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TMI Blog2003 (11) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... ified therefore in the All India Medical Entrance Examination. The appellants intended to join the medical colleges of Delhi for their Post Graduate Medical Courses. They applied for and were granted admission forms having regard to the decision of this Court in Dr. Parag Gupta v. University of Delhi and Ors., In the Bulletin of Information issued by the University of Delhi, it was stated, that Candidates like the appellants would be entitled for admission in Post Graduate Courses subject to the decision of a matter pending in this Court, i.e. Magan Mehrotra and Ors. v. Union of India and Ors. since reported in (2003)3 SCALE 101. A three-Judge Bench of this Court in Magan Mehrotra (supra) inter alia, therein held that apart from institutional preference, no other preference including reservation on the basis of residence is envisaged in the Constitution, in view of the decision of this Court in Dr. Pradeep Jain and Ors. v. Union of India and Ors. The Delhi University on or about 31.12.2002 relying on or on the basis of the decision of this Court in Magan Mehrotra (supra) issued the following notification : In view of the judgment of the Hon'ble Supreme Court of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. He submitted that in view of the equality clause contained in Articles 14 and 15(1) of the Constitution of India, reservation whether based on domicile or institutional preference would be unconstitutional. The learned counsel took us through the decisions of this Court operating in the field and urged that in view of the passage of time no reservation should be permitted either on the basis of residence or on institutional preference. Reservation on residential criteria, the learned counsel contended, is squarely hit by Clause (1) of Article 15 of the Constitution of India. Placing reliance on the debates on the subject at the time of framing of the Constitution. Shri Salve urged that the 'place of birth' being synonymous with 'domicile' the observations made contrary thereto in D.P. Joshi v. The State of Madhya Bharat and Anr. are not correct. Shri Salve further contended that in terms of the constitutional scheme, reservation is permissible only when there exist compelling Government objectives therefore and that too on nominal basis if it can be demonstrated that 'rule of merit' should not be allowed to be sustained and when the class in whos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cannot form different class nor any such classification made amongst them would be in public interest. Relying heavily upon the observations made in paragraph 10 of the judgment of this Court in Dr. Pradeep Jain's case (supra), the learned counsel submitted that as all students are entitled to equal opportunities all sorts of reservations must be given a go bye. The learned counsel next contended that in any event, the students like the appellants should not be held to have lost their residential status only because they had gone out of their State of origin for pursuing their MBBS Course for a period of five years. According to Shri Salve, Magan Mehrotra (supra), does not lay down the correct law and it is required to be overruled. Assailing reservation by way of institutional preference, Shri Salve, further submitted that the very premise upon which it, is based is fallacious inasmuch as the majority of students, in view of the decision of this Court in Dr. Pradeep Jain's case (supra) having taken admission on the criteria of domicile alone, would again be considered for pursuing their Post Graduate Studies only on that basis and, thus, reservation by way of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent parts of the country wherefor he would face problems involving different languages, different cultures and different environments. It may not be feasible even for the parents of middle class family to send their children out of the State. Furthermore, the learned counsel contended that the chances that the local students would serve the local people cannot be completely ruled out and, thus, such a criteria cannot be said to be illogical or bad in law. As regard application of strict scrutiny test, Shri Shanti Bhushan relying on or on the basis of the decision in Shri Ram Krishna Dalmia v. Justice S.R. Tendolkar and Ors. [1959 SCR 279] submitted that this Court has laid down the law that the constitutionality of a statute must be presumed and onus to prove that the statute is unconstitutional is upon the person who asserts the same. Only two tests, namely, as to whether the classification is reasonable and based on an intelligible differentia stood the test of time and there is no reason to deviate therefrom. Shri Shanti Bhushan argued that reservation by way of institutional preference had been holding the field since this Court decided Dr. Pradeep Jain's case (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hukan, learned counsel appearing for the State of Assam and Shri R.S. Suri, learned counsel appearing for the State of Punjab, however, submitted that the States should be allowed to set apart some seats for the local candidates. It was pointed out that unlike other studies Post Graduate Medical Courses involve practical training and the students are required to work in the hospitals wherein they are paid stipends by the States. It was urged that the States have been finding it extremely difficult to get good number of local doctors to serve the rural population and, thus, such a criteria, according to the learned counsel, cannot be said to be unconstitutional. Before we embark upon the questions raised at the Bar, we may notice that the States before the decision of this Court in Dr. Parag Gupta's