{"id":52220,"date":"1980-01-28T00:00:00","date_gmt":"1980-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jagdish-saran-ors-vs-union-of-india-ors-on-28-january-1980"},"modified":"2016-03-14T18:01:48","modified_gmt":"2016-03-14T12:31:48","slug":"jagdish-saran-ors-vs-union-of-india-ors-on-28-january-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jagdish-saran-ors-vs-union-of-india-ors-on-28-january-1980","title":{"rendered":"Jagdish Saran & Ors vs Union Of India & Ors on 28 January, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jagdish Saran & Ors vs Union Of India & Ors on 28 January, 1980<\/div>\n
Equivalent citations: 1980 AIR 820, \t\t 1980 SCR (2) 831<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nJAGDISH SARAN & ORS.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT28\/01\/1980\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nPATHAK, R.S.\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1980 AIR  820\t\t  1980 SCR  (2) 831\n 1980 SCC  (2) 768\n CITATOR INFO :\n RF\t    1980 SC 838\t (4)\n RF\t    1980 SC1230\t (10,14,17,18,35)\n R\t    1981 SC2045\t (10,25)\n R\t    1984 SC1420\t (10,12,13,18,20,22)\n RF\t    1984 SC1534\t (13)\n F\t    1985 SC1059\t (2)\n RF\t    1986 SC1362\t (3,4,5)\n E&D\t    1989 SC1194\t (9,10,18)\n\n\nACT:\n     Constitution  of\tIndia  1950,  Articles\t15  and\t 16-\nAdmission to  post-graduate course in medicine-Rule of Delhi\nUniversity-Reservation of  70 per  cent\t of  seats  at\tpost\ngraduate level for its own university graduates-Validity of.\n     Practice and Procedure-Litigation on socio-legal issue-\nBrief to be well researched and factually detailed.\n\n\n\nHEADNOTE:\n     The University  of Delhi  has  many  post-graduate\t and\ndiploma courses\t in the\t faculty of medicine but all of them\nput together  provide 250  seats. The three medical colleges\nin Delhi  turn out  annually 400  medical graduates  who get\n'house' jobs  in the  local hospitals and qualify themselves\nfor post-graduate  courses. As\tthe graduates from the Delhi\nUniversity could  not be  accommodated fully or even in part\nfor the\t post-graduate courses\tin  medicine  and  as  these\ngraduates were\tnot  considered\t for  admission\t into  other\nuniversities on\t account of various regional hurdles such as\nprescription  of   domicile,   graduation   in\t that\tvery\nuniversity, registration  with the  State  Medical  Council,\nservice\t in  the  State\t Medical  service  etc.,  the  Delhi\nUniversity had\tearmarked some\tseats at  the  post-graduate\nlevel  in  medicine  for  the  medical\tgraduates  of  Delhi\nUniversity.\n     Until April  1978, the rule for selection of candidates\nfor admission  into the\t post-graduate classes\tin  medicine\nprovided that selection for 52% of the total number of seats\nwas to\tbe made\t on the\t basis of  combined merit  of  Delhi\nUniversity and\tother university  medical graduates,  and 48\nper cent  from the Delhi University graduates only. The rule\nwas amended, reserving 70% of the seats at the post-graduate\nlevel  to  Delhi  graduates  and  30%  being  open  to\tall,\nincluding graduates of Delhi.\n     The petitioner  who was  a medical\t graduate  from\t the\nMadras University  applied for\tthe post-graduate  degree in\nDermatology in the University of Delhi. He passed the common\nentrance test  for admission,  but his\tadmission was turned\ndown because  of the rule of the University reserving 70% of\nthe seats  at the  post-graduate level\tto Delhi  University\ngraduates.\n     The petitioner  in his  writ petition  under Article 32\nchallenged the\trule as\t violative of  Articles 14 and 16 of\nthe Constitution  and sought  the court's writ to direct the\nUniversity to  admit him  to the M.D. Course in Dermatology.\nIt was\tcontended  that\t the  University  was  sustained  by\nCentral\t Government   finances,\t collected  from  the  whole\ncountry\t and  the  benefits  must  likewise  belong  to\t all\nqualified students from everywhere. The University justified\nthe reservation\t on the\t ground of  exclusivism practised by\nevery  other   University  by  forbidding  Delhi  University\ngraduates from\tgetting admission in their colleges and also\non account of the reasonableness of institutional continuity\nin educational\tpursuits for students who enter a university\nfor higher studies.\n832\n     Dismissing the writ petition.\n^\n     HELD: (per Krishna Iyer & Chinnappa Reddy, JJ.)\n     1. Reservation  of 70% is too high at the post-graduate\nlevel. But the rule is not invalidated because the facts are\nimperfect, the course has already started and the court must\nact only  on sure ground, especially when matters of policy,\nsocio-educational, investigation  and expert  evaluation  of\nvariables are  involved. When  fuller facts  are placed, the\ncourt will go into this question more confidently. [858 D-E]\n     2. If  70% reservation  is on  the high  side  and\t the\npetitioner is  hopefully near  'admission' going by marks it\nis but\tjust that  he is  given a  chance to  do  his  post-\ngraduate course. His coming to Delhi itself was a compulsion\nbeyond his control. [858 F]\n     3. Petitioner  directed to\t be admitted  to the  degree\ncourse this  year, if  the rules  of attendance etc., do not\nstand in  the way and the Medical Council makes an exception\nby agreeing  to addition  of one  seat as a special case for\nthis year. [858 G]\n     4. (i)  The University  forthwith-not  later  than\t two\nmonths from  today-to  appoint\ta  time-bound  committee  to\ninvestigate in\tdepth the  justification for and the quantum\nof reservation\tat the post-graduate level from the angle of\nequality of  opportunity for  every Indian.  That  committee\nwill study  facts and  figures and the reservation realities\nof  other  universities\t and  make  recommendations  on\t the\nquestion of university-based reservations and allied aspects\nas well\t as modus operandi for implementation. The Committee\nwill benefit  if  it  has  a  constitutional  expert  and  a\nrepresentative of  the Indian  Medical Council\ton  it.\t Its\nreport shall  be considered by the University as soon as may\nbe, so\tthat, if  possible, the admissions for the next year\nmay be\tgoverned by  the revised  decisions of the concerned\norgans informed by the report. [858 H-859 C]\n     (ii) The Union of India has a special responsibility to\nensure that in higher education provincialism does not erode\nthe integrity  of India. Anyone who lives in India can never\nbe considered  an 'outsider'  in Delhi.\t Blind\tand  bigoted\nlocal patriotism in xenophobic exclusivism is destructive of\nfreedom and  only  if  compelling  considerations  of  gross\ninjustice, desperate  backwardness  and\t glaring  inequality\ndesiderate such\t a course can protective discrimination gain\nentrance into  the portals  of college campuses. [859 D, 860\nA, B]\n     5.\t The   philosophy  and\t pragmatism   of   universal\nexcellence through  universal equal  opportunity is  part of\nour culture and constitutional creed. [843 A]\n     6.\t The   Indian  Constitution   is  wedded   to  equal\nprotection and\tnon-discrimination. Arts.  14, 15 and 16 are\ninviolable and\tArt. 29(2)  strikes a similar note though it\ndoes not  refer to  regional restrictions  or  reservations.\nArt. 15\t saves the  State's power to make special provisions\nfor women  and children\t or for\t advancement of socially and\neducationally backward classes. [842 B]\n     7. University-wise\t preferential treatment may still be\nconsistent with the rule of equality of opportunity where it\nis calculated  to correct  and\timbalance  or  handicap\t and\npermit equality in the larger sense. [849 F]\n833\n     8. What is fundamental is equality, not classification.\nWhat is\t basic is  equal opportunity,  for each according to\nhis  ability,\tnot  artificial\t  compartmentalization\t and\ninstitutional apartheidisation, using the mask of handicaps.\nA clanish  exclusivism based  upon a  particular  university\ncannot be  contemplated as  consistent with Article 14. [852\nA]\n     9. A  blanket ban\twhich is  the indirect\tresult of  a\nwholesale reservation  is constitutional  heresy. There must\nbe substantial\tsocial justice\tas raison  d'etre for a high\npercentage of alumni reservation. [853 H]\n     10. If  equality of opportunity for every person in the\ncountry is  the constitutional\tguarantee, a  candidate\t who\ngets more  marks than  another is entitled to preference for\nadmission. Merit  must be  the test  when choosing the best,\naccording to this rule of equal chance for equal marks. This\nproposition has\t greater importance when we reach the higher\nlevels of  education like  postgraduate courses. The role of\nhigh grade skill or special talent may be less at the lesser\nlevels\tof   education\tjobs   and  disciplines\t  of  social\ninconsequence,\tbut   more   at\t  the\thigher\t levels\t  of\nsophisticated skills  and strategic  employment. To  devalue\nmerit at  the summit  is to  temporise\twith  the  country's\ndevelopment in\tthe vital  areas of  professional expertise.\n[854 E-G]\n     11.  The\tclass  which   enjoys  reservation  must  be\neducationally handicapped. The reservation must be geared to\ngetting over the handicap. The rationale of reservation must\nbe in  the case\t of medical students, removal of regional or\nclass  inadequacy  or  like  disadvantage.  The\t quantum  of\nreservation should not be excessive or societally injurious,\nmeasured by the over-all competency of the end-product, viz.\ndegree-holders.\t A   host   of\t variables   influence\t the\nquantification of the reservation. [855 B-C]\n     12. The  higher the  level of the speciality the lesser\nthe role  of reservation. M.B.B.S. is a basic medical degree\nand insistance\ton the\thighest talent\tmay  be\t relaxed  by\npromotion  of\tbackward  groups,  institution-wise  chosen,\nwithout\t injury\t  to  public   welfare.\t It  produces  equal\nopportunity on\ta broader  basis and gives hope to neglected\ngeographical or\t human areas  of getting  a chance  to rise.\nMoreover, the better chances of candidates from institutions\nin neglected regions getting down for practice in these very\nregions also  warrants institutional preference because that\npolicy\thelps  the  supply  of\tmedical\t services  to  these\nbackward areas. [855 D, F]\n     13. It  is difficult  to denounce or renounce the merit\ncriterion where\t the selection is for post-graduate or post-\ndoctoral  courses  in  specialised  subjects.  There  is  no\nsubstitute for\tsheer flair,  for creative talent, for fine-\ntuned  performance   at\t the   difficult  heights   of\tsome\ndisciplines where the best alone is likely to blossom as the\nbest. [856 F-G]\n     14. Neither  Delhi nor  the  Delhi\t University  medical\ncolleges can  be  designated  as  categories  which  warrant\nreservation. Reservation  for Delhi  graduates is  not\tthat\ninvidious, because the students are from families drawn from\nall over India. Not sons of the soil' but sons and daughters\nof persons  who are pulled into the capital city for reasons\nbeyond\ttheir  control.\t This  reservation,  is,  therefore,\nqualitatively different. [857 D-E]\n     15. Institution-wise  reservation\tis  constitutionally\ncircumscribed and  may\tbecome\tultra  vires  if  recklessly\nresorted to. But even such rules, until revised\n834\nby competent  authority or struck down judicially, will rule\nthe  roost.   Until  the   signpost  of\t 'no  admission\t for\noutsiders' is  removed from other universities and some fair\npercentage of  seats in\t other universities is left for open\ncompetition, the  Delhi students  cannot be  made martyrs of\nthe  Constitution.   