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CASE NO.: Writ Petition (civil)  29 of 2003

PETITIONER: Saurabh Chaudri & Ors.

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 04/11/2003

BENCH: V.N.KHARE CJI & R.C.LAHOTI & B.N.AGRAWAL & S.B.SINHA & AR.LAKSHMANAN

JUDGMENT: JUDGMENT

WITH WRIT PETITION (CIVIL) NOS.54,57,68,69,84,85,89,91, 95, 98, 99 & 100 OF 2003 AND CIVIL APPEAL NO.8581 OF 2003 (Arising out of S.L.P. (Civil) No. 1347 of 2002)

DELIVERED BY: V.N.KHARE, CJI, S.B.SINHA,J.,AR.LAKSHMANAN, J.

V.N. Khare, C.J.

Leave granted in the Special Leave Petition.

The core question involved in these writ petitions and appeal centres round the constitution al validity of reservation whether based on domicile or institution in the matter of admissi on into Post Graduate Courses in government run medical colleges.  

For determination of the said question factual matrix of the matter, is being noticed from W rit Petition (Civil) No.29 of 2003.

The petitioners who are 52 in number are original residents of Delhi. They joined various me dical colleges out of Delhi for undertaking their MBBS Courses of studies against the 15% al l-India quota on being qualified therefore in the All India Medical Entrance Examination.

The appellants intended to join the medical colleges of Delhi for their Post Graduate Medica l Courses. They applied for and were granted admission forms having regard to the decision o f this Court in Dr. Parag Gupta v. University of Delhi and Ors., In the Bulletin of Informat ion issued by the University of Delhi, it was stated, that Candidates like the appellants wo uld be entitled for admission in Post Graduate Courses subject to the decision of a matter p ending in this Court, i.e. Magan Mehrotra and Ors. v. Union of India and Ors. since reported  in (2003)3  SCALE 101.

A three-Judge Bench of this Court in Magan Mehrotra (supra) inter alia, therein held that ap art from institutional preference, no other preference including reservation on the basis of  residence is envisaged in the Constitution, in view of the decision of this Court in Dr. Pr adeep Jain and Ors. v. Union of India and Ors.

The Delhi University on or about 31.12.2002 relying on or on the basis of the decision of th is Court in Magan Mehrotra (supra) issued the following notification :         "In view of the judgment of the Hon’ble Supreme Court of India dated 17.12.2002 in W rit Petition (C) No. 417 of 2002. It is hereby notified that for admission of P.G. Courses d

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uring the Academic Session 2003, only Delhi University Medical Graduates would be eligible a gainst the 75% reserved seats of the students from Delhi who have taken admission in the Uni versity/States under the 15% All-India quota will not be eligible to seek admission in the P .O. Degree/Diploma Courses of Delhi University against the 75% Reserve Seats. All concern ma y please be note.         Accordingly the students who have done MBBS under 15% All-India quota from the Unive rsity/States other than Delhi University and have applied for admission to the P.G. Degree/D iploma Courses are not eligible to appear in P.G. Medical Entrance Test 2003 to be held on 9 .2.2003. They are advised to apply for the return of the Bank Draft/Cheque."

The appellants claiming themselves to be "the residents of Delhi" and "sons of the soil" fil ed the writ petition in the court questioning the aforementioned notification dated 31.12.20 02 as also reservation made by way of institutional preference for admission to Post Graduat e Medical Courses.

A Division Bench of this Court having regard to the decision in Magan Mehrotra’s case (supra ) which was rendered by a three-Judge Bench of this Court, referred the matter to a Bench of  three Judges by order dated 3.2.2003. However, when the matter was placed before a three-Ju dge Bench, it by an order dated 7.2.2003 directed the matter to be placed before a Bench of  five Judges considering the importance of the matter; but no reason was assigned therefore.

The question which was initially raised in the writ petition was as to whether reservation m ade by way of institutional preference is ultra vires Articles 14 and 15 of the Constitution  of India; but during hearing a larger issue viz. as to whether any reservation, be on resid ence or institutional preference is constitutionally permissible; was raised at the Bar.

In view of the importance of the question involved, this Bench in terms of order dated 1.4.2 003 directed issuance of notice to all the States and Union Territories. Pursuant whereto, e xcept State of A.P. and State of Jammu & Kashmir all the States filed their returns and were  heard.

Shri Harish Salve, learned senior counsel appearing on behalf of the appellants raised two c ontentions in support of the writ petition. He submitted that in view of the equality clause  contained in Articles 14 and 15(1) of the Constitution of India, reservation whether based  on domicile or institutional preference would be unconstitutional. The learned counsel took  us through the decisions of this Court operating in the field and urged that in view of the  passage of time no reservation should be permitted either on the basis of residence or on in stitutional preference. Reservation on residential criteria, the learned counsel contended,  is squarely hit by Clause (1) of Article 15 of the Constitution of India. Placing reliance o n the debates on the subject at the time of framing of the Constitution. Shri Salve urged th at the ’place of birth’ being synonymous with ’domicile’ the observations made contrary ther eto in D.P. Joshi v. The State of Madhya Bharat and Anr. are not correct.

Shri Salve further contended that in terms of the constitutional scheme, reservation is perm issible only when there exist compelling Government objectives therefore and that too on nom inal basis if it can be demonstrated that ’rule of merit’ should not be allowed to be sustai ned and when the class in whose favour a departure is sought to be made constitutes a homoge neous group and such departure satisfies the tests of social justice for securing equality u pon comparison of such disability suffered by such class or group of persons. The learned co unsel submitted that in the matter of reservation the State must scrupulously follow the req uirements of Clause (4) of Article 15 of the Constitution of India, namely, that the same is  needed for the weaker section of society or a homogeneous class and identified by a preside ntial order issued in that behalf.

In a case involving higher education even, Shri Salve argued, such a provision must be handl ed with care and keeping in view a large number of decisions of this Court including M.R. Ba laji and Ors. v. State of Mysore not more than 50% of the total seats can be reserved. The l earned counsel would contend that if such reservation is prima facie impermissible having re gard to the constitutional scheme the same would fall within the purview of ’suspected class ification’ and, thus, must pass the ’strict scrutiny test’ or ’intermediate scrutiny test’.  Any executive order providing for such reservation, the learned counsel urged, must be const rued having regard to the preamble, the fundamental rights of the citizens and in particular  Article 19(1)(d), as also the Directive Principles of the State Policy as contained in Part  IV of the Constitution of India and in particular Articles 41 and 47 of the Constitution of  India. It was argued that meritorious students suffer from lack of mobility as contra disti

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nguished from the mobility of the employees, and are required to be protected so as to suffe r any discrimination only on a specious plea of the State "our money, our people". Domicile  of all the citizens of India, Shri Salve urged, should be one; as the concept of State domic ile has no role to play in our constitutional scheme. He emphasized that keeping the same in  view, a profile check is required to be made so far as meritorious students are concerned,  as those who are born and brought up in small towns also would like to have higher education  in the metropolitan towns where having regard to the better infrastructures and higher reso urces, the institution therein would provide a better academic pursuit for them. In terms of  Article 14 of the Constitution of India, Shri Salve argued, students cannot form different  class nor any such classification made amongst them would be in public interest. Relying hea vily upon the observations made in paragraph 10 of the judgment of this Court in Dr. Pradeep  Jain’s case (supra), the learned counsel submitted that as all students are entitled to equ al opportunities all sorts of reservations must be given a go bye.

The learned counsel next contended that in any event, the students like the appellants shoul d not be held to have lost their residential status only because they had gone out of their  State of origin for pursuing their MBBS Course for a period of five years.

According to Shri Salve, Magan Mehrotra (supra), does not lay down the correct law and it is  required to be overruled.

Assailing reservation by way of institutional preference, Shri Salve, further submitted that  the very premise upon which it, is based is fallacious inasmuch as the majority of students , in view of the decision of this Court in Dr. Pradeep Jain’s case (supra) having taken admi ssion on the criteria of domicile alone, would again be considered for pursuing their Post G raduate Studies only on that basis and, thus, reservation by way of institutional preference  would amount to indirect way of doing things as the same would for all intent and purport w ould be based on domicile and, thus, is liable to (sic)

Shri Salve further contended that Delhi University or the States were required to place befo re this Court sufficient materials to prove that such classification on institutional prefer ence is based on an intelligible differentia. Drawing our attention to the statements made i n the counter affidavit, the learned counsel urged that no such material has been placed exc ept that the said practice is in vogue for a long time.

