra-state discrimination between
persons resident in different districts or regions of a State as in Minor P.
Rajendran's case and Perukaruppan's case the Court has in D.N. Chanchala's case
and other similar cases upheld institutional reservation effected through
university-wise distribution of seats for admission to medical colleges. The
Court has also by its decision in D.P. Joshi's case and N. Vasundhara's case
sustained the constitutional validity of reservation based on residence
requirement within a State for the purpose of admission to 947 medical
colleges. These decisions which all relate to admission to M.B.B.S. course are
binding upon the Court and it is therefore not possible for the Court to held,
in the face of these decisions, that residence requirement in a State for
admission to M.B.B.S. course is irrational and irrelevant and cannot be
introduced as a condition for admission without violating the mandate of
equality of opportunity contained in Art. 14. The Court is therefore of the
view that a certain percentage of reservation of seats in the medical colleges
on the basis of residence requirement may legitimately be made in order to
equalise opportunities for medical admission on a broader basis and to bring
about real and not formal, actual and not merely legal, equality. The
percentage of reservation made on this count may also include institutional
reservation for students passing the PUC or pre-medical examination of the same
university or clearing the qualifying examination from the school system of the
educational hinterland of the medical colleges in the State and for this
purpose, there should be no distinction between schools affiliated to State
Board and schools affiliated to the Central Board of Secondary Education.
[979C-F; 981D-F] P. Rajendran v. State of Madras, [1968]2 SCR 786,
Periakaruppan v. State of Tamil Nadu, [1971] 2 SCR 430, D.N. Chanchala v. State
of Mysore, [1971] Supp. SCR 608, D.P. Joshi v. State of Madhya Bharat, [1955] 1
SCR 1215, Vasundra v. State of Mysore, [1971] Suppl. SCR 381, Ahmedabad St. Xavier's
College Society and Anr. v. State of Gujarat, [1974] 1 SCC 717 at 799 and State
of Uttar Pradesh v. P. Tandon, [1975] 2 SCR 761, referred to.
What should be the extent of reservation
based on residence requirement and institutional preference ? Wholesale
reservation made by some of the State of Governments on the basis of 'domicile'
or residence requirement within the State or the basis of institutional
preference for students who have passed the qualifying examination held by the
university or the State excluding all students not satisfying this requirement,
regardless of merit, must be condemned, and are unconstitutional and void as
being in violation of Art. 14 of the Constitution. [982G; 983E-F] Jagdish Saran
v. Union of India [1980] 2 SCR 831, referred to.
It is not possible to provide a categorical
answer to this question for, as pointed out by the policy statement of the
Government of India, the extent of such reservation would depend on several
factors including opportunities for professional education in that particular
area, the extent of competition, level of educational development of the area
and other relevant factors. But the Court is of the opinion that such
reservation should in no event exceed the outer limit of 70 per cent of the
total number of open seats after taking into account other kinds of
reservations validly made. The Medical Education Review Committee has suggested
that the outer limit should not exceed 75 per cent but in the opinion of the
Court it would be fair and just to fix the outer limit at 70 per cent. This
outer limit of reservation is being laid down in an attempt to reconcile the
apparently conflicting claim of equality and excellence.
It may be made clear that this outer limit
fixed by the Court will be subject to any reduction or attenuation which may be
948 made by the Indian Medical Council which is the statutory body of medical
practitioners whose functional obligations include setting standards for
medical education and providing for its regulation and coordination. This outer
limit fixed by the Court must gradually over the years be progressively reduced
but that is a task which would have to be performed by the Indian Medical
Council. The Indian Medical Council is directed to consider within a period of
nine months from today whether the outer limit of 70 per cent fixed by the
Court needs to be reduced and if the Indian Medical Council determines a
shorter outer limit, it will be binding on the States and the Union
Territories. The Indian Medical Council is also directed to subject the outer
limit so fixed to reconsideration at the end of every three years but in no
event should the outer limit exceed 70 per cent fixed by the Court. The result
is that in any event at least 30 per cent of the open seats shall be available
for admission of students on all India basis irrespective of the State or university
from which they come and such admissions shall be granted purely on merit on
the basis of either all India Entrance Examinations or entrance examination to
be held by the State. Of course, it need not be added that even where
reservation on the basis of residence requirement or institutional preference
is made in accordance with the directions given in this judgment, admissions
from the source or sources indicated by such reservation shall be based only on
merit, because the object must be to select the best and most meritorious
students from within such source or sources. [983G-H; 984A-H; 985A-B] But
different considerations must prevail while considering the question of
reservation based on residence requirement within the State or on institutional
preference for admission to the post-graduate courses, such as, M.S., M.D. and
the like. There excellence cannot be allowed to be compromised by any other
considerations because that would be deterimental to the interest of the
nation. Therefore so far as admissions to post graduate courses, such as M.S.,
M.D. and the like are concerned, it would be eminently desirable not to provide
for any reservation based on residence requirement within the State or on
institutional preference. But having regard to broaded considerations of
equality of opportunity and institutional continuity in education which has its
own importance and value, it is directed that though residence requirement
within the State shall not be ground for reservation in admissions to post-
graduate courses, a certain percentage of seats may in the present
circumstances, be reserved on the basis of institutional preference in the
sense that a student who has passed M.B.B.S. course from a medical college or
university may be given preference for admission to the post-graduate course in
the same medical college or university but such reservation on the basis of
institutional preference should not in any event exceed 50 per cent of the
total number of open seats available for admission to the post-graduate course.
This outer limit which is being fixed will also be subject to revision on the
lower side by the Indian Medical Council in the same manner as in the case of
admissions to the M.B.B.S. course. But even in regard to admissions to the
post-graduate course, it is directed that so far as super specialities such as
neuro-surgery and cardiology are concerned, there should be no reservation at
all even on the basis of institutional preference and admissions should be
granted purely on merit on all India basis. [985C-D; 987F-H;
988 A-B] 949 What has been said in regard to
admissions to the M.B.B.S. and post graduate courses must apply equally in
relation to admissions to the B.D.S. and M.D.S. courses. So for as admissions
to the B.D.S. and M.D.S. courses are concerned, it will be the Indian Dental
Council which is the statutory body of dental practitioners, which will have to
carry out the directions given to the Indian Medical Council in regard to
admissions to M.B.B.S. and post-graduate courses. The directions given to the
Indian Medical Council may therefore be read as applicable mutatis mutands to
the Indian Dental Council so far as admissions to B.D.S. and M.D.S. courses are
concerned. [988C-E] In the instant case, the provisional admissions given to the
petitioners shall not be disturbed but they shall be treated as final
admissions. [988H] (Per Bhagwati, Amarendra Nath Sen and Ranganath Misra, JJ.)
The judgment shall be implemented with effect from the next academic year
1985-86. Whatever admissions, provisional or otherwise, have been made for the
academic year 1984-85, shall not be disturbed on the basis of the judgment. The
judgment will not apply to the State of Andhra Pradesh and Jammu & Kashmir
because there were special Constitutional provisions in regard to them which
would need independent consideration by this Court.
[991G-H; 992A] (Per Amarendra Nath Sen, J.) I
agree with the orders passed by my learned brother Bhagwati J. and also the
directions given by him. [989A] The question of constitutional validity of
reservation of seats within reasonable limits on the basis of residence and
also the question of institutionalised reservation of seats clearly appear to
be concluded by various decision of this Court, as has been rightly pointed out
by my learned brother in his judgment in which he has referred at length to
these decisions. These decisions are binding on this Court and are to be
followed. Constitutional validity of such reservations within the reasonable
limit must, therefore, be upheld. [989H; 990A-B] The real question is the
question of the extent of the limit to which such reservations may be
considered to be reasonable. The question of reasonableness of such
reservations must necessarily be determined with reference to the facts and circumstances
of particular cases and with reference to the situation prevailing at any given
time.
[990C] On the question of admission to
post-graduate medical courses I must confess that I have some misgivings in my
mind as to the further classification made on the footings of
super-specialities. Both my learned brothers, however, agree on this. Also in a
broader perspective this classification may serve the interests of the nation
better, though interests of individual States to a small extent may be effected.
This distinction in case of super-specialities proceeds on the basis that in
these very important spheres the criterion for selection should be merit only
without any institutionalised reservations or any reservation on the ground of
residence. I also agree that the orders and directions proposed in regard to
admission to M.B.B.S. and post-graduate 950 courses are also to be read as
applicable mutatis mutandis in relation to admission to B.D.S. and M.D.S.
courses, [990E-G]
CIVIL APPELLATE/ORIGINAL JURISDICTION: Writ
Petition Nos. 6091, 8882-83, 9219, 9820 of 1983 and 10658, 10761 of 1983 &
CMP. No. 29116/83 (in WP. No. 9618/83) (Under article 32 of the Constitution of
India) With Civil Appeal No. 6392 of 1983 Appeal by Special leave from the Judgment
and Order dated the 17th August, 1983 of the Delhi High Court in C.W.P. No.
1791 of 1983.
V.M. Tarkunde, A.K. Srivastava, S.K. Jain and
Vijay Hansaria, for the petitioners.
R. Venkataramani for the Appellant in CA.
6392/83.
A.K. Ganguli, S.K. Baga & N.S. Das Bahl
for the Respondents in CA. No. 6392 of 1983.
P.P. Rao and A.K. Ganguli for the Delhi
University.
S.N. Chaudhary for the Respondents (State of
Assam) K.G. Bhagat, Addl. Sol. General, Miss A. Subhashini & R.N. Poddar
for the Respondent-Union of India.
Kapil Sibal and Mrs. Shobha Dixit for the
Respondent- State of U.P.
D.P. Mukherjee and G.S. Chatterjee for the
Respondent- State of West Bengal.
G.S. Narayana, Ashivini Kumar, C.V. Subba
Rao, Swaraj Kaushal & Mr. M. Veerappa, for the Respondent-State of
Karanataka.
