PETITIONER:
JAGDISH SARAN & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT28/01/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 820 1980 SCR (2) 831
1980 SCC (2) 768
CITATOR INFO :
RF 1980 SC 838 (4)
RF 1980 SC1230 (10,14,17,18,35)
R 1981 SC2045 (10,25)
R 1984 SC1420 (10,12,13,18,20,22)
RF 1984 SC1534 (13)
F 1985 SC1059 (2)
RF 1986 SC1362 (3,4,5)
E&D 1989 SC1194 (9,10,18)
ACT:
Constitution of India 1950, Articles 15 and 16-
Admission to post-graduate course in medicine-Rule of Delhi
University-Reservation of 70 per cent of seats at post
graduate level for its own university graduates-Validity of.
Practice and Procedure-Litigation on socio-legal issue-
Brief to be well researched and factually detailed.
HEADNOTE:
The University of Delhi has many post-graduate and
diploma courses in the faculty of medicine but all of them
put together provide 250 seats. The three medical colleges
in Delhi turn out annually 400 medical graduates who get
'house' jobs in the local hospitals and qualify themselves
for post-graduate courses. As the graduates from the Delhi
University could not be accommodated fully or even in part
for the post-graduate courses in medicine and as these
graduates were not considered for admission into other
universities on account of various regional hurdles such as
prescription of domicile, graduation in that very
university, registration with the State Medical Council,
service in the State Medical service etc., the Delhi
University had earmarked some seats at the post-graduate
level in medicine for the medical graduates of Delhi
University.
Until April 1978, the rule for selection of candidates
for admission into the post-graduate classes in medicine
provided that selection for 52% of the total number of seats
was to be made on the basis of combined merit of Delhi
University and other university medical graduates, and 48
per cent from the Delhi University graduates only. The rule
was amended, reserving 70% of the seats at the post-graduate
level to Delhi graduates and 30% being open to all,
including graduates of Delhi.
The petitioner who was a medical graduate from the
Madras University applied for the post-graduate degree in
Dermatology in the University of Delhi. He passed the common
entrance test for admission, but his admission was turned
down because of the rule of the University reserving 70% of
the seats at the post-graduate level to Delhi University
graduates.
The petitioner in his writ petition under Article 32
challenged the rule as violative of Articles 14 and 16 of
the Constitution and sought the court's writ to direct the
University to admit him to the M.D. Course in Dermatology.
It was contended that the University was sustained by
Central Government finances, collected from the whole
country and the benefits must likewise belong to all
qualified students from everywhere. The University justified
the reservation on the ground of exclusivism practised by
every other University by forbidding Delhi University
graduates from getting admission in their colleges and also
on account of the reasonableness of institutional continuity
in educational pursuits for students who enter a university
for higher studies.
832
Dismissing the writ petition.
^
HELD: (per Krishna Iyer & Chinnappa Reddy, JJ.)
1. Reservation of 70% is too high at the post-graduate
level. But the rule is not invalidated because the facts are
imperfect, the course has already started and the court must
act only on sure ground, especially when matters of policy,
socio-educational, investigation and expert evaluation of
variables are involved. When fuller facts are placed, the
court will go into this question more confidently. [858 D-E]
2. If 70% reservation is on the high side and the
petitioner is hopefully near 'admission' going by marks it
is but just that he is given a chance to do his post-
graduate course. His coming to Delhi itself was a compulsion
beyond his control. [858 F]
3. Petitioner directed to be admitted to the degree
course this year, if the rules of attendance etc., do not
stand in the way and the Medical Council makes an exception
by agreeing to addition of one seat as a special case for
this year. [858 G]
4. (i) The University forthwith-not later than two
months from today-to appoint a time-bound committee to
investigate in depth the justification for and the quantum
of reservation at the post-graduate level from the angle of
equality of opportunity for every Indian. That committee
will study facts and figures and the reservation realities
of other universities and make recommendations on the
question of university-based reservations and allied aspects
as well as modus operandi for implementation. The Committee
will benefit if it has a constitutional expert and a
representative of the Indian Medical Council on it. Its
report shall be considered by the University as soon as may
be, so that, if possible, the admissions for the next year
may be governed by the revised decisions of the concerned
organs informed by the report. [858 H-859 C]
(ii) The Union of India has a special responsibility to
ensure that in higher education provincialism does not erode
the integrity of India. Anyone who lives in India can never
be considered an 'outsider' in Delhi. Blind and bigoted
local patriotism in xenophobic exclusivism is destructive of
freedom and only if compelling considerations of gross
injustice, desperate backwardness and glaring inequality
desiderate such a course can protective discrimination gain
entrance into the portals of college campuses. [859 D, 860
A, B]
5. The philosophy and pragmatism of universal
excellence through universal equal opportunity is part of
our culture and constitutional creed. [843 A]
6. The Indian Constitution is wedded to equal
protection and non-discrimination. Arts. 14, 15 and 16 are
inviolable and Art. 29(2) strikes a similar note though it
does not refer to regional restrictions or reservations.
Art. 15 saves the State's power to make special provisions
for women and children or for advancement of socially and
educationally backward classes. [842 B]
7. University-wise preferential treatment may still be
consistent with the rule of equality of opportunity where it
is calculated to correct and imbalance or handicap and
permit equality in the larger sense. [849 F]
833
8. What is fundamental is equality, not classification.
What is basic is equal opportunity, for each according to
his ability, not artificial compartmentalization and
institutional apartheidisation, using the mask of handicaps.
A clanish exclusivism based upon a particular university
cannot be contemplated as consistent with Article 14. [852
A]
9. A blanket ban which is the indirect result of a
wholesale reservation is constitutional heresy. There must
be substantial social justice as raison d'etre for a high
percentage of alumni reservation. [853 H]
10. If equality of opportunity for every person in the
country is the constitutional guarantee, a candidate who
gets more marks than another is entitled to preference for
admission. Merit must be the test when choosing the best,
according to this rule of equal chance for equal marks. This
proposition has greater importance when we reach the higher
levels of education like postgraduate courses. The role of
high grade skill or special talent may be less at the lesser
levels of education jobs and disciplines of social
inconsequence, but more at the higher levels of
sophisticated skills and strategic employment. To devalue
merit at the summit is to temporise with the country's
development in the vital areas of professional expertise.
[854 E-G]
11. The class which enjoys reservation must be
educationally handicapped. The reservation must be geared to
getting over the handicap. The rationale of reservation must
be in the case of medical students, removal of regional or
class inadequacy or like disadvantage. The quantum of
reservation should not be excessive or societally injurious,
measured by the over-all competency of the end-product, viz.
degree-holders. A host of variables influence the
quantification of the reservation. [855 B-C]
12. The higher the level of the speciality the lesser
the role of reservation. M.B.B.S. is a basic medical degree
and insistance on the highest talent may be relaxed by
promotion of backward groups, institution-wise chosen,
without injury to public welfare. It produces equal
opportunity on a broader basis and gives hope to neglected
geographical or human areas of getting a chance to rise.
Moreover, the better chances of candidates from institutions
in neglected regions getting down for practice in these very
regions also warrants institutional preference because that
policy helps the supply of medical services to these
backward areas. [855 D, F]
13. It is difficult to denounce or renounce the merit
criterion where the selection is for post-graduate or post-
doctoral courses in specialised subjects. There is no
substitute for sheer flair, for creative talent, for fine-
tuned performance at the difficult heights of some
disciplines where the best alone is likely to blossom as the
best. [856 F-G]
14. Neither Delhi nor the Delhi University medical
colleges can be designated as categories which warrant
reservation. Reservation for Delhi graduates is not that
invidious, because the students are from families drawn from
all over India. Not sons of the soil' but sons and daughters
of persons who are pulled into the capital city for reasons
beyond their control. This reservation, is, therefore,
qualitatively different. [857 D-E]
15. Institution-wise reservation is constitutionally
circumscribed and may become ultra vires if recklessly
resorted to. But even such rules, until revised
834
by competent authority or struck down judicially, will rule
the roost. Until the signpost of 'no admission for
outsiders' is removed from other universities and some fair
percentage of seats in other universities is left for open
competition, the Delhi students cannot be made martyrs of
the Constitution. Reservation must be administered in
moderation, if it is to be constitutional. [858 B-C]
16. Litigation, on a socio-legal issue of critical
constitutional moment, should not end with general
assertions, affidavits of formal denials and minimal
materials, but needs feeding the court with nutritive facts
which build the flesh and blood of the administrative or
legislative action under challenge and all other surrounding
and comparative data which legitimate the 'reservation' or
other procedure under attack from the constitutional angle.
