2003 Supreme(SC) 1096

`2004(1) Supreme 26
Supreme Court of India
(Under Art. 32 of the Constitution of India)
V.N. Khare, CJI., R.C. Lahoti, B.N. Agrawal, S.B. Sinha & Dr. AR. Lakshmanan, JJ.
Saurabh Chaudri & Ors. -Petitioners
versus
Union of India & Ors. -Respondents
Writ Petition (C) No. 29 of 2003
With
WP (C) Nos. 54, 57, 68, 69, 84, 85, 89, 91, 95, 98, 99, 100 of 2003
And
C.A. No. 8581 of 2003
(Arising out of SLP (C) No. 1347 of 2002)
All Decided on 4-11-2003
Counsel for the Parties :
For the Appearing Parties : Kailash Vasdev, Shanti Bhushan, Sr. Advocates, M.C. Dhingra, Ms. Gulnar Khan, S. Sadashiva Reddy, Ms. Sudha Gupta, Syed Ali Ahmad, Syed Tanweer Ahmad, Mohan Pandey, A.S. Bhasme, Sanjay Visen, Manoj K. Mishra, S.K. Bhattacharya, M.N. Shroff, A.D.N. Rao, Rajiv K. Garg, Abhijeet Chatterjee, Chanchal Kumar Ganguli, Ms. Rekha Pandey, Ms. Sunita Sharma, D.S. mahra, Maninder Singh, Ms. Pratibha M. Singh, Ankur Talwar Kriti Maan Singh, A. Mariarputham, Ms. Aruna Mathur, Anurag D. Mathur, Ms. Kamini Jaiswal, Ms. Shyomila Bakshi, Ashok K. Srivastava, Ashok K. Mahajan, K.R. Sasiprabhu, Advocate (NP), Ms. Krishna Sarma, Ms. Asha G. Nair, V.K. Sidharthan, Anil Srivastav, B.B. Singh, Advocate (NP), Ms. H. Wahi, Ms. Aruna Gupta, Ms. A. Subhashini, Satinder S. Gulati, Neeraj Kumar Jain, Ms. Kavita Wadia, Advocate (NP), J.S. Attri, Sanjay R. Hegde, Satya Mitra, Anil K. Mihra, K H Nobin Singh, U.U. Lalit, S.S. Shinde, Mukesh K. Giri, Ranjan Mukherjee, Ms. Kamakshi S. Mehlwal, Advocate (NP), Nillay Dutta Advocate, General for State of Nagaland, Ms. V.D. Khanna, S.K. Nandy, Advocate (NP), R.S. Jena, Advocate (NP), R.S. Suri, Ranji Thomas, Ms. Bharati Upadhyaya, V.N. Raghupathy, Ms. Sandhya Goswami, Advocate (NP), A.T.M. Sampath, V. Balaji, P.N. Ramalingam, Gopal Singh, Navin Prakash, A.S. Pundir, Advocate (NP), Jatinder Kumar Bhatia, T.C. Sharma, Ms. Neelam Sharma, Ms. Sunita Sharma, D.S. Mehra, Anis Suhrawardy, Ms. Shamama Anis, V.G. Pragasam, Prakash Srivastava, Ashok Mathur, Nikhil Nayyar, Gautam Narayan, Mukul Gupta, Ankur Jain, T.A. Khan, Advocates.

Important Point
Reservation by way of institutional preference in the matter of admission into Post Graduate Courses in government run medical colleges must be held to be not offending Article 14 of the Constitution of India.

Headnote:(i) EDUCATION-Constitution of ­India-Articles 14, 15 and 16-Admissions into Post Graduate Courses in government run medical colleges-Reservation based on domicile or institutional-Petitioners, residents of Delhi joined various medical colleges out of Delhi for MBBS courses of studies against 15 all India quota in All India Medical Entrance Examination-Appellants applied in medical colleges of Delhi for their Post Graduate Medical Courses-They were granted admission forms subject to decision of Supreme Court in matter pending in Magan Mehrotra case, (2003) 3 SCALE 101-A three Judge Bench in Magan Mehrotra case held that apart from institutional preference, no other preference including reservation on basis of residence is envisaged in the Constitution-Notification dated 31.12.2002 issued by Delhi University stating that for admission to PG Courses only Delhi University Medical Graduates would be eligible for 75 reserved seats of students from Delhi-Validity challenged-Whether reservation made by way of institutional preference is ultra vires Articles 14 and 15 of the Constitution-(No)-Whether reservation based on domicile is impermissible in terms of Article 15(1)-(No)-Whether reservation by way of institutional preference comes within suspected classification warranting strict scrutiny test-(No).