K. Parasaran and B. Parthasarthi for the
Respondent- States of Andhra Pradesh.
Yogeshwar Prasad and Mrs. Rani Chhabra for
the Respondent.
P.K. Pillai, for the Respondent-State of
Kerala.
P.N. Nag, for the State of H.P.
P.R. Mridul, and R.K. Mehta for the State of
Orissa.
Altaf Ahmed for the State of J & K.
The following Judgments were delivered 951
BHAGWATI, J. This group of Writ Petitions raises a question of great national
importance affecting admissions to medical colleges, both at the under-graduate
and at the post-graduate levels. The question is, whether, consistently with
the constitutional values, admissions to a medical college or any other
institution of higher learning situate in a State can be confined to those who have
their 'domicile' within the State or who are resident within the State for a
specified number of years or can any reservation in admissions be made for them
so as to give them precedence over those who do not possess 'domicile' or
residential qualification within the State, irrespective of merit. This
question has assumed considerable significance in the present day context,
because we find that today the integrity of the nation is threatened by the
divisive forces of regionalism, linguism and communalism and regional
linguistic and communal loyalties are gaining ascendancy in national life and
seeking to tear apart and destroy national integrity. We tend to forget that
India is one nation and we are all Indians first and Indians last. It is time
we remind ourselves what the great visionary and builder of modern India,
Jawaharlal Nehru said, "Who dies if India lives : who lives if India dies
?" We must realise, and this is unfortunately that many in public life
tend to overlook, sometimes out of ignorance of the forces of history and
sometimes deliberately with a view to promoting their self- interest, that
national interest must inevitably and forever prevail over any other
considerations proceeding from regional, linguistic or communal attachments. If
only we keep these basic considerations uppermost in our minds and follow the
sure path indicated by the founding fathers of the Constitution, we do not
think the question arising in this group of writ petitions should present any
difficulty of solution.
The history of India over the past centuries
bears witness to the fact that India was at no time a single political unit.
Even during the reign of the Maurya dynasty, though a large part of the country
was under the sovereignty of the Mauryan kings, there were considerable
portions of the territory which were under the rule of independent kingdoms. So
also during the Moghul rule which extended over large parts of the territory of
India, there were independent rulers who enjoyed political sovereignty over the
territories of their respective kingdoms. It is an interesting fact of history
that India was forged into a nation neither on account of a common language nor
on account of the continued existence of a single political regime over its
territories but on account of a 952 common culture evolved over the centuries.
It is cultural unity something more fundamental and enduring that any other
bond which may unite the people of a country together-which has welded this
country into a nation. But, until the advent of the British rule, it was not
constituted into a single political unit. There were throughout the period of
history for which we have fairly authenticated account, various kingdoms and
principalities which were occasionally engaged in conflict with one another.
During the British rule, India became a compact political unit having one
single political regime over its entire territories and this led to the
evolution of the concept of a nation. This concept of one nation took firm
roots in the minds and hearts of the people during the struggle for
independence under the leadership of Mahatma Gandhi. He has rightly been called
the Father of the Nation because it was he who awakened in the people of this
country a sense of national consciousness and instilled in them a high sense of
patriotism without which it is not possible to build a country into nationhood.
By the time the Constitution of India came to be enacted, insurgent India,
breaking a new path of nonviolent revolution and fighting to free itself from the
shackles of foreign domination, had emerged into nationhood and "the
people of India" were inspired by a new enthusiasm, a high noble spirit of
sacrifice and above all, a strong sense of nationalism and in the Constitution
which they framed, they set about the task of a strong nation based on certain
cherished values for which they had fought.
The Preamble of the Constitution was
therefore, framed with the great care and deliberation so that it reflects the
high purpose and noble objective of the Constitution makers.
The Preamble declares in highly emotive words
pregnant with meaning and significance:
"We, The People of India, having
solemnly resolved to constitute India into a Sovereign Socialist Secular
Democratic Republic and to secure to all its citizens:
Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity; and to
promote among them all Fraternity assuring the dignity of the individual and
the unity and integrity of the Nation;
953 In Our Constituent Assembly this
twenty-sixth day of November, 1949, do Hereby Adopt, Enact And Give To
Ourselves This Constitution." These words embody the hopes and aspirations
of the people and capture and reproduce the social, economic and political
philosophy underlying the Constitution and running through the warp and woof of
its entire fabric. It is significant to note that the Preamble emphasises that
the people who have given to themselves this glorious document are the people of
India, the people of this great nation called India and it gives expression to
the resolve of the people of India to constitute India into a sovereign
socialist secular democratic republic and to promote among all its citizens
fraternity assuring the dignity of the individual and the unity and integrity
of the nation. The Constitution makers were aware of the past history of the
country and they were also conscious that the divisive forces of regionalism,
linguism and communalism may one day raise their ugly head and threaten the
unity and integrity of the nation, particularly in the context of the partition
of India and the ever present danger of the imperialist forces adopting new
stratagems, apparently innocuous, but calculated to destabilise India and
re-establish their hegemony and, therefore, they laid great emphasis on the
unity and integrity of the nation in the very Preamble of the Constitution.
Article 1 of the Constitution then proceeds to declare that India shall be a
Union of States but emphasizes that though a Union of States, it is still one
nation with one citizenship. Part II dealing with citizenship recognises only
Indian citizenship: it does not recognise citizenship of any State forming part
of the Union. Then follow Articles 14 and 15 which are intended to strike
against discrimination and arbitrariness in state action, whether legislatives
or administrative. They read as follows:
"Article 14: The State shall not deny to
any persons equality before the law or the equal protection of the laws within
the territory of India." "Article 15: (1) The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth of any of them.
(2) No citizen shall on grounds only of
religion, race, caste. sex, place of birth or any of them, be subject 954 to
any disability, liability, restriction or condition with regard to- (a) access
to shops, public restaurants, hotels and places of public entertainment; or (b)
the use of wells, tanks, bathing ghats, roads and places so public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public.
(3) Nothing in this article or in clause (2)
of article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes." Article 19 (1) again
recognises the essential unity and integrity of the nation and reinforces the
concept of one nation by providing in clauses (d) and (e) that every citizen
shall have the right to move freely throughout the territory of India and to
reside and settle in any part of the territory of India. Article 301 declares
that subject to the other provisions of Part XIII, trade, commerce and
intercourse throughout the territory of India shall be free.
Then there are situations envisaged in
certain Articles of the Constitution such as Articles 353 and 356 where the
executive power of a State forming part of the Union is exercisable by the
Central Government or subject to the directions of the Central Government.
Thus, the entire country is taken as one nation with one citizenship and every
effort of the Constitution makers is directed towards emphasizing, maintaining
and preserving the unity and integrity of the nation. Now if India is one
nation and there is only one citizenship, namely, citizenship of India, and
every citizen has a right to move freely throughout the territory of India and
to reside and settle in any part of India, irrespective of the place where he
is born or the language which he speaks or the religion which he professes and
he is guaranteed freedom of trade, commerce and intercourse throughout the
territory of India and is entitled to equality before the law and equal
protection of the law with other citizens in every part of the territory of
India, it is difficult to see how a citizen having his permanent home in Tamil
Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh
or a citizen having his permanent home in Maharashtra or/speaking Marathi
language be 955 regarded as an outsider in Karnataka. He must be held entitled
to the same rights as a citizen having his permanent home in Uttar Pradesh or
Karnataka, as the case may be. To regard him as an outsider would be to deny
him his constitutional rights and to derecognise the essential unity and
integrity of the country by treating it as if it were a mere conglomeration of
independent states.
But, unfortunately, we find that in the last
few years, owing to the emergence of narrow parochial loyalties fostered by
interested parties with a view to gaining advantage for them, a serious threat
has developed to the unity and integrity of the nation and the very concept of
India as a nation is in peril. The threat is obtrusive at some places while at
others it is still silent and is masquerading under the guise of apparently
innocuous and rather attractive clap-trap. The reason is that when the
Constitution came into operation, we took the spirit of nation-hood for granted
and paid little attention to nourish it, unmindful of the fact that it was a
hard-won concept. We allowed `sons of the soil' demands to develop claiming
special treatment on the basis of residence in the concerned State, because
recognising and conceding such demands had a populist appeal. The result is
that `sons of the soil' claims, though not altogether illegitimate if confined
within reasonable bounds, are breaking asunder the unity and integrity of the
nation by fostering and strengthening narrow parochial loyalties based on
language and residence within a state. Today unfortunately, a citizen who has
his permanent residence in a state entertains the feeling that he must have a
preferential claim to be appointed to an office or post in the state or to be
admitted to an educational institution within the state vis-a-vis citizen who
has his permanent residence in another state, because the latter is an outsider
and must yield place to a citizen who is a permanent resident of the state,
irrespective of merit. This, in our opinion, is a dangerous feeling which, if
allowed to grow, indiscriminately, might one day break up the country into
fragments, though, as we shall presently point out, the principle of equality
of opportunity for education and advancement itself may justify, within
reasonable limits, a preferential policy based on residence.
We may point out at this stage that though
Article 15 (2) clauses (1) and (2) bars discrimination on grounds not only of
religion, race, caste or sex but also of place of birth, Article 16 (2) goes
956 further and provides that no citizen shall on grounds only of religion,
race, caste, sex, descent, place of birth, residence or any of them be
ineligible for or discriminated against in state employment. So far as
employment under the state, or any local or other authority is concerned, no
citizen can be given preference nor can any discrimination be practised against
him on the ground only of residence. It would thus appear that residential requirement
would be unconstitutional as a condition of eligibility for employment or
appointment to an office under the State and having regard to the expansive
meaning given to the word `State' in Ramana Dayaram Shetty v. International
Airport Authority of India & Ors., it is obvious that this constitutional
prohibition would also cover an office under any local or other authority
within the State or any corporation, such as a public sector corporation which
is an instrumentality or agency of the State. But Article 16 (3) provides an
exception to this rule by laying down that Parliament may make a law
"prescribing, in regard to a class or classes of employment or appointment
to an office under the government of, or any local or other authority, in a state
or union territory, any requirement as to residence within that state or union
territory prior to such employment." or appointment Parliament alone is
given the right to enact an exception to the ban on discrimination based on
residence and that too only with respect to positions within the employment of
a State Government. But even so, without any parliamentary enactment permitting
them to do so, many of the State Governments have been pursuing policies of
localism since long and these policies are now quite wide spread. Parliament
has in fact exercised little control over these policies States. The only
action which Parliament has taken under Article 16 (3) giving it the right to
set residence requirements has been the enactment of the Public Employment (Requirement
as to Residence) Act, 1957 aimed at abolishing all existing residence
requirements in the States and enacting exceptions only in the case of the
special instances of Andhra Pradesh, Manipur, Tripura and Himchal Pradesh.
