TMI Blog1980 (1) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission but was turned down because of a rule reserving 70% of the seats, at the post-graduate level, to Delhi graduates (if we may use that abbreviation for describing student-applicants who have taken their M.B.B.S. degree from the University of Delhi). The remaining 30% was open to all, including graduates of Delhi. This rule was made in April 1978 in modification of the earlier reservation of 48%. Had this inflation (from 48% to 70% plus) not been made, the petitioner admittedly would have been granted admission. So what blocked his right to post-graduate entry was this rule of institutional quota of 70% which accorded a disproportionate premium in favour of Delhi graduates. The other petitioners are no longer in the race having secured lesser marks at the entrance test, and so the judicial lens must be fixed on the validity of such a considerable reservation or virtual monopoly for the Delhi graduates. The petitioner challenges its vires as violative of Arts. 14 to 16 and seeks the court's writ to direct the respondent University to admit him to the M.D. course (Dermatology). While litigating for his right to a seat in the postgraduate degree course in dermatology, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brief with sufficient facts which enlighten the court, although some additional information has been brought in. On the other hand, counsel's submissions were scary, if we may say so with respect, to the effect that when students went on a fast unto death, Government had to intervene and save the situation and provide larger reservation. As the Attorney General agreed, hunger strikes cannot amend the Constitution, and Government, if impressed with the grievance which has led to the protest fast, must set in motion changes in the basic law, as was done in the first constitutional amendment and later for States Reorganisation. When this flaw was pointed out to the respondent, some more materials were placed before the court in justification of the increase in the reservation quota from a constitutional angle, and we will deal with them. In the adversary system, advocacy in the superior courts, which, their decisions, declare the law for all must broaden beyond the particular lis into a conspectus of sociological facts, economic factors and educational conditions so that other persons aggrieved who will potentially be bound by the decision, do not suffer by not being co-nominee pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, pressed for a national approach to high-grade talent vis-a-vis courses in specialities. A synthesis of both is where the truth lies. The key to this case, if we may anticipate ourselves, is in harmoniously blending developmental necessities of backward regions via institutional reservations-and national considerations of everybody's equal opportunity for higher education being ensured regardless of geographical, institutional or other inhibition. We must never forget two values synthesised in our constitutional culture, as set out in the Preamble-unity and integrity of the nation and equality of opportunity of weaker sections. Without the latter becoming a sure reality the former may be mere rhetoric ! An epitome of the social background leading upto the controversy will give a hang of the case and elaboration may await a later stage. Post Independence India has many universities with facilities for higher learning. Most of them give institutional preferences in the allocation of seats for technical courses and this tendency sometimes reaches the morbid point of total cornering of seats at post-graduate level, especially in the coveted and competitive branches like medicin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niversity for higher studies, we must dilate on the foundational facts more fully. Since Sri Balakrishnan emphasised the pathetic plight of meritorious students if 'apartheid' policies were practised by universities, contrary to the cultural unity and constitutional mandates of our nation, we must weave into the legal fabric of 'admission' regulations strands of national integration and equal opportunity for higher education. These rival contentions justify, albeit a little repetitively, the recapitulation of recent events, parochial realities and institutional behaviour, bearin on admissions to colleges in the Delhi University, with some comparative glance at others in the country. We are concerned with three medical colleges, two being affiliated to, and one being maintained, by the Delhi University. Together they turn out annually around 400 medical graduates. These graduates get house jobs in the local hospitals and qualify themselves for post-graduate courses. The University has many post-graduate degrees and diploma courses but all of them put together come to only 250 seats. Naturally, the graduates from the Delhi University cannot be accommodated fully or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready fed on superior facilities and coached in special schools beyond the reach of most other students in the rest of the country, have an appetite and opportunity for excellence in education ahead of others and wish to lap up all the post-graduate seats, if possible. The cream must belong to the cream, generation to generation, may be a cynical social scientists 'comment,' Inevitably, a larger number of Delhi medical graduates, relatively speaking, must be ambitiously wanting to continue their studies in post-graduate medical courses which are prized for their career potential. It is significant