       As per V.N. Khare, CJI [for himself and on behalf of R.C. Lahoti and B.N. Agrawal, JJ.]

       Held : The term ‘place of birth’ occurs in clause (1) of Article 15 but not ‘domicile’. If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to ‘place of birth’ alone, the latter refers to both ‘domicile’ and ‘residence’ apart from place of birth. A distinction, therefore, has been made 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 concepts. It may be true, as has been pointed out by Shri Salve and pursued by Mr. Nariman, that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly but the same, in our opinion, cannot be a guiding factor. (Para 29)

       Answer to the said question must, ­therefore, be rendered in the negative. (Para 32)

       The strict scrutiny test or the intermediate scrutiny test applicable in the United States of 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 reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same. The courts always lean against a construction which reduces the statute to a futility. (Para 36)

       The sole question, therefore, is as to whether reservation by way of institutional preference is ultra vires Article 14 of the Constitution of India. We think not. Article 14, it will bear repetition to state, forbids class legislation but does not forbid reasonable classification, which means - (1) must be based on reasonable and intelligible differentia; and (2) such differentia must be on rational basis. (Para 64)

       Reservation by way of institutional preference, therefore, should be confined to 50 of the seats since it is in public interest. (Para 71)

       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. (Para 76)

       As per S.B. Sinha, J. [Concurring Judgment]

       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 institutional reservation should be done away with having regard to the present day scenario. We may notice that such a test has been applied for upholding a statute recently in Balram Kumawat vs. Union of India [(2003) 7 SCC 626]. (Para 90)

       As per Dr. AR. Lakshmanan, J. [Concurring Judgment]

       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. (Para 107)

       (ii) EDUCATION-Constitution of India-Entry 66, List I, Seventh Schedule-Admissions, Medical courses-It is necessary to hold an All India Entrance Examination by an impartial and reputed body-Criteria laid down.

       As per V.N. Khare, CJI [for himself and for R.C. Lahoti and B.N. Agrawal, JJ.]

       For the purpose of selecting the candidates, it is necessary to hold an All India Entrance Examination by an impartial and reputed body. We must, therefore, lay down the criteria therefor. AIIMS in terms of an order passed by this Court has been conducting the said examination. 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 shall be borne by the Central Government which would also provide the requisite infrastructure therefor. One test shall be held for all the students taking admission throughout the country. 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 respective 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 therefor. 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 the total seats in the MBBS Course. In all other respects the decision of this Court in All India 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 States, having regard to their backwardness economic, social and educational as also geographical conditions. The Parliament has also the legislative competence in terms of Entry 25, List III of the Seventh Schedule of the Constitution. It for education and particularly higher education where excellence is required, while enacting law must also foresee that in the era of liberalisation and globalisation, Indian citizens must compete with their counter-parts of the developed countries. Merit, thus, must be allowed to explore to the fullest extent. Genius hidden in the citizens must be allowed to blossom. Despite 55 years of India’s existence as an independent nation, a National policy on higher education has not come into being. Its significance and importance was highlighted in Dr. Pradeep Jain’s case (supra); but the Parliament did not pay any heed thereto. The courts are normally reluctant to issue any direction to the Central Government for making law. Following our practice, we refrain ourselves to issue any direction in this regard. We hope and trust that the Central Government expeditiously consider of making legislation or taking such steps as are necessary in this behalf keeping in view the requirement of coordination in higher education in terms of Entry 66, List I of the Seventh Schedule of the Constitution of India. (Paras 72 to 75)

       As per Dr. AR. Lakshmanan, J. [Concurring Judgment]

       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 boundless expansion in the number of professional institutions and their intake 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. (Para 92)

       (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-specialities 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 institution distinction between governed 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. (Para 10)