There is therefore at present no parliamentary enactment permitting
preferential policies based on residence requirement except in the case of
Andhra Pradesh, Manipur Tripura and Himachal Pradesh where the Central
Government has been given the right to issue directions setting residence
requirements in the subordinate services. Yet, in the face of Article 16 (2),
some of the States are adopting `sons of the soil' policies prescribing
reservation 957 or preference based on domicile or residence requirement for
employment or appointment to an office under the government of a State or any
local or other authority or public sector corporation or any other corporation
which is an instrumentality or agency of the State. Prima facie this would seem
to be constitutionally impermissible though we do not wish to express any
definite opinion upon it, since it does not directly arise for consideration in
these writ petitions and civil appeal.
But, it is clear that so far as admissions to
an educational institution such as a medical college are concerned, Article
16(2) has no application, If, therefore, there is any residence requirement for
admission to a medical college in a State, it cannot be condemned as
unconstitutional on ground of violation of Article 15 clauses (1) and (2). Nor
can Article 16(2) be invoked for invalidating such residence requirement
because these clauses prohibits discrimination on ground of place of birth and
not on ground of residence and, as pointed out by this Court in D.P. Joshi v.
State of Madhya Bharat, residence and place of birth are "two distinct
conceptions with different connotations both in law and in fact". The only
provision of the Constitution on the touch-stone of which such residence
requirement can be required to be tested is Article 14 and that is precisely
the challenge which falls to be considered by us in these writ petitions.
Now there are in our country in almost all
States residence requirements for admission to a medical college.
Sometimes the requirement is phrased by
saying that the applicant must have his domicile in the State. We must protest
against the use of the word `domicile' in relation to a State within the union
of India. The word `domicile' is to identify the personal law by which an
individual is governed in respect of various matters such as the essential
validity of a marriage, the effect of marriage on the proprietary rights of
husband and wife, jurisdiction in divorce and nullity of marriage,
illegitimacy, legitimation and adoption and testamentary and intestate
succession to moveables. `Domicile' as pointed out in Halsbury's laws of
England (Fourth Edition) Volume 8 paragraph 421, "is the legal
relationship between an individual and a territory with a distinctive legal
system which invokes that system as his personal law." "(Emphasis
supplied.) It is well settled that the domicile of a person is in 958 that
country in which he either has or is deemed by law to have his permanent home
"By domicile" said Lord Cranworth in Wicker v. Homes we mean home,
the permanent home.' The notion which lies at the root of the concept of
domicile is that of permanent home." But it is basically a legal concept
for the purpose of determining what is the personal law applicable to an
individual and even if an individual has no permanent home, he is invested with
a domicile by law. There are two main classes of domicile: domicile of origin
that is communicated by operation of law to each person at birth, that is the
domicile of his father or his mother according as he is legitimate or
illegitimate and domicile of choice which every person or full age is free to
acquire in substitution for that which he presently possesses. The domicile of
origin attaches to an individual by birth while the domicile of choice is
acquired by residence in a territory subject to a distinctive legal system,
with the intention to reside there permanently or indefinitely. Now the area of
domicile, whether it be domicile of origin or domicile of choice, is the
country which has the distinctive legal system and not merely the particular
place in the country where the individual resides. This position is brought out
clearly and emphatically in paragraph 422 of Halsbury's Laws of England (Fourth
Edition) Volume 8 where it is stated: "Each person who has, or whom the
law deems to have, his permanent home within the territorial limits of a single
system of law is domiciled in the country over which the system extends; and he
is domiciled in the whole of that country even though his home may be fixed at
a particular spot within it." What would be the position under a federal
polity is also set out in the same paragraph of volume 8 of Halsbury's Laws of
England (Fourth Edition): "In federal states some branches of law are
within the competence of the federal authorities and for these purposes the
whole federation will be subject to a single system of law and an individual
may be spoken of as domiciled in the federation as a whole; other branches of
law are within the competence of the states or provinces of the federation and
the individual will be domiciled in one state or province only." This
being the true legal position in regard to domicile, let us proceed to consider
whether there can be anything like a domicile in a state forming part of the
Union of India.
Now it is clear on a reading of the
Constitution that it 959 recognises only one domicile namely, domicile in
India.
Article 5 of the Constitution is clear and
explicit on this point and it refers only to one domicile, namely,
"domicile in the territory of India." Moreover, it must be remembered
that India is not a federal state in the traditional sense of that term. It is
not a compact of sovereign states which have come together to form a federation
by ceding a part of their sovereignty to the federal states. It has undoubtedly
certain federal features but it is still not a federal state and it has only
one citizenship, namely, the citizenship of India. It has also one single
unified legal system which extends throughout the country. It is not possible
to say that a distinct and separate system of law prevails in each State
forming part of the Union of India. The legal system which prevails through-out
the territory of India is one single indivisible system with a single unified
justicing system having the Supreme Court of India at the apex of the
hierarchy, which lays down the law for the entire country.
It is true that with respect to subjects set
out in List II of the Seventh Schedule to the Constitution, the States have the
power to make laws and subject to the over-riding power of Parliament, the
States can also make laws with respect to subjects enumerated in List III of
the Seventh Schedule to the Constitution, but the legal system under the rubric
of which such laws are made by the States is a single legal system which may truly
be described as the Indian Legal system. It would be absurd to suggest that the
legal system varies from State to State or that the legal system of a State is
different from the legal system of the Union of India; merely because with
respect to the subjects within their legislative competence, the States have
power to make laws. The concept of `domicile' has no relevance to the
applicability of municipal laws, whether made by the Union of India or by the
States. It would not, therefore, in our opinion be right to say that a citizen
of India is domiciled in one state or another forming part of the Union of
India.
The domicile which he has is only one
domicile, namely, domicile in the territory of India. When a person who is
permanently resident in one State goes to another State with intention to
reside there permanently or indefinitely, his domicile does not undergo any
change: he does not acquire a new domicile of choice. His domicile remains the
same, namely, Indian domicile. We think it highly deterimental to the concept
of unity and integrity of India to think in terms of State domicile. It is true
and there we agree with the argument advanced on behalf of the State
Governments, that the word `domicile' in the Rules of 960 some of the State
Governments prescribing domicilary requirement for admission to medical
colleges situate within their territories, is used not in its technical legal
sense but in a popular sense as meaning residence and is intended to convey the
idea of intention to reside permanently or indefinitely. That is, in fact the
sense in which the word 'domicile' was understood by a five Judge Bench of this
Court in D. P. Joshi's case (supra) while construing a Rule prescribing
capitation fee for admission to a medical college in the State of Madhya Bharat
and it was in the same sense that word 'domicile' was understood in Rule 3 of
the Selection Rules made by the State of Mysore in Vasundra v. State of Mysore.
We would also, therefore, interpret the word 'domicile' used in the Rules regulating
admissions to medical colleges framed by some of the States in the same loose
sense of permanent residence and not in the technical sense in which it is used
in private international law. But even so we wish to warm against the use of
the word 'domicile' with reference to States forming part of the Union of
India, because it is a word which is likely to conjure up the notion of an
independent State and encourage in a subtle and insidious manner the dormant
sovereign impulses of different regions. We think it is dangerous to use a
legal concept for conveying a sense different from that which is ordinarily
associated with it as a result of legal usage over the years. When we use a
word which has come to represent a concept or idea, for conveying a different
concept or idea it is easy for the mind to slide into an assumption that the
verbal identity is accompanied in all its sequences by identity of meaning. The
concept of domicile if used for a purpose other than its legitimate purpose may
give rise to lethal radiations which may in the long run tend to break up the
unity and integrity of the country. We would, therefore, strongly urge upon the
State Governments to exercise this wrong use of the expression 'domicile' from
the rules regulating admissions to their educational institutions and
particularly medical colleges and to desist from introducing and maintaining
domiciliary requirement as a condition of eligibility for such admissions.