Shri R.F. Nariman, learned senior counsel appearing on behalf of some of the students of All  India Institute of Medical Sciences (AIIMS) submitted that in view of the decision of this  Court in All India Institute of Medical sciences Students Union v. All India Institute of Me dical Sciences and Ors., out of 40 students only 6 were offered admission in non-clinical su bjects which the most of the students would not like to pursue, Shri Nariman urged that plig ht of the students of AIIMS should be considered having regard to the stand taken by or the  practice prevalent in other Universities, namely, institutional preference and in that view  of the matter the students of the institution are also entitled to equal opportunity to comp ete with the students of other Universities.

Shri Shanti Bhushan, learned senior counsel appearing on behalf of the students of Delhi Uni versity, on the other hand, submitted that Magan Mehrotra’s case (supra) has correctly been  decided. The learned counsel contended that keeping in view the decisions of this Court e.g.  D.P. Joshi (supra), Dr. Jagadish Saran and Ors. v. Union of India and Pradeep Jain (supra),  it must be held that reservation by way institutional preference has held the field for a l ong time. The impugned notification, Shri Shanti Bhushan urged, having been issued pursuant  to the directions of this Court, it is futile to urge that the action on the part of Delhi U niversity in following the same has resulted in arbitrariness. According to the learned coun sel reservation by way of institutional preference is not only a matter of convenience but a lso forms part of the educational policy. If such a policy is not allowed to have a little p lay, a student while undergoing different courses of studies may have to take admissions in  different parts of the country wherefor he would face problems involving different languages , different cultures and different environments. It may not be feasible even for the parents  of middle class family to send their children out of the State. Furthermore, the learned co unsel contended that the chances that the local students would serve the local people cannot  be completely ruled out and, thus, such a criteria cannot be said to be illogical or bad in  law.

As regard application of strict scrutiny test, Shri Shanti Bhushan relying on or on the basi s of the decision in Shri Ram Krishna Dalmia v. Justice S.R. Tendolkar and Ors. [1959 SCR 27

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9] submitted that this Court has laid down the law that the constitutionality of a statute m ust be presumed and onus to prove that the statute is unconstitutional is upon the person wh o asserts the same. Only two tests, namely, as to whether the classification is reasonable a nd based on an intelligible differentia stood the test of time and there is no reason to dev iate therefrom. Shri Shanti Bhushan argued that reservation by way of institutional preferen ce had been holding the field since this Court decided Dr. Pradeep Jain’s case (supra) and n othing has been pointed out by the petitioners to show that the said principle should be dep arted from.

Shri A. Mariarputham, learned counsel appearing on behalf of Delhi University, supplementing  the arguments of Shri Shanti Bhushan, submitted that reservation by way of institutional pr eference is a definite and identifiable criteria and in that view of the matter it satisfies  the test of valid classification as contained in Article 14 of the Constitution of India. T he reasons assigned in support of the institutional preference in various decisions of this  Court are still relevant and as such there being no change in the situation, any fresh look  or reconsideration thereof is not warranted. This Court, the learned counsel urged that havi ng framed a scheme in Dr. Pradeep Jain’s case (supra) which is binding on all concerned in v iew of the provisions contained in Articles 141, 142, 143 and 144 of the Constitution of Ind ia, may not depart therefrom in view of the fact that this Court in Magan Mehrotra’s case (s upra) upon issuance of notice to all States had clearly directed that the law relating to in stitutional preference laid down in Dr. Pradeep Jain’s case (supra) should be followed and i n particular directed that the States of Assam, Karnataka, Tamil Nadu and Goa to follow rese rvation by way of institutional preference alone.

The learned counsel contended that all the States have since amended their rules so as to co nsider the candidature of those students who had studied in any of the institutions situated  in that State on 15% all India quota and in that view of the matter the said students do no t require a further indulgence. According to the learned counsel apart from the fact that th e students who had gone to pursue their MBBS courses outside the State are entitled to take  part in all India open competition, they having regard to the amendments made in the rules f ramed by the States of Karnataka, Assam and others being entitled to institutional preferenc e in the State where they had studied, may not be held to be entitled to a further indulgenc e of competing with the students of Delhi University in 75% quota on the ground that they ar e residents of Delhi and thereby bringing back the concept of reservation on domicile indire ctly again.

Shri Sanjay Hegde, learned counsel appearing on behalf of the State of Karnataka, Shri A. Ph ukan, learned counsel appearing for the State of Assam and Shri R.S. Suri, learned counsel a ppearing for the State of Punjab, however, submitted that the States should be allowed to se t apart some seats for the local candidates. It was pointed out that unlike other studies Po st Graduate Medical Courses involve practical training and the students are required to work  in the hospitals wherein they are paid stipends by the States. It was urged that the States  have been finding it extremely difficult to get good number of local doctors to serve the r ural population and, thus, such a criteria, according to the learned counsel, cannot be said  to be unconstitutional.

Before we embark upon the questions raised at the Bar, we may notice that the States before  the decision of this Court in Dr. Parag Gupta’s case (supra) had been following different cr iteria as regard grant of preference i.e. either on institution basis or on residence basis  or both. The positions prevailing in different States before and after Dr. Parag Gupta’s cas e (supra) and at present are given as under :

POSITION BEFORE PARAG GUPTA   Sl.     State   Nature of Preference     1.      U.P.    Institutional    2.      Delhi   Institutional    3.      Maharashtra     Institutional    4.      Gujarat Institutional    5.      West Bengal     Institutional    6.      Assam           Residence 7.      Tamil Nadu      Residence 8.      Goa             Residence 9.      Karnataka       Residence 10.     Madhya Pradesh  Institutional OR Residence      

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11.     Haryana Institutional OR Residence       12.     Punjab  Institutional OR Residence       13.     Rajasthan       Institutional OR Residence       14.     Kerala  Institutional OR Residence       15.     Orissa  Institutional OR Residence       16.     Himachal Pradesh        Institutional OR Residence       17.     Bihar   Institutional OR Residence       18.     Pondicherry     25% all India quota + 37.5% Institutional available seats + 37. 5% o f available open for all    POSITION AFTER PARAG OUPTA   Sl.     State   Nature of Preference 1.      U.P.    Institutional   Residence (15%) 2.      Delhi   Institutional   Residence (15%) 3.      Maharashtra     Institutional    4.      Gujarat Institutional    5.      West Bengal     Institutional    6.      Assam           Residence 7.      Tamil Nadu      Residence 8.      Goa             Residence (10 years) 9.      Karnataka       Residence 10.     Madhya Pradesh  Institutional OR Residence       11.     Haryana Institutional OR Residence       12.     Punjab  Institutional OR Residence       13.     Rajasthan       Institutional OR Residence       14.     Kerala  Institutional OR Residence       15.     Orissa  Institutional OR Residence       16.     Himachal Pradesh        Institutional OR Residence       17.     Bihar   Institutional OR Residence       18.     Pondicherry     25% all India quota + 37.5% Institutional of available seats + 37.5%  of available seats open for all   PRESENT POSITION   Sl.     State   Nature of Preference       1.      U.P.    Institutional    2.      Delhi   Institutional    3.      Maharashtra     Institutional    4.      Gujarat Institutional    5.      West Bengal     Institutional    6.      Assam           Residence 7.      Tamil Nadu      Residence 8.      Goa             Residence (10 years] 9.      Karnataka       Residence (10 years) 10.     Madhya Pradesh  Institutional OR Residence       11.     Haryana Institutional OR Residence       12.     Punjab          Residence 13.     Rajasthan       Institutional OR Residence       14.     Kerala  Institutional OR Residence       15.     Orissa  Institutional OR Residence       16.     Himachal Pradesh        Institutional OR Residence       17.     Bihar   Institutional OR Residence       18.     Pondicherry     25% all India quota + 37.5% Institutional of available seats + 37.5%  of available seats open for all   

It is neither in doubt nor in dispute that before the scheme was evolved in Dr. Pradeep Jain ’s case (supra), notices had been issued to all the States and all of them were fully heard.  But despite the same, the orders passed by this Court in Dr. Pradeep Jain’s case (supra) ha d been flouted with impunity, inter alia, by the States of Assam, Karnataka, Goa and Tamil N adu. Now it transpires that even the State of Punjab has also not been following the said de cision.

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The necessity of issuing notices by this Court again in Magan Mehrotra’s case (supra) must b e considered from that angle. In Magan Mehrota’s case (supra), this Court not only reiterate d that the reservation by way of institutional preference be maintained but also directed th e aforementioned States to follow the same.

The questions must, therefore, be considered in the aforementioned factual backdrop.