Reservation  must\tbe  administered  in\nmoderation, if it is to be constitutional. [858 B-C]\n     16. Litigation,  on a  socio-legal\t issue\tof  critical\nconstitutional\tmoment,\t  should  not\tend   with   general\nassertions,  affidavits\t  of  formal   denials\tand  minimal\nmaterials, but\tneeds feeding the court with nutritive facts\nwhich build  the flesh\tand blood  of the  administrative or\nlegislative action under challenge and all other surrounding\nand comparative\t data which  legitimate the 'reservation' or\nother procedure\t under attack from the constitutional angle.\nIngenious or  imaginative orality  in court  can never\tbe a\nsubstitute for\twell-researched down-to-earth  factuality in\nthe brief. In the adversary system, advocacy in the superior\ncourts which  by their\tdecisions, declare  the law  for all\nmust broaden  beyond the particular lis into a conspectus of\nsociological  facts,   economic\t factors   and\t educational\nconditions  so\t that  other   persons\taggrieved  who\twill\npotentially be\tbound by  the decision, do not suffer by not\nbeing eo nomine parties. [841 F-G, H 837 E]\n     (Per Pathak J.)\n     1. Classification\tis a  feature of  the very  core  of\nequality. It  is a  vital concept  in ensuring equality, for\nthose who  are\tsimilarly  situated  form  a  class  between\nthemselves, and\t the classification  is\t not  vulnerable  to\nchallenge if  its constituent basis is reasonably related to\nachieving the  object of the concerned law. An institutional\npreference as  in the  instant\tcase  does  not\t offend\t the\nconstitutional guarantee of equality. [861 D-E]\n     2. The  basis of  the reservation is that the candidate\nfor admission  to the  post-graduate classes  is  a  medical\ngraduate  of  the  same\t university.  The  relation-ship  is\ninstitutional.\tThere\tis  sufficient\t validity  in\tthat\ncriterion as  a basis  of classification  under Article\t 14.\n[860 F, G]\n     It is  not beyond\treason that  a student\twho enters a\nmedical college\t for his  graduate studies  and pursues them\nfor  the   requisite  period   of  years  should  prefer  on\ngraduation to continue in the same institution for his post-\ngraduate  studies.   There  is\t the  strong   argument\t  of\nconvenience,  of   stability   and   familiarity   with\t  an\neducational environment\t which in  different  parts  of\t the\ncountry is  subject to\tvarying economic  and  psychological\npressures. But much more than convenience is involved. There\nare all\t the advantages of a continuing frame of educational\nexperience in the same educational institution. In the post-\ngraduate class,\t it is\tnot an\tentirely different course of\nstudies which  is contemplated;\t it  is\t a  specialised\t and\ndeeper experience  in what  has gone before. The student has\nbecome familiar\t with the  teaching techniques and standards\nof scholarship, and has adjusted his responses and reactions\naccordingly. The  continuity of\t studies  ensures  a  higher\ndegree of  competence in  the assimilation  of knowledge and\nexperience. Not\t infrequently some  of\tthe  same  staff  of\nProfessors and\tReaders may  lecture  to  the  post-graduate\nclasses also.  Over the under-graduate years the teacher has\ncome to\t understand the\t particular needs  of  the  student,\nwhere he excels and where he needs an especial encouragement\nin the\tremoval of  deficiencies. There is good reason in an\neducational  institution   extending  a\t certain  degree  of\npreference to  its graduates  for  admission  to  its  post-\ngraduate classes. [860 C]\n835\n     3. Medical\t courses are not all necessarily to be found\nonly in\t New Delhi. They are located in other parts of India\nand some  are well-known  centres of  medical education. The\nproposition  that   because  New  Delhi\t is  the  political,\nlegislative and\t judicial capital  of India, an education of\nquality\t is   not  to  be  found  in  other  cities  is\t not\nacceptable. Merely  because New\t Delhi is the new Capital of\nDelhi does  not justify\t a disproportionate treatment of the\nclaim to  equality on  a national  level made by its medical\ngraduates. [862 C-D]\n     4. But  too excessive  a reservation  could  result  in\npreference  to\t graduate  candidates  of  severely  limited\naptitude and  competence over  meritorious  candidates\tfrom\nother institutions  whose exclusion could result in aborting\na part of the national talent. [861 F]\n     5. Whether\t or not\t a reservation of 70% was called for\nhas not\t been  established  conclusively.  There  is  hardly\nanything to  show that the authorities applied their mind to\na cool\tdispassionate judgment\tof the\tproblem facing them.\nThe judgment  and decision  of the authority must be evolved\nfrom strictly  concrete and unemotional material relevant to\nthe issue before it. [862 F]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION: Writ Petition No. 214 of 1979.
\n\t   (Under Article 32 of the Constitution)
\n     S.\t Balakrishnan  and  M.\tK.  D.\tNamboodiri  for\t the
\nPetitioners.\n<\/p>\n
     Lal  Narain   Sinha  Attorney   General  and   Miss  A.
\nSubhashini for Respondent No. 1.\n<\/p>\n
     Shanti Bhushan,  Jitendra Sharma, V. P. Choudhry and R.
\nL. Gupta for the Respondents Nos. 3, 4 & 5.\n<\/p>\n
     The Judgment  of Krishna  Iyer, and O. Chinnappa Reddy,
\nJJ was\tdelivered by  Iyer, J.,\t R. S.\tPathak,\t J.  gave  a
\nseparate concurring Opinion.\n<\/p>\n
     KRISHNA IYER,  J.-Many a  case in\tthis  Court  is\t the
\ndramatisation. on  the forensic\t stage, of  social stress or
\ncommunity conflict which seeks resolution or release through
\nthe litigative\tprocess. This  Writ Petition turns the focus
\non  one\t  such\ttense  issue  and  ventilates  a  widespread
\ngrievance which deserves constitutional examination.\n<\/p>\n
     The petitioner,  Dr. Ramesh, is a medical graduate from
\nthe Madras  University. His  father, an\t officer  under\t the
\nCentral Government,  was transferred  to Delhi\tand the son,
\ndesirous of  taking a  post-graduate degree  in Dermatology,
\napplied for  admissions to  the University  of\tDelhi  which
\noffers that  course. He\t took the  common entrance  test and
\nsecured enough marks to qualify for admission but was turned
\ndown because  of a  rule reserving  70% of the seats, at the
\npost-graduate level,  to Delhi graduates (if we may use that
\nabbreviation  for  describing  student-applicants  who\thave
\ntaken their  M.B.B.S. degree  from the University of Delhi).
\nThe remaining 30% was open to all, including
\n836<\/span>
\ngraduates of  Delhi. This  rule was  made in  April 1978  in
\nmodification of the earlier reservation of 48%.\n<\/p>\n
     Had this  inflation (from\t48% to\t70% plus)  not\tbeen
\nmade, the  petitioner admittedly  would\t have  been  granted
\nadmission. So  what blocked his right to post-graduate entry
\nwas this rule of institutional quota of 70% which accorded a
\ndisproportionate premium  in favour  of Delhi graduates. The
\nother petitioners  are no  longer in the race having secured
\nlesser marks  at the entrance test, and so the judicial lens
\nmust be\t fixed\ton  the\t validity  of  such  a\tconsiderable
\nreservation or virtual monopoly for the Delhi graduates. The
\npetitioner challenges  its vires as violative of Arts. 14 to
\n16 and\tseeks the  court’s writ\t to  direct  the  respondent
\nUniversity to  admit him  to the  M.D. course (Dermatology).
\nWhile litigating for his right to a seat in the postgraduate
\ndegree course  in dermatology,\the is  now doing his diploma
\ncourse in  the same subject in the same University, which is
\ninferior to  his aspiration  and entitlement if the right to
\nequality is fatal to the quota policy.\n<\/p>\n
     We are  not investigating\tthe plea  based on  Art.  16
\nbecause it  is not clear whether the stipend paid to a post-
\ngraduate student  makes the  course an employment and, apart
\nfrom that,  the meat  of the  matter  is  whether  there  is
\ndiscrimination. If  there is,  Arts. 14\t and 15\t are  lethal
\nenough, without resort to Art. 16.\n<\/p>\n
     The University  of Delhi (we may use the shorthand form
\n‘Delhi University’  hereafter) refutes\tthis  challenge\t and
\njustifies the reservation in the concrete educational plight
\nof Delhi  graduates as\tan inevitable  evil, if\t it be\tevil
\nbecause\t of   the  exclusivism\t practised  by\tevery  other
\nuniversity. An\tinstitutional  quota  is  not  invariably  a
\nconstitutional anathema\t and, in the present case, the Delhi
\nUniversity offers an explanation for this recourse to higher
\ninstitutional reservation.  Many universities  now adopt the
\nexclusionary or\t segregative device  of de facto monopoly of
\nseats for  higher medical courses to its own alumni, Indians
\nfrom other Indian Universities being treated as aliens. This
\nxenophobic  trend   has\t forced\t  the  Delhi  University  to
\nreciprocate with high reservation.\n<\/p>\n
     If reservation  of seats, as a strategy of admission to
\ntechnical colleges, is void there may be a wider impact on a
\nnumber of  the institutions  and  individuals  than  on\t the
\nparties here.  The law\tlaid down  by this Court binds other
\ninstitutions because  Art. 141\tis  imperative.\t Sri  Shanti
\nBhushan, appearing for the University, assertively suggested
\nto the\tcontrary remembering  only the rule of res judicata,
\nbut later realised the obvious error and recanted. He agreed
\nthat if
\n837<\/span>
\nthis  Court   invalidated   reservation,   as\tsuch,\tmany
\nuniversities would  be upset  in their\tadmission processes,
\nalthough they  were not\t party-a weakness  of the  adversary
\nsystem which  needs remedying.\tSo, we\tinvited the  learned
\nAttorney General also to help the Court, which he did and we
\nrecord our  gratitude. Unfortunately, the petitioner has not
\nbeen able  to present,\tthe social  facts,  the\t educational
\nmilieu, the  statistical  materials  and  other\t vital\tdata
\nbearing on  the constitutional vice of the rule of excessive
\nreservation, and  the  respondent  University,\tdespite\t our
\nrepeated suggestions  to its  counsel, has  not enriched its
\nbrief with  sufficient\tfacts  which  enlighten\t the  court,
\nalthough some additional information has been brought in. On
\nthe other  hand, counsel’s submissions were scary, if we may
\nsay so\twith respect,  to the effect that when students went
\non a  fast unto\t death, Government had to intervene and save
\nthe  situation\t and  provide  larger  reservation.  As\t the
\nAttorney General  agreed, hunger  strikes cannot  amend\t the
\nConstitution,  and   Government,  if   impressed  with\t the
\ngrievance which\t has led  to the  protest fast,\t must set in
\nmotion changes\tin the\tbasic law,  as was done in the first
\nconstitutional\t  amendment    and    later    for    States
\nReorganisation. When  this  flaw  was  pointed\tout  to\t the
\nrespondent, some more materials were placed before the court
\nin justification  of the  increase in  the reservation quota
\nfrom a\tconstitutional angle, and we will deal with them. In
\nthe adversary  system,\tadvocacy  in  the  superior  courts,
\nwhich, their decisions, declare the law for all must broaden
\nbeyond the  particular lis into a conspectus of sociological
\nfacts, economic\t factors and  educational conditions so that
\nother persons aggrieved who will potentially be bound by the
\ndecision, do  not suffer  by not  being co-nominee  parties.
\nSurely, on  the available  material, counsel have done their
\nbest.\n<\/p>\n
     This   preliminary\t   narration\tleads\t upto\t the
\nconstitutional problem\tthat confronts\tthe  court  in\tthis
\npetition under Art. 32 and stresses how it deserves, for its
\nsolution, serious  and sensitive judicial and administrative
\nstatesmanship enlivened\t by legal  fundamentals,  since\t the
\ncrucial issue  springs from  the  pervasive  and  protective
\ntendency  for  institutional  reservation  of  post-graduate
\nseats, which,  if left\tuncanalised and\t indulged in excess,
\nmay well  imperil the  integrated status  of higher national
\neducation  and\t make  a   mockery  of\t equal\topportunity.