We may now proceed to consider whether
residential requirement or institutional preference in admissions to technical
and medical colleges can be regarded as constitutionally permissible. Can it
stand the test of Article 14 or does it fall foul of it and must be struck down
as constitutionally invalid. It is not possible to answer this question by a
simple "yes" or "no" It raises a 961 delicate but complex
problem involving consideration of divers factors in the light of varying
social and economic facts and calls for a balanced and harmonious adjustment of
competing interests. But, before we embark upon a consideration of this
question, it may be pointed out that there is before us one Civil Appeal,
namely, C.A.No. 6392 of 1983 filed by Rita Nirankari and five writ petitions,
namely, Writ Petition Nos. 8882 of 1983, 8883 of 1983, 9618 of 1981, 10658 of
1983 and 10761 of 1983 filled by Nitin Aggarwal, Seema Garg, Menakshi, Alka
Aggarwal and Shalini Shailendra Kumar respectively. These civil appeal and writ
petitions relate to admissions to medical colleges affiliated to the Delhi
University and situate in the Union Territory of Delhi. Then we have writ
petition No. 982 of 1983 filed by Dr. Mrs. Reena Ranjit Kumar and writ petition
No. 9219 of 1983 filed by Nandini Daftary which relate to admission to the
M.D.S. Course and M.B.B.S. course respectively of Karnataka University. We have
also writ petition No. 6091 of 1983 filed by Dr. Pradeep Jain seeking admission
to the M.D.S. course in King George Medical College, Lucknow affiliated to the
Lucknow University. When these writ petitions and civil appeal were admitted,
we made interim orders in some of them granting provisional admission to the
petitioners and we may make it clear that wherever we have granted provisional
admissions shall not be disturbed, irrespective of the result of these civil
appeal and writ petitions. We may also point out that since these civil appeal
and writ petitions challenged the constitutional validity of residential
requirement and institutional preference in regard to admissions in medical
colleges in the States of Karnataka and Uttar Pradesh and the Union Territory
of Delhi and we were informed that it is the Uniform and consistent practice in
almost all States to provide for such residential requirement or institutional
preference we directed that notices of these civil appeal and writ petitions
may be issued to the Union of India and the States of Karnataka, Kerala, Madhya
Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamilnadu and West
Bengal and the State Governments to which such notices are issued shall file
their counter affidavits dealing in particular with the question of reservation
in admission on the basis of domicile or residential requirement within two
weeks from the date of service of such notices. Some of the State Governments
could not file their counter affidavits within the time granted by us and they
accordingly made an application for extension of time and by an order dated
30th August, 1983 we extended the time for filing of counter affidavits 962 and
directed the State Governments to set out in their counter affidavits facts and
figures showing as to what is the procedure which is being followed by them so
far as admissions to medical colleges in their States are concerned. It appears
that most of the state Governments to whom notices were issued filed their
counter affidavits and though no notice was directed to be issued to the State
of Himachal Pradesh, the Government of that State also filed a counter
affidavit. The Delhi University in its counter affidavit gave a brief synopsis
summarising the domicile or residential requirement or institutional preference
followed by each State Government for admission to the medical colleges situate
within its territory. It is not necessary for the purpose of the present judgment
to reproduce in detail the precise domicile or residential requirement or
institutional preference adopted and prevailing in different States in regard
to admissions to medical colleges. Suffice it to state that for admission to
M.B.B.S. course, domicile or permanent residence is required in some States,
residence for a specified number of years ranging from three to twenty years is
required in some other States while in a few States the requirement is that the
candidate should have studied in an educational institution in the State for a
continuous period varying from four to ten years or the candidate should be a
bona fide resident of one State and in case of admissions to M.D.S. Course in
Uttar Pradesh the candidate should be either a citizen of India, domicile of
whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh
or a citizen of India, domicile of whose father may not be in Uttar Pradesh but
who himself has resided in Uttar Pradesh for not less than five years at the
time of making the application and so far as admissions to M.D.S. Course in
Karnataka are concerned, the candidate should have studied for at least five
years in an educational institution in the State of Karnataka prior to his
joining B.D.S. Course. The position in regard to admissions in medical colleges
in the Union Territory of Delhi is a little different, because there, out of a
total of 410 seats available for admission to the M.B.B.S. course in the three
medical colleges affiliated to the Delhi university, 148 are reserved seats and
262 are non-reserved seats and for filling in the 262 non-reserved seats, an
entrance examination is held and the first 50 seats are filled from amongst the
eligible candidates who pass the entrance examination in order of merit and the
remaining 212 seats are filled, again on merit, but by candidates who have
passed their qualifying examination from the schools situate in the Union
Territory of Delhi 963 only. It will thus be seen that in almost all States and
Union Territories admissions to medical colleges are based either on residence
requirements or on institutional preferences. The question is whether such
reservations or preferences are constitutionally valid when tested on the
touch-stone of Article 14.
There can be no doubt that the demand for
admission to medical colleges has over the last two decades increased
enormously and outstripped the availability of seats in the medical colleges in
the country. Today large numbers of young men and women are clamouring to get
admission in the medical colleges not only because they can find gainful
employment for themselves but they can also serve the people and the available
seats in the medical colleges are not sufficient to meet the increasing demand.
The proportion of medical practitioners to the population is very low compared
to some other countries and there is considerable unmet need for medical
services. It is possible that in highly urbanised areas, there may be a surfeit
of doctors but there are large tracts of rural areas throughout the country
where competent and adequate medical services are not available.
The reason partly is that the doctors who
have been brought up and educated in urban areas or who are trained in medical
colleges situate in cities and big towns acquire an indelible urban slant and
prefer not to go to the rural areas, but more importantly, proper and adequate
facilities are not provided and quite often even necessary medicines and drugs
are not supplied in rural areas with the result that the doctors, even if
otherwise inclined to go to rural areas with a view to serving the people, find
that they cannot be of any service to the people and this acts as a
disincentive against doctors setting down in rural areas.
What is, therefore, necessary is to set up proper
and adequate structures in rural areas where competent medical services can be
provided by the doctors and some motivation must be provided to the doctors
servicing those areas. But, as the position stands today, there is considerable
paucity of seats in medical colleges to satisfy the increasing demand of
students for admission and some principle has, therefore, to be evolved for
making selection of students for admission to the medical colleges and such
principle has to be in conformity with the requirement of Article 14. Now, the
primary imperative of Article 14 is equal opportunity for all across the nation
for education and advancement and, as pointed out by Krishna Iyer, J. in
Jagdish Saran v. Union of India "this" has burning relevance 964 to our
times when the country is gradually being broken up into fragments by narrow
domestic walls" by surrender to narrow parochial loyalties. What is
fundamental, as an enduring value of our polity is guarantee to each of equal
opportunity to unfold the full potential of his personality.
Anyone anywhere, humble or high, agrestic or
urban, man or woman, whatever be his language or religion, place of birth or
residence, is entitled to be afforded equal chance for admission to any secular
educational course for cultural growth, training facility, specialty or
employment. It would run counter to the basic principle of equality before the
law and equal protection of the law if a citizen by reason of his residence in
State A, which ordinarily in the commonality of cases would be the result of
his birth in a place situate within that State, should have opportunity for
education or advancement which is denied to another citizen because he happens
to be resident in State B. It is axiomatic that talent is not the monopoly of
the resident of any particular State; it is more or less evenly distributed and
given proper opportunity and environment, everyone has a prospect of rising to
the peak. What is necessary is equality of opportunity and that cannot be made
dependent upon where a citizen resides. If every citizen is afforded equal
opportunity, genetically and environmentally, to develop his potential he will
be able in his own way to manifest his faculties fully leading to all round
improvement in excellence. The philosophy and pragmatism of universal
excellence through equality of opportunity for education and advancement across
the nation is part of our founding faith and constitutional creed. The effort
must, therefore, always be to select the best and most meritorious students for
admission to technical institutions and medical colleges by providing equal
opportunity to all citizen in the country and no citizen can legitimately,
without serious deteriment to the unity and integrity of the nation, be
regarded as an outsider in our constitutional set up.
Moreover it would be against national
interest to admit in medical colleges or other institutions giving instruction
in specialities, less meritorious students when more meritorious students are
available, simply because the former are permanent residents or residents for a
certain number of years in the State while the latter are not, though both
categories are citizens of India. Exclusion of more meritorious students on the
ground that they are not resident within the State would be likely to promote
sub- standard candidates and bring about fall in medical competence, injurious
965 in the long run to the very region. "It is no blessing to inflict
quacks and medical midgets on people by whole-sale sacrifice of talent at the
thresh-hold. 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." The primary consideration in selection of candidates for
admission to the medical colleges must, therefore, be merit. The object of any
rules which may be made for regulating admissions to the medical colleges must
be to secure the best and most meritorious students.
This was the consideration which weighed with
the Court in Minor P. Rajendran v. State of Madras in striking down a rule made
by the State of Madras allocating seats in medical colleges on district-wise
basis. Wanchoo, C.J. Speaking on behalf of the Court, observed:
"The question whether districtwise
allocation is violative of Art. 14 will depend on what is the object to be
achieved in the matter of admission to medical colleges. Considering the fact
that there is a large number of candidates than seats available, selection has
got to be made. The object of selection can only be to secure the best possible
material for admission to colleges subject the provision for socially and
educationally backward classes. Further whether selection is from the socially
and educationally backward classes or from the general pool, the object of
selection must be to secure the best possible talent from the two sources. If
that is the object, it must necessarily follow that object would be defeated if
seats are allocated district by district. It cannot be and has not been denied
that the object of selection is to secure the best possible talent from the two
sources so that the country may have the best possible doctors.