The first question that arises for consideration is, whether the reservation on the basis of  domicile is impermissible in terms of Clause (1) of Article 15 of the Constitution of India  ? The term ’place of birth’ occurs in Clause (1) of Article 15 but not ’domicile’. If a com parison is made between Article 15(1) and Article 16(2) of the Constitution of India, it wou ld appear that whereas the former refers to ’place of birth’ alone, the latter refers to bot h ’domicile’ and ’residence’ apart from place of birth. A distinction, therefore, has been m ade by the makers of the Constitution themselves to the effect that the expression ’place of  birth’ is not synonymous to the expression "domicile" and they reflect two different concep ts. It may be true, as has been pointed out by Shri Salve and pursued by Mr. Nariman, that b oth the expressions appeared to be synonymous to some of the members of the Constituent Asse mbly but the same, in our opinion, cannot be a guiding factor. In D.P. Joshi’s case (supra),  a Constitution Bench held so in no uncertain terms.

This Bench is bound by the said decision.

In State of Uttar Pradesh and Ors. v. Pradip Tandon and Ors. this Court observed:         "The reservation for rural areas cannot be sustained on the ground that the rural ar eas represent socially and educationally backward classes of citizens. This reservation appe ars to be made for the majority population of the State. Eighty per cent of the population o f the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of cla ssification to support reservation for rural areas. Poverty, is found in all parts of India,  In the instructions for reservation of seats it is provided that in the application form a  candidate for reserved seats from rural areas must submit a certificate of the District Magi strate of the District to which he belonged that he was born in rural areas and had a perman ent home there, and is residing there or that he was born in India and his parents and guard ians are still living there and earn their livelihood there. The incident of birth in rural  areas is made the basic qualification. No reservation can be made on the basis of place of b irth, as this would offend Article 15."

Answer to the said question must, therefore, be rendered in the negative.

The second question that arises for our consideration is, whether reservation by way of inst itutional preference comes within suspected classification warranting strict scrutiny test ?

Once it is held that Clause (1) of Article 15 of the Constitution of India is not attracted,  the only question which survives is as to whether the same attracts the wrath of Article 14  of the Constitution of India. Article 14 forbids class legislation but permits reasonable c lassification subject to the conditions that it is based on an intelligible differentia and  that the differentia must have a rational relation to the object sought to be achieved.

In Shri Ram Krishna Dalmia’s case (supra), this Court categorically held:         "...It is now well established that while Article 14 forbids class legislation, it d oes not forbid reasonable classification for the purposes of legislation. In order, however,  to pass the test of permissible classification two conditions must be fulfilled, namely, (i ) that the classification must be founded on an intelligible differentia which distinguishes  persons or things that are grouped together from others left out of the group and, (ii) tha t that differentia must have a rational relation to the object sought to be achieved by the  statute in question. The classification may be founded on different bases, namely, geographi cal, or according to objects or occupations or the like. What is necessary is that there mus t be a nexus between the basis of classification and the object of the Act under considerati on. It is also well established by the decisions of this Court that article 14 condemns disc rimination not only by a substantive law but also by a law of procedure."

The principle enunciated above has been consistently adopted and applied in subsequent cases . The decisions of this Court further establish (a) that a law may be constitutional even though it relates to a single individual if, on ac count of some special circumstances or reasons applicable to him and not applicable to other s, that single individual may be treated as a class by himself:

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(b) that there is always a presumption in favour of the constitutionality of an enactment an d the burden is upon him who attacks it to show that there has been a clear transgression of  the constitutional principles; (c) that it must be presumed that the legislature understands and corruptly appreciates the  need of (sic) problems made manifest by experience and that its discrimination’s are based o n adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictio ns to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the court may take into co nsideration matters of common knowledge, matters of common report, the history of the times  and may assume every state of facts which can be conceived existing at the time of legislati on; and (f) that while good faith and knowledge of the existing conditions on the part of a legislat ure are to he presumed, if there is nothing on the face of the law or the surrounding circum stances brought to the notice of the court on which the classification may reasonably be reg arded as based, the presumption of constitutionally cannot be carried to the extent of alway s holding that there must be some undisclosed and unknown reasons for subjecting certain ind ividuals or corporations to hostile or discriminating legislation. The above principles will have to be constantly borne in mind by the court when it is called  upon to adjudge the constitutionality of any particular law attacked as discriminatory and  violative of the equal protection of the laws."

The strict scrutiny test or the intermediate scrutiny test applicable in the United States o f America as argued by Shri Salve cannot be applied in this case. Such a test is not applied  in Indian Courts. In any event, such a test may be applied in a case where a legislation ex  facie is found to be unreasonable. Such a test may also be applied in a case where by reaso n of a statute the life and liberty of a citizen is put in jeopardy. This Court since its in ception apart from a few cases where the legislation was found to be ex facie wholly unreaso nable proceeded on the doctrine that constitutionality of a statute is to be presumed and th e burden to prove contra is on him who asserts the same. The courts always lean against a co nstruction which reduces the statute to a futility. A statute or any enacting provision ther ein must be so construed as to make it effective and operative "on the principle expressed i n the maxim : ut res magis valeat quam pereat". [See CIT v. Teja Singh and Tinsukhia Electri c Supply Co. Ltd. v. State of Assam].

Applying the test of presumption of constitutionality no case has been made out for invoking  the doctrine of strict construction or intermediate construction.

The third question that arises for our consideration is, whether the reservation by institut ional preference is valid? India is one country and all its citizens should equally be treat ed. The essence of equality is enshrined in Article 14 of the Constitution of India. But doe s it mean that equality clause must be applied to all citizens to all situations? It is true  that the country should strive to achieve a goal of excellence which in turn would mean tha t meritorious students should not be denied pursuit of higher studies. This itself brings us  the question, who is to judge the merit and what are the standards therefor? It is extremel y difficult to lay down a fool- proof criteria. Success or failure of a candidate in one exa mination or the other may not lead to infallible conclusion as regard the merit of a candida te so as to achieve excellence. The larger question, therefore, would be how to and to what  extent balance should be struck.

Ideal situation, although it might have been to see that only meritorious students irrespect ive of caste, creed, sex, place of birth, domicile/residence are treated equally but history  is replete with situations to show that India is not ready therefore. Sociological conditio n prevailing in India compelled the makers of the Constitution to bring in Articles 15 and 1 6 in the Constitution. The said Articles for all intent and purport are species of Article 1 4 which is the genies in a sense that they provide for exception to the equality clause also . Preference to a class of persons whether based on caste, creed, religion, place of birth,  domicile or residence is embedded in- cur constitutional scheme. Whereas larger interest of  the country must be perceived, the law makers cannot shut their eyes to the local needs also . Such local needs must receive due consideration keeping in view the duties of the State co ntained in Articles 41 and 47 of the Constitution of India.                                                 (Emphasis mine) For the last five decades this Court times without number had adopted the efficacy of one ca tena or the other for giving preference to a section of students.

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Constitutional interpretation is a difficult task. Its concept varies from statute to statut e, fact to fact, situation to situation and subject matter to subject matter. Perceptions ar e yet to be perceived by the court which would moot all situations while laying down emphasi s for achieving excellence in all spheres of life keeping in view Chapter IV-A of the Consti tution of India which provide for fundamental duties, circumstances and compulsions faced by  the State in this behalf led the courts to uphold a statute providing for reservation for a  special class of people. Mostly they suffer from disability either being belonging to an op pressed community or by way of economical, cultural or social imbalances. The courts shall a ll along strive hard for maintaining a balance. While interpreting the Constitution, we must  notice the following view of Justice Holmes expressed in Missouri v. Holland [252 US 416 (4 33)] :         "When we are dealing with words that also are a constituent act, like the Constituti on of the United States, we must realise that they have called into life a being the develop ment of which could not have been foreseen completely by the most gifted of its begetters. I t was enough for them to realise or to hope that they had created an organism, it has taken  a century and has cost their successors must sweat and blood to prove that they created a na tion. The case before us must be considered in the light of our whole experience and not mer ely in that of what was said a hundred years ago."                                                 [Emphasis supplied]

Equally important is an elucidation of Justice Frankfurter contained in an article                                                                                                   "Som e Reflections on the Reading of Statutes". This Court also in Jagadish Saran    and Ors. v.  Union of India, a decision which is applicable in the fact situation of this case, stated th e law thus :         "Law, constitutional law, is not an omnipotent abstraction or distant idealization b ut a principled, yet pragmatic, value-laden and resulted-oriented, set of propositions appli cable to and conditioned by a concrete stage of social development of the nation and aspirat ional imperatives of the people. India Today -- that is the inarticulate major premise of ou r constitutional law and life."