Ingenious or imaginative orality in court can never be a
substitute for well-researched down-to-earth factuality in
the brief. In the adversary system, advocacy in the superior
courts which by their decisions, declare the law for all
must broaden beyond the particular lis into a conspectus of
sociological facts, economic factors and educational
conditions so that other persons aggrieved who will
potentially be bound by the decision, do not suffer by not
being eo nomine parties. [841 F-G, H 837 E]
(Per Pathak J.)
1. Classification is a feature of the very core of
equality. It is a vital concept in ensuring equality, for
those who are similarly situated form a class between
themselves, and the classification is not vulnerable to
challenge if its constituent basis is reasonably related to
achieving the object of the concerned law. An institutional
preference as in the instant case does not offend the
constitutional guarantee of equality. [861 D-E]
2. The basis of the reservation is that the candidate
for admission to the post-graduate classes is a medical
graduate of the same university. The relation-ship is
institutional. There is sufficient validity in that
criterion as a basis of classification under Article 14.
[860 F, G]
It is not beyond reason that a student who enters a
medical college for his graduate studies and pursues them
for the requisite period of years should prefer on
graduation to continue in the same institution for his post-
graduate studies. There is the strong argument of
convenience, of stability and familiarity with an
educational environment which in different parts of the
country is subject to varying economic and psychological
pressures. But much more than convenience is involved. There
are all the advantages of a continuing frame of educational
experience in the same educational institution. In the post-
graduate class, it is not an entirely different course of
studies which is contemplated; it is a specialised and
deeper experience in what has gone before. The student has
become familiar with the teaching techniques and standards
of scholarship, and has adjusted his responses and reactions
accordingly. The continuity of studies ensures a higher
degree of competence in the assimilation of knowledge and
experience. Not infrequently some of the same staff of
Professors and Readers may lecture to the post-graduate
classes also. Over the under-graduate years the teacher has
come to understand the particular needs of the student,
where he excels and where he needs an especial encouragement
in the removal of deficiencies. There is good reason in an
educational institution extending a certain degree of
preference to its graduates for admission to its post-
graduate classes. [860 C]
835
3. Medical courses are not all necessarily to be found
only in New Delhi. They are located in other parts of India
and some are well-known centres of medical education. The
proposition that because New Delhi is the political,
legislative and judicial capital of India, an education of
quality is not to be found in other cities is not
acceptable. Merely because New Delhi is the new Capital of
Delhi does not justify a disproportionate treatment of the
claim to equality on a national level made by its medical
graduates. [862 C-D]
4. But too excessive a reservation could result in
preference to graduate candidates of severely limited
aptitude and competence over meritorious candidates from
other institutions whose exclusion could result in aborting
a part of the national talent. [861 F]
5. Whether or not a reservation of 70% was called for
has not been established conclusively. There is hardly
anything to show that the authorities applied their mind to
a cool dispassionate judgment of the problem facing them.
The judgment and decision of the authority must be evolved
from strictly concrete and unemotional material relevant to
the issue before it. [862 F]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 214 of 1979.
(Under Article 32 of the Constitution)
S. Balakrishnan and M. K. D. Namboodiri for the
Petitioners.
Lal Narain Sinha Attorney General and Miss A.
Subhashini for Respondent No. 1.
Shanti Bhushan, Jitendra Sharma, V. P. Choudhry and R.
L. Gupta for the Respondents Nos. 3, 4 & 5.
The Judgment of Krishna Iyer, and O. Chinnappa Reddy,
JJ was delivered by Iyer, J., R. S. Pathak, J. gave a
separate concurring Opinion.
KRISHNA IYER, J.-Many a case in this Court is the
dramatisation. on the forensic stage, of social stress or
community conflict which seeks resolution or release through
the litigative process. This Writ Petition turns the focus
on one such tense issue and ventilates a widespread
grievance which deserves constitutional examination.
The petitioner, Dr. Ramesh, is a medical graduate from
the Madras University. His father, an officer under the
Central Government, was transferred to Delhi and the son,
desirous of taking a post-graduate degree in Dermatology,
applied for admissions to the University of Delhi which
offers that course. He took the common entrance test and
secured enough marks to qualify for admission but was turned
down because of a rule reserving 70% of the seats, at the
post-graduate level, to Delhi graduates (if we may use that
abbreviation for describing student-applicants who have
taken their M.B.B.S. degree from the University of Delhi).
The remaining 30% was open to all, including
836
graduates of Delhi. This rule was made in April 1978 in
modification of the earlier reservation of 48%.
Had this inflation (from 48% to 70% plus) not been
made, the petitioner admittedly would have been granted
admission. So what blocked his right to post-graduate entry
was this rule of institutional quota of 70% which accorded a
disproportionate premium in favour of Delhi graduates. The
other petitioners are no longer in the race having secured
lesser marks at the entrance test, and so the judicial lens
must be fixed on the validity of such a considerable
reservation or virtual monopoly for the Delhi graduates. The
petitioner challenges its vires as violative of Arts. 14 to
16 and seeks the court’s writ to direct the respondent
University to admit him to the M.D. course (Dermatology).
While litigating for his right to a seat in the postgraduate
degree course in dermatology, he is now doing his diploma
course in the same subject in the same University, which is
inferior to his aspiration and entitlement if the right to
equality is fatal to the quota policy.
We are not investigating the plea based on Art. 16
because it is not clear whether the stipend paid to a post-
graduate student makes the course an employment and, apart
from that, the meat of the matter is whether there is
discrimination. If there is, Arts. 14 and 15 are lethal
enough, without resort to Art. 16.
The University of Delhi (we may use the shorthand form
‘Delhi University’ hereafter) refutes this challenge and
justifies the reservation in the concrete educational plight
of Delhi graduates as an inevitable evil, if it be evil
because of the exclusivism practised by every other
university. An institutional quota is not invariably a
constitutional anathema and, in the present case, the Delhi
University offers an explanation for this recourse to higher
institutional reservation. Many universities now adopt the
exclusionary or segregative device of de facto monopoly of
seats for higher medical courses to its own alumni, Indians
from other Indian Universities being treated as aliens. This
xenophobic trend has forced the Delhi University to
reciprocate with high reservation.
If reservation of seats, as a strategy of admission to
technical colleges, is void there may be a wider impact on a
number of the institutions and individuals than on the
parties here. The law laid down by this Court binds other
institutions because Art. 141 is imperative. Sri Shanti
Bhushan, appearing for the University, assertively suggested
to the contrary remembering only the rule of res judicata,
but later realised the obvious error and recanted. He agreed
that if
837
this Court invalidated reservation, as such, many
universities would be upset in their admission processes,
although they were not party-a weakness of the adversary
system which needs remedying. So, we invited the learned
Attorney General also to help the Court, which he did and we
record our gratitude. Unfortunately, the petitioner has not
been able to present, the social facts, the educational
milieu, the statistical materials and other vital data
bearing on the constitutional vice of the rule of excessive
reservation, and the respondent University, despite our
repeated suggestions to its counsel, has not enriched its
brief with sufficient facts which enlighten the court,
although some additional information has been brought in. On
the other hand, counsel’s submissions were scary, if we may
say so with respect, to the effect that when students went
on a fast unto death, Government had to intervene and save
the situation and provide larger reservation. As the
Attorney General agreed, hunger strikes cannot amend the
Constitution, and Government, if impressed with the
grievance which has led to the protest fast, must set in
motion changes in the basic law, as was done in the first
constitutional amendment and later for States
Reorganisation. When this flaw was pointed out to the
respondent, some more materials were placed before the court
in justification of the increase in the reservation quota
from a constitutional angle, and we will deal with them. In
the adversary system, advocacy in the superior courts,
which, their decisions, declare the law for all must broaden
beyond the particular lis into a conspectus of sociological
facts, economic factors and educational conditions so that
other persons aggrieved who will potentially be bound by the
decision, do not suffer by not being co-nominee parties.
Surely, on the available material, counsel have done their
best.
This preliminary narration leads upto the
constitutional problem that confronts the court in this
petition under Art. 32 and stresses how it deserves, for its
solution, serious and sensitive judicial and administrative
statesmanship enlivened by legal fundamentals, since the
crucial issue springs from the pervasive and protective
tendency for institutional reservation of post-graduate
seats, which, if left uncanalised and indulged in excess,
may well imperil the integrated status of higher national
education and make a mockery of equal opportunity.