that these courses are not easily available elsewhere and the standards and prestige of these degrees in the Delhi University are high. Taking a post-graduate medical degree thus opens up further vistas for studies abroad or employment at home. When we remember these factors and the reduced chance for bright Delhi graduates to gain admission into the Delhi post-graduate courses in the face of All- India competition, we can mildly appreciate the mood and demand of the student community for enlargement of their quota. But all grievances are not constitutional. Also, by remedying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the constitutional stand- point. The primary imperative of Arts. 14 and 15 is equal opportunity for all across the nation to attain excellence- and this has burning relevance to our times when the country is gradually being 'broken up into fragments by narrow domestic walls' in politics, economics and education, undoing the founding faith of an undivided integrated India by surrender to lesser appeals and grosser passions. What is fundamental, as an enduring value of our polity, is guarantee to each of equal opportunity to unfold the full potential of his personalities. Anyone anywhere, humble or high, agrestic or urban, man or woman, and whatever his religion or irreligion, shall be afforded equal chance for admission to any secular educational course or school for cultural growth, training facility, speciality or employment. Each according to his ability, is of pervasive validity, and it is a latent, though radical, fundamental that, given propitious environments, talent is more or less evenly distributed and everyone has a prospect of rising to the peak. Environmental inhibitions mostly 'freeze the genial current of the soul' of many a humble human whose fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qual opportunity, broad validation of university-based reservation cannot be built on the vague ground that all other universities are practising it-a fact not fully proved before us either. Universality of illegality, even if the artists of discrimination are universities, cannot convert such praxis into constitutionality. Nor, indeed, can the painful circumstance that a batch of medical graduates demonstratively fasted in front of the Health Minister's house, ipso facto, legalise reservation of seats in their favour. Shri Shanti Bhushan vividly described his role as Law Minister in meeting the student satyagrahis who were honestly hungry for post- graduate seats and the crisis which stampeded government to intervene and make the University revise its reservation upward to save the lives of the 'fasters'. We have sympathy for students, especially for those who sacrifice their comforts to claim an opportunity to take post-graduate medical degrees. We even feel that the student community often resorts to direct action of the satyagraha model when the pachydermic disposition of authorities drives them to such drastic heroics. But what if non-Delhi students start a rival s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o remove the absence of opportunity for medical education of adivasis or islanders who have no inclination or wherewithal to go to far-off cities and join medical colleges, by starting a regional university and medical college in the heart of such backward region and reserves a high percentage of seats there to 'locals' i.e. students from that university, it cannot be castigated as discriminatory. What is directly intended to abolish existing disparity cannot be accused of discrimination. Again, if the State finds that only students from the backward regions, when given medical graduation, will care to serve in that area, drawn towards it by a sense of belonging, and those from out-side will, on graduation, leave for the cities or their own regions, it may evolve a policy of preference or reservation for students of that University. That strategy ensures the probability of their serving the backward people for whose benefit the medical courses were opened. Such measures which make for equality of opportunity for medical education and medical service for backward human sectors may be constitutionalised even by Arts. 14 and 15. But it must be remembered that exceptions can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the altar of equalisation-when the Constitution mandates for every one equality before and equal protection of the law-may be fatal folly, self- defeating educational technology and antinational if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit-such as the dynamics of social justice which animates the three egalitarian articles of the Constitution. Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scale of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of Ph.D., M.D., or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e selected from a district were likely to settle down as practitioners in that district, so that the districts were likely to benefit from their training .