In D.P. Joshi’s case (supra) advantage given to local residents as regard payment of capitat ion fee was upheld. A Constitution Bench of this Court in Km. Chitra Ghosh and Anr. v. Union  of India and Ors. stated the law thus :         "It is the Central Government which bear’s the financial burden of running the medic al college. It is for it to lay down the criteria for eligibility. From the very nature of t hings it is not possible to throw the admission open to students from all over the country.  The Government cannot be denied the right to decide from what sources the admission will be  made. That essentially is a question of policy and depends inter, alia on an overall assessm ent and survey of the requirements of residents of particular territories and other categori es of persons for whom it is necessary to provide facilities for medical education. If the s ources are properly classified whether on territorial, geographical or other reasonable basi s it is not for the courts to interfere with the manner and method of making the classificat ion."                                                 [Emphasis supplied]

The matter came up for consideration again in D.N. Chanchala v. The State of Mysore and Ors. , M.R. Mini (Minor) represented by her Guardian and Father M.P. Rajappan v. State of Kerala  and Anr., wherein a similar note was struck.

In Dr. Jagadish Saran’s case (supra) this Court had an occasion to consider the question as  to whether grant of institutional preference was a valid basis for admission. This case deal t with admission in Post Graduate Courses of the Delhi. University, Krishna Iyer, J. with wh om Pathak, J. concurred in no uncertain terms upheld such preference.

A large number of decisions on the point were taken into consideration by this Court in Dr.  Pradeep Jain’s case (supra). Upon a detailed analysis of the constitutional provisions, case  laws as also the practical difficulties faced by the States, students as also the instituti ons, it was held :         "...What is, therefore, necessary is to set up proper and adequate structures in rur al areas where competent medical services can be provided by doctors and some motivation mus t be provided to the doctors servicing those areas. But, as the position stands today, there  is considerable paucity of seats in medical colleges to satisfy the increasing demand of st udents for admission and some principle has, therefore, to be evolved for making selection o f students for admission to the medical colleges and such principle has to be in conformity

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with the requirement of Article 14. Now, the primary imperative of Article 14 is equal oppor tunity for all across the nation for education and advancement and, as pointed out by Krishn a Iyer, J. in Jagdish Saran v. Union of India "this has burning relevance to our times when  the country is gradually being ’broken up into fragments by narrow’ domestic walls’ by surre nder to narrow parochial loyalties". What is fundamental, as an enduring value of our polity , is guarantee to each of equal opportunity to unfold the full potential of his personality.  Anyone anywhere, humble or high agrestic or urban, man or women, whatever be his language o r religion, place of birth or residence, is entitled to be afforded equal chance for admissi on to any secular educational course for cultural growth, training facility, speciality or e mployment. It wold run counter to the basic principle of equality before the law and equal p rotection of the law if a citizen by reason of his residence in State A, which ordinarily in  the commonality of cases, would be the result of his birth in a place situate within that S tate, should have opportunity for education or advancement which is denied to another citize n because he happens to be resident in State B. It is axiomatic that talent is not the monop oly of the residents of any particular State; it is more or less evenly distributed and give n proper opportunity and environment, everyone has a prospect of rising to the peak. What is  necessary is equality of opportunity and that cannot be made dependent upon where a citizen  resides. If every citizen is afforded equal opportunity, genetically and environmentally, t o develop his potential, he will be able in his own way to manifest his faculties fully lead ing to all round improvement in excellence. The philosophy and pragmatism of universal excel lence through equality of opportunity for education and advancement across the nation is par t of our founding faith and constitutional creed. The effort must, therefore, always be to s elect the best and most meritorious students for admission to technical institutions and med ical colleges by providing equal opportunity to all citizens in the country and no citizen c an legitimately, without serious detriment to the unity and integrity of the nation, be rega rded as an outsider in our constitutional set-up. Moreover, it would be against national int erest to admit in medical colleges or other institutions giving instruction in specialities,  less meritorious students when more meritorious students are available, simply because the  former are permanent residents or residents for a certain number of years in the State while  the latter are not, though both categories are citizens of India. Exclusion of more meritor ious students on the ground that they are not resident within the State would be likely to p romote substandard candidates and bring about fall in medical competence, injurious in the l ong run to the very region.                   "It is no blessing to inflict quacks and medical midgets on people by wholesale sacr ifice of talent at the threshold. Nor can the very best be rejected from admission because t hat will be a national loss and the interests of no region can be higher than those of the n ation." The primary consideration in selection of candidates for admission to the medical co lleges must, therefore, be merit. The object of any rules which may be made for regulating a dmissions to the medical colleges must be to secure the best and most meritorious students.’ "

But it was observed :         "...Whether consistently with the constitutional values, admissions to a medical col lege or any other institution of higher learning situate in a State can be confined to those  who have their ’domicile’ within the State or who are residents within the State for a spec ified number of years or can any reservation in admission be made for them so as to give the m precedence over those who do not possess ’domicile’ or residential qualification within th e State, irrespective of merit..."

The right of development in a developing country is acknowledged in International Treaties,  Charters and Conventions.

Referring to the State mentality and pointing out to the law that there does not exist any s eparate State domicile in India, this Court specifically banished the residential requiremen t for the purpose of admission into Post Graduate Medical Courses for all times. It directed  :         "So much for admission to the MBBS course, but different consideration must prevail  when, we come to consider the question of reservation based on residence requirement within  the State or on institutional preference for admission to the post-graduate courses, such as , MD, MS and the like. There we cannot allow excellence to be compromised by any other consi derations because that would be detrimental to the interest of the nation. It was rightly po inted out by Krishna Iyer, J. in Jagdish Saran case, and we wholly endorse what he has said  : The basic medical needs of a region or the preferential push justified for a handicapped gro

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up cannot prevail in the same measure at the highest scales of speciality where the best ski ll or talent, must be handpicked by selecting according to capability. At the level of PhD,  MD, or levels of higher proficiency, where intentional measure of talent is made, where losi ng one great scientist or technologist in- the-making is a national loss, the considerations  we have expanded upon as important lose their potency. Here equality, measured by matching  excellence, has more meaning and cannot be diluted much without grave risk.  *       *         *  If equality of opportunity for every person in the country is the constitutional guarantee,  a candidate who gets more marks than another is entitled to preference for admission. Merit  must be the test when choosing the best, according to this rule of equal chance for equal ma rks. This proposition has greater importance when we reach the higher levels of education li ke post-graduate courses. After all, top technological expertise in any vital field like med icine is a nation’s human asset without which its advance and development will be stunted. T he role of high grade skill or special talent may be less at the lesser levels of education,  jobs and disciplines of social inconsequence, but more at the higher levels of sophisticate d skills and strategic employment. To devalue merit at the summit is to temporise with the c ountry’s development in the vital areas of professional expertise. In science and technology  and other specialised fields of developmental significance, to relax lazily or easily in re gard to exacting standards of performance may be running a grave national risk because in ad vanced medicine and other critical departments of higher knowledge, crucial to material prog ress, the people of India should not be denied the best the nation’s talent lying latent can  produce. If the best potential in these fields is cold-shouldered for populist consideratio ns garbed as reservations, the victims, in the long run, may be the people themselves. Of co urse, this unrelenting strictness in selecting the best may not be so imperative at other le vels where a broad measure of efficiency may be good enough and what is needed is merely to  weed out the worthless.  *        *        * Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion  when the selection is for postgraduate or post-doctoral courses in specialised subjects. The re is no substitute for sheer flair, for creative talent, for fine-tuned performance at the  difficult heights of some disciplines where the best alone is likely to blossom as the best.  To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is t o punish society as a whole by denying the prospect of excellence say in hospital sendee. Ev en the poorest, when stricken by critical illness, needs the attention of super-skilled spec ialists, not humdrum second-rates. So it is that relaxation on merit, by overruling equality  and quality altogether, is a social risk where the stage is post-graduate or post- doctoral .  These passages from the judgment of Krishna Iyer, J. clearly and forcibly express the same v iew which we have independently reached on our own and indeed that view has been so ably exp ressed in these passages that we do not think we can usefully add anything to what has alrea dy been said there. We may point out that the Indian Medical Council has also emphasized tha t playing with merit so far as admissions to post-graduate courses are concerned, for pamper ing local feeling, will boomerang. We may with advantage reproduce the recommendation of the  Indian medical Council on this point which may not be the last word in social wisdom but is  certainly worthy of consideration : Students for post-graduate training should be selected strictly on merit judged on the basis  of academic record in the under graduate course. All selection for post-graduate studies sh ould be conduced by the Universities. The Medical Education Review Committee has also expressed the opinion that "all admissions t o the post-graduate courses in any institution should be open to candidates on an all-India  basis and there should be no restriction regarding domicile in the State/Union Territory in  which the institution is located". So also in the policy statement filed by the learned Atto rney-General, the Government of India has categorically expressed the view that: So far as admission to the institutions of post-graduate colleges and special professional c olleges is concerned, it should be entirely on the basis of all-India merit subject to const itutional reservations in favour of Scheduled Castes and Scheduled Tribes. We are therefore of the view that so far as admissions to post- graduate courses, such as MS , MD and the like are concerned, it would be eminently desirable not to provide for any rese rvation based on residence requirement within the State or on institutional preference. But,  having regard to broader considerations of equality of opportunity and institutional contin uity in education which has its own importance and value, we would direct that though reside nce requirement within the State shall not be a ground for reservation in admissions to post -graduate courses, a certain percentage of seats may in the present circumstances, be reserv ed on the basis of institutional preference in the sense that a student who has passed MBBS  course from a medical college or university, may be given preference for admission to the po