\nBasically, great  constitutional issues\t cannot be divorced,
\neven while being viewed from a legal perspective, from their
\nnational overtones  and individual  impact, since passionate
\nprovincialisation and addiction to institutional xenophobia,
\neven in higher education, have a suicidal fascination beyond
\nmyopic political  perception. And,  on the contrary, elitist
\nexaggeration  of   ‘national’  considerations  and  personal
\nmerit, where  local protection\tis essential for the humbler
\npeople’s interests,  has a depressing repercussion if pushed
\nbeyond a point-an aspect which expert policy-makers
\n838<\/span>
\nsometimes overlook  in unwitting  promotion of\ttheir  group
\ninterest. The  problem is  complex and\tthorny, charged with
\npractical   difficulties    and\t  fraught   with   explosive
\npossibilities. A  short cut,  in such  situations  may\twell
\nprove  a  wrong\t cut  and  so  we  are\tcircumspect  in\t our
\nassessment and\ttentative  in  our  conclusions,  especially
\nbecause counsel,  in our  adversary  system,  often  do\t not
\ntravel beyond  the narrow needs of the case and, despite our
\nprodding, we have not received the social-statistical wealth
\nof material  to help us take a comprehensive overview of the
\nissue.\tLaw,   constitutional  law,  is\t not  an  omnipotent
\nabstraction or\tdistant idealisation  but a  principled, yet
\npragmatic,   value-laden   and\t result-oriented,   set\t  of
\npropositions applicable\t to and\t conditioned by\t a  concrete
\nstage of  social development  of the nation and aspirational
\nimperatives  of\t  the  people.\t India\tTo-day-that  is\t the
\ninarticulate major  premise of\tour constitutional  law\t and
\nlife. We highlight these basics because Shri Shanti Bhushan,
\nfor the\t University, pleaded for a practical appreciation of
\nthe lot of the Delhi graduates excluded from everywhere else
\nwhile Shri  Balakrishnan for  the petitioner,  pressed for a
\nnational approach  to high-grade talent vis-a-vis courses in
\nspecialities. A\t synthesis of  both is where the truth lies.
\nThe key\t to this case, if we may anticipate ourselves, is in
\nharmoniously blending  developmental necessities of backward
\nregions\t  via\t institutional\t reservations-and   national
\nconsiderations of  everybody’s equal  opportunity for higher
\neducation  being   ensured   regardless\t  of   geographical,
\ninstitutional or  other inhibition. We must never forget two
\nvalues synthesised in our constitutional culture, as set out
\nin the\tPreamble-unity\tand  integrity\tof  the\t nation\t and
\nequality of  opportunity of  weaker  sections.\tWithout\t the
\nlatter becoming\t a sure\t reality  the  former  may  be\tmere
\nrhetoric !
\n     An epitome\t of the\t social background  leading upto the
\ncontroversy will give a hang of the case and elaboration may
\nawait a\t later\tstage.\tPost  Independence  India  has\tmany
\nuniversities with  facilities for  higher learning.  Most of
\nthem give  institutional preferences  in the  allocation  of
\nseats for  technical courses  and  this\t tendency  sometimes
\nreaches the  morbid point  of total  cornering of  seats  at
\npost-graduate  level,\tespecially  in\t the   coveted\t and
\ncompetitive branches like medicine.\n<\/p>\n
     The Delhi\tUniversity  which  has\tM.B.B.S.  and  post-
\ngraduate medical  courses, exercises  academic\tjurisdiction
\nover the  affiliated colleges in the capital of the country,
\nenjoys great  prestige\tfor  its  schools  of  learning\t and
\nexcellence  in\tteaching  and  is  founded  by\tthe  Central
\nGovernment. It\thas at\tonce a\tterritorial  limitation\t and
\nnational complexion  and it  caters to\ta population, by and
\nlarge, drawn  from all\tover the country because of the vast
\nofficial, political,  parliamentary  judicial,\teducational,
\ncommercial and\tother gravitational  pulls which the capital
\nof the
\n839<\/span>
\ncountry inevitably  exerts. This population is fluid because
\nof movements,  transfers and  a host  of other\tfactors. The
\nindigenous denizens  of Delhi  are perhaps over-run by these
\nsuper-imposed layers  and the student community of the Delhi
\nUniversity is  not made up so much by the ‘sons of the soil’
\nas in  universities in\tother places but is accounted for by
\nthe inflow  of groups  drawn from all over the country. In a
\nlimited sense,\tit is  a microcosm  if India is a macrocosm.
\nThis national  demographic composition\tis relevant  to\t the
\nexamination of the ‘reservation’ problem.\n<\/p>\n
     The capital  city is  not just  a part  of India. It is
\nminiaturised  India,   a  fact\t often\tforgotten   by\t the
\nadministration\tin  the\t field\tof  culture  and  education,
\nespecially vis-a-vis  regional minorities. It is magapolitan
\nand people  from all  parts flock to this outsized city. But
\nwe cannot  exaggerate this  factor, for\t the presence of the
\nfarther\t regions   like\t the   South  and  the\tNorth  East,
\npopulation-wise,   is\t minimal   and\t  precarious.\tShri
\nBalakrishnan insisted  that the\t University was sustained by
\nCentral\t Government   finances,\t collected  from  the  whole
\ncountry, and  the  benefits  must  likewise  belong  to\t all
\nqualified  students  from  everywhere.\tThese  are  valuable
\naspects\t to   shape  policy   but  the\t court\t must\ttest
\nconstitutionality and  no more. To that extent alone we will
\nweigh these factors in moulding our verdict.\n<\/p>\n
     We will  now identify  the\t issues\t emerging  from\t the
\nmatrix of  facts. Since\t Shri Shanti  Bhushan laid stress on
\nthese factors,\tviz. the  satyagraha crisis  created by\t the
\nstudents,  the\t obdurate,  may\t  be,\teven   obscurantist,
\nexclusiveness  of   other  Universities\t  forbidding   Delhi
\ngraduates from\tgetting admission  in their colleges and the
\nreasonableness of  institutional continuity  in\t educational
\npursuits for  students who  enter a  university\t for  higher
\nstudies, we  must dilate  on  the  foundational\t facts\tmore
\nfully. Since Sri Balakrishnan emphasised the pathetic plight
\nof  meritorious\t  students  if\t ‘apartheid’  policies\twere
\npractised by  universities, contrary  to the  cultural unity
\nand constitutional  mandates of\t our nation,  we must  weave
\ninto the  legal fabric of ‘admission’ regulations strands of
\nnational  integration\tand  equal  opportunity\t for  higher
\neducation. These  rival contentions justify, albeit a little
\nrepetitively, the recapitulation of recent events, parochial
\nrealities and  institutional behaviour, bearin on admissions
\nto colleges  in the  Delhi University, with some comparative
\nglance at others in the country.\n<\/p>\n
     We are concerned with three medical colleges, two being
\naffiliated to,\tand  one  being\t maintained,  by  the  Delhi
\nUniversity. Together  they  turn  out  annually\t around\t 400
\nmedical graduates.  These graduates  get house\tjobs in\t the
\nlocal hospitals and qualify themselves for
\n840<\/span>
\npost-graduate courses. The University has many post-graduate
\ndegrees and  diploma courses  but all  of them\tput together
\ncome to\t only 250  seats. Naturally,  the graduates from the
\nDelhi University  cannot be  accommodated fully\t or even  in
\npart for  the post-graduate  degree courses.  If, out of the
\navailable seats for the post-graduate courses, a large slice
\nis thrown up for open competition and students from all over
\nthe country  swarm to  take the\t entrance  examination,\t the
\nDelhi graduates’  prospects become bleaker. The further case
\nof the\tUniversity is  that there  is a\t harsh handicap\t for
\nthese  graduates   in  that  they  are\tnot  considered\t for
\nadmission  in  other  universities  on\taccount\t of  various
\nregional  hurdles   such  as   prescription   of   domicile,
\ngraduation in  that very  university, registration  with the
\nState Medical  Council, service in the State Medical Service
\nand the like. The necessary consequence of these road-blocks
\nin  the\t  way  of  getting  into  post-graduate\t courses  is
\ndissatisfaction frustration, fury and pressure for exclusive
\nearmarking of  all seats  at the  post-graduate level in the
\nDelhi  University   for\t the  Delhi  graduates.\t Reservation
\nelsewhere breeds  reservation here.  Good  and\tevil  become
\ncontagious and indivisible and eventually over powering. The
\nchain reaction had led to the principle of reservation being
\naccepted by  the Delhi University, first in moderate measure
\nand  next  immoderately,  maybe,  because  the\tpressure  of
\nmilitant Delhi\tgraduates forced  the University’s  hands or
\nbecause Government,  which virtually forced this solution of
\n70% plus reservation, acted on the easy guidelines : Nothing
\nsucceeds like  excess. Reservation  begins as  a mild remedy
\nbut becomes, unless leashed, a Frankensteins monster.\n<\/p>\n
     The rule  for selection  of candidates until April 1978
\nwas as follows :\n<\/p>\n
\t  (a) For the first 52% seats of the total number of
\n     seats available,  the selection  was to  be made on the
\n     basis of  combined merit  of Delhi University and other
\n     Universities medical graduates.\n<\/p><\/blockquote>\n
\t  (b) The  selection of\t the remaining 48% seats was
\n     to be made from the Delhi University graduates only.\n<\/p><\/blockquote>\n
By this\t method, approximately half the number of seats were
\nreserved for  the Delhi\t graduates. But having regard to the
\nfigures\t of   seats  and   turn-out  of\t  graduates  earlier
\nmentioned,  this  did  not  meet  the  requirements  of\t the
\naspirants for  post-graduate degrees  from Delhi. It must be
\nremembered that\t Delhi is  the seat  of the  elite, of\thigh
\nofficials, of prosperous professionals, of rich businessmen,
\nof important  politicians and  echelons of  consequence\t and
\nother men of money-power.\n<\/p>\n
841<\/span><\/p>\n
Their sons and daughters, already fed on superior facilities
\nand coached  in special\t schools beyond\t the reach  of\tmost
\nother students\tin the rest of the country, have an appetite
\nand opportunity\t for excellence in education ahead of others
\nand wish to lap up all the post-graduate seats, if possible.
\nThe  cream   must  belong   to\tthe   cream,  generation  to
\ngeneration, may be a cynical social scientists ‘comment,’
\n     Inevitably, a larger number of Delhi medical graduates,
\nrelatively speaking, must be ambitiously wanting to continue
\ntheir studies  in post-graduate\t medical courses  which\t are
\nprized for  their career  potential. It\t is significant that
\nthese courses  are not\teasily available  elsewhere and\t the
\nstandards  and\tprestige  of  these  degrees  in  the  Delhi
\nUniversity are\thigh. Taking  a post-graduate medical degree
\nthus  opens   up  further   vistas  for\t studies  abroad  or
\nemployment at  home. When  we remember these factors and the
\nreduced chance\tfor bright Delhi graduates to gain admission
\ninto the  Delhi post-graduate  courses in  the face  of All-
\nIndia competition,  we can  mildly appreciate  the mood\t and
\ndemand of  the student\tcommunity for  enlargement of  their
\nquota. But  all grievances  are not constitutional. Also, by
\nremedying one  group’s misfortune  other groups may be hurt.
\nThe Court  can only  view rights  and  wrongs,\tthrough\t the
\nconstitutional prism.  The various universities show concern
\nfor their  backward regions  and alumni in the name of equal
\nopportunity. But the Indian Medical Council, apprehensive of
\nfall of\t standards  lays  stress  on  academic\tmerit.\tThis
\ndilemma of  the law  between  equality\tof  opportunity\t and
\nexcellence of  performance leads  us to\t a demand  for\tfull
\nfacts, but,  of course,\t we are\t left to  speculate on\tmany
\naspects of the problem because even the Delhi University and
\nthe Union of India have left us in the lurch. Litigation, on
\na  socio-legal\tissue  of  critical  constitutional  moment,
\nshould not end with general assertions, affidavits of formal
\ndenials and  minimal materials but, as stated earlier, needs
\nfeeding the court with nutritive facts which build the flesh
\nand blood  of the administrative or legislative action under
\nchallenge and  all other  surrounding and  comparative\tdata
\nwhich legitimate  the ‘reservation’ or other procedure under
\nattack\tfrom   the   constitutional   angle.   ‘Reservation’
\njurisprudence is  a tangled  knot carefully  to be developed
\nand counsel cannot invite judges to make hunches as a cover-
\nup for party’s failure. And ingenious or imaginative orality
\nin court  can never  be a  substitute  for  well-researched,
\ndown-to-earth factuality  in the  brief. Many a case is lost
\nor won because counsel and court engage in the game of blind
\nman’s buff since investigative undertakings and presentation
\nof constitutionally  vital data\t do not\t find a place in the
\nbrief and our forensic process inhibits travels beyond the
\n842<\/span>
\npaper books  in court ! Nevertheless, for the nonce, we have
\nto make do with the record.\n<\/p>\n
     Let us  go back  to the basics. The Indian Constitution
\nis wedded  to equal protection and non-discrimination. Arts.