case (supra) had been following different criteria as regard grant of preference i.e. either on institution basis or on residence basis or both. The positions prevailing in different States before and after Dr. Parag Gupta's case (supra) and at present are given as under : POSITION BEFORE PARAG GUPTA Sl. State Nature of Preference 1. U.P. Institutional 2. Delhi Instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully heard. But despite the same, the orders passed by this Court in Dr. Pradeep Jain's case (supra) had been flouted with impunity, inter alia, by the States of Assam, Karnataka, Goa and Tamil Nadu. Now it transpires that even the State of Punjab has also not been following the said decision. The necessity of issuing notices by this Court again in Magan Mehrotra's case (supra) must be considered from that angle. In Magan Mehrota's case (supra), this Court not only reiterated that the reservation by way of institutional preference be maintained but also directed the aforementioned States to follow the same. The questions must, therefore, be considered in the aforementioned factual backdrop. The first question that arises for consideration is, whether the reservation on the basis of domicile is impermissible in terms of Clause (1) of Article 15 of the Constitution of India ? The term 'place of birth' occurs in Clause (1) of Article 15 but not 'domicile'. If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to 'place of birth' alone, the latter refers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is based on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieved. In Shri Ram Krishna Dalmia's case (supra), this Court categorically held: ...It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same. The courts always lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim : ut res magis valeat quam pereat . [See CIT v. Teja Singh and Tinsukhia Electric Supply Co. Ltd. v. State of Assam]. Applying the test of presumption of constitutionality no case has been made out for invoking the doctrine of strict construction or intermediate construction. The third question that arises for our consideration is, whether the reservation by institutional preference is valid? India is one country and all its citizens should equally be treated. The essence of equality is enshrined in Article 14 of the Constitution of India. But does it mean that equality clause must be applied to all citizens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing belonging to an oppressed community or by way of economical, cultural or social imbalances. The courts shall all along strive hard for maintaining a balance. While interpreting the Constitution, we must notice the following view of Justice Holmes expressed in Missouri v. Holland [252 US 416 (433)] : When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realise that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realise or to hope that they had created an organism, it has taken a century and has cost their successors must sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. [Emphasis supplied] Equally important is an elucidation of Justice Frankfurter contained in an article Some Reflections on the Reading of Statutes . This Court also in Jagadish Saran and Ors. v. Union of India, a decision which is applicable in the fact situation of this case, stated the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary is to set up proper and adequate structures in rural areas where competent medical services can be provided by 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 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 women, whatever be his language or religion, place of bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talent at the threshold. Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation. 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.' But it was observed : ...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 residents within the State for a specified number of years or can any reservation in admission 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... The right of development in a developing country is acknowledged in International Treaties, Charters and Conventions. Referring to the State mentality and pointing out to the law that there does not exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 postgraduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 MBBS 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 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 admission to the MBBS 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. It in no uncertain terms directed : The decisions reached by us i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... best of school education and in open all-India competition, they would be likely to be worsted... A distinction was made therefore between the Undergraduate Course i.e. MBBS Course and Post Graduate Medical Course as also super speciality courses. The Court, therefore, sought to strike a balance of rights and interests of all concerned. However, the percentage of seats to be allotted on all-India basis, however, came to be modified in Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College, Allahabad and Ors. in the following terms :- We would also like to clear up one misunderstanding which seems to prevail with some State Governments and universities in regard to the true import of our Judgment dated June 22, 1984. They have misinterpreted our Judgment to mean that 30% of the total number of seats available for admission to MBBS course in a medical college should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total misreading of our Judgment. What we have said in our Judgment is that after providing for reservation validly made, whatever seats remain available for