(4) The Court did not consider this to be intrinsically irrelevant but negatived the contention. On the ground that it was neither pleaded in the counter-affidavit of the State, nor had the State placed any facts or figures justifying the plea that students selected district-wise would settle down as medical practitioners in the respective district where they resided. The emphasis in both the cases (Rajendran and Periakaruppan) was on the reasonable nexus with the object of the rules of selection, namely, to get the most meritorious among the candidates for imparting medical education. In Chanchala's case the basis of classification was different: in that it is neither district-wise nor unit-wise, but is university- wise. (5) The justification for university-wise reservation was the educational need and paucity of medical service in the area where the university was set up. Certain regions poorly served with medical facilities and with few doctors needed to produce more medical men who would settle down there. Likewi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istribution of seats amongst those seeking admission and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equally fair and equitable principle would also be that which secures admission in a just proportion to those who are handicapped and who, but for the preferential treatment given to them, would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlying Art. 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Art. 15(4). Another observation by Dua, J. in his separate opinion also has pregnant meaning (1): The object of selection for admission to the Medical Colleges, considered in the background of the directive principles of State policy contained in our Constitution, appears to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p disabilities. So we may weave those special facilities into the web of equality which, in an equitable setting, provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity. So we hold, even apart from Art. 15(3) and (4), that equality is not negated or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit. Indeed, Art. 14 implies all this, in its wider connotation, and has to inform the interpretation of Art. 15. Mathew J. in Thomas's case (supra) quoted from the Moynihan Report and continued with some insightful comments which we may excerpt: (2) Here a point of semantics must be grasped. The demand for equality of opportunity has been generally perceived by White Americans as a demand for liberty, a demand not to be excluded from the competition of life- at the polling place, in the scholarship examinations, at the personnel office, on the housing market. Liberty does, of course, demand that everyone be free to try his luck, or test his skill in such matters. But t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice Brennan, in a different social milieu, but with a spiritual secular meaning which may not be lost on us, stated:(1) Lincon said this Nation was 'conceived in liberty and dedicated to the proposition that all men are created equal'. The Founders' dream of a society where all men are free and equal has not been easy to realize. The degree of liberty and equality that exists today has been the product of unceasing struggle and sacrifice. Much remains to be done-so much that the very institutions of our society have come under challenge. Hence, today, as in Lincoln's time, a man may ask 'whether (this) nation or any nation so conceived and so dedicated can long endure'. It cannot endure if the Nation falls short on the guarantees of liberty, justice, and equality embodied in our founding documents. But it also cannot endure if our precious heritage of ordered liberty be allowed to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educational opportunity for a class or a region, the State may legitimately resort to institutionally classified reservation but Delhi fails to quality. Again, the integral yoga of equality and excellence at the service of society as already stated, has another rider. In the higher scales of specialised knowledge, be it art, science or technology, superior performance must be accorded recognition, for a variety of consideration. Who but humanity suffers if a rare genius, with a greater flair for or mastery of a key branch of natural or social science, is forced to wither away by a rule of total reservation for its own alumni and proscription of outsiders, by a house of higher learning ? Can 'unapproachability', a cultural anathema now in India, attain respectability by being labelled as 'reservation ? No. Therefore, a blanket ban which is the indirect result of a wholesale reservation is constitutional heresy. There must be substantial social justice as raison d'etre for a high percentage of alumni reservation The argument urged in answer is that the doors for admission to post-graduate medical courses are almost completely closed for Delhi graduates by all other un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless. Coming to brasstacks, deviation from equal marks will meet with approval only if the essential conditions set out above are fulfilled. The class which enjoys reservation must be educationally handicapped. The reservation must be geared to getting over the handicap. The rationale of reservation must be in the case of medical students, removal of regional or class inadequacy or like disadvantage. The quantum of reservation should not be excessive or societally injurious measured by the over-all competency of the end-product, viz. degree-holders. A host of variables influence the quantification of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e central administrative establishments and higher echelons of the public services, members in numbers of the political aristocracy, thanks to Delhi being the seat of Parliament, countless executives clustering around big business and industrial houses and offices and many educational, research and other institutions, professional organisations, the Supreme Court, the High Court, and their natural human concomitants in the upper socio-educational scale, make Delhi and the Delhi University the cynosure of the privileged