\n14, 15\tand 16\tare inviolable\tand  Art.  29(2)  strikes  a
\nsimilar\t note\tthough\tit   does  not\t refer\tto  regional
\nrestrictions or\t reservations. Art.  15\t saves\tthe  State’s
\npower to  make special\tprovisions for women and children or
\nfor  advancement  of  socially\tand  educationally  backward
\nclasses.  Reservations\t under\tArt.  15(4)  exist  and\t are
\napplied. There is no dispute about that and the whole debate
\nhas left  that pattern\tand policy  of ‘reservation’  out of
\ncontroversy.  We   zero-in  only   university-wise   quotas,
\nreservations and  preferences from the constitutional stand-
\npoint.\n<\/p>\n
     The primary  imperative of\t Arts. 14  and 15  is  equal
\nopportunity for\t all across the nation to attain excellence-
\nand this has burning relevance to our times when the country
\nis gradually  being ‘broken  up\t into  fragments  by  narrow
\ndomestic  walls’   in  politics,  economics  and  education,
\nundoing the  founding faith of an undivided integrated India
\nby surrender to lesser appeals and grosser passions. What is
\nfundamental,  as   an  enduring\t value\tof  our\t polity,  is
\nguarantee to  each of  equal opportunity  to unfold the full
\npotential of  his personalities.  Anyone anywhere, humble or
\nhigh, agrestic\tor urban,  man or  woman, and  whatever\t his
\nreligion or  irreligion, shall\tbe afforded equal chance for
\nadmission to  any secular  educational course  or school for
\ncultural   growth,    training\t facility,   speciality\t  or
\nemployment. Each  according to\this ability, is of pervasive
\nvalidity, and  it is  a latent,\t though radical, fundamental
\nthat, given  propitious environments, talent is more or less
\nevenly distributed  and everyone has a prospect of rising to
\nthe  peak.  Environmental  inhibitions\tmostly\t‘freeze\t the
\ngenial current\tof the\tsoul’ of  many a  humble human whose
\nfailure is  ‘inflicted’, not  innate. Be it from the secular
\nperspective of\thuman equality\tor the\tspiritual insight of
\ndivinity in  everyone, the  inherent superiority cult with a
\nherrenvolk tint,  is contrary to our axiom of equality. That
\nis why\t‘equal protection  of the  laws’ for  full growth is
\nguaranteed, apart  from ‘equality  before the law’. Even so,
\nin our\timperfect society,  some  objective  standards\tlike
\ncommon admission  tests are  prescribed\t to  measure  merit,
\nwithout\t  subjective\tmanipulation   or    university-wise
\ninvidiousness. In  one sense, it is a false dilemma to think
\nthat there  is\trivalry\t between  equality  and\t excellence,
\nalthough superficially\tthey are  competing values.  In\t the
\nlong run,  when\t every\tmember\tof  the\t society  has  equal
\nopportunity, genetically and environmentally, to develop his
\npotential, each will be able, in his own way,
\n843<\/span>
\nto manifest his faculty fully. The philosophy and pragmatism
\nof universal  excellence through universal equal opportunity
\nis part of our culture and constitutional creed.\n<\/p>\n
     This norm\tof non-discrimination,\thowever,  admits  of
\njust exceptions geared to equality and does not forbid those
\nbasic measures\tneeded to  abolish the\tgaping realities  of
\ncurrent inequality  afflicting\tsocially  and  educationally
\nbackward  classes’   and  ‘the\t Scheduled  Castes  and\t the
\nScheduled Tribes’.  Such measures are rightly being taken by
\nthe State  and are  perfectly constitutional as the State of
\nKerala v.  N. M. Thomas<\/a>(1) has explained. Equality and steps
\ntowards equalisation are not idle incantation but actuality,
\nnot mere  ideal but real, life. But can a university, acting
\nwithin the  constitutional parameters,\tcreate a new kind of
\ndiscrimination\tviz.,\treservation  for   students   of   a
\nparticular university?\tThe literal  terms of Art. 14 do not
\ntolerate it,  the text\tof Art. 15 does not sanction it. Can
\nwe carve  out a fresh ground of preference? Delhi University
\nstudents, as  such, are\t not an educationally backward class
\nand, indeed, institution-wise segregation or reservation has
\nno place  in the  scheme of  Art. 15,  although\t social\t and
\neducational destitution\t may be endemic in some parts of the
\ncountry where  a college  or university\t may be\t started  to
\nremedy this  glaring imbalance\tand  reservation  for  those
\nalumi for higher studies may be permissible. We will explain
\nthis further  but, speaking generally, unless there is vital
\nnexus  with   equal   opportunity,   broad   validation\t  of
\nuniversity-based reservation  cannot be\t built on  the vague
\nground that  all other universities are practising it-a fact
\nnot  fully   proved  before   us  either.   Universality  of
\nillegality,  even  if  the  artists  of\t discrimination\t are
\nuniversities,\t cannot\t   convert    such    praxis\tinto
\nconstitutionality. Nor, indeed, can the painful circumstance
\nthat a\tbatch of medical graduates demonstratively fasted in
\nfront of  the Health  Minister’s house, ipso facto, legalise
\nreservation of\tseats in  their favour.\t Shri Shanti Bhushan
\nvividly described  his role  as Law  Minister in meeting the
\nstudent satyagrahis  who  were\thonestly  hungry  for  post-
\ngraduate seats\tand the crisis which stampeded government to
\nintervene and  make the\t University revise  its\t reservation
\nupward to  save the lives of the ‘fasters’. We have sympathy
\nfor students,  especially  for\tthose  who  sacrifice  their
\ncomforts to  claim  an\topportunity  to\t take  post-graduate
\nmedical degrees.  We even  feel that  the student  community
\noften resorts  to direct action of the satyagraha model when
\nthe pachydermic\t disposition of\t authorities drives  them to
\nsuch drastic heroics. But what if non-Delhi students
\n844<\/span>
\nstart a\t rival starvation  exercise  ?\tThat  will  lead  to
\ntesting the  rule of  law on  the  immolative  or  masochist
\ncapabilities of\t affected groups  and not on the Articles of
\nthe Constitutional or provisions of the legislation. Protest
\nfasting, a  versatile weapon  in our  cultural\tarmoury,  is
\nmeant  to   sensitize  or   conscientize  the  soul  of\t the
\nAdministration when  it is  too paper-logged  or callous  to
\nlook at\t human problems\t from the  angle of  human  justice.
\nBeyond that, this great Gandhian technique cannot be blunted
\nby promiscuous\tuse, so\t long as  democratic mechanisms\t are
\nalive and not impervious to legitimate grievances and can be
\nsparked\t into  action  not  merely  by\tsensational,  though
\nsincere, tactics like fasting unto death. While recognising,
\neven reverencing,  the role  of soul force in quickening the
\ncallous conscience  of authorities  to grave injury and need
\nfor urgent  remedy, we\tcannot uphold the Delhi University’s
\n‘reservation’ strategy\tmerely because\tGovernment was faced
\nwith student  ‘fasts’ and  ministers  desired  a  compromise
\nformula and  the University  bodies simply  said ‘Amen’. The
\nconstitutionality  of\tinstitutional  reservation  must  be
\nfounded on facts of educational life and the social dynamics
\nof equal  opportunity Political\t panic does  not ipso facto,
\nmake constitutional logic.\n<\/p>\n
     Prima facie,  equal marks\tmust have  equal chance\t for
\nmedical\t admissions,  as  urged\t by  the  practitioner.\t And
\nneither university  based favoured treatment nor satyagraha-
\ninduced quota  policy can survive the egalitarian attack. To
\nrepulse the  charge, equality  oriented grounds must be made
\nout. Constitutional  equality itself  is dynamic,  flexible,
\nand moulded  by the  variables of  life. For  instance, if a
\nregion is  educationally backward  or woefully\tdeficient in
\nmedical\t services,  there  occurs  serious  educational\t and
\nhealth-service disparity  for that human religion which must
\nbe redressed  by an  equality  and  service  minded  Welfare
\nState. The  purpose of\tsuch  a\t policy\t is  to\t remove\t the
\nexisting inequality  and to  promote welfare-based  equality
\nfor the\t denizens of  the  backward  regions.  The  specific
\nstrategy to  ameliorate the  unequal societal  condition  is
\nleft to\t the State,  provided  it  is  geared  to  producing
\nequality in  the quality  of life  of that  handicapped area
\nsubject, of  course,  to  basic\t recognition  of  individual
\nquality and criteria of efficiency.\n<\/p>\n
     If the  State, for example, seeks to remove the absence
\nof  opportunity\t  for  medical\t education  of\tadivasis  or
\nislanders who  have no\tinclination or\twherewithal to go to
\nfar-off cities\tand join  medical colleges,  by\t starting  a
\nregional university and medical college in the heart of such
\nbackward region\t and reserves  a high  percentage  of  seats
\nthere to  ‘locals’ i.e.\t students from\tthat university,  it
\ncannot be
\n845<\/span>
\ncastigated as  discriminatory. What  is directly intended to
\nabolish\t  existing    disparity\t  cannot   be\taccused\t  of
\ndiscrimination.\n<\/p>\n
     Again, if\tthe State  finds that only students from the
\nbackward regions,  when given  medical graduation, will care
\nto serve  in that  area, drawn\ttowards it  by\ta  sense  of
\nbelonging, and\tthose from  out-side  will,  on\t graduation,
\nleave for  the cities  or their own regions, it may evolve a
\npolicy of  preference or  reservation for  students of\tthat
\nUniversity. That  strategy ensures  the probability of their
\nserving the  backward people  for whose\t benefit the medical
\ncourses were  opened. Such  measures which make for equality
\nof opportunity for medical education and medical service for
\nbackward human\tsectors may  be constitutionalised  even  by
\nArts. 14  and 15.  But it must be remembered that exceptions
\ncannot over-rule  the rule  itself by  running\triot  or  by
\nmaking\treservations   as  a  matter  of  course,  in  every
\nuniversity and every course. For instance, you cannot wholly
\nexclude meritorious  candidates as  that will  promote\tsub-
\nstandard candidates  and  bring\t about\ta  fall\t in  medical
\ncompetence, injurious,\tin the long run, to the very region.
\nIt is  no blessing  to inflict quacks and medical midgets on
\npeople by  wholesale sacrifice\tof talent  at the threshold.
\nNor can\t the very  best be  rejected from  admission because
\nthat will  be a national loss and the interests of no region
\ncan be\thigher than  those of  the nation.  So, within these
\nlimitations, without  going into excesses, there is room for
\nplay of the State’s policy choices.\n<\/p>\n
     Before moving  to the  next aspect\t we may touch upon a
\nslightly different angle which opens up a new point of view.
\nWhat is merit or excellence ? If potential for rural service
\nor aptitude  for rendering  medical attention among backward
\npeople is  a criterion of merit and it, undoubtedly, is in a
\nland of\t sickness and  misery, neglect and penury, wails and
\ntears-then, surely,  belonging to a university catering to a
\ndeprived region\t is a  plus point  of merit.  Excellence  is
\ncomposite and  the heart and its sensitivity are as precious
\nin the\tscale of  educational values  as the  head  and\t its
\ncreativity and social medicine for the common people is more
\nrelevant than peak performance in freak cases. Marks on this
\nbasis will  take us  to the  same preference as reservations
\nfor in-university candidates. Here we are not preferring one
\nwith less  marks, but  adopting a holistic manner of marking
\nlinked up  with backward  settings, institution oriented and
\nlike considerations has some meaning.\n<\/p>\n
     A caveat  or two  may be  sounded even in this approach
\nlest exception should consume the rule. The first caution is
\nthat reservation  must be  kept in  check by  the demands of
\ncompetence. You\t cannot extend\tthe shelter  of\t reservation
\nwhere minimum qualifications are
\n846<\/span>
\nabsent. Similarly,  all the best talent cannot be completely
\nexcluded by wholesale reservation. So, a certain percentage,
\nwhich may  be available,  must be  kept open for meritorious
\nperformance regardless\tof university,\tState and  the like.