Basically, great constitutional issues cannot be divorced,
even while being viewed from a legal perspective, from their
national overtones and individual impact, since passionate
provincialisation and addiction to institutional xenophobia,
even in higher education, have a suicidal fascination beyond
myopic political perception. And, on the contrary, elitist
exaggeration of ‘national’ considerations and personal
merit, where local protection is essential for the humbler
people’s interests, has a depressing repercussion if pushed
beyond a point-an aspect which expert policy-makers
838
sometimes overlook in unwitting promotion of their group
interest. The problem is complex and thorny, charged with
practical difficulties and fraught with explosive
possibilities. A short cut, in such situations may well
prove a wrong cut and so we are circumspect in our
assessment and tentative in our conclusions, especially
because counsel, in our adversary system, often do not
travel beyond the narrow needs of the case and, despite our
prodding, we have not received the social-statistical wealth
of material to help us take a comprehensive overview of the
issue. Law, constitutional law, is not an omnipotent
abstraction or distant idealisation but a principled, yet
pragmatic, value-laden and result-oriented, set of
propositions applicable to and conditioned by a concrete
stage of social development of the nation and aspirational
imperatives of the people. India To-day-that is the
inarticulate major premise of our constitutional law and
life. We highlight these basics because Shri Shanti Bhushan,
for the University, pleaded for a practical appreciation of
the lot of the Delhi graduates excluded from everywhere else
while Shri Balakrishnan for the petitioner, pressed for a
national approach to high-grade talent vis-a-vis courses in
specialities. A synthesis of both is where the truth lies.
The key to this case, if we may anticipate ourselves, is in
harmoniously blending developmental necessities of backward
regions via institutional reservations-and national
considerations of everybody’s equal opportunity for higher
education being ensured regardless of geographical,
institutional or other inhibition. We must never forget two
values synthesised in our constitutional culture, as set out
in the Preamble-unity and integrity of the nation and
equality of opportunity of weaker sections. Without the
latter becoming a sure reality the former may be mere
rhetoric !
An epitome of the social background leading upto the
controversy will give a hang of the case and elaboration may
await a later stage. Post Independence India has many
universities with facilities for higher learning. Most of
them give institutional preferences in the allocation of
seats for technical courses and this tendency sometimes
reaches the morbid point of total cornering of seats at
post-graduate level, especially in the coveted and
competitive branches like medicine.
The Delhi University which has M.B.B.S. and post-
graduate medical courses, exercises academic jurisdiction
over the affiliated colleges in the capital of the country,
enjoys great prestige for its schools of learning and
excellence in teaching and is founded by the Central
Government. It has at once a territorial limitation and
national complexion and it caters to a population, by and
large, drawn from all over the country because of the vast
official, political, parliamentary judicial, educational,
commercial and other gravitational pulls which the capital
of the
839
country inevitably exerts. This population is fluid because
of movements, transfers and a host of other factors. The
indigenous denizens of Delhi are perhaps over-run by these
super-imposed layers and the student community of the Delhi
University is not made up so much by the ‘sons of the soil’
as in universities in other places but is accounted for by
the inflow of groups drawn from all over the country. In a
limited sense, it is a microcosm if India is a macrocosm.
This national demographic composition is relevant to the
examination of the ‘reservation’ problem.
The capital city is not just a part of India. It is
miniaturised India, a fact often forgotten by the
administration in the field of culture and education,
especially vis-a-vis regional minorities. It is magapolitan
and people from all parts flock to this outsized city. But
we cannot exaggerate this factor, for the presence of the
farther regions like the South and the North East,
population-wise, is minimal and precarious. Shri
Balakrishnan insisted that the University was sustained by
Central Government finances, collected from the whole
country, and the benefits must likewise belong to all
qualified students from everywhere. These are valuable
aspects to shape policy but the court must test
constitutionality and no more. To that extent alone we will
weigh these factors in moulding our verdict.
We will now identify the issues emerging from the
matrix of facts. Since Shri Shanti Bhushan laid stress on
these factors, viz. the satyagraha crisis created by the
students, the obdurate, may be, even obscurantist,
exclusiveness of other Universities forbidding Delhi
graduates from getting admission in their colleges and the
reasonableness of institutional continuity in educational
pursuits for students who enter a university for higher
studies, we must dilate on the foundational facts more
fully. Since Sri Balakrishnan emphasised the pathetic plight
of meritorious students if ‘apartheid’ policies were
practised by universities, contrary to the cultural unity
and constitutional mandates of our nation, we must weave
into the legal fabric of ‘admission’ regulations strands of
national integration and equal opportunity for higher
education. These rival contentions justify, albeit a little
repetitively, the recapitulation of recent events, parochial
realities and institutional behaviour, bearin on admissions
to colleges in the Delhi University, with some comparative
glance at others in the country.
We are concerned with three medical colleges, two being
affiliated to, and one being maintained, by the Delhi
University. Together they turn out annually around 400
medical graduates. These graduates get house jobs in the
local hospitals and qualify themselves for
840
post-graduate courses. The University has many post-graduate
degrees and diploma courses but all of them put together
come to only 250 seats. Naturally, the graduates from the
Delhi University cannot be accommodated fully or even in
part for the post-graduate degree courses. If, out of the
available seats for the post-graduate courses, a large slice
is thrown up for open competition and students from all over
the country swarm to take the entrance examination, the
Delhi graduates’ prospects become bleaker. The further case
of the University is that there is a harsh handicap for
these graduates in that they are not considered for
admission in other universities on account of various
regional hurdles such as prescription of domicile,
graduation in that very university, registration with the
State Medical Council, service in the State Medical Service
and the like. The necessary consequence of these road-blocks
in the way of getting into post-graduate courses is
dissatisfaction frustration, fury and pressure for exclusive
earmarking of all seats at the post-graduate level in the
Delhi University for the Delhi graduates. Reservation
elsewhere breeds reservation here. Good and evil become
contagious and indivisible and eventually over powering. The
chain reaction had led to the principle of reservation being
accepted by the Delhi University, first in moderate measure
and next immoderately, maybe, because the pressure of
militant Delhi graduates forced the University’s hands or
because Government, which virtually forced this solution of
70% plus reservation, acted on the easy guidelines : Nothing
succeeds like excess. Reservation begins as a mild remedy
but becomes, unless leashed, a Frankensteins monster.
The rule for selection of candidates until April 1978
was as follows :
(a) For the first 52% seats of the total number of
seats available, the selection was to be made on the
basis of combined merit of Delhi University and other
Universities medical graduates.
(b) The selection of the remaining 48% seats was
to be made from the Delhi University graduates only.
By this method, approximately half the number of seats were
reserved for the Delhi graduates. But having regard to the
figures of seats and turn-out of graduates earlier
mentioned, this did not meet the requirements of the
aspirants for post-graduate degrees from Delhi. It must be
remembered that Delhi is the seat of the elite, of high
officials, of prosperous professionals, of rich businessmen,
of important politicians and echelons of consequence and
other men of money-power.
841
Their sons and daughters, already fed on superior facilities
and coached in special schools beyond the reach of most
other students in the rest of the country, have an appetite
and opportunity for excellence in education ahead of others
and wish to lap up all the post-graduate seats, if possible.
The cream must belong to the cream, generation to
generation, may be a cynical social scientists ‘comment,’
Inevitably, a larger number of Delhi medical graduates,
relatively speaking, must be ambitiously wanting to continue
their studies in post-graduate medical courses which are
prized for their career potential. It is significant that
these courses are not easily available elsewhere and the
standards and prestige of these degrees in the Delhi
University are high. Taking a post-graduate medical degree
thus opens up further vistas for studies abroad or
employment at home. When we remember these factors and the
reduced chance for bright Delhi graduates to gain admission
into the Delhi post-graduate courses in the face of All-
India competition, we can mildly appreciate the mood and
demand of the student community for enlargement of their
quota. But all grievances are not constitutional. Also, by
remedying one group’s misfortune other groups may be hurt.
The Court can only view rights and wrongs, through the
constitutional prism. The various universities show concern
for their backward regions and alumni in the name of equal
opportunity. But the Indian Medical Council, apprehensive of
fall of standards lays stress on academic merit. This
dilemma of the law between equality of opportunity and
excellence of performance leads us to a demand for full
facts, but, of course, we are left to speculate on many
aspects of the problem because even the Delhi University and
the Union of India have left us in the lurch. Litigation, on
a socio-legal issue of critical constitutional moment,
should not end with general assertions, affidavits of formal
denials and minimal materials but, as stated earlier, needs
feeding the court with nutritive facts which build the flesh
and blood of the administrative or legislative action under
challenge and all other surrounding and comparative data
which legitimate the ‘reservation’ or other procedure under
attack from the constitutional angle. ‘Reservation’
jurisprudence is a tangled knot carefully to be developed
and counsel cannot invite judges to make hunches as a cover-
up for party’s failure. And ingenious or imaginative orality
in court can never be a substitute for well-researched,
down-to-earth factuality in the brief. Many a case is lost
or won because counsel and court engage in the game of blind
man’s buff since investigative undertakings and presentation
of constitutionally vital data do not find a place in the
brief and our forensic process inhibits travels beyond the
842
paper books in court ! Nevertheless, for the nonce, we have
to make do with the record.