If that is the object, that argument on
behalf of the petitioners appellant is that object cannot possibly be served by
allocating seats districtwise. It is true that Art. 14 does not forbid
classification, but the classification has to be justified on the basis of the
nexus between the classification and the object to be achieved, even assuming
that territorial classification may be a reasonable classification. The fact
however that the classification by itself is reasonable is not enough to
support it unless there is nexus between the classification and the 966 object
to be achieved. Therefore, as the object to be achieved in a case of the kind
with which we are concerned is to get the best talent for admission to
professional colleges, the allocation of seats districtwise has no reasonable
relation with the object to be achieved. If anything such allocation will
result in many cases in the object being destroyed, and if that is so, the
classification, even if reasonable, would result in discrimination, in as much
as better qualified candidates from one district may be rejected while less
qualified candidates from other districts may be admitted from either of the
two sources." Then again in Periakaruppan v. State of Tamil Nadu, the same
consideration prevailed with the Court in striking down the scheme of selection
of candidates for admission to medical colleges in the State of Tamil Nadu for
the year 1970-71. It was a unit-wise scheme under which the medical colleges in
the city of Madras were constituted as one unit and each of the other medical
colleges in the Mofussil was constituted as a unit and a separate selection committee
was set up for each of these units. The intending applicants were asked to
apply to any one of the committees but were advised to apply to the committee
nearest to their place of residence and if they applied to more than one
committee, their applications were to be forwarded by the Government to only
one of the committees. The petitioners who were unsuccessful in getting
admission, challenged the validity of this unit-wise scheme and contended that
the unit-wise scheme infringed Article 14 of the Constitution, inter alia,
because the applicants of some of the units were in a better position than
those who applied to other units, since the ratio between the applicants and
the number of seats in each unit varied and several applicants who secured lesser
marks than the petitioners were selected merely because their applications came
to be considered in other units. This challenge was upheld by the Court and
Hegde, J. speaking on behalf of the Court observed:
"We shall first take up the plea
regarding the division of medical seats on unitwise basis. It is admitted that
minimum marks required for being selected in some unit is less than in the
other units. Hence prima facie the scheme in question results in discrimination
against some of the applicants. Before a classification can be justified, it
must be based on an objective criteria and further it 967 must have reasonable
nexus with the object intended to be achieved. The object intended to be
achieved in the present case is to select the best candidates for being
admitted to Medical Colleges. That object cannot be satisfactorily achieved by
the method adopted." These two decisions do not bear directly on the
question raised before us, namely, whether any reservation can be legitimately
made in admissions to medical colleges on the basis of residence requirement
within the State or any institutional preference can be given students who have
passed the qualifying examination held by the same university. They deal with
two specific instances of intra- state discrimination between citizens residing
within the same State and strike down such discrimination as violative of
Article 14 on the ground that it has no rational relation to the object of
selection, namely, to get the best and most meritorious students and, in fact,
tends to defeat such object, But, in taking this view, they clearly and
categorically proceed on the basis of the principle that the object of any
valid scheme of admissions must be to "select the best candidates for
being admitted to medical colleges" and that if any departure is to be
made "from the principle of selection on the basis of merit" it must
be justified on the touchstone of Art. 14.
But let us understand what we mean when we
say that selection for admission to medical colleges must be based on merit.
What is merit which must govern the process of selection ? It undoubtedly
consists of a high degree of intelligence coupled with a keen and incisive
mind, sound knowledge of the basic subjects and infinite capacity for hard
work, but that is not enough; it also calls for a sense of social commitment
and dedication to the cause of the poor. We agree with Krishna Iyer, J. when he
says in Jagdish Saran's case (supra): "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 case 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." Merit cannot be measured
in terms of marks alone, but human sympathies are equally important. The heart
is as much a factor as the head in assessing the social, value of a member of
the medical profession. This is also an aspect which may, to 968 the limited
extent possible, be borne in mind while determining merit for selection of
candidates for admission to medical colleges though concededly it would not be
easy to do so, since it is a factor which is extremely difficult to judge and
not easily susceptible to evaluation.
We may now proceed to consider what are the
circumstances in which departure may justifiably be made from the principle of
selection based on merit. Obviously, such departure can be justified only on
equality-oriented grounds, for whatever be the principle of selection followed
for making admissions to medical colleges, it must satisfy the test of
equality. Now the concept of equality under the Constitution is a dynamic
concept. It takes within its sweep every process of equalisation and protective
discrimination.
Equality must not remain mere idle
incantation but it must become a living reality for the large masses of people.
In a hierachical society with an indelible feudal stamp and incurable actual
inequality, it is absurd to suggest that progressive measures to eliminate
group disabilities and promote collective equality are antagonistic to equality
on the ground the every individual is entitled to equality of opportunity based
purely on merit judged by the marks obtained by him. We cannot countenance such
a suggestion, for to do so would make that equality clause sterile and
perpetuate existing inequalities. Equality of opportunity is not simply a
matter of legal equality. Its existence depends not merely on the absence of
disabilities but on the presence of abilities. Where, therefore, there is
inequality, in fact, legal equality always tends to accentuate it. What the
famous poet Willian Blanks said graphically is very true, namely, "One law
for the Lion and the Ox is oppression," Those who are unequal. in fact.
cannot treated by identical standards; that
may be equality in law but it would certainly not be real equality. It is,
therefore, necessary to take into account de facto inequalities which exist in
the society and to take affirmative action by way of giving preference to the
socially and economically disadvantaged persons or inflicting handicaps on
those more advantageously placed, in order to bring about real equality Such
affirmative action though apparently discriminatory is calculated to produce
equality an a broader basis by eliminating de facto inequalities and placing
the weaker sections of the community on a footing of equality with the stronger
and more powerful section, so that each member of the community, whatever is
his births occupation or social position may enjoy equal opportunity of 969
using to the full his natural endowments of physique, of character and of
intelligence. We may in this connection usefully quote what Mathew, J. said in
Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat.
"It is obvious that "equality in
law precludes discrimination of any kind; whereas equality, in fact, may
involve the necessity of differential treatment in order to attain a result
which establishes an equilibrium between different situations." We cannot,
therefore, have arid equality which does not take into account the social and
economic disabilities and inequalities from which large masses of people suffer
in the country. Equality in law must produce real equality; de jure equality
must ultimately find its raison d'etre in de facto equality. The State must,
therefore, resort to compensatory State action for the purpose of making people
who are factually unequal in their wealth, education or social environment,
equal in specified areas. The State must, to use again the words of Krishna
Iyer. J. in Jagdish Saran's case (supra) 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 equality is not negated or
neglected where special provisions are geared to the large goal of the disabled
getting over their disablement consistently with the general good and individual
merit." The scheme of admission to medical colleges may, therefore, depart
from the principle of selection based on merit, where it is necessary to do so
for the purpose of bringing about real equality of opportunity between those
who are unequals.
There are. in the application of this
principle, two considerations which appear to have weighed with the Court in
justifying departure from the principle of selection based on merit. One is
what may be called State interest and the other is what may be described as a
region's claim of backwardness. The legitimacy of claim of State interest was
recognised explicitly in one of the early decisions of this Court in D.P.
Joshi's case (supra) The Rule impugned in this case was a Rule made by the
State of 970 Madhya Bharat for admission to the Mahatma Gandhi Memorial Medical
College, Indore providing that no capitation fee should be charged for students
who are bona fide residents of Madhya Bharat but for other non-Madhya Bharat
students, there should be a capitation fee of Rs. 1300 for nominees and Rs.
1500 for others. The expression bona fide resident' was defined for the purpose
of this Rule to mean inter alia a citizen whose original domicile was in Madhya
Bharat provided he had not acquired a domicile elsewhere or a citizen whose
original domicile was not in Madhya Bharat but who had acquired a domicile in
Madhya Bharat and had resided there for not less than five years at the date of
the application for admission. The constitutional validity of this Rule was challenged
on the ground that it discriminated between students who were bona fide
residents of Madhya Bharat and students who were not and since this
discrimination was based on residence in the State of Madhya Bharat, it was
violative of Article 14 of the Constitution.
The Court by a majority of four against one
held that the Rule was not discriminatory as being in contravention of Article
14, because the classification between students who were bona fide residents of
Madhya Bharat and those who were not was based on an intelligible differentia
having rational relation to the object of the Rule. Venkatarama Ayyar, J.
speaking on behalf of the majority observed:
"The object of the classification
underlying the impugned rule was clearly to help to some extent students who
are residents of Madhya Bharat in the prosecution of their studies, and it
cannot be disputed that it is quite a legitimate and laudable objective for a
State to encourage education within its borders Education is a State subject,
and one of the directive principles declared in Part IV of the Constitution is
that the State should make effective provisions for education within the limits
of its economy. (Vide Article 41). The State has to contribute for the up keep
and the running of its educational institutions.
We are in this petition concerned with a
Medical College, and it is well known that it requires considerable finance to
maintain such an institution.
If the State has to spend money on it, is it
unreasonable that it should so order the educational system that the advantage
of it would to some extent at least enure for the benefit of the State ? A
concession given to the residents of the State in the 971 matter of fees is
obviously calculated to serve that end, as presumably some of them might, after
passing out of the College, settle down as doctors and serve the needs of the
locality. The classification is thus based on a ground which has a reasonable
relation to the subject-matter of the legislation, and is in consequence not
open to attack. It has been held in The State of Punjab v. Ajab Singh and Anr.
that a classification might validly be made on a geographical basis. Such a
classification would be eminently just and reasonable, where it relates to
education which is the concern, primarily of the State. The contention,
therefore, that the rule imposing capitation fee is in contravention of Article
14 must be rejected." (emphasis supplied) It may be noted that here
discrimination was based on residence within the State of Madhya Bharat and yet
it was held justified on the ground that the object of the State in making the
Rules was to encourage students who were residents of Madhya Bharat to take up
the medical course so that "some of them might, after passing out from the
college, settle down as doctors and serve the needs of the locality" and
the classification made by the Rule had rational relation to this object. This
justification of the discrimination based on residence obviously rest on the
assumption that those who were bona fide residents of Madhya Bharat would after
becoming doctors settle down and serve the needs of the people in the State. We
are not sure whether any facts were pleaded in the affidavits justifying this
assumption but the judgment of Venkatarama Ayyar, J.
show that the decision of the majority Judges
proceeded on this assumption and that was regarded as a valid ground justifying
the discrimination made by the impugned Rule.
We may point out that in Minor P. Rajendran's
case (supra) also, an argument was put forward on behalf of the State
Government that if selection was made district-wise, those selected from a
district were likely to settle down as practitioners in that districts so that
the districts were likely to benefit from their training. But this argument was
rejected by the Court and district-wise admission to medical colleges was
struck down as constitutionally invalid. It is significant to note that the
Court did not reject this argument as intrinsically irrelevant but the only
ground on 972 which it was rejected was 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". It would be interesting to speculate what court would have
decided if the State Government had placed sufficient material before the court
showing that students coming from different districts in the State ordinarily
settle down as medical practitioners in the respective districts from where
they come.