\nComplete exclusion  of the  rest of the country for the sake
\nof a  province, wholesale  banishment of  proven ability  to
\nopen up,  hopefully, some  dalit talent,  total sacrifice of
\nexcellence   at\t  the\taltar\tof   equalisation-when\t the
\nConstitution mandates  for every  one  equality\t before\t and
\nequal protection  of  the  law-may  be\tfatal  folly,  self-
\ndefeating educational  technology and antinational if made a
\nroutine\t rule\tof  State   policy.  A\tfair  preference,  a
\nreasonable reservation, a just adjustment of the prior needs
\nand real  potential of the weak with the partial recognition
\nof the presence of competitive merit-such as the dynamics of
\nsocial justice which animates the three egalitarian articles
\nof the Constitution.\n<\/p>\n
     Flowing from  the same  stream of\tequalism is  another
\nlimitation. The\t basic medical\tneeds of  a  region  or\t the
\npreferential push  justified for  a handicapped group cannot
\nprevail\t in  the  same\tmeasure\t at  the  highest  scale  of
\nspeciality  where   the\t best\tskill  or  talent,  must  be
\nhandpicked by  selecting according  to\tcapability.  At\t the
\nlevel of Ph.D., M.D., or levels of higher proficiency, where
\ninternational measure  of talent  is made,  where losing one
\ngreat scientist\t or technologist in the making is a national
\nloss the  considerations we  have expanded upon as important
\nlose their  potency. Here  equality,  measured\tby  matching
\nexcellence, has\t more meaning  and cannot  be  diluted\tmuch
\nwithout grave  risk. The  Indian Medical Council has rightly
\nemphasised that\t playing  with\tmerit  for  pampering  local
\nfeeling will  boomerang. Midgetry,  where  summitry  is\t the
\ndesideratum, is\t a dangerous  art. We  may here\t extract the
\nIndian Medical\tCouncil’s recommendation,  which may  not be
\nthe  last   word  in   social  wisdom\tbut  is\t  worthy  of
\nconsideration:\n<\/p>\n
\t  Student  for\t post-graduate\ttraining  should  be
\n     selected strictly\ton merit  judged  on  the  basis  of
\n     academic  record\tin  the\t undergraduate\tcourse.\t All
\n     selection for post-graduate studies should be conducted
\n     by the Universities.<\/p><\/blockquote>\n
     Another  casuistry\t  needs\t to  be\t exposed  before  we
\nproceed. Backward  regions and\tuniversities in\t consequence
\nare  miles  away  from\tforward\t cities\t with  sophisticated
\ninstitutions. The  former, for a equalisation, need crutches
\nand extra  facilities to  overcome  injustices.\t The  latter
\nalready enjoy all the advantages of the elite and deserve no
\nfresh props.  That  will  be  double  injury  to  claims  of
\nequality  of   the  capable   candidates  coming  from\tless
\npropitiously circumstanced  universities and  societies. Law
\nis no  absolute logic  but the\thandmaid of  current  social
\nfacts of life.\n<\/p>\n
847<\/span><\/p>\n
     We hasten\tto keep aloof from reservations for backward
\nclasses\t and   Scheduled  Castes   and\tTribes\tbecause\t the
\nConstitution has  assigned a  special place  for that factor
\nand they  mirror problems  of inherited injustices demanding
\nsocial surgery\twhich  if  applied  thoughtlessly  in  other
\nsituations may be a remedy which accentuates the malady.\n<\/p>\n
     At this  stage it is appropriate to refer to one ruling
\nof  this  Court\t which\trelates\t partly\t to  university-wise
\nreservation in\tthe context  of backward areas. Support from
\nprecedents  for\t the  propositions  implicit  in  the  above
\ndiscussion can\tbe derived,  but  we  need  not\t cover\tmany
\nrulings and  may confine  ourselves to one or two which have
\ncloser\tbearing\t  than\tthe  rest.  In\tChanchala’s  case(1)
\nuniversity-wise\t   reservation\t   was\t   challenged\t  as
\nunconstitutional. There\t was reference\tto earlier decisions
\nsuch as\t Rajendran v.  Madras(2) and  Periakaruppan v. Tamil
\nNadu<\/a>(3) and  their ratio  was  distinguished  to  reach\t the
\nconclusion that\t under certain circumstances university-wise
\nclassification\t and\treservation   was   constitutionally
\npermissible. In Rajendran’s case (supra) district-wise quota
\nfor   medical\t college   admissions\t was   struck\tdown
\nnotwithstanding the  argument that  “if selection  was\tmade
\ndistrictwise, those  selected from a district were likely to
\nsettle down  as practitioners  in that district, so that the
\ndistricts were\tlikely to  benefit from\t their training”.(4)
\nThe  Court   did  not  consider\t this  to  be  intrinsically
\nirrelevant but negatived the contention.\n<\/p>\n
\t  “On the  ground that it was neither pleaded in the
\n     counter-affidavit of  the\tState,\tnor  had  the  State
\n     placed any\t facts or  figures justifying  the plea that
\n     students selected\tdistrict-wise would  settle down  as
\n     medical practitioners  in the respective district where
\n     they resided.”\n<\/p><\/blockquote>\n
The emphasis in both the cases (Rajendran and Periakaruppan)
\nwas on\tthe reasonable nexus with the object of the rules of
\nselection, namely,  to get  the most  meritorious among\t the
\ncandidates for\timparting medical  education. In Chanchala’s
\ncase the  basis of classification was different: “in that it
\nis neither  district-wise nor  unit-wise, but is university-
\nwise.”(5) The  justification for university-wise reservation
\nwas the\t educational need  and paucity of medical service in
\nthe area  where the  university was  set up. Certain regions
\npoorly served  with medical  facilities and with few doctors
\nneeded to produce more medical men
\n848<\/span>
\nwho would  settle down\tthere. Likewise,  in those  backward
\nregions\t the   absence\tof   medical  colleges\t effectively
\ninhibited the  needs  of  medical  education  of  the  local
\nstudent community.  The question  was whether  these grounds
\nwould suffice for providing reservation institution-wise. In
\nthis setting, the Court observed:\n<\/p>\n
\t  “Since the universities are set up for satisfying-
\n     the educational needs of different areas where they are
\n     set up  and medical  colleges are\testablished in those
\n     areas, it can safely be presumed that they also were so
\n     set up  to satisfy\t the needs  of medical\ttraining  of
\n     those attached to those universities. In our view there
\n     is nothing\t undesirable in ensuring that those attached
\n     to such  universities  have  their\t ambitions  to\thave
\n     training  in   specialised\t subjects,   like  medicine,
\n     satisfied through\tcolleges  affiliated  to  their\t own
\n     universities. Such\t a basis  for selection\t has not the
\n     disadvantage of district-wise or unit-wise selection as
\n     any student  from any  part of  the state\tcan pass the
\n     qualifying examination in any of the three universities
\n     irrespective of  the place\t of his\t birth or residence,
\n     Further, the rules confer a discretion on the selection
\n     committee to  admit outsiders  upto 20%  of  the  total
\n     available seats  in any  one of  these  colleges,\ti.e.<\/p><\/blockquote>\n
     those who\thave passed  the equivalent examination held
\n     by any  other university not only in the State but also
\n     elsewhere in India.”(1)
\nIn the\tcourse of  the Judgment, Shelat, J. speaking for the
\nCourt, was inclined to broaden the principle of equalisation
\nimplied in Art. 15(4).(2)
\n\t  “Once the  power to  lay down\t classifications  or
\n     categories of  persons from  whom admission  is  to  be
\n     given is  granted, the only question which would remain
\n     for consideration\twould be whether such categorisation
\n     has an  intelligible criteria  and\t whether  it  has  a
\n     reasonable relation with the object for which the Rules
\n     for  admission   are  made.  Rules\t for  admission\t are
\n     inevitable so  long as  the demand\t of every  candidate
\n     seeking admission\tcannot be  complied with  in view of
\n     the paucity  of institutions imparting training in such
\n     subjects as  medicine. The\t definition of\ta ‘political
\n     sufferer’ being a detailed one and in certain terms, it
\n     would be  easily possible\tto distinguish\tchildren  of
\n     such political  sufferers from  the rest  as possessing
\n     the criteria laid down by the definition. The object of
\n     the rules for admission can obviously
\n849<\/span>
\n     be to secure a fair and equitable distribution of seats
\n     amongst those  seeking admission  and who\tare eligible
\n     under the University Regulations. Such distribution can
\n     be on  the principle that admission should be available
\n     to the  best and  the most\t meritorious. But an equally
\n     fair and  equitable principle  would also be that which
\n     secures admission in a just proportion to those who are
\n     handicapped and who, but for the preferential treatment
\n     given to  them, would  not stand a chance against those
\n     who are  not so  handicapped and  are, therefore,\tin a
\n     superior position.\t The principle underlying Art. 15(4)
\n     is that  a preferential  treatment can validly be given
\n     because the socially and educationally backward classes
\n     need it,  so that in course of time they stand in equal
\n     position  with   the  more\t advanced  sections  of\t the
\n     society. It  would not  in any  way be improper if that
\n     principle were  also to  be applied  to those  who\t are
\n     handicapped but do not fall under Art. 15(4).”
\n     Another observation  by Dua, J. in his separate opinion
\nalso has pregnant meaning (1):\n<\/p>\n
\t  “The object  of selection  for  admission  to\t the
\n     Medical Colleges,\tconsidered in  the background of the
\n     directive principles  of State  policy contained in our
\n     Constitution, appears to be to select the best material
\n     from amongst  the\tcandidates  in\torder  not  only  to
\n     provide them  with adequate  means of  livelihood,\t but
\n     also to  provide the  much needed\tmedical aid  to\t the
\n     people and to improve public health generally.”\n<\/p><\/blockquote>\n
\t\t\t\t\t    (emphasis added)
\n     The conclusion  that we  reach from  this ruling  which
\nadverts\t to   earlier  procedents   on\tthe  point  is\tthat
\nuniversity-wise\t preferential\ttreatment   may\t  still\t  be
\nconsistent with the rule of equality of opportunity where it
\nis calculated to correct an imbalance or handicap and permit
\nequality in the larger sense.<\/p><\/blockquote>\n
     This extensive  excursion is necessitated by the subtle
\ntendency  of   advantage  groups   to  exploit\tpropositions
\napplicable to  disabled categories to good account. Now, let
\nus look at the raw realities of the Delhi University medical
\ngraduates and  their claim  for larger\treservation for M.D.
\nand M.S.  Facts, and  only facts,  must\t be  the  guide,  of
\ncourse, within the framework of Part III, and this Court has
\nto play\t the role  not only  of the sentinel on the qui vive
\nbut also
\n850<\/span>
\nof the ‘hound of heaven’, not merely watch but chase, to set
\nthings right if any constitutional wrong has been committed.
\nSo  we\tmust  enquire  whether\t70%  reservation  for  Delhi
\ngraduates  which   is  prima  facie  discriminatory  can  be
\nextricated by any amelioratory constitutional logic or ethic
\nimplicit in  Arts. 14 and 15. We have set out the parameters
\nwithin which alone reservation is permissible.\n<\/p>\n
     We must  go to  the roots\tof the creed of equality and
\nhere the  case of  State of  Kerala v.\tN. M.  Thomas<\/a>(1) has
\ncritical relevance.  That decision  dealt with the Scheduled
\nCastes\tand  Art.  16  and  certain  facilities\t other\tthan
\nreservation. But the core reasoning has crucial significance
\nin all\tcases of  protective discrimination.  The process of
\nequalisation and benign discrimination are integral, and not
\nantagonistic,  to   the\t principle   of\t  equality.   In   a
\nhierarchical society  with an  indelible  feudal  stamp\t and
\nincurable actual  inequality, it  is sophistry to argue that
\nprogressive measures  to eliminate  group  disabilities\t and
\npromote collective  equality are  anathema on the score that
\nevery individual  has entitlement  on pure  merit of  marks.
\nThis narrow ‘unsocial’ pedantry subverts the seminal essence
\nof equal  opportunity even  for those  who  are\t humble\t and
\nhandicapped. Meritocracy  cannot displace  equality when the
\nutterly backward  masses labour under group disabilities. So
\nwe may\tweave those  special  facilities  into\tthe  web  of
\nequality which,\t in an\tequitable setting,  provide for\t the
\nweak and  promote their\t levelling up  so that,\t in the long
\nrun, the  community at\tlarge may enjoy a general measure of
\nreal equal  opportunity. So  we hold,  even apart  from Art.