Let us go back to the basics. The Indian Constitution
is wedded to equal protection and non-discrimination. Arts.
14, 15 and 16 are inviolable and Art. 29(2) strikes a
similar note though it does not refer to regional
restrictions or reservations. Art. 15 saves the State’s
power to make special provisions for women and children or
for advancement of socially and educationally backward
classes. Reservations under Art. 15(4) exist and are
applied. There is no dispute about that and the whole debate
has left that pattern and policy of ‘reservation’ out of
controversy. We zero-in only university-wise quotas,
reservations and preferences from the constitutional stand-
point.
The primary imperative of Arts. 14 and 15 is equal
opportunity for all across the nation to attain excellence-
and this has burning relevance to our times when the country
is gradually being ‘broken up into fragments by narrow
domestic walls’ in politics, economics and education,
undoing the founding faith of an undivided integrated India
by surrender to lesser appeals and grosser passions. What is
fundamental, as an enduring value of our polity, is
guarantee to each of equal opportunity to unfold the full
potential of his personalities. Anyone anywhere, humble or
high, agrestic or urban, man or woman, and whatever his
religion or irreligion, shall be afforded equal chance for
admission to any secular educational course or school for
cultural growth, training facility, speciality or
employment. Each according to his ability, is of pervasive
validity, and it is a latent, though radical, fundamental
that, given propitious environments, talent is more or less
evenly distributed and everyone has a prospect of rising to
the peak. Environmental inhibitions mostly ‘freeze the
genial current of the soul’ of many a humble human whose
failure is ‘inflicted’, not innate. Be it from the secular
perspective of human equality or the spiritual insight of
divinity in everyone, the inherent superiority cult with a
herrenvolk tint, is contrary to our axiom of equality. That
is why ‘equal protection of the laws’ for full growth is
guaranteed, apart from ‘equality before the law’. Even so,
in our imperfect society, some objective standards like
common admission tests are prescribed to measure merit,
without subjective manipulation or university-wise
invidiousness. In one sense, it is a false dilemma to think
that there is rivalry between equality and excellence,
although superficially they are competing values. In the
long run, when every member of the society has equal
opportunity, genetically and environmentally, to develop his
potential, each will be able, in his own way,
843
to manifest his faculty fully. The philosophy and pragmatism
of universal excellence through universal equal opportunity
is part of our culture and constitutional creed.
This norm of non-discrimination, however, admits of
just exceptions geared to equality and does not forbid those
basic measures needed to abolish the gaping realities of
current inequality afflicting socially and educationally
backward classes’ and ‘the Scheduled Castes and the
Scheduled Tribes’. Such measures are rightly being taken by
the State and are perfectly constitutional as the State of
Kerala v. N. M. Thomas(1) has explained. Equality and steps
towards equalisation are not idle incantation but actuality,
not mere ideal but real, life. But can a university, acting
within the constitutional parameters, create a new kind of
discrimination viz., reservation for students of a
particular university? The literal terms of Art. 14 do not
tolerate it, the text of Art. 15 does not sanction it. Can
we carve out a fresh ground of preference? Delhi University
students, as such, are not an educationally backward class
and, indeed, institution-wise segregation or reservation has
no place in the scheme of Art. 15, although social and
educational destitution may be endemic in some parts of the
country where a college or university may be started to
remedy this glaring imbalance and reservation for those
alumi for higher studies may be permissible. We will explain
this further but, speaking generally, unless there is vital
nexus with equal opportunity, broad validation of
university-based reservation cannot be built on the vague
ground that all other universities are practising it-a fact
not fully proved before us either. Universality of
illegality, even if the artists of discrimination are
universities, cannot convert such praxis into
constitutionality. Nor, indeed, can the painful circumstance
that a batch of medical graduates demonstratively fasted in
front of the Health Minister’s house, ipso facto, legalise
reservation of seats in their favour. Shri Shanti Bhushan
vividly described his role as Law Minister in meeting the
student satyagrahis who were honestly hungry for post-
graduate seats and the crisis which stampeded government to
intervene and make the University revise its reservation
upward to save the lives of the ‘fasters’. We have sympathy
for students, especially for those who sacrifice their
comforts to claim an opportunity to take post-graduate
medical degrees. We even feel that the student community
often resorts to direct action of the satyagraha model when
the pachydermic disposition of authorities drives them to
such drastic heroics. But what if non-Delhi students
844
start a rival starvation exercise ? That will lead to
testing the rule of law on the immolative or masochist
capabilities of affected groups and not on the Articles of
the Constitutional or provisions of the legislation. Protest
fasting, a versatile weapon in our cultural armoury, is
meant to sensitize or conscientize the soul of the
Administration when it is too paper-logged or callous to
look at human problems from the angle of human justice.
Beyond that, this great Gandhian technique cannot be blunted
by promiscuous use, so long as democratic mechanisms are
alive and not impervious to legitimate grievances and can be
sparked into action not merely by sensational, though
sincere, tactics like fasting unto death. While recognising,
even reverencing, the role of soul force in quickening the
callous conscience of authorities to grave injury and need
for urgent remedy, we cannot uphold the Delhi University’s
‘reservation’ strategy merely because Government was faced
with student ‘fasts’ and ministers desired a compromise
formula and the University bodies simply said ‘Amen’. The
constitutionality of institutional reservation must be
founded on facts of educational life and the social dynamics
of equal opportunity Political panic does not ipso facto,
make constitutional logic.
Prima facie, equal marks must have equal chance for
medical admissions, as urged by the practitioner. And
neither university based favoured treatment nor satyagraha-
induced quota policy can survive the egalitarian attack. To
repulse the charge, equality oriented grounds must be made
out. Constitutional equality itself is dynamic, flexible,
and moulded by the variables of life. For instance, if a
region is educationally backward or woefully deficient in
medical services, there occurs serious educational and
health-service disparity for that human religion which must
be redressed by an equality and service minded Welfare
State. The purpose of such a policy is to remove the
existing inequality and to promote welfare-based equality
for the denizens of the backward regions. The specific
strategy to ameliorate the unequal societal condition is
left to the State, provided it is geared to producing
equality in the quality of life of that handicapped area
subject, of course, to basic recognition of individual
quality and criteria of efficiency.
If the State, for example, seeks to remove the absence
of opportunity for medical education of adivasis or
islanders who have no inclination or wherewithal to go to
far-off cities and join medical colleges, by starting a
regional university and medical college in the heart of such
backward region and reserves a high percentage of seats
there to ‘locals’ i.e. students from that university, it
cannot be
845
castigated as discriminatory. What is directly intended to
abolish existing disparity cannot be accused of
discrimination.
Again, if the State finds that only students from the
backward regions, when given medical graduation, will care
to serve in that area, drawn towards it by a sense of
belonging, and those from out-side will, on graduation,
leave for the cities or their own regions, it may evolve a
policy of preference or reservation for students of that
University. That strategy ensures the probability of their
serving the backward people for whose benefit the medical
courses were opened. Such measures which make for equality
of opportunity for medical education and medical service for
backward human sectors may be constitutionalised even by
Arts. 14 and 15. But it must be remembered that exceptions
cannot over-rule the rule itself by running riot or by
making reservations as a matter of course, in every
university and every course. For instance, you cannot wholly
exclude meritorious candidates as that will promote sub-
standard candidates and bring about a fall in medical
competence, injurious, in the long run, to the very region.
It is no blessing to inflict quacks and medical midgets on
people by wholesale sacrifice of talent at the threshold.
Nor can the very best be rejected from admission because
that will be a national loss and the interests of no region
can be higher than those of the nation. So, within these
limitations, without going into excesses, there is room for
play of the State’s policy choices.
Before moving to the next aspect we may touch upon a
slightly different angle which opens up a new point of view.
What is merit or excellence ? If potential for rural service
or aptitude for rendering medical attention among backward
people is a criterion of merit and it, undoubtedly, is in a
land of sickness and misery, neglect and penury, wails and
tears-then, surely, belonging to a university catering to a
deprived region is a plus point of merit. Excellence is
composite and the heart and its sensitivity are as precious
in the scale of educational values as the head and its
creativity and social medicine for the common people is more
relevant than peak performance in freak cases. Marks on this
basis will take us to the same preference as reservations
for in-university candidates. Here we are not preferring one
with less marks, but adopting a holistic manner of marking
linked up with backward settings, institution oriented and
like considerations has some meaning.