non-reserved categories, 30% of such seats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t indisputably deviated from the law laid down in Dr. Pradeep Jain's case (supra) only by way of an interim arrangement. It inadvertently created reservation on domicile which was forbidden in Dr. Pradeep Jain's case (supra). The said provisional directions being binding on Delhi University came to be followed in subsequent years. The sympathetic consideration shown by this Court in Dr. Parag Gupta's case (supra) came to be misapplied by the Allahabad High Court in Vineet Singh's case wherein the High Court directed consideration of cases of the students who belonged to the State of U.P. irrespective of the fact that whether they had gone out of their home State on 15% all-India quota or not. This Court in State of U.P. and Ors. v. Vineet Singh and Ors. clarified the position holding that the High Court was wrong in extending the benefit in Dr. Parag Gupta's case (supra) to other students and reiterated that Dr. Parag Gupta's decision was confined to the students who had gone to other States under 15% all-India quota. The ratio of the judgment in Dr. Parag Gupta's case (supra) came to be reiterated in Abhinav Aggarwal and Anr. v. Union of India and Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Post-doctoral (D.M./M.Ch.) Post Graduate Degree must be held to be contrary to the direction of this Court in Pradeep Jain's case and the same is accordingly quashed. However, this order shall be made effective from the next academic session. We, however, direct the Sates of Assam, Tamil Nadu, Goa and Karnataka to follow the pattern of institutional preference as has been indicated by this Court in Pradeep Jain's case and reiterated by us today... We may, however, notice that this Court in K. Duraisamy and Anr. v. State of Tamil Nadu and Ors. upheld the sources for admission by giving preference to the doctors working in the hospitals in the Post Graduate Courses on the ground that the same constitutes a valid classification. The discussions on this topic would remain incomplete if we fail to notice a recent decision of this Court in All India Institute of Medical Sciences Students' Union (supra) rendered by one of us, Hon'ble Lahoti, J. wherein this Court, keeping in view the peculiar situation obtaining in the case of AIMS, held institutional reservation to be unconstitutional. It, however, keeping in view the necessity of giving institutional prefere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on Parliament to enact law on the subject Education . Shifting of the entry from the State List to the Concurrent List is not, thus, relevant inasmuch the State in absence of any Parliamentary act has the legislative competence to enact a statute laying down reservation for entry in any course of studies including the medical courses. The sole question, therefore, is as to whether reservation by way of institutional preference is ultra vires Article 14 of the Constitution of India. We think not. Article 14, it will bear repetition to state, forbids class legislation but does not forbid reasonable classification, which means - (1) must be based on reasonable and intelligible differentia; and (2) such differentia must be on rational basis. Hence, we may also notice the argument, whether institutional reservation fulfils the aforementioned criteria or not must be judged on the following :- 1. There is a presumption of constitutionality; 2. The burden of proof is upon the writ petitioners as they have questioned the constitutionality of the provisions; 3. There is a presumption as regard the State's power on extent of its legislative competence; 4. Hardship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional. As noticed hereinbefore, in D.N. Chanchala's case (supra), M.R. Mini's case (supra) and Jagadish Saran's case (supra) institutional preference has been preferred. It has been reiterated in the law laid down by way of a scheme evolved in Dr. Pradeep Jain (supra) and reiterated in Magan Mehrotra (supra). We, therefore, do not find any reason to depart from the ratio laid down by this Court in Dr. Pradeep Jain (supra). The logical corollary of our finding is that reservation by way of institutional preference must be held to be not offending Article 14 of the Constitution of India. However, the test to uphold the validity of a statute on equality must be judged on the touch-stone of reasonableness. It was noticed in Dr. Pradeep's Jain's case (supra) that reservation to the extent of 50% was held to be reasonable. Although subsequently in Dr. Dinesh Kumar's case (supra) it was reduced to 25% of the total seats. The said percentage of reservation was fixed keeping in view the situation as then existing. The situation has now changed to a great extent. Twenty years have passed. The country has during this time have produced a large number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kwardness economic, social and educational as also geographical conditions. The Parliament has also the legislative competence in terms of Entry 25, List III of the Seventh Schedule of the Constitution. It for education and particularly higher education where excellence is required, while enacting law must also foresee that in the era of liberalisation and globalisation, Indian citizens must compete with their counter-parts of the developed countries. Merit, thus, must be allowed to explore to the fullest extent. Genius hidden in the citizens must be allowed to blossom. Despite 55 years of India's existence as an independent nation, a National policy on higher education has not come into being. Its significance and importance was highlighted in Dr. Pradeep Jain's case (supra); but the Parliament did not pay any heed thereto. The courts are normally reluctant to issue any direction to the Central Government for making law. Following our practice, we refrain ourselves to issue any direction in this regard. We hope and trust that the Central Government expeditiously consider of making legislation or taking such steps as are necessary in this behalf keeping in view the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess' for societal weal. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure. Peripheral inequality is inevitable when large-scale equalization processes are put into action. If all the judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities. Every large cause claims some martyr, as sociologists will know. Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty. Recently a question came up before the US Supreme Court in Jennifer Gratz and Patrick Hamacher v. Lee Bollinger decided on 23rd June, 2003 likely to be reported in (2003) 539 U.S. wherein the guidelines providing for selection method under which every applicant from an under represented racial or ethnic minority groups was to be automatically awarded 20 points out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualities ). Contemporary human rights documents draw just this line, they distinguish between policies of oppression and measures designed to accelerate de facto equality. See Grutter, post, at 1 (Ginsburg, J. concurring) (citing the United Nations - initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination against Women). The validity of institutional reservation must be judged on the touchstone of equality clause. While considering the reasonableness of the institutional reservation, we have taken into consideration the effect of equality clause contained in Article 14 and 15 of the Constitution of India. The question as regard merit of the students vis-a-vis right of development and human rights angle had been considered at some length in Islamic Academy of Education and Anr. v. State of Karnataka and Ors. [JT 2003 (7) SC 1] and following Pradeep Jain v. Union of India it has been held: For the purpose of achieving excellence in a professional institution, merit indisputably should be a relevant criterion. Merit, as has been noticed in the judgment may be determined in various ways (Para 59). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of students and parents are escalating year after year due to boundless expansion in the number of professional institutions and their in take capacity, emergence of a large variety of newer disciplines and mobility of students seeking admissions beyond the boundaries of States. The students who are about to complete their high school education go through a period of acute anxiety caused by the uncertain situation about their chances for further education. The number of qualified students wanting to go for higher studies has been swelling largely motivated by hopes of better economic security and partly by a desire to attain greater upward social mobility. Then begins their trauma due to many prevailing unfair practices in admissions and devious ways of fee collections exploiting the anxiety of students and uncertainty of procedures. Most of the efforts to deal with these problems are ad-hoc in nature often decided under judicial orders. Different State and Central authorities take many different actions often leading to severe inconsistencies. There is substantial scope for streamlining the admission process, even within the regulatory powers of the authorities, provided thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on maintaining credible level of quality standards and anticipated demand structure in economic and social sectors. ISSUE NUMBER THREE: FEE STRUCTURE: This Court states: A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering. OPTIONS: One possible remedy is to make a rule under the Prevention of the Capitation Fee Act that collecting any fee that was not previously announced in the college publications and any fee collected without a formal receipt should be punishable offences. This rule should be strictly enforced. ISSUE NUMBER FOUR: CERTIFICATES HASSLES: When we consider the size of our country and the large number of institutions and huge volume of applicants, the man hour and money lost in running around for getting the certificates during the admission season must run into equivalent of several crores of rupees. A more hassle-free system for authenticating the required information from students should be evolved. OPTIONS: Every student be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this court in several cases. As regards the constitutional validity of institutional/regional/university wise reservation/preference, in view of this court's emphasis on the need to strive for excellence which alone is in the national interest, it may not be possible to sustain its constitutional validity. However, the presently available decisional law is in support of institutional preference to the extent of 50% of the total available seats in the concerned educational institutions. Conclusions: 1) In the case of Central educational institutions and other institutions of excellence in the country the judicial thinking has veered around the dominant idea of national interest with its limiting effect on the constitutional prescription of reservations. The result is that in the case of these institutions the scope for reservations is minimal. 2) As regards the feasibility of constitutional reservations at the level of super-specialities, the position is that the judiciary has adopted the dominant norm, i.e., the higher the level of the speciality the lesser the role of reservation . At the level of super-specialities the rule of equal chance for equal marks domina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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