species in a land of under-privilegd penury. Of course, like in any megalopolis of a developing country, slums and other symptoms of deprivation show up and the desperately poor denizens below the visibility line unbiquitously abound. But they are not the potential candidates for medical admission or service and cannot be used as `alibi' for reservation. In what sense, regard being had to over-all Indian conditions, can it be said that Delhi or the Delhi University, is backward or serves, through the medical colleges of its University, the students who will settle down to alleviate suffering in that region, Secondly, and more importantly, it is difficult to denou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. Not `sons of the soil' but sons and daughters of persons who are willy nilly pulled into the capital city for reasons beyond their control. This reservation is, therefore, qualitatively different. There is another pathological condition affecting `medical admissions' which is at the back of the desperate `satyagraha' of the students and this factor tilts the scale a great deal. Counsel for the University, supported by fragmentary material pointing to a pan-Indian tendency, argued that all the country round every university bangs, bars and bolts the doors of medical admission to outsiders and if Delhi alone were to keep its doors hospitably ajar where are the Delhi graduates to go for higher studies if squeezed out by All-India competition ? If reservation is evil, the embargo everywhere must be lifted, lest evil should beget evil. So long as other universities are out of bounds for Delhi graduates, exposure to all-India competition becomes intense and prejudices their chances. This indirect, real yet heavy handicap creates an under- current of discrimination and cannot be wished away and needs to be antidoted by some percentage of reservation or other legitimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aduate diploma course. So we direct him to be admitted to the degree course this year, if the rules of attendance etc., do not stand in the way and the Medical Council makes an exception by agreeing to addition of one seat as a special case for this year. More importantly, we direct the University forthwith- not later than two months from to-day-to appoint a time- bound committee to investigate in depth the justification for and the quantum of reservation at the post- graduate level from the angle of equality of opportunity for every Indian but taking into consideration other constitutionally relevant criteria we have indicated in this judgment. That committee will study facts and figures and the reservation realities of other universities and make recommendations on the question of university-based reservations and allied aspects as well as the modus operandi for implementation. The Committee will be richer if it has a constitutional expert and a representative of the Indian Medical Council on it. Its report shall be considered by the University as soon as may be, so that, if possible, the admissions for next year may be governed by the revised decisions of the concerned organs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rment of humanity, whose warp and woof is India. This is the underlying fundamental of the preambular resolve registered in our National Parchment. So we insist that blind and bigoted local patriotism in xenophobic exclusivism is destructive of our Freedom and only if compelling considerations of gross injustice, desperate backwardness and glaring inequality desiderate such a purposeful course can protective discrimination gain entrance into the portals of college campuses. The Administration has a constitutional responsibility not to be a mere thermometer where mercury rises with populist pressure but to be a thermostat that transforms the mores of groups to stay in the conscience of the nation, viz. the Constitution. We dispose of the petition with these twin directions leaving the parties to suffer their costs. PATHAK, J. I have had the benefit of reading the judgment prepared by my learned brother V. R. Krishna Iyer and while I agree with him that the writ petition should be dismissed, I propose to state my own reasons. The validity of a reservation of 70% of the seats in the post-graduate classes by the Delhi University in favour of its own medical graduates is assail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e object of the education provided in the postgraduate classes. The concept of equality codified in our constitutional system is not violated. It has been said sometimes that classification contradicts equality. To my mind, classification is a feature of the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated alone form a class between themselves, and the classification is not vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. An institutional preference of the kind considered here does not offend the constitutional guarantee of equality. But the question really is : Is the degree of reservation excessive ? Is 70% too much ? Too excessive a reservation could result in preference to graduate candidates of severely limited aptitude and competence over meritorious candidates from other institutions whose exclusion could result in aborting a part of our national talent. The determining factor, it appears to me, is the measure of reciprocity prevailing between the different educational institutions in India regarding the availability of admission to graduates of other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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