\n15(3) and  (4), that  equality is  not negated\tor neglected
\nwhere special  provisions are  geared to  the larger goal of
\nthe disabled  getting over  their  disablement\tconsistently
\nwith the  general good and individual merit. Indeed, Art. 14
\nimplies all  this, in  its wider  connotation,\tand  has  to
\ninform the interpretation of Art. 15.\n<\/p>\n
     Mathew J.\tin Thomas’s  case (supra)  quoted  from\t the
\nMoynihan Report\t and continued with some insightful comments
\nwhich we may excerpt: (2)
\n\t  “Here a  point of  semantics must  be grasped. The
\n     demand for\t equality of  opportunity has been generally
\n     perceived by White Americans as a demand for liberty, a
\n     demand not to be excluded from the competition of life-
\n     at the  polling place, in the scholarship examinations,
\n     at the
\n851<\/span>
\n     personnel office,\ton the housing market. Liberty does,
\n     of course,\t demand that  everyone be  free to  try\t his
\n     luck, or  test his\t skill in  such matters.  But  these
\n     opportunities do  not necessarily\tproduce equality. On
\n     the contrary,  to the extent that winners imply losers,
\n     equality of  opportunity almost  insures inequality  of
\n     results.\n<\/p>\n
\t  The  point   of  semantics  is  that\tequality  of
\n     opportunity now  has a  different meaning\tfor  Negroes
\n     than it  has for  Whites. It  is not  (or at  least  no
\n     longer) a\tdemand\tfor  liberty  alone,  but  also\t for
\n     equality-in terms\tof group results. In Barard Rustin’s
\n     terms, ‘It\t is now\t concerned not\tmerely with removing
\n     the barriers to full opportunity but with achieving the
\n     fact  of\tequality.’  By\t equality  Rustin   means  a
\n     distribution  of  achievements  among  Negroes  roughly
\n     comparable to that among Whites.(1)
\n\t  Beginning most  notably with\tthe Supreme  Court’s
\n     condemnation of  school segregation in 1954, the United
\n     States has\t finally begun\tto correct  the\t discrepancy
\n     between its  ideals and its treatment of the black man.
\n     The first\tsteps, are reflected in the decisions of the
\n     courts and\t the civil  rights laws\t of Congress, merely
\n     removed the  legal\t and  quasi-legal  forms  of  racial
\n     discrimination. These  actions while not producing true
\n     equality, or  even equality  of opportunity,  logically
\n     dictated the  next steps:\tpositive use  of  government
\n     power to  create the possibility of a real equality. In
\n     the  words\t of  Professor\tLipset:\t “Perhaps  the\tmost
\n     important fact to recognise about the current situation
\n     of the  American Negro  is that (legal) equality is not
\n     enough to insure his movement into larger society.”(2)
\n\t\t\t\t\t    (emphasis added)
\n     We agree with this approach and feel quite clearly that
\nthe  State’s  duty  is\tto  produce  real  equality,  rather
\negalitarian justice in actual life.\n<\/p>\n
     If\t university-wise  classification  for  post-graduate
\nmedical education is shown to be relevant and reasonable and
\nthe  differential   has\t a  nexus  to  the  larger  goal  of
\nequalisation  of   educational\topportunities  the  vice  of
\ndiscrimination may not invalidate the rule.\n<\/p>\n
852<\/span><\/p>\n
     Even  so,\t what  is   fundamental\t is   equality,\t not
\nclassification. What is basic is equal opportunity, for each
\naccording     to     his     ability,\t  not\t  artificial
\ncompartmentalisation  and   institutional  apartheidisation,
\nusing the  mask\t of  handicaps.\t We  cannot  contemplate  as
\nconsistent with\t Art. 14  a clanish exclusivism based upon a
\nparticular university,\twithout more.  Alive to\t these major
\npremises  let  us  examine  the\t merits\t of  the  charge  of
\n‘admission’ discrimination  in\tthe  present  case,  Justice
\nBrennan, in  a different social milieu, but with a spiritual
\nsecular meaning which may not be lost on us, stated:(1)
\n\t  “Lincon said this Nation was ‘conceived in liberty
\n     and dedicated  to the  proposition\t that  all  men\t are
\n     created equal’.  The Founders’ dream of a society where
\n     all men  are free\tand  equal  has\t not  been  easy  to
\n     realize. The degree of liberty and equality that exists
\n     today has\tbeen the  product of  unceasing struggle and
\n     sacrifice. Much  remains to  be done-so  much that\t the
\n     very  institutions\t of  our  society  have\t come  under
\n     challenge. Hence,\ttoday, as  in Lincoln’s\t time, a man
\n     may  ask  ‘whether\t (this)\t nation\t or  any  nation  so
\n     conceived and  so dedicated can long endure’. It cannot
\n     endure if\tthe Nation  falls short on the guarantees of
\n     liberty, justice, and equality embodied in our founding
\n     documents. But  it also  cannot endure  if our precious
\n     heritage of  ordered liberty  be allowed  to be  ripped
\n     apart amid\t the sound  and fury  of our time. It cannot
\n     endure if\tin individual  cases the  claims  of  social
\n     peace and order on the one side and of personal liberty
\n     on the  other cannot  be mutually resolved in the forum
\n     designated by  the\t Constitution.\tIf  that  resolution
\n     cannot be\treached by judicial trial in a court of law,
\n     it will  be reached  elsewhere and\t by other means, and
\n     there will\t be grave danger that liberty, equality, and
\n     the order essential to both will be lost.”\n<\/p>\n
     Another national  risk we\trun was\t sounded in words of
\ncaution in  Khosa’s case  by Chandrachud,  J.  (as  he\tthen
\nwas):(2)
\n\t  “…..let us\tnot  evolve,  through  imperceptible
\n     extensions,  a   theory  of  classification  which\t may
\n     subvert, perhaps  submerge, the  precious guarantee  of
\n     equality. The  eminent spirit  of an  ideal society  is
\n     equality  and  so\twe  must  not  be  left\t to  ask  in
\n     wonderment: what  after all is the operation residue of
\n     equality and equal opportunity?”\n<\/p>\n
853<\/span><\/p>\n
     Thus the  constitutional principles and limitations are
\nclear and  the norms  are belighted  by the  precedents\t but
\ntheir application  to the  specific situation is an exacting
\ntask. The burden, when protective discrimination promotional
\nof equalisation\t is pleaded,  is on  the party\twho seeks to
\njustify the  ex facie  deviation from equality. What has the
\nDelhi University  stated here?\tThe learned Attorney General
\nfrankly admitted that student agitation, without more, could
\nnot validate  ‘reservation’ and\t that excessive\t reservation
\nwas an\tobvious inequality.  Nor, indeed,  is it a good plea
\nthat  illegal\treservation  is\t being\tpractised  by  other
\nuniversities and  the Delhi  University\t is  forced  to\t act
\nillegally in self-defence. Lawlessness, under our system, is
\ncorrected by  the law,\tnot by counter-lawlessness. So it is
\nstrange for  the Delhi\tUniversity  to\tsay  our  disorderly
\nbehaviour  is  orderly\tbecause\t other\tuniversities  behave
\nsimilarly. Once these misguided defences of direct action by
\nstudents or reprisals against other universities are brushed
\naside, we  come to  grips with\tthe real  issues.  Is  there
\ncircumstantial\tjustification  for  constitutionalising\t the
\nrservation strategy, especially of 70% plus?\n<\/p>\n
     The  case\t for  reservation   argues  itself  once  we
\nestablish an  operational relationship\tbetween\t the  benign
\nbasis of  such classified  quota or  like preference and the
\nobject to be achieved viz. promotion of better opportunities
\nto the\tdeprived categories  of students or better supply of
\nmedical service\t to neglected  regions of  our land. But the
\nDelhi University,  city or  students, do  not fit  into\t the
\ncriteria.\n<\/p>\n
     When a  university or other institution may usefully be
\nmade the  instrument for  promotion of\tfacilities for equal
\neducational opportunity\t for a\tclass or a region, the State
\nmay  legitimately   resort  to\t institutionally  classified
\nreservation but\t Delhi fails to quality. Again, the integral
\nyoga of equality and excellence at the service of society as
\nalready stated,\t has another  rider. In the higher scales of
\nspecialised knowledge,\tbe it  art, science  or\t technology,
\nsuperior performance  must be  accorded recognition,  for  a
\nvariety of consideration. Who but humanity suffers if a rare
\ngenius, with  a greater flair for or mastery of a key branch
\nof natural  or social science, is forced to wither away by a
\nrule  of   total  reservation\tfor  its   own\talumni\t and
\nproscription of\t outsiders, by\ta house of higher learning ?
\nCan ‘unapproachability’,  a cultural  anathema now in India,
\nattain respectability  by being\t labelled as  ‘reservation ?
\nNo. Therefore, a blanket ban which is the indirect result of
\na wholesale reservation is constitutional heresy. There must
\nbe substantial\tsocial justice\tas raison  d’etre for a high
\npercentage of alumni reservation
\n854<\/span>
\n     The argument  urged in  answer is\tthat the  doors\t for
\nadmission  to\tpost-graduate  medical\tcourses\t are  almost
\ncompletely  closed   for  Delhi\t  graduates  by\t  all  other
\nuniversities. So,  protective reservation  becomes necessary
\nas the\tonly  hope  of\tDelhi  students\t for  post  graduate
\nstudies. Those\treal-life  factors  which  show\t that  Delhi
\ngraduates are  denied de  facto equality on a national scale
\nby  the\t  exclusionism\tof   other  universities  and  that,
\ntherefore,  they  deserve  sheltered  equal  opportunity  in
\nactuality by barriers of reservation of a high percentage of
\nseats-such being  the University’s  defence must be made out
\nand not\t merely asserted.  This\t contention  deserves  close
\nexamination, not summary rejection.\n<\/p>\n
     The mechanics  of\tmerit  measurement  is\tsimple.\t All
\napplicants, whichever  the University  from where  they have
\ntaken M.B.B.S.\tdegree, must  apply for\t a  common  entrance
\ntest.  The  yard-stick\tof  merit  is  the  marks  obtained.
\nThereafter 70%\tof the\tseats is allotted to Delhi graduates
\nand the\t balance  30%  is  selected  from  out\tof  all\t the
\nremaining applicants,  Delhi graduates included. So much so,
\nDelhi graduates\t get much  more than 70% of the total seats.
\nAlthough the  stage of\tapplication of\treservation may bear
\nupon the  effective  quantum  of  advantage,  the  principal
\nquestion is  as to  whether a  minimum of  70% for the Delhi
\ngraduate alone is not far too excessive, based on extraneous
\nagitational factors  and essentially  contradicting Arts. 14
\nand 15?\n<\/p>\n
     If equality  of opportunity  for every  person  in\t the
\ncountry is  the constitutional\tguarantee, a  candidate\t who
\ngets more  marks than  another is entitled to preference for
\nadmission. Merit  must be  the test  when choosing the best,
\naccording to this rule of equal chance for equal marks. This
\nproposition has\t greater importance when we reach the higher
\nlevels of  education like  post-graduate courses. After all,
\ntop technological expertise in any vital field like medicine
\nis nation’s  human  asset  without  which  its\tadvance\t and
\ndevelopment will be stunted. The role of high grade skill or
\nspecial\t talent\t  may  be  less\t at  the  lesser  levels  of
\neducation, jobs and disciplines of social inconsequence, but
\nmore at\t the  higher  levels  of  sophisticated\t skills\t and
\nstrategic employment.  To devalue  merit at the summit is to
\ntemporise with\tthe country’s development in the vital areas
\nof professional\t expertise. In\tscience and  technology\t and
\nother specialised  fields of  developmental significance, to
\nrelax lazily  or easily\t in regard  to exacting standards of
\nperformance may\t be running a grave national risk because in
\nadvanced medicine  and other  critical departments of higher
\nknowledge, crucial to material progress, the people of India
\nshould not  be denied  the best\t the nation’s  talent  lying
\nlatent can produce. If the best potential in these fields is
\ncold-shouldered
\n855<\/span>
\nfor populist  considerations  garbed  as  reservations,\t the
\nvictims, in  the long  run, may be the people themselves. Of
\ncourse, this  unrelenting strictness  in selecting  the best
\nmay not\t be so\timperative at  other levels  where  a  broad
\nmeasure of  efficiency may be good enough and what is needed
\nis merely to weed out the worthless.\n<\/p>\n
     Coming to\tbrasstacks, deviation  from equal marks will
\nmeet with  approval only if the essential conditions set out
\nabove are fulfilled. The class which enjoys reservation must
\nbe educationally handicapped. The reservation must be geared
\nto getting  over the  handicap. The rationale of reservation
\nmust be in the case of medical students, removal of regional
\nor class  inadequacy or\t like disadvantage.  The quantum  of
\nreservation should  not be excessive or societally injurious
\nmeasured by the over-all competency of the end-product, viz.