A caveat or two may be sounded even in this approach
lest exception should consume the rule. The first caution is
that reservation must be kept in check by the demands of
competence. You cannot extend the shelter of reservation
where minimum qualifications are
846
absent. Similarly, all the best talent cannot be completely
excluded by wholesale reservation. So, a certain percentage,
which may be available, must be kept open for meritorious
performance regardless of university, State and the like.
Complete exclusion of the rest of the country for the sake
of a province, wholesale banishment of proven ability to
open up, hopefully, some dalit talent, total sacrifice of
excellence at the altar of equalisation-when the
Constitution mandates for every one equality before and
equal protection of the law-may be fatal folly, self-
defeating educational technology and antinational if made a
routine rule of State policy. A fair preference, a
reasonable reservation, a just adjustment of the prior needs
and real potential of the weak with the partial recognition
of the presence of competitive merit-such as the dynamics of
social justice which animates the three egalitarian articles
of the Constitution.
Flowing from the same stream of equalism is another
limitation. The basic medical needs of a region or the
preferential push justified for a handicapped group cannot
prevail in the same measure at the highest scale of
speciality where the best skill or talent, must be
handpicked by selecting according to capability. At the
level of Ph.D., M.D., or levels of higher proficiency, where
international measure of talent is made, where losing one
great scientist or technologist in the making is a national
loss the considerations we have expanded upon as important
lose their potency. Here equality, measured by matching
excellence, has more meaning and cannot be diluted much
without grave risk. The Indian Medical Council has rightly
emphasised that playing with merit for pampering local
feeling will boomerang. Midgetry, where summitry is the
desideratum, is a dangerous art. We may here extract the
Indian Medical Council’s recommendation, which may not be
the last word in social wisdom but is worthy of
consideration:
Student for post-graduate training should be
selected strictly on merit judged on the basis of
academic record in the undergraduate course. All
selection for post-graduate studies should be conducted
by the Universities.
Another casuistry needs to be exposed before we
proceed. Backward regions and universities in consequence
are miles away from forward cities with sophisticated
institutions. The former, for a equalisation, need crutches
and extra facilities to overcome injustices. The latter
already enjoy all the advantages of the elite and deserve no
fresh props. That will be double injury to claims of
equality of the capable candidates coming from less
propitiously circumstanced universities and societies. Law
is no absolute logic but the handmaid of current social
facts of life.
847
We hasten to keep aloof from reservations for backward
classes and Scheduled Castes and Tribes because the
Constitution has assigned a special place for that factor
and they mirror problems of inherited injustices demanding
social surgery which if applied thoughtlessly in other
situations may be a remedy which accentuates the malady.
At this stage it is appropriate to refer to one ruling
of this Court which relates partly to university-wise
reservation in the context of backward areas. Support from
precedents for the propositions implicit in the above
discussion can be derived, but we need not cover many
rulings and may confine ourselves to one or two which have
closer bearing than the rest. In Chanchala’s case(1)
university-wise reservation was challenged as
unconstitutional. There was reference to earlier decisions
such as Rajendran v. Madras(2) and Periakaruppan v. Tamil
Nadu(3) and their ratio was distinguished to reach the
conclusion that under certain circumstances university-wise
classification and reservation was constitutionally
permissible. In Rajendran’s case (supra) district-wise quota
for medical college admissions was struck down
notwithstanding the argument that “if selection was made
districtwise, those selected from a district were likely to
settle down as practitioners in that district, so that the
districts were likely to benefit from their training”.(4)
The Court did not consider this to be intrinsically
irrelevant but negatived the contention.
“On the ground that it was neither pleaded in the
counter-affidavit of the State, nor had the State
placed any facts or figures justifying the plea that
students selected district-wise would settle down as
medical practitioners in the respective district where
they resided.”
The emphasis in both the cases (Rajendran and Periakaruppan)
was on the reasonable nexus with the object of the rules of
selection, namely, to get the most meritorious among the
candidates for imparting medical education. In Chanchala’s
case the basis of classification was different: “in that it
is neither district-wise nor unit-wise, but is university-
wise.”(5) The justification for university-wise reservation
was the educational need and paucity of medical service in
the area where the university was set up. Certain regions
poorly served with medical facilities and with few doctors
needed to produce more medical men
848
who would settle down there. Likewise, in those backward
regions the absence of medical colleges effectively
inhibited the needs of medical education of the local
student community. The question was whether these grounds
would suffice for providing reservation institution-wise. In
this setting, the Court observed:
“Since the universities are set up for satisfying-
the educational needs of different areas where they are
set up and medical colleges are established in those
areas, it can safely be presumed that they also were so
set up to satisfy the needs of medical training of
those attached to those universities. In our view there
is nothing undesirable in ensuring that those attached
to such universities have their ambitions to have
training in specialised subjects, like medicine,
satisfied through colleges affiliated to their own
universities. Such a basis for selection has not the
disadvantage of district-wise or unit-wise selection as
any student from any part of the state can pass the
qualifying examination in any of the three universities
irrespective of the place of his birth or residence,
Further, the rules confer a discretion on the selection
committee to admit outsiders upto 20% of the total
available seats in any one of these colleges, i.e.
those who have passed the equivalent examination held
by any other university not only in the State but also
elsewhere in India.”(1)
In the course of the Judgment, Shelat, J. speaking for the
Court, was inclined to broaden the principle of equalisation
implied in Art. 15(4).(2)
“Once the power to lay down classifications or
categories of persons from whom admission is to be
given is granted, the only question which would remain
for consideration would be whether such categorisation
has an intelligible criteria and whether it has a
reasonable relation with the object for which the Rules
for admission are made. Rules for admission are
inevitable so long as the demand of every candidate
seeking admission cannot be complied with in view of
the paucity of institutions imparting training in such
subjects as medicine. The definition of a ‘political
sufferer’ being a detailed one and in certain terms, it
would be easily possible to distinguish children of
such political sufferers from the rest as possessing
the criteria laid down by the definition. The object of
the rules for admission can obviously
849
be to secure a fair and equitable distribution of seats
amongst those seeking admission and who are eligible
under the University Regulations. Such distribution can
be on the principle that admission should be available
to the best and the most meritorious. But an equally
fair and equitable principle would also be that which
secures admission in a just proportion to those who are
handicapped and who, but for the preferential treatment
given to them, would not stand a chance against those
who are not so handicapped and are, therefore, in a
superior position. The principle underlying Art. 15(4)
is that a preferential treatment can validly be given
because the socially and educationally backward classes
need it, so that in course of time they stand in equal
position with the more advanced sections of the
society. It would not in any way be improper if that
principle were also to be applied to those who are
handicapped but do not fall under Art. 15(4).”
Another observation by Dua, J. in his separate opinion
also has pregnant meaning (1):
“The object of selection for admission to the
Medical Colleges, considered in the background of the
directive principles of State policy contained in our
Constitution, appears to be to select the best material
from amongst the candidates in order not only to
provide them with adequate means of livelihood, but
also to provide the much needed medical aid to the
people and to improve public health generally.”
(emphasis added)
The conclusion that we reach from this ruling which
adverts to earlier procedents on the point is that
university-wise preferential treatment may still be
consistent with the rule of equality of opportunity where it
is calculated to correct an imbalance or handicap and permit
equality in the larger sense.
This extensive excursion is necessitated by the subtle
tendency of advantage groups to exploit propositions
applicable to disabled categories to good account. Now, let
us look at the raw realities of the Delhi University medical
graduates and their claim for larger reservation for M.D.
and M.S. Facts, and only facts, must be the guide, of
course, within the framework of Part III, and this Court has
to play the role not only of the sentinel on the qui vive
but also
850
of the ‘hound of heaven’, not merely watch but chase, to set
things right if any constitutional wrong has been committed.
So we must enquire whether 70% reservation for Delhi
graduates which is prima facie discriminatory can be
extricated by any amelioratory constitutional logic or ethic
implicit in Arts. 14 and 15. We have set out the parameters
within which alone reservation is permissible.
We must go to the roots of the creed of equality and
here the case of State of Kerala v. N. M. Thomas(1) has
critical relevance. That decision dealt with the Scheduled
Castes and Art. 16 and certain facilities other than
reservation. But the core reasoning has crucial significance
in all cases of protective discrimination. The process of
equalisation and benign discrimination are integral, and not
antagonistic, to the principle of equality. In a
hierarchical society with an indelible feudal stamp and
incurable actual inequality, it is sophistry to argue that
progressive measures to eliminate group disabilities and
promote collective equality are anathema on the score that
every individual has entitlement on pure merit of marks.