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st-graduate course in the same medical college or university but such reservation on the bas is of institutional preference should not in any event exceed 50 per cent of the total numbe r of open seats available for admission to the post-graduate course. This outer limit which  we are fixing will also be subject to revision on the lower side by the Indian Medical Counc il in the same manner as directed by us in the case of admission to the MBBS course. But, ev en in regard to admissions to the post-graduate course, we would direct that so far as super  specialities such as neuro-surgery and cardiology are concerned, there should be no reserva tion at all even on the basis of institutional preference and admissions should be granted p urely on merit on all-India basis."

It in no uncertain terms directed :         "The decisions reached by us in these writ petitions will bind the Union of India, t he State Governments and Administrations of Union Territories because it lays down the law f or the entire country and moreover we have reached this decision after giving notice to the  Union of India and all the State Governments and Union Territories..."

A scheme, thus, came to be framed by this Court which is a law within the meaning of Article  141 of the Constitution of India and is binding-on all the States in terms of Article 144 o f the Constitution of India. The principal considerations which weighed with the court for a rriving at the aforementioned conclusion were:         "...There can be no doubt that the policy of ensuring admissions to the MBBS    Cour se on all-India basis is a highly desirable policy, based as it is on the postulate - that I ndia is one nation and every citizen of India is entitled to have equal opportunity for educ ation and advancement, but it is an ideal to be aimed at and it may not be realistically pos sible, in the present circumstances, to adopt it, for it cannot produce real equality of opp ortunity unless, there is complete absence of disparities and inequalities - a situation whi ch simply does not exist in the country today. There are massive social and economic dispari ties and inequalities not only between State and State but also between region and region wi thin a State and even between citizens and citizens within the same region. There is a yawni ng gap between the rich and the poor and there are so many disabilities and injustices from  which the poor suffer as a class that they cannot avail themselves of any opportunities whic h may in law be open to them. They do not have the social and material resources to take adv antage of these opportunities which remain merely on paper recognized by law but nonexistent  in fact. Students from backward States or regions will hardly be able to compete with those  from advanced States or regions because, though possessing an intelligent mind, they would  have had no adequate opportunities for development so as to be in a position to compete with  others. So also students belonging to the weaker sections who have not, by reason of their  socially or economically disadvantaged position, been able to secure education in good schoo ls would be at a disadvantage compared to students belonging to the affluent or well-to-do f amilies who have had the best of school education and in open all-India competition, they wo uld be likely to be worsted..."

A distinction was made therefore between the Undergraduate Course i.e. MBBS Course and Post  Graduate Medical Course as also super speciality courses. The Court, therefore, sought to st rike a balance of rights and interests of all concerned.

However, the percentage of seats to be allotted on all-India basis, however, came to be modi fied in Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College, Allahabad and Ors. in th e following terms :-         "We would also like to clear up one misunderstanding which seems to prevail with som e State Governments and universities in regard to the true import of our Judgment dated June  22, 1984. They have misinterpreted our Judgment to mean that 30% of the total number of sea ts available for admission to MBBS course in a medical college should be kept free from rese rvation on the basis of residence requirement or institutional preference. That is a total m isreading of our Judgment. What we have said in our Judgment is that after providing for res ervation validly made, whatever seats remain available for non-reserved categories, 30% of s uch seats at the least, should be left free for open competition and admission to such 30% o pen seats should not be based on residence requirement or institutional preference but stude nts from all over the country should be able to compete for admissions to such 30% open seat s. To take an example, suppose there are 100 seats in a medical college or university and 30 % of the seats are validly reserved for candidates belonging to Scheduled Castes and Schedul ed Tribes. That would leave 70 seats available for others belonging to non-reserved categori es. According to our Judgment, 30% of 70 seats, that is, 21 seats out of 70 and not 30% of t he total number of 100 seats, namely, 30 seats, must be filled up by open competition regard less of residence requirement or institutional preference."

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Changes were made in the formula in Dr. Dinesh Kumar and Ors. (II) v. Motilal Nehru Medical  College, Allahabad and Ors.. This Court thereafter times without number issued directions fr om time to time regulating admissions in different courses of studies, meticulous supervisio ns and conduct of examinations by the Universities as also all-India tests in the following  : 1. Dr. Dinesh Kumar (III) -  2. Dr. Dinesh Kumar (IV) -  3. Dr. Dinseh Kumar (V)  - [(1989) Supp 2  SCC 428] 4. Dr. Dinseh Kumar (VI) - [(1987) 1 SCALE 1232] 5. Dr. Dinseh Kumar (VII) - [(1987) 2 SCALE 22] 6. Dr. Dinseh Kumar (VIII) - [(1988) 1 SCALE 428] 7. Dr. Dinseh Kumar (IX) -  

The State of Assam, it appears, was specifically directed to follow institutional preference  by this Court by an order dated 2.2.1996 in Writ Petition (Civil) No. 625 of 1995.

A deviation to the said dicta, however, was sought to be made by a two-Judge Bench of this C ourt in Dr. Parag Gupta’s case (supra). In the said decision some of the students complained  that whereas the students who had undergone studies in other Universities were entitled to  reservation by way of domicile or institutional preference, but they, although had successfu lly completed in All India Entrance Test in MBBS Course, are not being permitted to compete  with their fellow students of Delhi University on the ground of institutional preference, al though they belong to the same class of students.

This Court in Dr. Parag Gupta (supra) did not lay down any law. It dealt with the situation  on equitable and humanitarian grounds but while doing so it indisputably deviated from the l aw laid down in Dr. Pradeep Jain’s case (supra) only by way of an interim arrangement. It in advertently created reservation on domicile which was forbidden in Dr. Pradeep Jain’s case ( supra). The said provisional directions being binding on Delhi University came to be followe d in subsequent years. The sympathetic consideration shown by this Court in Dr. Parag Gupta’ s case (supra) came to be misapplied by the Allahabad High Court in Vineet Singh’s case wher ein the High Court directed consideration of cases of the students who belonged to the State  of U.P. irrespective of the fact that whether they had gone out of their home State on 15%  all-India quota or not. This Court in State of U.P. and Ors. v. Vineet Singh and Ors. clarif ied the position holding that the High Court was wrong in extending the benefit in Dr. Parag  Gupta’s case (supra) to other students and reiterated that Dr. Parag Gupta’s decision was c onfined to the students who had gone to other States under 15% all-India quota. The ratio of  the judgment in Dr. Parag Gupta’s case (supra) came to be reiterated in Abhinav Aggarwal an d Anr. v. Union of India and Ors. [(2001) 3 SCC 425].

In Dr. Prachi Almeida v. Dean, Goa Medical College and Ors., a problem was faced by a studen t from Delhi who was admitted into Goa Medical College under the 15% all-India quota. She wa s denied admission in Goa on the ground that she was not resident of the said State. She, ho wever, was married in Goa. This Court followed Dr. Pradeep Jain’s case (supra) and directed  that the student cannot be denied admission on the basis of residence requirement holding th at if the candidate has done MBBS Course in that State such a candidate would be eligible fo r admission in Post Graduate Medical Course therein.