This Court also upheld reservation based on
residence requirement for a period of not less than ten years, for admission to
medical colleges in the then State of Mysore, The Rule which was impugned in
that case was Rule 3 of the Rules for selection of candidates for admission to
the professional course leading to MBBS course in the Government Medical
Colleges in the then State of Mysore and this Rule provided that "no
person who is not a citizen of India and who is not domiciled and resident in
the State of Mysore for not less than ten years at any time prior to the date
of the application for a seat, shall be eligible to apply." The
petitioner's application for admission was rejected on the ground that she had
not resided in the State for a period of ten years as required by Rule 3 and
she consequently challenged the constitutional validity of that Rule on the
plea that it violated the right to equality guaranteed by Article 14. The challenge
was however negatived and the constitutional validity of Rule 3 was upheld by a
3 Judge Bench of this Court. The Court relied upon the decision in D.P. Joshi's
case (supra) and observed:
"If classification based on residence
does not impinge upon the principle of equality enshrined in Art. 14 as held by
this Court in the decision already cited which is binding upon us, then the
further condition of the residence in the State being there for at least ten
years would also seem to be equally valid unless it is shown by the petitioner
that selection of the period of ten years makes the classification so
unreasonable as to render it arbitrary and without any substantial basis or
intelligible differentia. The object of framing the impugned rule seems to be to
attempt to impart medical education to the best talent available out of the
class of persons who are likely, so far as it can reasonably be foreseen, to
serve as doctors, the 973 inhabitants of the State of Mysore. It is true that
it is possible to say with absolute certainty that all those admitted to the
medical colleges would necessarily stay in Mysore State after qualifying as
doctors: they have indeed a fundamental right as citizens to settle anywhere in
India and they are also free, if they so desire and can manage, to go out of
India for further studies or even otherwise. But these possibilities are
permissible and inherent in our constitutional set-up and these considerations
cannot adversely affect the constitutionality of the otherwise valid rule. The
problem as noticed in minor P. Rajendran's case and as revealed by a large
number of cases which have recently come to this Court is that the number of
candidates desirous of having medical education is very much larger than the
number of seats available in medical colleges. The need and demand for doctors
in our country is so great that young boys and girls feel that in medical
profession they can both get gainful employment and serve the people. The State
has therefore to formulate with reasonable foresight a just schemes of
classification for imparting medical education to the available candidates
which would serve the object and purpose of providing broad based medical aid
to the people of the State and to provide medical education to those who are
best suited for such education. Proper classification inspired by this
consideration and selection on merit from such classified groups therefore
cannot be challenged on the ground of inequality violating Art. 14. The
impugned rule has not been shown by the petitioner to suffer from the vice of
unreasonableness. The counter- affidavit filed by the State on the other hand
discloses the purpose to be that of serving the interests of the residents of
the State by providing medical aid for them." Here also reservation based
on residence requirement of not less than ten years was held to be
non-discriminatory though it denied equality of opportunity for admission to
the medical colleges in the State to all those who did not satisfy this
residence requirement. The Court took the view that the object of the State
Government in making such reservation based on residence requirement of not
less than ten years was to "impart medical 974 education to the best
talent available out of the class of persons who are likely, so far as it can
reasonably be foreseen, to serve as doctors, the inhabitants of the
State". The principle of selection based on merit across the board was
thus allowed to be modified by the claim of State interest in providing broad
based medical aid to the people of the State" and reservation based on
residence requirement of not less than ten years was upheld as a valid
reservation. We find an choice of the same reasoning in the following words
from the judgment of Dua, J. in D.N. Chanchala v. State of Mysore.
"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 supplied) The claim of State interest in providing adequate medical
service to the people of the State by imparting medical education to students
who by reason of their residence in the State would be likely to settle down
and serve the people of the State as doctors has thus been regarded by the
Court as a legitimate ground for laying down residence requirement for
admission to medical colleges in the State.
We may also conveniently at this stage refer
to the decision of this Court in D.N. Chanchala's case (supra). The reservation
impugned in this case was university-wise reservation under which preference
for admission to a medical college run by a university was given to students
who had passed the PUC examination of that university and only 20 per cent of
the seats were available to those passing the PUC Examination of other
universities. The petitioner who had passed PUC examination held by the
Bangalore university, applied for admission to any one of the medical colleges
affiliated to the Karnataka University.
But she did not come within the merit list on
the basis of which 20 per cent of 975 the open seats were filled up and since
she had not passed the PUC Examination held by the Karnataka University, her
application for admission to a medical college affiliated to the Karnataka
University, was rejected. She therefore filed a writ petition under Article 32
of the Constitution contending inter alia that the University wise distribution
of seats was discriminatory and being without any rational basis was violative
of Article 14. This contention was however rejected by a 3 Judge Bench of this
Court. Shelet, J. speaking on behalf of the Court held that there was no
constitutional infirmity involved in giving preference to students who had
passed the PUC Examination of the same University and gave the following
reasons in support of this conclusion:
"The three universities were set up in
three different places presumably for the purpose of catering to the
educational and academic needs of those areas.
Obviously one university for the whole of the
State could neither have been adequate nor feasible to satisfy those needs.
Since it would not be possible to admit all candidates in the medical colleges
run by the Government, some basis for screening the candidates had to be set
up. There can be no manner of doubt, and it is now fairly well settled, that
the Government, as also other private agencies, who found such centers for
medical training, have the right to frame rules for admission so long as those
rules are not inconsistent with the university statutes and regulations and do
not suffer from infirmities, constitutional or otherwise.
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 for 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 976 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. It is, therefore, impossible to say that the basis of
selection adopted in these rules would defeat the object of the rules as was
said in Rajendran's case or make possible less meritorious students obtaining
admission at the cost of the better candidates. The fact that a candidate
having lesser marks might obtain admission at the cost of another having higher
marks from another university does not necessarily mean that a less meritorious
candidate gets advantage over a more meritorious one. As a well known,
different universities have different standards in the examinations held by
them. A preference to one attached to one university in its own institutions
for post graduate or technical training is not uncommon. Rules giving such a
preference are to be found in various universities. Such a system for that
reason alone is not to be condemned as discriminatory, particularly when
admission to such a university by passing a qualifying examination held by it
is not precluded by any restrictive qualifications, such as birth or residence,
or any other similar restrictions. In our view, it is not possible to equate
the present basis for selection with these which were held invalid in the
aforesaid two decisions. Further, the Government which bears the financial
burden of running the Government colleges if entitled to lay down criteria for
admission would be made, provided of course such classification is not
arbitrary and has a rational basis and a reasonable connection with the object
of the rules. So long as there is no discrimination within each of such
sources, the validity of the rules laying down such sources cannot be
successfully challenged. In our view, the rules lay down a valid
classification. Candidates passing through the qualifying examination held by a
university from a class by themselves as distinguished from those passing
through such examination from the other two universities. Such a classification
has a reasonable nexus with the object of the rules, namely, to cater to the
needs of candidates who would naturally look to their own university to advance
their training in technical studies, such as medical studies. In our opinion,
the 977 rules cannot justly be attacked on the ground of hostile discrimination
or as being otherwise in breach of Article 14." University-wise
distribution of seats was thus upheld by the Court as constitutionally valid
even though it was not in conformity with the principle of selection based on
merit and marked a departure from it. The view taken by the court was that
university-wise distribution of seats was not discriminatory because it was
based on a rational principle.
There was nothing unreasonable in providing
that in granting admissions to medical colleges affiliated to a university,
reservation shall be made in favour of candidates who have passed PUC
examination of that university, firstly, because it would be quite legitimate
for students who are attached to a university to entertain a desire to
"have training in specialised subjects, like medicine, satisfied through
colleges affiliated to their own" university since that promote
institutional continuity which has its own value and secondly, because any student
from any part of the country could pass the qualifying examination of that
university, irrespective, of the place of his birth or residence.
The second consideration which has
legitimately weighed with the courts in diluting the principle of selection
based on merit is the claim of backwardness made on behalf of any particular
region. There have been cases where students residing in a backward region have
been given preferential treatment in admissions to medical colleges and such
preferential treatment has been upheld on the ground that though apparently
discriminatory against others, it is intended to correct the imbalance or
handicap from which the students from the backward region are suffering and
thus bring about real equality in the larger sense. Such preferential treatment
for those residing in the backward region is designed to produce equal
opportunity on a broader basis by providing to neglected geographical or human
areas an opportunity to rise which they would not have if no preferential treatment
is given to them and they are treated on the same basis as others for
admissions to medical colleges, because then they would never be able to
compete with others more advantageously placed. If creatively and imaginatively
applied, preferential treatment based on residence in a backward region can
play a significant role in reducing uneven levels of development and such 978
preferential treatments would presumably satisfy the test of Article 14,
because it would be calculated to redress the existing imbalance between
different regions in the State.
There may be a case where a region is
educationally backward or woefully deficient in medical services and in such a
case there would be serious educational and health service disparity for that
backward region which must be redressed by equality and service minded welfare
State. The purpose of such a policy would be to remove the existing inequality
and to promote welfare based equality for the residents of the backward region.
If the State in such a case seeks to remove the absence of opportunity for
medical education and to provide competent and adequate medical services in
such backward region by starting a medical college in the heart of such
backward region and reserves a high percentage of seats there to students from
that region, it may not be possible to castigate such reservation or
preferential treatment as discriminatory. What is directly intended to abolish
existing disparity cannot be accused of discrimination. Krishna Iyer, J. said
to the same effect when he observed in Jagdish Saran's case at page 856 of the
Report:
"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." This was precisely the ground on which, in
the State of Uttar Pradesh v. P. Tandon this Court allowed reservation in
medical admissions for people of the hill and Uttarakhand areas of the State of
U.P. on the ground that those areas were socially and educationally backward.
Similarly, the Andhra Pradesh High Court in Devi v. Kakatie Medical College,
held that preferential treatment of Telangana students in medical admissions
was justified since "Kakatiya Medical College was started for the spread
of medical education mainly for Telangana region. which is educationally backward
in the State.
If in view of this object, provision is made
to cater to the educational needs mainly of that particular region, as it badly
979 requires such assistance, it cannot be said that the object to be achieved
has on relation to the classification made by giving larger representation to
the Andhra region. The increase in the Telangana quota is consistent with and
promotes and advances the object underlying the establishment of the
institution." We are however not concerned here with a case of reservation
or preference for persons from a backward region within a State and we need not
therefore dwell any longer upon it.