This narrow ‘unsocial’ pedantry subverts the seminal essence
of equal opportunity even for those who are humble and
handicapped. Meritocracy cannot displace equality when the
utterly backward masses labour under group disabilities. So
we may weave those special facilities into the web of
equality which, in an equitable setting, provide for the
weak and promote their levelling up so that, in the long
run, the community at large may enjoy a general measure of
real equal opportunity. So we hold, even apart from Art.
15(3) and (4), that equality is not negated or neglected
where special provisions are geared to the larger goal of
the disabled getting over their disablement consistently
with the general good and individual merit. Indeed, Art. 14
implies all this, in its wider connotation, and has to
inform the interpretation of Art. 15.
Mathew J. in Thomas’s case (supra) quoted from the
Moynihan Report and continued with some insightful comments
which we may excerpt: (2)
“Here a point of semantics must be grasped. The
demand for equality of opportunity has been generally
perceived by White Americans as a demand for liberty, a
demand not to be excluded from the competition of life-
at the polling place, in the scholarship examinations,
at the
851
personnel office, on the housing market. Liberty does,
of course, demand that everyone be free to try his
luck, or test his skill in such matters. But these
opportunities do not necessarily produce equality. On
the contrary, to the extent that winners imply losers,
equality of opportunity almost insures inequality of
results.
The point of semantics is that equality of
opportunity now has a different meaning for Negroes
than it has for Whites. It is not (or at least no
longer) a demand for liberty alone, but also for
equality-in terms of group results. In Barard Rustin’s
terms, ‘It is now concerned not merely with removing
the barriers to full opportunity but with achieving the
fact of equality.’ By equality Rustin means a
distribution of achievements among Negroes roughly
comparable to that among Whites.(1)
Beginning most notably with the Supreme Court’s
condemnation of school segregation in 1954, the United
States has finally begun to correct the discrepancy
between its ideals and its treatment of the black man.
The first steps, are reflected in the decisions of the
courts and the civil rights laws of Congress, merely
removed the legal and quasi-legal forms of racial
discrimination. These actions while not producing true
equality, or even equality of opportunity, logically
dictated the next steps: positive use of government
power to create the possibility of a real equality. In
the words of Professor Lipset: “Perhaps the most
important fact to recognise about the current situation
of the American Negro is that (legal) equality is not
enough to insure his movement into larger society.”(2)
(emphasis added)
We agree with this approach and feel quite clearly that
the State’s duty is to produce real equality, rather
egalitarian justice in actual life.
If university-wise classification for post-graduate
medical education is shown to be relevant and reasonable and
the differential has a nexus to the larger goal of
equalisation of educational opportunities the vice of
discrimination may not invalidate the rule.
852
Even so, what is fundamental is equality, not
classification. What is basic is equal opportunity, for each
according to his ability, not artificial
compartmentalisation and institutional apartheidisation,
using the mask of handicaps. We cannot contemplate as
consistent with Art. 14 a clanish exclusivism based upon a
particular university, without more. Alive to these major
premises let us examine the merits of the charge of
‘admission’ discrimination in the present case, Justice
Brennan, in a different social milieu, but with a spiritual
secular meaning which may not be lost on us, stated:(1)
“Lincon said this Nation was ‘conceived in liberty
and dedicated to the proposition that all men are
created equal’. The Founders’ dream of a society where
all men are free and equal has not been easy to
realize. The degree of liberty and equality that exists
today has been the product of unceasing struggle and
sacrifice. Much remains to be done-so much that the
very institutions of our society have come under
challenge. Hence, today, as in Lincoln’s time, a man
may ask ‘whether (this) nation or any nation so
conceived and so dedicated can long endure’. It cannot
endure if the Nation falls short on the guarantees of
liberty, justice, and equality embodied in our founding
documents. But it also cannot endure if our precious
heritage of ordered liberty be allowed to be ripped
apart amid the sound and fury of our time. It cannot
endure if in individual cases the claims of social
peace and order on the one side and of personal liberty
on the other cannot be mutually resolved in the forum
designated by the Constitution. If that resolution
cannot be reached by judicial trial in a court of law,
it will be reached elsewhere and by other means, and
there will be grave danger that liberty, equality, and
the order essential to both will be lost.”
Another national risk we run was sounded in words of
caution in Khosa’s case by Chandrachud, J. (as he then
was):(2)
“…..let us not evolve, through imperceptible
extensions, a theory of classification which may
subvert, perhaps submerge, the precious guarantee of
equality. The eminent spirit of an ideal society is
equality and so we must not be left to ask in
wonderment: what after all is the operation residue of
equality and equal opportunity?”
853
Thus the constitutional principles and limitations are
clear and the norms are belighted by the precedents but
their application to the specific situation is an exacting
task. The burden, when protective discrimination promotional
of equalisation is pleaded, is on the party who seeks to
justify the ex facie deviation from equality. What has the
Delhi University stated here? The learned Attorney General
frankly admitted that student agitation, without more, could
not validate ‘reservation’ and that excessive reservation
was an obvious inequality. Nor, indeed, is it a good plea
that illegal reservation is being practised by other
universities and the Delhi University is forced to act
illegally in self-defence. Lawlessness, under our system, is
corrected by the law, not by counter-lawlessness. So it is
strange for the Delhi University to say our disorderly
behaviour is orderly because other universities behave
similarly. Once these misguided defences of direct action by
students or reprisals against other universities are brushed
aside, we come to grips with the real issues. Is there
circumstantial justification for constitutionalising the
rservation strategy, especially of 70% plus?
The case for reservation argues itself once we
establish an operational relationship between the benign
basis of such classified quota or like preference and the
object to be achieved viz. promotion of better opportunities
to the deprived categories of students or better supply of
medical service to neglected regions of our land. But the
Delhi University, city or students, do not fit into the
criteria.
When a university or other institution may usefully be
made the instrument for promotion of facilities for equal
educational opportunity for a class or a region, the State
may legitimately resort to institutionally classified
reservation but Delhi fails to quality. Again, the integral
yoga of equality and excellence at the service of society as
already stated, has another rider. In the higher scales of
specialised knowledge, be it art, science or technology,
superior performance must be accorded recognition, for a
variety of consideration. Who but humanity suffers if a rare
genius, with a greater flair for or mastery of a key branch
of natural or social science, is forced to wither away by a
rule of total reservation for its own alumni and
proscription of outsiders, by a house of higher learning ?
Can ‘unapproachability’, a cultural anathema now in India,
attain respectability by being labelled as ‘reservation ?
No. Therefore, a blanket ban which is the indirect result of
a wholesale reservation is constitutional heresy. There must
be substantial social justice as raison d’etre for a high
percentage of alumni reservation
854
The argument urged in answer is that the doors for
admission to post-graduate medical courses are almost
completely closed for Delhi graduates by all other
universities. So, protective reservation becomes necessary
as the only hope of Delhi students for post graduate
studies. Those real-life factors which show that Delhi
graduates are denied de facto equality on a national scale
by the exclusionism of other universities and that,
therefore, they deserve sheltered equal opportunity in
actuality by barriers of reservation of a high percentage of
seats-such being the University’s defence must be made out
and not merely asserted. This contention deserves close
examination, not summary rejection.
The mechanics of merit measurement is simple. All
applicants, whichever the University from where they have
taken M.B.B.S. degree, must apply for a common entrance
test. The yard-stick of merit is the marks obtained.
Thereafter 70% of the seats is allotted to Delhi graduates
and the balance 30% is selected from out of all the
remaining applicants, Delhi graduates included. So much so,
Delhi graduates get much more than 70% of the total seats.
Although the stage of application of reservation may bear
upon the effective quantum of advantage, the principal
question is as to whether a minimum of 70% for the Delhi
graduate alone is not far too excessive, based on extraneous
agitational factors and essentially contradicting Arts. 14
and 15?
If equality of opportunity for every person in the
country is the constitutional guarantee, a candidate who
gets more marks than another is entitled to preference for
admission. Merit must be the test when choosing the best,
according to this rule of equal chance for equal marks. This
proposition has greater importance when we reach the higher
levels of education like post-graduate courses. After all,
top technological expertise in any vital field like medicine
is nation’s human asset without which its advance and
development will be stunted. The role of high grade skill or
special talent may be less at the lesser levels of
education, jobs and disciplines of social inconsequence, but
more at the higher levels of sophisticated skills and
strategic employment. To devalue merit at the summit is to
temporise with the country’s development in the vital areas
of professional expertise. In science and technology and
other specialised fields of developmental significance, to
relax lazily or easily in regard to exacting standards of
performance may be running a grave national risk because in
advanced medicine and other critical departments of higher
knowledge, crucial to material progress, the people of India
should not be denied the best the nation’s talent lying
latent can produce. If the best potential in these fields is
cold-shouldered
855
for populist considerations garbed as reservations, the
victims, in the long run, may be the people themselves. Of
course, this unrelenting strictness in selecting the best
may not be so imperative at other levels where a broad
measure of efficiency may be good enough and what is needed
is merely to weed out the worthless.