Some students of the Delhi University, thereafter filed a writ petition questioning the resi dential reservation in Magan Mehrotra and Ors. v. Union of India and Ors. since reported in  (2003) 3 SCALE 101. A Bench of this Court therein by an order dated 11.09.2002 noticing the  conflict between the decisions in Dr. Pradeep Jain (supra) on the one hand and Dr. Parag Gup ta (supra) on the other, issued notices to all the States excepting the States of Jammu & Ka shmir and Andhra Pradesh and referred the matter to a three-Judge Bench. In Magan Mehrotra ( supra), this Court held that the decision in Dr. Parag Gupta (supra) is contrary to the deci sion in Dr. Pradeep Jain (supra) stating:         "...A bare look at the judgment. of the 3-JudgeBench in Pradeep Jain’s case and two- Judge Bench in Parag Gupta’s case in relation to the question of preference in the post grad uate course it cannot but be held that the Parag Gupta’s case took a different view by uphol ding the residential preference, in essence, which was contrary to the judgment of the three -Judge Bench in Pradeep Jain’s case. Independently on examining the 7 issue of preference, w e are also of the considered opinion that the decision rendered by this Court in Pradeep Jai n’s case had taken a correct criteria into consideration and we therefore, agree with the pr inciples evolved and the ratio given in Pradeep Jain’s case so far as it relates to admissio

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n into the post graduate courses and the question of institutional preference to be given to  those who had studied their under-graduate courses in the very institutions against the 15%  quota on the All India basis. In this view of the matter, the impugned Bulletin of Informat ion issued by the Delhi University in relation to the Post-doctoral (D.M./M.Ch.) Post Gradua te Degree must be held to be contrary to the direction of this Court in Pradeep Jain’s case  and the same is accordingly quashed. However, this order shall be made effective from the ne xt academic session. We, however, direct the Sates of Assam, Tamil Nadu, Goa and Karnataka t o follow the pattern of institutional preference as has been indicated by this Court in Prad eep Jain’s case and reiterated by us today..."

We may, however, notice that this Court in K. Duraisamy and Anr. v. State of Tamil Nadu and  Ors. upheld the sources for admission by giving preference to the doctors working in the hos pitals in the Post Graduate Courses on the ground that the same constitutes a valid classifi cation.

The discussions on this topic would remain incomplete if we fail to notice a recent decision  of this Court in All India Institute of Medical Sciences Students’ Union (supra) rendered b y one of us, Hon’ble Lahoti, J. wherein this Court, keeping in view the peculiar situation o btaining in the case of AIMS, held institutional reservation to be unconstitutional. It, how ever, keeping in view the necessity of giving institutional preference to students who had s tudied from AIIMS, directed that such preference be given to the extent of 25% of students i nstead of 33%. However, keeping in view the fact that there were 40 seats in MBBS Course whe reas 132 seats in Post Graduate Courses, the institutional preference to be given to the stu dents of AIIMS came to about 82.5%.

In this context it is relevant to examine the relevance of an entry in the State List or Con current List.

’Education’ appears both in Union List as also in the Concurrent List. The      relevant ent ries in the Constitution are as under :         "66. List I - Co-ordination and determination of standards in institutions for  high er education or research and scientific and technical institutions."         "25. List III - Education, including technical education, medical education and      universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational a nd technical training of labour."

An argument has been advanced that different interpretation is needed having regard to the s hift of constitutional entry from List II to List III. One of us in T.M.A. Pai Foundation an d Ors. v. State of Karnataka and Ors., had to say the following :         "Further, under Clause (2) of Article 246 Paliament and subject to Clause (1) the le gislature of any State are empowered to make law with respect to any of the matters enumerat ed in List III Seventh Schedule and under Clause (3) of Article 246, the legislature of any  State is empowered to enact law with respect to any of the matters enumerated in List II in  the Seventh Schedule subject to Clauses (1) and (2). From the aforesaid provisions it is cle ar that it is Article 246 and other articles which either empower Parliament or the State Le gislature to enact law and not the entries finding place in three lists of the Seventh Sched ule, Thus the function of entries in three lists of the Seventh Schedule is to demarcate the  area over which the appropriate legislatures can enact laws but do not confer power either  OB Parliament or the State Legislatures to enact laws. It may be remembered, by transfer of  the entries, the character of the entries is not lost or destroyed. In this view of the matt er by transfer of contents of Entry 11 of List II to List III as Entry 25 has not denuded th e power of the State Legislature to enact law on the subject "Education" but has also confer red power on Parliament to enact law on the subject "Education"."

Shifting of the entry from the State List to the Concurrent List is not, thus, relevant inas much the State in absence of any Parliamentary act has the legislative competence to enact a  statute laying down reservation for entry in any course of studies including the medical co urses.

The sole question, therefore, is as to whether reservation by way of institutional preferenc e is ultra vires Article 14 of the Constitution of India. We think not. Article 14, it will  bear repetition to state, forbids class legislation but does not forbid reasonable classific ation, which means - (1) must be based on reasonable and intelligible differentia; and (2) s uch differentia must be on rational basis.

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Hence, we may also notice the argument, whether institutional reservation fulfils the aforem entioned criteria or not must be judged on the following :- 1. There is a presumption of constitutionality; 2. The burden of proof is upon the writ petitioners as they have questioned the constitution ality of the provisions; 3. There is a presumption as regard the State’s power on extent of its legislative competenc e; 4. Hardship of few cannot be the basis for determining the validity of any statute.

The court while adjudicating upon the constitutionality of the provisions of the statute may  notice all relevant facts whether existing or conceived. This Court may therefore notice the following : (i) The State runs the Universities. (ii) It has to spend a lot of money in imparting medical education to the students of the St ate. (iii) Those who get admission in Post Graduate Courses are also required to be paid stipends . Reservation of some seats to a reasonable extent, thus, would not violate the equality cla use. (iv) The criteria for institutional preference has now come to stay. It has worked out satis factorily in most of the States for last about two decades. (v) Even those States which defied the decision of this Court in Dr. Pradeep Jain’s case (su pra) had realized the need for institutional preference. (vi) No sufficient material has been brought on record for departing from this well-establis hed admission criteria. (vii) It goes beyond any cavil of doubt that institutional preference is based on a reasonab le and identifiable classification. It may be that while working out the percentage of reser vation invariably some local students will have preference having regard to the fact that do micile/residence was one of the criteria for admission in MBBS Course. But together with the  local students 15%, students who had competed in all India Entrance Examination would also  be getting the same benefit. The percentage of students who were to get the benefit of reser vation by way of institutional preference would further go down if the decision of this Cour t in Dr. Pradeep Jain’s case (supra) is scrupulously followed. (viii) Giving of such a preference is a matter of State policy which can be invalidated only  in the event of being violative of Article 14 of the Constitution of India. (ix) The students who would get the benefit of institutional preference being on identifiabl e ground, there is hardly any scope (x) for manipulation.

In Km. N. Vasundara v. State of Mysore and Anr. [(1971) 1 Supp. SCR 381], it was observed :         "But cases of hardship are likely to arise in the working of almost any rule which m ay be framed for selecting a limited number of candidates for admission out of a long list.  This, however, would not render the rule unconstitutional."

As noticed hereinbefore, in D.N. Chanchala’s case (supra), M.R. Mini’s case (supra) and Jaga dish Saran’s case (supra) institutional preference has been preferred. It has been reiterate d in the law laid down by way of a scheme evolved in Dr. Pradeep Jain (supra) and reiterated  in Magan Mehrotra (supra).

We, therefore, do not find any reason to depart from the ratio laid down by this Court in Dr . Pradeep Jain (supra). The logical corollary of our finding is that reservation by way of i nstitutional preference must be held to be not offending Article 14 of the Constitution of I ndia.

However, the test to uphold the validity of a statute on equality must be judged on the touc h-stone of reasonableness. It was noticed in Dr. Pradeep’s Jain’s case (supra) that reservat ion to the extent of 50% was held to be reasonable. Although subsequently in Dr. Dinesh Kuma r’s case (supra) it was reduced to 25% of the total seats. The said percentage of reservatio n was fixed keeping in view the situation as then existing. The situation has now changed to  a great extent. Twenty years have passed. The country has during this time have produced a  large number of Post Graduate doctors. Our Constitution is organic in nature. Being a living  organ, it is ongoing and with the passage of time, law must change. Horizons of constitutio nal law arc expanding.

Having regard to the facts and circumstances of the case, we are of the opinion that the ori ginal scheme as framed in Dr. Pradeep Jain’s case (supra) should be reiterated in preference

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to Dr. Dinesh Kumar’s case (supra). Reservation by way of institutional preference, therefo re, should be confined to 50% of the seats since it is in public interest.

For the purpose of selecting the candidates, it is necessary to hold an All India Entrance E xamination by an impartial and reputed body. We must, therefore, lay down the criteria there fore. AIIMS in terms of an order passed by this Court has been conducting the said examinati on. It may continue to do so unless a competent body is created by the Central Government in  terms of a Parliamentary Act or otherwise. All expenses for conducting such examination sha ll be borne by the Central Government which would also provide the requisite infrastructure  therefore. One test shall be held for all the students taking admission throughout the count ry. This order is passed keeping in view the fact that now one common entrance test is held  for admission against 25% of all India quota and other tests are being held by the respectiv e Universities. Disparities in such tests should be done away with and merit of the students  should be judged on the basis of one test held therefore.