It will be noticed from the above discussion
that though intra-state discrimination between persons resident in different districts
or regions of a State has by an large been frowned upon by the court and struck
down as invalid as in Minor P. Rajendran's case (supra) and Perukaruppan's case
(supra), the Court has in D.N. Chanchalla's case and other similar cases
up-held institutional reservation effected through university wise distribution
of seats for admission to medical colleges. The Court has also by its decisions
in D.P. Joshi's case and N. Vasundhara's case (supra) sustained the
constitutional validity of reservation based on residence within a State for
the purpose of admission to medical college. These decisions which all relate
to admission to MBBS course are binding upon us and it is therefore not
possible for us to hold, in the face of these decisions, that residence
requirement in at State for admission to MBBS course is irrational and
irrelevant and cannot be introduced as a condition for admission without
violating the mandate of equality of opportunity contained in Article 14 We
must proceed on the basis that at least so far as admission to MBBS course is
concerned, residence requirement in a State can be introduced as a condition
for admission to the MBBS course. It is of course true that the Medical
Education Review Committee established by the Government of India has in its
report recommended after taking into account all relevant considerations, that
the "final objective should be to ensure that all admissions to the MBBS
course should be open to candidates on an All India basis without the
imposition of existing domiciliary condition," but having regard to the
practical difficulties of transition to the stage where admissions to MBBS
course in all medical colleges would be on All India Basis, the medical
Education Review Committee has suggested "that to begin with not less than
25 per cent seats in each institution may be open to candidates on all India
basis." We are not all sure whether at 980 the present stage it would be
consistent with the mandate of equality in its broader dynamic sense to provide
that admissions to the MBBS course in all medical colleges in the country
should be on all India basis. Theoretically, of course, if admissions are given
on the basis of all India national entrance examination, each individual would
have equal opportunity of securing admission, but that would not take into
account diverse consideration, such as, differing level of social, economic and
educational development of different regions, disparity in the number of seats
available for admission to the MBBS course in different States, difficulties
which may be experienced by students from one region who might in the
competition on all India basis get admission to the MBBS course in another
region far remote from their own and other allied factors. There can be no
doubt that the policy of ensuring admissions to the MBBS course on all India
basis is a highly desirable policy, based as it is on the postulate that India
is one national and every citizen of India is entitled to have equal
opportunity for education and advancement, but it is an ideal to be aimed at
and it may not be realistically possible. in the present circumstances, to
adopt it, for it cannot produce real equality of opportunity unless there is
complete absence of disparities and inequalities a situation which simply does
not exist in the country today. There are massive social and economic
disparities and inequalities not only between the States and States but also
between region and region within a state and even between citizens and citizens
within the same region. There is a yawning gap between the rich and the poor
and there are so many disabilities and injustices from which the poor suffer as
a class that they cannot avail themselves of any opportunities which may in law
be open to them. They do not have the social and material resources to take
advantage of these opportunities which remain merely on paper recognised by law
but non-existent in fact.
Students from backward States or regions will
hardly be able to compete with those from advanced States or regions because,
though possessing an intelligent mind, they would have had no adequate
opportunities for development so as to be in a position to compete with others.
So also students belonging to the weaker sections who have not, by reason of
their socially or economically disadvantaged position, been able to secure
education in good schools would be at a disadvantage compared to students 981
belonging to the affluent or well-to-do families who have had the best of
school education and in open All India Competition, they would be likely to be
worsted. There would also be a number of students who, if they do not get
admission in a medical college near their residence and are assigned admission
in a far off college in another State as a result of open All India competition,
may not be able to go to such other college on account of leak of resources and
facilities and in the result, they would be effectively deprived of a real
opportunity for pursing the medical course even though on paper they would have
got admission in a medical college. It would be tantamount to telling these
students that they are given an opportunity of taking up the medical course,
but if they cannot afford it by reason of the medical college to which they are
admitted being far away in another State, it is their bad luck: the State
cannot help it, because the State has done all that it could, namely, provide
equal opportunity to all for medical education. But the question is whether the
opportunity provided is real or illusory? We are therefore of the view that a
certain percentage of reservation on the basis of residence requirement may
legitimately be made in order to equalise opportunities for medical admission
on a broader basis and to bring about real and not formal, actual and not merely
legal, equality. The percentage of reservation made on this count may also
include institutional reservation for students passing the PUC or pre-medical
examination of the same university or clearing the qualifying examination from
the school system of the educational hinterland of the medical colleges in the
State and for this purpose, there should be no distinction between schools
affiliated to State Board and schools affiliated to the Central Board of
Secondary Education, It would be constitutionally permissible to provide, as an
interim measure until we reach the stage when we can consistently with the
broad mandate of the rule of equality in the larger sense; ensure admissions to
the M.B.B.S, course on the basis of national entrance examination an ideal
which we must increasingly strive to reach for reservation of a certain
percentage of seats in the medical colleges for students satisfying a
prescribed residence requirement as also for students who have passed P.U.C. or
pre-medical examination or any other qualifying examination held by the
university or the State and for this purpose it should make no difference
whether the qualifying examination is conducted by the State Board or by the
Central Board of Secondary Education, because no discrimination can be made
between schools affiliated 982 can be made between schools affiliated to the
Central Board of Secondary Education. We may point out that at the close of the
arguments we asked the learned Attorney General to inform the court as to what
was the stand of the Government of India in the matter of such reservation and
the learned Attorney General in response to the inquiry made by the Court filed
a policy statement which contained the following formulation of the policy of
the Government of India:
"Central Government is generally opposed
to the principle of reservation based on domicile or residence for admission to
institution of higher education, whether professional or otherwise. In view of
the territorially articulated nature of the system of institutions of higher
learning including institutions of professional education, there is no
objection, however, to stipulating reservation or preference for a reasonable
quantum in under-graduate courses for students hailing from the school system
of educational hinterland of the institutions. For this purpose, there should
be no distinction between schools affiliated to CBSC." We are glad to find
that the policy of the Government of India in the matter of reservation based
on residence requirement and institutional preference accords with the view
taken by us in that behalf. We may point out that even if at some stage it is
decided to regulate admissions to the M.B.B.S. course on the basis of All India
Entrance Examination, some provision would have to be made for allocation of
seats amongst the selected candidates on the basis of residence or
institutional affiliation so as to take into account the aforementioned
factors.
The only question which remains to be
considered is as to what should be the extent of reservation based on residence
requirement and institutional preference. There can be no doubt that such
reservation cannot completely exclude admission of students from other
universities and States on the basis of merit judged in open competition.
Krishna lyer, J. rightly remarked in Jagdish
Saran's case (supra) at page 845 and 846 of the Report:
"Reservation must-be kept in check by
the demands 983 of competence. You cannot extend the shelter of reservation
where minimum qualifications are 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 alter 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 anti-national 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 is the dynamics of social justice which animates the
three egalitarian articles of the Constitution." We agree wholly with
these observations made by the learned Judge and we unreservedly condemn
wholesale reservation made by some of the State Governments on the basis of
'domicile' or residence requirement within the State or on the basis of
institutional preference for students who have passed the qualifying
examination held by the university or the State excluding all students not
satisfying this requirement, regardless of merit. We declare such wholesale
reservation to be unconstitutional and void as being in violation of Article 14
of the Constitution.
But, then to what extent can reservation based
on residence requirement within the State or on institutional preference for
students passing the qualifying examination held by the university or the state
be regarded as constitutionally permissible? It is not possible to provide a
categorical answer to this question for, as pointed out by the policy statement
of Government of India, the extent of such reservation would depend on several
factors including opportunities for professional education in that particular
area, the extent of competition, level of educational development of the area
and other relevant factors. It may be that in a State were 984 the level of
educational development is woefully low, there are comparatively inadequate
opportunities for training in the medical specialty and there is large scale
social and economic backwardness, there may be justification for reservation of
a higher percentage of seats in the medical colleges in the State and such
higher percentage may not militate against "the equality mandate viewed in
the perspective of social justice". So many variables depending on social
and economic facts in the context of educational opportunities would enter into
the determination of the question as to what in the case of any particular
State, should be the limit of reservation based on residence requirement within
the State or on institutional preference.
But, in our opinion, such reservation should
in no event exceed the outer limit of 70 per cent of the total number of open
seats after taking into account other kinds of reservations validly made. The
Medical Education Review Committee has suggested that the outer limit should
not exceed 75 per cent but we are the view that it would be fair and just to
fix the outer limit at 70 per cent. We are laying down this outer limit of
reservation in an attempt to reconcile the apparently conflicting claims of
equality and excellence. We may make it clear that this outer limit fixed by us
will be subject to any reduction or attenuation which may be made by the Indian
Medical Council which is the statutory body of medical practitioners whose
functional obligations include setting standards for medical education and
providing for its regulation and coordination. We are of the opinion that this
outer limit fixed by us must gradually over the years be progressively reduced
but that is a task which would have to be performed by the Indian Medical
Council. We would direct the Indian Medical Council to consider within a period
of nine months from today whether the outer limit of 70 per cent fixed by us
needs to be reduced and if the Indian Medical Council determines a shorter
outer limit, it will be binding on the States and the Union Territories. We
would also direct the Indian Medical Council to subject the outer limit so
fixed to reconsideration at the end of every three years but in no event should
the outer limit exceed 70 per cent fixed by us.
The result is that in any event at least 30
per cent of the open seats shall be available for admission of students on all
India basis irrespective of the State or university from which they come and
such admissions shall be granted purely on merit on the basis of either all
India Entrance Examn. or entrance examination to be held by the State. Of 985
course, we need not add that even where reservation on the basis of residence
requirement or institutional preference is made in accordance with the
directions given in this judgment, admissions from the source or sources
indicated by such reservation shall be based only on merit, because the object must
be to select the best and most meritorious student from within such source or
sources.