\ndegree-holders.\t A   host   of\t variables   influence\t the
\nquantification of  the reservation.  But one factor deserves
\ngreat emphasis.\t The higher  the level of the speciality the
\nlesser the  role of  reservation. Such\tbeing the pragmatics
\nand dynamics  of social\t justice and  equal rights,  let  us
\napply the tests to the case on hand.\n<\/p>\n
     We are aware that measurement of merit is difficult and
\nthe methods  now in  vogue leave so much to be desired, that
\nswearing by  marks as  measure of  merit may  even be  stark
\nsuperstition. But  for want  of surer techniques, we have to
\nmake-do with  entrance tests, and at any rate, save in clear
\ncases of perversity or irrationality, this is ordinarily out
\nof bounds for courts.\n<\/p>\n
     M.B.B.S. is  a basic  medical degree  and insistence on
\nthe highest  talent may\t be relaxed by promotion of backward
\ngroups, institutionwise\t chosen, without  injury  to  public
\nwelfare. It  produces equal  opportunity on  a broader basis
\nand gives  hope to  neglected geographical or human areas of
\ngetting a  chance to  rise. Moreover,  the better chances of
\ncandidates from\t institutions in  neglected regions  setting
\ndown for  practice  in\tthese  very  regions  also  warrants
\ninstitutional  preference  because  that  policy  helps\t the
\nsupply of  medical services  to these  backward areas. After
\nall, it\t is quite  on the  cards  that\tsome  out  of  these
\ncandidates with lesser marks may prove their real mettle and
\nblossom into  great doctors. Again, merit is not measured by
\nmarks alone  but by human sympathies. The heart is as much a
\nfactor as the head in assessing the social value of a member
\nof the\tprofession. Dr. Samuel Johnson put this thought with
\ntelling effect when he said :\n<\/p>\n
\t  “Want of  tenderness is  want of  parts, and is no
\n     less a proof of stupidity than of depravity”.<\/p><\/blockquote>\n
856<\/span><\/p>\n
     We have no doubt that where the human region from which
\nthe alumni  of an institution are largely drawn is backward,
\neither\tfrom   the  angle  of  opportunities  for  technical
\neducation  or  availability  of\t medical  services  for\t the
\npeople, the  provision of a high ratio of reservation hardly
\nmilitates  against   the  equality   mandate-viewed  in\t the
\nperspective of social justice.\n<\/p>\n
     We have two weighty differentiating factors here. Delhi
\nis in  no sense\t an educationally  or economically  backward
\nhuman region,  measured against the rest of our country. The
\nstudents of  Delhi, who\t are likely  to\t seek  admission  to
\nmedical colleges, belong to classes higher in the scale than
\nin most parts of India. As explained earlier the presence of
\nhuge  central\tadministrative\testablishments\t and  higher
\nechelons of  the public\t services, members in numbers of the
\npolitical aristocracy,\tthanks to  Delhi being\tthe seat  of
\nParliament,  countless\t executives  clustering\t around\t big
\nbusiness  and\tindustrial  houses   and  offices  and\tmany
\neducational, research  and other  institutions, professional
\norganisations, the  Supreme Court, the High Court, and their
\nnatural human  concomitants in\tthe upper  socio-educational
\nscale, make  Delhi and\tthe Delhi University the cynosure of
\nthe privileged\tspecies in a land of under-privilegd penury.
\nOf course,  like in any megalopolis of a developing country,
\nslums and  other symptoms  of deprivation  show up  and\t the
\ndesperately  poor   denizens  below   the  visibility\tline
\nunbiquitously  abound.\t But  they  are\t not  the  potential
\ncandidates for\tmedical admission  or service  and cannot be
\nused as `alibi’ for reservation. In what sense, regard being
\nhad to over-all Indian conditions, can it be said that Delhi
\nor the\tDelhi University, is backward or serves, through the
\nmedical colleges  of its  University, the  students who will
\nsettle down to alleviate suffering in that region,
\n     Secondly, and  more importantly,  it  is  difficult  to
\ndenounce or  renounce the merit criterion when the selection
\nis for post-graduate or post-doctoral courses in specialised
\nsubjects. There\t is  no\t substitute  for  sheer\t flair,\t for
\ncreative talent, for fine-tuned performance at the difficult
\nheights of  some disciplines  where the best alone is likely
\nto blossom  as the  best. To  sympathise mawkishly  with the
\nweaker sections\t by selecting sub-standard candidates, is to
\npunish society\tas  a  whole  by  denying  the\tprospect  of
\nexcellence say\tin hospital  service. Even the poorest, when
\nstricken by  critical illness, needs the attention of super-
\nskilled specialists, not humdrum second-rates. So it is that
\nrelaxation on  merit, by  over-ruling equality\tand  quality
\naltogether, is\ta social  risk\twhere  the  stage  is  post-
\ngraduate or post-doctoral.\n<\/p>\n
     Of course,\t we should not exaggerate this factor. Post-
\ngraduate studies  are not all that great and demanding as to
\ninvite only geniuses.\n<\/p>\n
857<\/span><\/p>\n
We cannot be scared by glorifying merit nor be hypnotised by
\nthe cult  of talent,  seeing as\t we do, crowds of M.Ds, M.Ss
\nand their  foreign analogues.  Nor, indeed, are the entrance
\ntests any  but the  feeblest yardsticks\t to  measure  innate
\ncapabilities. Is  it not  the wildest  hostage to fortune to
\nswear by marks alone which are so freakish and determined by
\na chancy  variety of  variables ? We find different modes of
\nexamining faculties  in different  universities, commissions
\nand countries and may, on closer scrutiny, pick holes in the
\nscientific basis of our entrance tests themselves. We repeat
\nall this  only to  stress the  limitations  on\tthe  current
\nsystem of selection so that we may not be swept off our feet
\nby the\telitist feeling\t that something sacred or scientific
\nis being jettisoned for the sake of accommodating nitwits of
\nbackward regions  institutions or  classes  when  marks\t are
\nslightly slurred  over. Even  so, being\t realists, we  go by
\nexisting methodology until better modes are devised.\n<\/p>\n
     In the  light of this discussion about the know-how and
\nknow-why of  reservations, what\t are  the  conclusions\tthat
\nemerge vis a vis the Delhi graduates ? Neither Delhi nor the
\nDelhi University  medical  colleges  can  be  designated  as
\ncategories which  warrant  reservation.\t But  there  is\t one
\nweighty circumstance  which  must  be  in  our\tremembrance.
\nReservation  for  Delhi\t graduates  is\tnot  that  invidious
\nbecause, as  stated in\tthe beginning, the students are from
\nfamilies drawn\tfrom all  over India. Not `sons of the soil’
\nbut sons and daughters of persons who are willy nilly pulled
\ninto the capital city for reasons beyond their control. This
\nreservation is, therefore, qualitatively different.\n<\/p>\n
     There  is\t another  pathological\tcondition  affecting
\n`medical admissions’  which is\tat the back of the desperate
\n`satyagraha’ of the students and this factor tilts the scale
\na great\t deal. Counsel\tfor  the  University,  supported  by
\nfragmentary material  pointing\tto  a  pan-Indian  tendency,
\nargued that  all the  country round  every university bangs,
\nbars and  bolts the  doors of medical admission to outsiders
\nand if\tDelhi alone  were to  keep its doors hospitably ajar
\nwhere are  the Delhi  graduates to  go for higher studies if
\nsqueezed out  by All-India  competition ?  If reservation is
\nevil, the  embargo everywhere  must  be\t lifted,  lest\tevil
\nshould beget  evil. So long as other universities are out of
\nbounds\tfor   Delhi   graduates,   exposure   to   all-India
\ncompetition becomes  intense and  prejudices their  chances.
\nThis indirect,\treal yet  heavy handicap  creates an  under-
\ncurrent of  discrimination and\tcannot be  wished  away\t and
\nneeds to  be antidoted\tby some percentage of reservation or
\nother legitimate device.\n<\/p>\n
     Another consideration  which justifies  some measure of
\nreservation is\tthe desire  of\tstudents  for  institutional
\ncontinuity in education.\n<\/p>\n
858<\/span><\/p>\n
Parents,  pupils  and  teachers\t will  usually\tprefer\tsuch
\ncontinuity and it has its own value.\n<\/p>\n
     We\t recognise   that  institution-wise  reservation  is
\nconstitutionally circumscribed and may become ultra vires if
\nrecklessly resorted to. But even such rules until revised by
\ncompetent authority or struck down judicially, will rule the
\nroost. That  is why  we\t have  to  concede  that  until\t the
\nsignpost of  `no admission  for outsiders’  is removed\tfrom
\nother universities  and some  fair percentage  of  seats  in
\nother universities  is left  for open  competition the Delhi
\nstudents cannot be made martyrs of the Constitution.\n<\/p>\n
     Even  so,\t `reservation’\tmust   be  administered\t  in
\nmoderation, if\tit is  to be  constitutional.  Some  central
\ntechnical institutions\tlike  the  All\tIndia  Institute  of
\nMedical Sciences,  Delhi and  Chandigarh and the Pondicherry
\nMedical\t College   have\t a   much  smaller  fraction.  Their
\ncircumstances may  be different\t and we do not have the full
\nfacts, neither\tside having  furnished more  than fragments.
\nJudicial surmise  is too weak to be of decisional certainty.
\nFor reasons  we have  assigned 70%  plus is  too high at the
\npost-graduate level in the half-proved circumstances. But we
\nstop short  of invalidating  the rule  because the facts are
\nimperfect, the course has already started and the court must
\nact only  on sure ground, especially when matters of policy,
\nsocio-educational investigation\t and  expert  evaluation  of
\nvariables are  involved. Judges\t should not  rush  in  where
\nspecialists fear  to tread. We spare the impugned regulation
\neven though  we are,  prima facie, sceptical about the vires
\nthereof. To  doubt is  not enough  to demolish.\t When fuller
\nfacts are  placed, the court will go into this question more
\nconfidently.\n<\/p>\n
     While  reluctantly\t  repelling  the  challenge  of\t the
\npetitioner we  think two  directions must  be made  in\tthis
\ncase. If  70% reservation  is  on  the\thigh  side  and\t the
\npetitioner is  hopefully near `admission’ going by marks and
\nreservation, it\t is but just that he is given a chance to do
\nhis post-graduate course. Indeed, his coming to Delhi itself
\nwas a  compulsion beyond  his  control,\t as  we\t have  noted
\nearlier.\n<\/p>\n
     The petitioner,  going by\tmarks, deserves admission to
\nthe postgraduate  degree course\t although he  is now  in the
\npost-graduate  diploma\tcourse.\t So  we\t direct\t him  to  be
\nadmitted to  the degree\t course this  year, if\tthe rules of
\nattendance etc.,  do not  stand in  the way  and the Medical
\nCouncil makes  an exception  by agreeing  to addition of one
\nseat as a special case for this year.\n<\/p>\n
     More importantly,\twe direct  the University forthwith-
\nnot later  than two  months from  to-day-to appoint  a time-
\nbound committee to
\n859<\/span>
\ninvestigate in\tdepth the  justification for and the quantum
\nof reservation at the post- graduate level from the angle of
\nequality of  opportunity for  every Indian  but taking\tinto
\nconsideration other  constitutionally relevant\tcriteria  we
\nhave indicated\tin this\t judgment. That committee will study
\nfacts and  figures and\tthe reservation\t realities of  other
\nuniversities and  make recommendations\ton the\tquestion  of
\nuniversity-based reservations  and allied aspects as well as
\nthe modus operandi for implementation. The Committee will be
\nricher\tif   it\t has   a   constitutional   expert   and   a
\nrepresentative of  the Indian  Medical Council\ton  it.\t Its
\nreport shall  be considered by the University as soon as may
\nbe, so\tthat, if  possible, the admissions for next year may
\nbe governed by the revised decisions of the concerned organs
\ninformed by the report.\n<\/p>\n
     We are  disturbed by  the\ttendency  to  wall  of\teach
\nuniversity as  an insulated island of education, mindless of
\nthe integrated\tunity and  equal opportunity  which  are  an
\ninalienable part  of our  constitutional value system. There
\nis good\t reason\t for  reservation  in  many  cases  but\t the
\npromiscuous, even  profligate application of an exception as
\na  rule\t  of  educational   life  by   forward\tcities\t and
\nuniversities will  boomerang on\t the nation in the long run.