AIIMS is an institution of excellence. It is a class by itself and pride. We are, therefore,  of the opinion that in the AIIMS and the medical colleges of the Central University, merit  should have primacy subject of course to institutional preference to the extent of 50% of th e total seats in the MBBS Course. In all other respects the decision of this Court in All In dia Institute of Medical Sciences Students’ Union’s case (supra) shall operate.

Our directions aforementioned, however, are interim in nature. The Parliament having regard  to Entry 66, List I of the Seventh Schedule of the Constitution of India has the legislative  competence which would take care of the country as a whole. While making such a legislation , the Parliament undoubtedly would take into consideration the special needs of some small S tates, having regard to their backwardness economic, social and educational as also geograph ical conditions.

The Parliament has also the legislative competence in terms of Entry 25, List III of the Sev enth Schedule of the Constitution. It for education and particularly higher education where  excellence is required, while enacting law must also foresee that in the era of liberalisati on and globalisation, Indian citizens must compete with their counter-parts of the developed  countries. Merit, thus, must be allowed to explore to the fullest extent. Genius hidden in  the citizens must be allowed to blossom. Despite 55 years of India’s existence as an indepen dent nation, a National policy on higher education has not come into being. Its significance  and importance was highlighted in Dr. Pradeep Jain’s case (supra); but the Parliament did n ot pay any heed thereto.

The courts are normally reluctant to issue any direction to the Central Government for makin g law. Following our practice, we refrain ourselves to issue any direction in this regard. W e hope and trust that the Central Government expeditiously consider of making legislation or  taking such steps as are necessary in this behalf keeping in view the requirement of coordi nation in higher education in terms of Entry 66, List I of the Seventh Schedule of the Const itution of India.

For the aforesaid reasons, we do not find any merit in the contentions advanced on behalf of  the petitioners. The petitioners are not entitled to any relief. With the aforesaid directi ons, these writ petitions and the appeal are disposed of.

There shall be no order as to costs.

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S.B. Sinha, J.

I have had the advantage of reading the draft opinion of Hon’ble the Chief Justice of India.  While concurring with the said judgment, I would like to add a few rods of mine.

The core question involved in these appeals is as to whether by providing for institutional  reservation, the equality clause is violated.

Article 14 of the Constitution of India prohibits discrimination in any form. Discrimination

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at its worst form would be violative of the basic and essential feature of the Constitution . It is trite that even the fundamental rights of a citizen must conform to the basic featur e of the Constitution. Preamble of the Constitution in no uncertain terms lays emphasis on e quality.

In Kesavananda Bharati v. State of Kerala Shelat and Grover, JJ. stated that:         "582.....(5) The dignity of the individual secured by the various freedoms and basic  rights in Part III and the mandate to build a welfare State contained in Part IV would be v iolative of basic feature of the Constitution of India.’

Further, Hegde and Mukherjea, JJ stated the law thus:         "661.....The broad contours the basic elements or fundamental features of our Consti tution are clearly delineated in the preamble. Unlike in most of the other Constitution, it  is comparatively easy in the case of our Constitution to discern and determine the basic ele ments or the fundamental features of our Constitution. For doing so, one has only to look to  the preamble."

Kesavananda Bharati (supra) has been followed in L. Chandra Kumar v. Union of India and Ors.

In Maharao Sahib Shri Bhim Singhji v. Union of India and Ors. Krishna Iyer, J., however, in  his characteristic style opined:         "20... The question of basic structure being breached cannot arise when we examine t he vires of an ordinary legislation as distinguished from a constitutional amendment. Kesava nanda Bharati cannot be the last refuge of the Proprietariat when benign legislation takes a way their ’excess’ for societal weal. Nor, indeed, can every breach of equality spell disast er as a lethal violation of the basic structure. Peripheral inequality is inevitable when la rge-scale equalization processes are put into action. If all the judges of the Supreme Court  in solemn session sit and deliberate for half a year to produce a legislation for reducing  glaring economic inequality their genius will let them down if the essay is to avoid even pe ripheral inequalities. Every large cause claims some martyr, as sociologists will know. Ther efore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a s hocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a  legislation does go that far it shakes the democratic foundation and must suffer the death p enalty."

Recently a question came up before the US Supreme Court in Jennifer Gratz and Patrick Hamach er v. Lee Bollinger decided on 23rd June, 2003 likely to be reported in (2003) 539 U.S. wher ein the guidelines providing for selection method under which every applicant from an under  represented racial or ethnic minority groups was to be automatically awarded 20 points out o f 100 points needed to guarantee admission, was struck down as has been violative of equalit y protection clause. It was observed:         "The very nature of a college’s permissible practice of awarding value to racial div ersity means that race must be considered in a way that increases some applicants’ chances f or admission. Since college admission is not left entirely to inarticulate intuition, it is  hard to see what is inappropriate in association some stated value to a relevant characteris tic, whether it be reasoning ability, writing style, running speed, or minority race. Justic e Powell’s plus factors necessarily are assigned some values. The college simply does by a n umbered scale what the law school accomplish in its "holistic review", Grutter, Post, at 26;  the distinction does not imply that applicants to the undergraduate college are denied indi vidualized consideration or a fair chance to compete on the basis of all the various merits  their applications may disclose."

Delivering his minority opinion on his own behalf as also on behalf of Justice Souter, Justi ce Ginsburg, however, held:         "Our jurisprudence ranks race a "suspect" category, "not because (race) is inevitabl y an impermissible classification, but because it is one which usually, to our national sham e has been drawn for the purpose of maintaining racial inequality." Norwalk Core v. Norwalk  Redevelopment Agency, 395 F. 2d 920, 931-932 (CA2 1968) (footnote omitted). But where race i s considered "for the purpose of achieving equality." id. at 932, no automatic prescription  is in order. For as insightfully explained, "the Constitution is both color blind and color  conscious. To avoid conflict with the equal protection clause, a classification that denies  a benefit causes harm or imposes a burden must not be based on race in that sense, the Const itution is color blind. But the Constitution is color conscious to prevent discrimination be ing perpetuated and to undo the effects of past discrimination, "United States v. Jefferson  County Bd. of Ed., 372 F.2d 836, 876 (CA5 1966) (Wisdom, J.)’ see Wechsler, The Nationalizat

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ion of Civil Liberties and Civil Rights Supp. To 12 Tex. Q.10, 23 (1968) (Brown may be seen  as disallowing racial classifications that "imply an invidious assessment" while allowing su ch classifications when "not invidious in implication" but advanced to "correct inequalities "). Contemporary human rights documents draw just this line, they distinguish between polici es of oppression and measures designed to accelerate de facto equality. See Grutter, post, a t 1 (Ginsburg, J. concurring) (citing the United Nations - initiated Conventions on the Elim ination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrim ination against Women)."

The validity of institutional reservation must be judged on the touchstone of equality claus e.

While considering the reasonableness of the institutional reservation, we have taken into co nsideration the effect of equality clause contained in Article 14 and 15 of the Constitution  of India.

The question as regard merit of the students vis-a-vis right of development and human rights  angle had been considered at some length in Islamic Academy of Education and Anr. v. State  of Karnataka and Ors. [JT 2003 (7) SC 1] and following Pradeep Jain v. Union of India it has  been held: For the purpose of achieving excellence in a professional institution, merit indisputably sh ould be a relevant criterion. Merit, as has been noticed in the judgment may be determined i n various ways (Para 59). There cannot be, however, any fool-proof method whereby and whereu nder the merit of a student for all times to come may be judged. Only, however, because a st udent may fare differently in a different situation and at different point of time by itself  cannot be a ground to adopt different standards for judging his merit at different points o f time. Merit for any purpose and in particular for the purpose of admission in a profession al college should be judged as far as possible on the basis of same or similar examination.  In other words, inter se merit amongst the students similarly situated should be judged appl ying the same norm or standard. Different types of examinations, different sets of questions , different ways of evaluating the answer books may yield different results in the case of t he same student. Selection of students, however, by the minority institutions even for the members of their c ommunity cannot be bereft of merit. Only in a given situation less meritorious candidates fr om the minority community can be admitted vis-a-vis the general category; but therefore the  modality has to be worked out. For the said purpose de facto equality doctrine may be applie d instead of de jure equality as every kind of discrimination may not be violative of the eq uality clause. (See Pradeep Jain v. Union of India ).

Even applying the said tests, institutional reservation cannot be held to be unconstitutiona l.

Mr. Nariman contended that provision for reservation being a suspect legislation the strict  scrutiny test should be applied. Even applying such a test, we do not think that the institu tional reservation should be done away with having regard to the present day scenario. We ma y notice that such a test has been applied for upholding a statute recently in Balram Kumawa t v. Union of India [(2003) 7 SCC 626].