So much for admission to the M.B.B.S. course,
but different considerations must prevail when we come to consider the question
of reservation based on residence requirement within the State or on
institutional preference for admission to post graduate courses, such as, M.D.,
M.S. and the like. There we cannot allow excellence to be compromised by any
other considerations because that would be deterimental to the interest of the
nation. It was rightly pointed out by Krishna Iyer, J. in Jagdish Saran's case,
and we wholly endorse what he has said:
"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 specialty here 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 expended upon as important loss
their potency. Here equality, measured by matching excellence, has more meaning
and cannot be diluted much without grave risk." "If equality of
opportunity for every person in the country is the constitutional guarantee, a
candidate who gets more marks then 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 a 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 986 at the lesser levels of
education, jobs no 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 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." "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-tune performance at the difficult highest of some disciplines where the
best alone is likely to blossom as the best. To sympathise mawkishly with the
weaker sections by selecting substandard 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 all together, is a social risk where the stage is
post graduate or post-doctoral." These passages from the judgment of
Krishna Iyer, J. clearly and forcibly express the same view which we have
independently reached on our own and in deed that view has been so ably
expressed in these passages that we do not think we can usefully 987 add
anything to what has already been said there. We may point out that the Indian
Medical Council has also emphasized that playing with merit, so far as
admissions to post graduate courses are concerned, for pampering local feeling,
will boomeriang. We may with advantage reproduce the recommendation of the
Indian Medical Council on this point which may not be the last word in social
wisdom but is certainly 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." The Medical Education Review Committee has
also expressed the opinion that "all admissions to the post-graduate
courses in any institution should be open to candidates on an all India basis
and there should be no restriction regarding domicile in the State/UT in which
the institution is located." So also in the policy statement filed by the
leaned Attorney General, the Government of India has categorically expressed
the view that:
"So far as admissions to the
institutions of post- graduate colleges and special professional colleges is
concerned, it should be entirely on the basis of all India merit subject to
constitutional reservations in favour of Scheduled Castes and Scheduled
Tribes." We are therefore of the view that so far as admissions to
post-graduate courses, such as M.S., M.D. and the like are concerned, it would
be eminently desirable not to provide for any reservation based on residence
requirement within the State or on institutional preference. But, having regard
to border considerations of equality of opportunity and institutional
continuity in education which has its own importance and value, we would direct
that though residence requirement within the State shall not be a ground for
reservation in admissions to post graduate courses, a certain percentage of
seats may in the present circumstances, be reserved on the basis of
institutional preference in the sense that a student who has passed M.B.B.S.
course from a medical college or university may be given preference for
admission to the post-graduate course in the same medical colleges or
university but 988 such reservation on the basis of institutional preference
should not in any event exceed 50 per cent of the total number of open seats
available for admission to the post- graduate course. This outer limit which we
are fixing will also be subject to revision on the lower side by the Indian
Medical Council in the same manner as directed by us in the case of admissions
to the M.B.B.S. course. But, even in regard, to admissions to the post-graduate
course, we would direct that so far as super specialities such as neuro-
surgery and cardiology are concerned, there should be no reservation at all even
on the basis of institutional preference and admissions should be granted
purely on merit on all India basis.
What we have said about in regard to
admissions to the M.B.B.S. and post-graduate courses must apply equally in
relation to admissions to the B.D.S. and M.D.S. courses. So far as admissions
to the B.D.S. and M.D.S. courses are concerned, it will be the Indian Dental
Council which is the statutory body of dental practitioners, which will have to
carry out the directions given by us to the Indian Medical Council in regard to
admissions to M.B.B.S. and post- graduate courses. The directions given by us
to the Indian Medical Council may therefore be read as applicable mutatis
mutandis to the Indian Dental Council so far as admissions to BDS and MDS courses
are concerned.
The decisions reached by us in these writ
petitions will bind the Union of India, the State Governments and
Administrations of Union Territories because it lays down the law for the
entire country and moreover we have reached this decision after giving notice
to the Union of India and all he State Governments and Union Territories. We
may point out that it is not necessary for us to give any further directions in
these writ petitions in regard to the admissions of the petitioners in the writ
petitions, because the academic term for which the admissions were sought has
already expired and so far as concerns the petitioners who have already been
provisionally admitted, we have directed that the provisional admissions given
to them shall not be disturbed but they shall be treated as final admissions.
The writ petitions and the civil appeal will accordingly stand disposed of in
the above terms. There will be no order as to costs in the writ petitions and
the civil appeal.
989 AMARENDRA NATH SEN, J. have had the
advantage of reading the judgment of my learned brother, Bhagwati, J. I agree
with the orders passed by my learned brother and also the directions given by
him. I, however, propose to indicates in brief my own reasons.
My learned brother in his judgment has
referred to various aspects of national life and has very aptly emphasise on
the need of Unity of India. My learned brother in his judgment has set out the
relevant facts and circumstances and has also considered the relevant decisions
on the question involved in the present proceedings.
Unity in diversity is the essential
peculiarity of Indian culture and constitutes the basic philosophy of Indian
nationality. It is also a fundamental tenet of our constitution which seeks to
promote the unity while maintaining at the same time the distinctiveness of the
various classes and kinds of people belonging to different States forming the
Indian Nation. Equality in the eye of law is the fundamental postulates and is
guaranteed under the Constitution. Each and every kind of discrimination is not
in violation of the Constitutional concept of equality and does not necessarily
undermine the Unity of India. The validity of any discrimination has to be
tested on the touchstone of Art. 14 of the Constitution. Appropriate
classification may in very many cases from the vary core of equality and
promote unity in the true sense amidst diversity.
To my mind the questions involved in these
proceedings lies within a short compass. The first question relates to
reservation of seats for admission to Medical Colleges in any State on the
basis of residence of the applicant in the State for such admission. Connected
with this question is the question of institutionalised reservation of seats
for admission to Medical Colleges. The other question raised is the question of
reservation of seats on such considerations for admission to post-graduate
medical courses.
The question of constitutional validity of
reservation of seats within reasonable limits on the basis of residence and
also the question of institutionalised reservation of seats clearly appear 990
to be concluded by various decisions of this Court, as has rightly pointed out
by my learned brother in his judgment in which he has referred at length to these
decisions. These decisions are binding on this Court and are to be followed.
Constitutional validity of such reservations
within the reasonable limit must, therefore, be upheld.
The real question is the question of the
extent of the limit to which such reservations may be considered to be
reasonable. The question of reasonableness of such reservations must
necessarily be determined with reference to the facts and circumstances of
particular cases and with reference to the situation prevailing at any given
time. My learned brother in his judgment has elaborately and carefully
considered these aspects. On a careful consideration of all the facts and
circumstances and the materials placed, my learned brother has proposed
appropriate orders and has given necessary directions in this regard. The
orders passed by my learned brother and the directions given by him on a
consideration of the materials on record and the earlier decisions of this
Court will serve the cause of justice, meet the requirements of law and will
not affect or undermine national unity. I am, therefore, in entire agreement
with the orders passed and directions given by him in this regard.
On the question of admission to post-graduate
medical courses I must confess that I have some misgivings in my mind as to the
further classification made on the footings of supper-specialities. Both my
learned brothers, however, agree on this. Also in a broader perspective this
classification my serve the interests of the nation better, though interests of
individual States to a small extent may be affected. This distinction in case
of super-specialities proceeds on the basis that in these very important
spheres the criterion for selection should be merit only without
institutionalised reservations or any reservation on the ground of residence. I
also agree that the orders and directions proposed in regard to admission to
MBBS and post- graduate courses are also to be read as applicable mutatis
mutandis in relation to admission to BDS and MDS courses.
The problem of admission to medical colleges
and the post graduate medical studies can only be properly and effectively
solved by the setting up of more medical colleges and by increasing the number
of seats in such colleges to enable aspirants to have their aim of being
qualified as medical practitioners and specialists in various subjects
achieved.
The same is also the position with regard to
BDS and MDS courses. This aspect has been very appropriately noticed by my
learned brother in his judgment.
ORDER With these observations I agree with
the orders passed and the directions given by my learned brother Bhagwati, J.
Some of the students seeking admission to the
MBBS course in this academic year have made an application to this Court that
the Judgment delivered on 22nd June, 1984 in the medical admission cases may be
given effect to only from the next academic year, because admissions have
already been made in the medical colleges attached to some of the Universities
in the country prior to the delivery of the judgment on 22nd June, 1984 and
moreover some time would be required for the purpose of achieving uniformity in
the procedure relating to admissions in the various Universities. We
accordingly issued notice on the application to the learned advocates who had
appeared on behalf of the various parties at the hearing of the main writ
petitions as also to the Attorney General and after hearing them, we have come
to the conclusion and this is accepted by all parties that in view of the fact
that all formalities for admission, including the holding of entrance
examination, have been completed in some of the States prior to the judgment
dated 22-6-1984 and also since some time would we required for making the
necessary preparations for implementing the judgment, it is not practicable to
give effect to the judgment from the present academic year and in fact
compelling some States to give effect to the judgment from the present academic
year when others have not, would result in producing inequality and if all the
States were to be required to implement the judgment immediately, admissions
already made would have to be cancelled and fresh entrance examinations would
have to be held and this would require at least 2 or 2 1/2 months delaying the
commencement of the academic term apart from causing immense hardship to the
students. We therefore direct that the judgment shall be implemented with
effect from the next academic year 1985-86.
Whatever admissions, provisional or
otherwise, have been made for the academic year 1984-85, shall not be disturbed
on the basis of the judgment. We may make it clear that the judgment will not
apply to the States of Andhra Pradesh and Jammu & Kashmir because at the
992 time of hearing of the main writ petitions, it was pointed out to us by the
learned advocates appearing on behalf of those States that there were special
Constitutional provisions in regard to them which would need independent
consideration by this Court.
This order will form part of the main
judgment delivered on 22-6-1984, H.S.K.
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