Coming to brasstacks, deviation from equal marks will
meet with approval only if the essential conditions set out
above are fulfilled. The class which enjoys reservation must
be educationally handicapped. The reservation must be geared
to getting over the handicap. The rationale of reservation
must be in the case of medical students, removal of regional
or class inadequacy or like disadvantage. The quantum of
reservation should not be excessive or societally injurious
measured by the over-all competency of the end-product, viz.
degree-holders. A host of variables influence the
quantification of the reservation. But one factor deserves
great emphasis. The higher the level of the speciality the
lesser the role of reservation. Such being the pragmatics
and dynamics of social justice and equal rights, let us
apply the tests to the case on hand.
We are aware that measurement of merit is difficult and
the methods now in vogue leave so much to be desired, that
swearing by marks as measure of merit may even be stark
superstition. But for want of surer techniques, we have to
make-do with entrance tests, and at any rate, save in clear
cases of perversity or irrationality, this is ordinarily out
of bounds for courts.
M.B.B.S. is a basic medical degree and insistence on
the highest talent may be relaxed by promotion of backward
groups, institutionwise chosen, without injury to public
welfare. It produces equal opportunity on a broader basis
and gives hope to neglected geographical or human areas of
getting a chance to rise. Moreover, the better chances of
candidates from institutions in neglected regions setting
down for practice in these very regions also warrants
institutional preference because that policy helps the
supply of medical services to these backward areas. After
all, it is quite on the cards that some out of these
candidates with lesser marks may prove their real mettle and
blossom into great doctors. Again, merit is not measured by
marks alone but by human sympathies. The heart is as much a
factor as the head in assessing the social value of a member
of the profession. Dr. Samuel Johnson put this thought with
telling effect when he said :
“Want of tenderness is want of parts, and is no
less a proof of stupidity than of depravity”.
856
We have no doubt that where the human region from which
the alumni of an institution are largely drawn is backward,
either from the angle of opportunities for technical
education or availability of medical services for the
people, the provision of a high ratio of reservation hardly
militates against the equality mandate-viewed in the
perspective of social justice.
We have two weighty differentiating factors here. Delhi
is in no sense an educationally or economically backward
human region, measured against the rest of our country. The
students of Delhi, who are likely to seek admission to
medical colleges, belong to classes higher in the scale than
in most parts of India. As explained earlier the presence of
huge central administrative establishments and higher
echelons of the public services, members in numbers of the
political aristocracy, thanks to Delhi being the seat of
Parliament, countless executives clustering around big
business and industrial houses and offices and many
educational, research and other institutions, professional
organisations, the Supreme Court, the High Court, and their
natural human concomitants in the upper socio-educational
scale, make Delhi and the Delhi University the cynosure of
the privileged species in a land of under-privilegd penury.
Of course, like in any megalopolis of a developing country,
slums and other symptoms of deprivation show up and the
desperately poor denizens below the visibility line
unbiquitously abound. But they are not the potential
candidates for medical admission or service and cannot be
used as `alibi’ for reservation. In what sense, regard being
had to over-all Indian conditions, can it be said that Delhi
or the Delhi University, is backward or serves, through the
medical colleges of its University, the students who will
settle down to alleviate suffering in that region,
Secondly, and more importantly, it is difficult to
denounce or renounce the merit criterion when the selection
is for post-graduate or post-doctoral courses in specialised
subjects. There is no substitute for sheer flair, for
creative talent, for fine-tuned performance at the difficult
heights of some disciplines where the best alone is likely
to blossom as the best. To sympathise mawkishly with the
weaker sections by selecting sub-standard candidates, is to
punish society as a whole by denying the prospect of
excellence say in hospital service. Even the poorest, when
stricken by critical illness, needs the attention of super-
skilled specialists, not humdrum second-rates. So it is that
relaxation on merit, by over-ruling equality and quality
altogether, is a social risk where the stage is post-
graduate or post-doctoral.
Of course, we should not exaggerate this factor. Post-
graduate studies are not all that great and demanding as to
invite only geniuses.
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We cannot be scared by glorifying merit nor be hypnotised by
the cult of talent, seeing as we do, crowds of M.Ds, M.Ss
and their foreign analogues. Nor, indeed, are the entrance
tests any but the feeblest yardsticks to measure innate
capabilities. Is it not the wildest hostage to fortune to
swear by marks alone which are so freakish and determined by
a chancy variety of variables ? We find different modes of
examining faculties in different universities, commissions
and countries and may, on closer scrutiny, pick holes in the
scientific basis of our entrance tests themselves. We repeat
all this only to stress the limitations on the current
system of selection so that we may not be swept off our feet
by the elitist feeling that something sacred or scientific
is being jettisoned for the sake of accommodating nitwits of
backward regions institutions or classes when marks are
slightly slurred over. Even so, being realists, we go by
existing methodology until better modes are devised.
In the light of this discussion about the know-how and
know-why of reservations, what are the conclusions that
emerge vis a vis the Delhi graduates ? Neither Delhi nor the
Delhi University medical colleges can be designated as
categories which warrant reservation. But there is one
weighty circumstance which must be in our remembrance.
Reservation for Delhi graduates is not that invidious
because, as stated in the beginning, the students are from
families drawn from all over India. Not `sons of the soil’
but sons and daughters of persons who are willy nilly pulled
into the capital city for reasons beyond their control. This
reservation is, therefore, qualitatively different.
There is another pathological condition affecting
`medical admissions’ which is at the back of the desperate
`satyagraha’ of the students and this factor tilts the scale
a great deal. Counsel for the University, supported by
fragmentary material pointing to a pan-Indian tendency,
argued that all the country round every university bangs,
bars and bolts the doors of medical admission to outsiders
and if Delhi alone were to keep its doors hospitably ajar
where are the Delhi graduates to go for higher studies if
squeezed out by All-India competition ? If reservation is
evil, the embargo everywhere must be lifted, lest evil
should beget evil. So long as other universities are out of
bounds for Delhi graduates, exposure to all-India
competition becomes intense and prejudices their chances.
This indirect, real yet heavy handicap creates an under-
current of discrimination and cannot be wished away and
needs to be antidoted by some percentage of reservation or
other legitimate device.
Another consideration which justifies some measure of
reservation is the desire of students for institutional
continuity in education.
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Parents, pupils and teachers will usually prefer such
continuity and it has its own value.
We recognise that institution-wise reservation is
constitutionally circumscribed and may become ultra vires if
recklessly resorted to. But even such rules until revised by
competent authority or struck down judicially, will rule the
roost. That is why we have to concede that until the
signpost of `no admission for outsiders’ is removed from
other universities and some fair percentage of seats in
other universities is left for open competition the Delhi
students cannot be made martyrs of the Constitution.
Even so, `reservation’ must be administered in
moderation, if it is to be constitutional. Some central
technical institutions like the All India Institute of
Medical Sciences, Delhi and Chandigarh and the Pondicherry
Medical College have a much smaller fraction. Their
circumstances may be different and we do not have the full
facts, neither side having furnished more than fragments.
Judicial surmise is too weak to be of decisional certainty.
For reasons we have assigned 70% plus is too high at the
post-graduate level in the half-proved circumstances. But we
stop short of invalidating the rule because the facts are
imperfect, the course has already started and the court must
act only on sure ground, especially when matters of policy,
socio-educational investigation and expert evaluation of
variables are involved. Judges should not rush in where
specialists fear to tread. We spare the impugned regulation
even though we are, prima facie, sceptical about the vires
thereof. To doubt is not enough to demolish. When fuller
facts are placed, the court will go into this question more
confidently.
While reluctantly repelling the challenge of the
petitioner we think two directions must be made in this
case. If 70% reservation is on the high side and the
petitioner is hopefully near `admission’ going by marks and
reservation, it is but just that he is given a chance to do
his post-graduate course. Indeed, his coming to Delhi itself
was a compulsion beyond his control, as we have noted
earlier.
The petitioner, going by marks, deserves admission to
the postgraduate degree course although he is now in the
post-graduate diploma course. So we direct him to be
admitted to the degree course this year, if the rules of
attendance etc., do not stand in the way and the Medical
Council makes an exception by agreeing to addition of one
seat as a special case for this year.