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Dr. AR. Lakshmanan,J.

While concurring  with the conclusion arrived at by Hon’ble the Chief Justice, I would like to add the following few lines  for streamlining the policies and processes for admission to Medical Courses and other Professional Courses. The issues and options are discussed below:         Every year during the admission season several lakhs of students         undergo immense suffering and harassment in seeking admission to         Professional Courses caused  by uncertain policies, ambiguous         procedures and inadequate information. The miseries of students and parents are escalating year after year due to

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boundless expansion in the number of professional institutions and their in take capacity, emergence  of a large variety of newer disciplines and mobility of students seeking admissions beyond the boundaries of States. The students who are about to complete their high school education go through a period of acute anxiety caused by the uncertain situation about their chances for further education. The number of qualified students wanting to go for higher studies  has been swelling largely motivated by hopes of better economic security and partly by a desire to attain greater upward social mobility. Then begins their trauma due to many prevailing unfair practices in admissions and devious ways of fee collections exploiting the anxiety of students and uncertainty of procedures. Most of the efforts to  deal with these problems are ad-hoc in nature often decided under judicial orders. Different State and Central authorities take many different actions often leading to severe inconsistencies. There is substantial scope for streamlining the admission process, even within the regulatory powers of the authorities, provided these issues are not dealt with on an emergency basis  during the admission season but done in a co- ordinated and comprehensive manner ahead of time.

ISSUE NUMBER ONE:

       ENTRY QUALIFICATION:               For admissions to under-graduate programmes, there are               several different eligibility norms  among the  different               categories of institutions and  among the various States.               Some are based on Twelfth Standard marks or  grades only,               some are based on the Entrance Examination only, and some are determined by a combination of these with different weightages. There is endless number of justifications for each of the above, confusing the students from different parts of the country.

The preferred option,  in my view,  should be for a designated agency or the University concerned to conduct the entrance examination for professional as well as non-professional institutions in the specified subjects, (an option suggested by this Court). The marks awarded in those subjects should be the basis for determining the merits of the students for admission to the institutions to which they apply.

ISSUE NUMBER TWO: UNPLANNED GROWTH OF INSTITUTIONS

The growth of the Professional Institutions has been at an geometrical rate during the last five years. During recent years the expansion of educational facilities for higher education has been nearly exclusively in the private unaided sector due to the financial incapacity of Governments. Those who have ventured to start the new institutions are motivated by commercial interests and not by educational and social interests. Political considerations have become paramount in sanctioning of colleges. There has been a high level of exploitation of students in certain disciplines through unethical and illegal collection of unauthorized payments. The discontent among the meritorious students is simmering also because only those, even with poor competence, but who could pay high illegal amounts can get into many institutions.

OPTIONS:       1.  The country needs to evolve urgently a predictable pattern of       growth for the Higher Education system in Technical, Managerial,       and other Professional disciplines as well in Science and       Humanities at     least for the next five years. The present level of       ad-hoc approach and stampede should be eliminated.         2. The national blue print  and the road map for the development of         professional education should be based on maintaining credible         level of quality standards and anticipated demand structure in

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       economic and    social sectors.

ISSUE NUMBER THREE: FEE STRUCTURE:         This Court states:  "A rational  fee structure should be adopted by         the Management, which would not be entitled to charge  a capitation         fee. Appropriate machinery can be devised by the State or         University to ensure that no capitation fee is charged and that         there is no profiteering." OPTIONS:

One possible remedy is to make a rule under the Prevention of the Capitation Fee Act that collecting any fee that was not previously announced in the college publications and any fee collected without a formal receipt should be punishable offences. This rule should be strictly enforced.

ISSUE NUMBER FOUR: CERTIFICATES HASSLES:

When we consider the size of our country and the large number of institutions and huge volume of applicants, the man hour and money lost in running around for getting the certificates during  the admission season must run into equivalent of several crores of rupees. A more hassle-free system for authenticating the required information from students should be evolved.

OPTIONS:

Every student be provided with a basic identity certificate while he/she is in the higher secondary stage (10th to 12th std). This should provide  all essential information such as date of birth, community, domicile, photo identity etc., authenticated by a designated official. This should be acceptable for admission requirements in any institution and in any State in India.         Superspeciality Institutions and Institutions where         highly skilled Training/Education is imparted:         On the issue whether there can be Article 15(4) reservations in         super-speciality   courses, this Court   was categorical when it         declared that there could not be any reservation at the level of         super-specialisation in medicine because any dilution of merit at         the level would adversely affect the national interest in having         the best possible at the highest level of professional and         educational training."

Similar view was already taken by this Court in Pradeep Jain V. Union of India, AIR 1984 SC 1420.

       In similar vein, in Jagdish Saran vs. Union of India,  AIR 1980 SC         820, this Court observed that  Merit must be the test when choosing         the best, according to this rule of equal chance for  equal marks.         This proposition has greater importance when we reach the higher         levels of education for postgraduate courses. This Court further         observed that the host of variables influence the qualification of         the reservation as one factor deserves great emphasis, the higher         the level of the speciality the lesser the role of reservation.         In the case of Article 15(4) reservations,  this Court has made it         clear that the claims of national interest demands that these         reservations can never exceed 50% of the available seats in the         concerned educational institutions.         The view was approved by this Court in the case of Indra Sawhney V. Union of India.  If one looks at this issue in the light of the spirit of the ratios laid down in Preeti Srivatsava v. State of M.P.,  AIR 1999 SC 2894  and in AIIMS Students Union v. A.I.I.M.S., AIR 2001 SC 3262,  one would come to the inevitable conclusions that the constitutional

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reservations contemplated under Article 15(4) should be kept at the minimal level so that national interest in the achievement of the goal of excellence in all fields is not unduly affected.

       Of course, as between the reserved category candidates, there         should be inter-se merit  observed. This has been emphasised by         this court in several cases.    As regards the constitutional         validity of institutional/regional/university wise         reservation/preference, in view of this court’s emphasis on the         need to strive for excellence which alone is  in the national         interest, it may not be possible to sustain its constitutional         validity. However, the presently available decisional law is in         support of institutional preference to the extent of 50% of the         total available seats in the concerned educational institutions. Conclusions: 1) In the case of Central educational institutions and other institutions of excellence  in the country the judicial thinking has veered around the dominant idea of national interest with its limiting effect on the constitutional prescription of reservations. The result is that in the case of these institutions the scope for reservations is minimal.

2)  As regards the feasibility of constitutional reservations at the level of super-specialities, the position is that the judiciary has adopted the dominant norm, i.e., "the higher the level of the speciality the lesser the role of reservation". At the level  of super-specialities the rule of "equal chance for equal marks" dominates. This view equally applies to all super-speciality institutions.

3)   As regards the scope of reservation of seats in educational institutions affiliated and recognised by State Universities, the constitutional prescription of reservation of 50%  of the available seats has to be respected and enforced.  4 )  The institutional preference should be limited to 50% and the rest being left for open competition based purely on  merits on an All India basis.

5)      As regards private non-minority educational institutions distinction between government aided and unaided institutions. While government/State can prescribe guidelines as to the process of selection and admission of students, the government/State while issuing guidelines has to take into consideration the constitutional mandate of the requirement of protective discrimination in matters of reservation of seats as ordained by the decisional law in the country. Accordingly, the extent of reservation in no case can exceed 50% of the seats.   The inter-se merit may be assessed on the basis of a common All India Entrance Test or on  the basis of marks at the level of qualifying examination. 6)  The position with respect to minority aided institutions is that they are bound by the  requirement of constitutional reservation along with other regulatory controls. However, the right to admit students of their choice being part of the right of religious and linguistic minorities, to establish and administer educational institutions of their choice, the managements of these educational institutions can reserve seats to a reasonable extent,  not necessarily 50% as laid down in Stephens College case. Out of the seats left after the deduction of management quota, the State can require the observance of the requirement of Constitutional reservation.

7)  As regards the unaided institutions, they have large measure of autonomy even in matters of admission of students as they are not bound by the constraints of the demands of Article 29(2). Nor are they bound by the constraints of the obligatory requirements of Constitutional reservation.         Before parting with this case, I am of the opinion that the younger generation in our society nurturing fond hopes and aspiration for their future professional careers should feel it as a pleasurable  experience to explore the available options in higher education.  They should be spared

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from the mental torture due hassles and unsavoury experiences in getting to the first base. To the extent possible they should be made to feel that they are part of one nation. Tensions and frustrations at their impressionable age will surely result i a society with distorted and negative values damaging the foundations of a healthy society. The policies and procedures for admissions should be viewed from the larger impact on the future of India.