\nThe Union  of India  has a  special responsibility to ensure
\nthat in\t higher education  provincialism does  not erode the
\nintegrity of  India. Who  lives if India dies, is a poignant
\ninterrogation with  cultural projections  in many dimensions
\nwhich our  administrators are  not, we\thope, innocent off :
\nMutations in  reservations in  other universities  need\t not
\nawait litigation  but can  be undertaken  before  the  court
\nprocess is  set in  motion. The\t dialectic of constitutional
\nprotection  in\t the  dynamic\tcontext\t of  equality  in  a
\ndeveloping  country   has  been\t presented  by\tus  at\tsome
\nrepetitive length  so that the voyage of re-thinking may not
\nsuffer from navigational errors.\n<\/p>\n
     The Indian Medical Council is the statutory body at the
\nnational level\twhose functional obligations include setting
\nstandards for  as well\tas regulation  and  coordination  of
\nmedical\t education.   What  with   a   growing\t number\t  of
\nuniversities with  divergent settings,\tstandards and  goals
\nand a  motley crowd  of students  with diverse\tacademic and
\nsocial\tbackgrounds  and  ambitions,  the  prescription\t and
\ninvigilation of flexible yet principled norms regulating the
\nentrance  into\tmedical\t courses  and  training\t of  medical
\ngraduates  at\tvarious\t levels\t  of  specialization  are  a
\ndemanding and  dynamic task.  The I.M.A.  cannot be a silent
\nspectator or a static instrument but must initiate, activist
\nfashion, steps\tto make\t Indian medical\t education a meaning
\nasset to  the nation’s\thealing and hospital resources and a
\ndiscipline with\t broad uniformity  and assured standard. The
\nCentral Government,  witness to\t a deteriorating  situation,
\ncannot but  act to  negate the\tconfusing trend\t of fall  in
\nquality and conflict among universities.\n<\/p>\n
860<\/span><\/p>\n
     We may  wind up  by articulating  the core thought that
\nvitalises our  approach. Anyone\t who lives  inside India can
\nnever be  considered an\t `outsider’ in\tDelhi. The people in
\nthe States are caught in a happy network of mutuality, woven
\ninto a\tlovely garment\tof humanity,  whose warp and woof is
\nIndia. This  is the underlying fundamental of the preambular
\nresolve registered  in our  National Parchment. So we insist
\nthat  blind  and  bigoted  local  patriotism  in  xenophobic
\nexclusivism is\tdestructive  of\t our  Freedom  and  only  if
\ncompelling  considerations  of\tgross  injustice,  desperate
\nbackwardness  and   glaring  inequality\t desiderate  such  a
\npurposeful  course   can  protective   discrimination\tgain
\nentrance  into\t the  portals\tof  college   campuses.\t The
\nAdministration has a constitutional responsibility not to be
\na  mere\t  thermometer  where  mercury  rises  with  populist
\npressure but to be a thermostat that transforms the mores of
\ngroups to  stay in  the conscience  of the  nation, viz. the
\nConstitution.\n<\/p>\n
     We dispose\t of the\t petition with these twin directions
\nleaving the parties to suffer their costs.\n<\/p>\n
     PATHAK, J.\t I have\t had  the  benefit  of\treading\t the
\njudgment prepared  by my  learned brother V. R. Krishna Iyer
\nand while  I agree with him that the writ petition should be
\ndismissed, I propose to state my own reasons.\n<\/p>\n
     The validity  of a\t reservation of\t 70% of the seats in
\nthe post-graduate  classes by the Delhi University in favour
\nof its\town medical  graduates\tis  assailed  in  this\twrit
\npetition. The  basis of the reservation is the consideration
\nthat  the  candidate  for  admission  to  the  post-graduate
\nclasses is  a medical  graduate of  the same  University. No
\nquestion of backward classes, scheduled castes and scheduled
\ntribes,\t is  involved.\tCriteria  pertinent  to\t reservation
\nconcerning them\t are, it  seems to  me, not relevant at all.
\nNor strictly  is the test requiring a territorial nexus -the
\nUniversity does\t not insist  that the  candidate should hail
\nfrom any  particular region  or State for the purpose of the
\n70% reservation. The relationship is entirely institutional-
\nthose who  have graduated  from the  medical colleges run by
\nthe Delhi University are favoured for admission to the post-
\ngraduate  classes.   In\t my  opinion,  there  is  sufficient
\nvalidity in that consideration. It is not beyond reason that
\na student  who enters  a medical  college for  his  graduate
\nstudies and  pursues them  for the requisite period of years
\nshould\tprefer\t on  graduation\t to  continue  in  the\tsame
\ninstitution for\t his post-graduate  studies.  There  is\t the
\nstrong argument of convenience, of stability and familiarity
\nwith an\t educational environment which in different parts of
\nthe country is subject to varying economic and psychological
\npressures. But much more
\n861<\/span>
\nthan convenience  is involved.\tThere are all the advantages
\nof a  continuing frame of educational experience in the same
\neducational institution.  It must  be remembered  that it is
\nnot  an\t entirely  different  course  of  studies  which  is
\ncontemplated; it  is a\tspecialised and deeper experience in
\nwhat has  gone before.\tThe student has become familiar with
\nthe teaching  techniques and  standards of  scholarship, and
\nhas adjusted  his responses  and  reactions  according.\t The
\ncontinuity of  studies ensures a higher degree of competence
\nin  the\t  assimilation\tof  knowledge  and  experience.\t Not
\ninfrequently some  of  the  same  staff\t of  Professors\t and
\nReaders may  lecture to the post-graduate classes also. Over
\nthe under-graduate  years the teacher has come to understand
\nthe particular\tneeds of  the student,\twhere he  excels and
\nwhere he  needs an  especial encouragement in the removal of
\ndeficiencies. In  my judgment,\tthere is  good reason  in an
\neducational  institution   extending  a\t certain  degree  of
\npreference to  its  graduate  for  admission  to  its  post-
\ngraduate classes.  The preference  is based  on a reasonable
\nclassification and  bears a  just relationship to the object
\nof the\teducation provided  in the postgraduate classes. The
\nconcept of equality codified in our constitutional system is
\nnot violated. It has been said sometimes that classification
\ncontradicts  equality.\tTo  my\tmind,  classification  is  a
\nfeature of  the very core of equality. It is a vital concept
\nin ensuring  equality, for  those who are similarly situated
\nalone\tform   a   class   between   themselves,   and\t the
\nclassification\tis   not  vulnerable  to  challenge  if\t its
\nconstituent basis  is reasonably  related to  achieving\t the
\nobject of  the concerned law. An institutional preference of
\nthe kind  considered here does not offend the constitutional
\nguarantee of equality.\n<\/p>\n
     But  the\tquestion  really  is  :\t Is  the  degree  of
\nreservation excessive  ? Is  70% too  much ? Too excessive a
\nreservation  could   result  in\t  preference   to   graduate
\ncandidates of  severely limited aptitude and competence over
\nmeritorious  candidates\t  from\tother\tinstitutions   whose
\nexclusion could\t result in  aborting a\tpart of our national
\ntalent. The  determining factor,  it appears  to me,  is the
\nmeasure of  reciprocity\t prevailing  between  the  different
\neducational institutions in India regarding the availability
\nof admission  to graduates  of other  institutions.  It\t can
\nhardly be  supposed that  if the  medical graduates  of\t the
\nDelhi University  are shut  out from  adequate consideration
\nfor  admission\t to  the   post-graduate  courses  of  other
\ninstitutions merely because they did not graduate from those
\ninstitutions they  should  not\tthink  it  unjust  that\t the
\nhospitality of\ttheir  own  University\tto  outside  medical
\ngraduates leaves  insufficient provision for them. Not to be
\nable to\t take  post-graduate  studies  at  all\timplies\t the
\ntermination of\ttheir medical  studies. This  is  a  problem
\nwhich can  be tackled  only on\ta national  level, with\t all
\nUniversities
\n862<\/span>
\nand other  medical institutions\t coming\t together  around  a
\ncommon table  with the\tobject of  fashioning out  a  mutual
\nreasonable  quota   reservation.  A   wise  and\t far-sighted
\nexercise,  eschewing  narrow  parochial\t considerations,  is
\ncalled for.  It is  only by  a joining\tof hands  across the
\nentire nation  that a  suitable and enduring solution can be
\nevolved and  the turbulence  which disturbs the student body
\nset at rest.\n<\/p>\n
     My learned\t brother has  referred to  the\tconsiderable
\nattraction which  an educational  institution in  New  Delhi
\nexerts over  students from  other parts\t of the\t country.  I
\nconfess I  do not share the view entirely. So much, I think,
\ndepends on  the choice\tof a particular subject or course of
\nstudies by  the candidate.  And medical\t course are  not all
\nnecessarily to\tbe found only in New Delhi. They are located
\nin other parts of India and some of those well-known centres
\nof medical  education have  at least  an equal reputation in
\ncertain fields\tof specialised\tstudy.\tI  am  reluctant  to
\naccept\tthe  proposition  that\tbecause\t New  Delhi  is\t the
\npolitical, legislative\tand judicial  capital of  India,  an
\neducation of  quality is  not to  be found  in other cities.
\nMerely because\tNew Delhi  is the  new Capital of Delhi does
\nnot justify  a disproportionate\t treatment of  the claim  to
\nequality on a national level made by its medical graduates.\n<\/p>\n
     The  question   remains  :\t Is  a\treservation  of\t 70%
\nexcessive ?  We have  travelled through\t the record,  and  I
\nagree with  my learned\tbrother\t that  the  material  is  so
\nscanty, fragmentary and unsatisfactory that we are prevented
\nfrom expressing any definite decision on the point. Although
\nwe gave sufficient opportunity to the parties, the requisite
\nmaterial  has\tnot  been  forthcoming.\t Whether  or  not  a
\nreservation of\t70% was\t called for has not been established
\nconclusively. Indeed,  there is hardly anything to show that
\nthe authorities\t applied their\tmind to a cool dispassionate
\njudgment of  the  problem  facing  them.  Popular  agitation
\nserves\tat   best  to\tarouse\tand  provoke  complacent  or
\nslumbering authority;  the  judgment  and  decision  of\t the
\nauthority  must\t  be  evolved  from  strictly  concrete\t and
\nunemotional  material  relevant\t to  the  issue\t before\t it.
\nUnfortunately, there  is little\t evidence of  that  in\tthis
\ncase. For  that reason,\t I join\t my learned  brother in\t the
\ndirections proposed by him.\n<\/p>\n
     The petitioners  have raised  other  contentions  also,
\nprincipally resting on the allegation that the University of
\nDelhi is  a centrally administered institution, but I see no
\nforce in those submissions.\n<\/p>\n
     Accordingly, subject  to the two directions proposed by
\nmy learned  brother the\t writ petition\tis dismissed and the
\nparties shall bear their own costs.\n<\/p>\n
N.V.K.\t\t\t\t   Petition dismissed.\n863<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jagdish Saran & Ors vs Union Of India & Ors on 28 January, 1980 Equivalent citations: 1980 AIR 820, 1980 SCR (2) 831 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: JAGDISH SARAN & ORS. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT28\/01\/1980 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-52220","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJagdish Saran & Ors vs Union Of India & Ors on 28 January, 1980 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jagdish-saran-ors-vs-union-of-india-ors-on-28-january-1980\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jagdish Saran & Ors vs Union Of India & Ors on 28 January, 1980 - 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