More importantly, we direct the University forthwith-
not later than two months from to-day-to appoint a time-
bound committee to
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investigate in depth the justification for and the quantum
of reservation at the post- graduate level from the angle of
equality of opportunity for every Indian but taking into
consideration other constitutionally relevant criteria we
have indicated in this judgment. That committee will study
facts and figures and the reservation realities of other
universities and make recommendations on the question of
university-based reservations and allied aspects as well as
the modus operandi for implementation. The Committee will be
richer if it has a constitutional expert and a
representative of the Indian Medical Council on it. Its
report shall be considered by the University as soon as may
be, so that, if possible, the admissions for next year may
be governed by the revised decisions of the concerned organs
informed by the report.
We are disturbed by the tendency to wall of each
university as an insulated island of education, mindless of
the integrated unity and equal opportunity which are an
inalienable part of our constitutional value system. There
is good reason for reservation in many cases but the
promiscuous, even profligate application of an exception as
a rule of educational life by forward cities and
universities will boomerang on the nation in the long run.
The Union of India has a special responsibility to ensure
that in higher education provincialism does not erode the
integrity of India. Who lives if India dies, is a poignant
interrogation with cultural projections in many dimensions
which our administrators are not, we hope, innocent off :
Mutations in reservations in other universities need not
await litigation but can be undertaken before the court
process is set in motion. The dialectic of constitutional
protection in the dynamic context of equality in a
developing country has been presented by us at some
repetitive length so that the voyage of re-thinking may not
suffer from navigational errors.
The Indian Medical Council is the statutory body at the
national level whose functional obligations include setting
standards for as well as regulation and coordination of
medical education. What with a growing number of
universities with divergent settings, standards and goals
and a motley crowd of students with diverse academic and
social backgrounds and ambitions, the prescription and
invigilation of flexible yet principled norms regulating the
entrance into medical courses and training of medical
graduates at various levels of specialization are a
demanding and dynamic task. The I.M.A. cannot be a silent
spectator or a static instrument but must initiate, activist
fashion, steps to make Indian medical education a meaning
asset to the nation’s healing and hospital resources and a
discipline with broad uniformity and assured standard. The
Central Government, witness to a deteriorating situation,
cannot but act to negate the confusing trend of fall in
quality and conflict among universities.
860
We may wind up by articulating the core thought that
vitalises our approach. Anyone who lives inside India can
never be considered an `outsider’ in Delhi. The people in
the States are caught in a happy network of mutuality, woven
into a lovely garment of humanity, whose warp and woof is
India. This is the underlying fundamental of the preambular
resolve registered in our National Parchment. So we insist
that blind and bigoted local patriotism in xenophobic
exclusivism is destructive of our Freedom and only if
compelling considerations of gross injustice, desperate
backwardness and glaring inequality desiderate such a
purposeful course can protective discrimination gain
entrance into the portals of college campuses. The
Administration has a constitutional responsibility not to be
a mere thermometer where mercury rises with populist
pressure but to be a thermostat that transforms the mores of
groups to stay in the conscience of the nation, viz. the
Constitution.
We dispose of the petition with these twin directions
leaving the parties to suffer their costs.
PATHAK, J. I have had the benefit of reading the
judgment prepared by my learned brother V. R. Krishna Iyer
and while I agree with him that the writ petition should be
dismissed, I propose to state my own reasons.
The validity of a reservation of 70% of the seats in
the post-graduate classes by the Delhi University in favour
of its own medical graduates is assailed in this writ
petition. The basis of the reservation is the consideration
that the candidate for admission to the post-graduate
classes is a medical graduate of the same University. No
question of backward classes, scheduled castes and scheduled
tribes, is involved. Criteria pertinent to reservation
concerning them are, it seems to me, not relevant at all.
Nor strictly is the test requiring a territorial nexus -the
University does not insist that the candidate should hail
from any particular region or State for the purpose of the
70% reservation. The relationship is entirely institutional-
those who have graduated from the medical colleges run by
the Delhi University are favoured for admission to the post-
graduate classes. In my opinion, there is sufficient
validity in that consideration. It is not beyond reason that
a student who enters a medical college for his graduate
studies and pursues them for the requisite period of years
should prefer on graduation to continue in the same
institution for his post-graduate studies. There is the
strong argument of convenience, of stability and familiarity
with an educational environment which in different parts of
the country is subject to varying economic and psychological
pressures. But much more
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than convenience is involved. There are all the advantages
of a continuing frame of educational experience in the same
educational institution. It must be remembered that it is
not an entirely different course of studies which is
contemplated; it is a specialised and deeper experience in
what has gone before. The student has become familiar with
the teaching techniques and standards of scholarship, and
has adjusted his responses and reactions according. The
continuity of studies ensures a higher degree of competence
in the assimilation of knowledge and experience. Not
infrequently some of the same staff of Professors and
Readers may lecture to the post-graduate classes also. Over
the under-graduate years the teacher has come to understand
the particular needs of the student, where he excels and
where he needs an especial encouragement in the removal of
deficiencies. In my judgment, there is good reason in an
educational institution extending a certain degree of
preference to its graduate for admission to its post-
graduate classes. The preference is based on a reasonable
classification and bears a just relationship to the object
of the education provided in the postgraduate classes. The
concept of equality codified in our constitutional system is
not violated. It has been said sometimes that classification
contradicts equality. To my mind, classification is a
feature of the very core of equality. It is a vital concept
in ensuring equality, for those who are similarly situated
alone form a class between themselves, and the
classification is not vulnerable to challenge if its
constituent basis is reasonably related to achieving the
object of the concerned law. An institutional preference of
the kind considered here does not offend the constitutional
guarantee of equality.
But the question really is : Is the degree of
reservation excessive ? Is 70% too much ? Too excessive a
reservation could result in preference to graduate
candidates of severely limited aptitude and competence over
meritorious candidates from other institutions whose
exclusion could result in aborting a part of our national
talent. The determining factor, it appears to me, is the
measure of reciprocity prevailing between the different
educational institutions in India regarding the availability
of admission to graduates of other institutions. It can
hardly be supposed that if the medical graduates of the
Delhi University are shut out from adequate consideration
for admission to the post-graduate courses of other
institutions merely because they did not graduate from those
institutions they should not think it unjust that the
hospitality of their own University to outside medical
graduates leaves insufficient provision for them. Not to be
able to take post-graduate studies at all implies the
termination of their medical studies. This is a problem
which can be tackled only on a national level, with all
Universities
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and other medical institutions coming together around a
common table with the object of fashioning out a mutual
reasonable quota reservation. A wise and far-sighted
exercise, eschewing narrow parochial considerations, is
called for. It is only by a joining of hands across the
entire nation that a suitable and enduring solution can be
evolved and the turbulence which disturbs the student body
set at rest.
My learned brother has referred to the considerable
attraction which an educational institution in New Delhi
exerts over students from other parts of the country. I
confess I do not share the view entirely. So much, I think,
depends on the choice of a particular subject or course of
studies by the candidate. And medical course are not all
necessarily to be found only in New Delhi. They are located
in other parts of India and some of those well-known centres
of medical education have at least an equal reputation in
certain fields of specialised study. I am reluctant to
accept the proposition that because New Delhi is the
political, legislative and judicial capital of India, an
education of quality is not to be found in other cities.
Merely because New Delhi is the new Capital of Delhi does
not justify a disproportionate treatment of the claim to
equality on a national level made by its medical graduates.
The question remains : Is a reservation of 70%
excessive ? We have travelled through the record, and I
agree with my learned brother that the material is so
scanty, fragmentary and unsatisfactory that we are prevented
from expressing any definite decision on the point. Although
we gave sufficient opportunity to the parties, the requisite
material has not been forthcoming. Whether or not a
reservation of 70% was called for has not been established
conclusively. Indeed, there is hardly anything to show that
the authorities applied their mind to a cool dispassionate
judgment of the problem facing them. Popular agitation
serves at best to arouse and provoke complacent or
slumbering authority; the judgment and decision of the
authority must be evolved from strictly concrete and
unemotional material relevant to the issue before it.
Unfortunately, there is little evidence of that in this
case. For that reason, I join my learned brother in the
directions proposed by him.
The petitioners have raised other contentions also,
principally resting on the allegation that the University of
Delhi is a centrally administered institution, but I see no
force in those submissions.
Accordingly, subject to the two directions proposed by
my learned brother the writ petition is dismissed and the
parties shall bear their own costs.
N.V.K. Petition dismissed.
863