JAGDISH SARAN & ORS.

A v.

UNION OF INDIA & ORS .

January 28, 1980

[V. R. KRISHNA l¥ER, R. S. PATIIAK AND 0. CH!NNAPPA REDDY, JJ.] B

Co11stitution of India 1950, Articles 15 and 16-Admission to post-graduate course in medicine-Rule of Delhi University-Reservation of 70 per cent of seats at post graduate level for its own university graduates-Validity of.

Practice and Procedure-Litigatio11 on socio-legal issue-Brief to be well researched and factually detailed.

The University of Delhi has many post-gradua.te and diploma courses in the faculty of n1edicine but all of them put together provide 250 seats. 'fhe .three medioal colleges in Delhi turn out annually 400 medical graduates who get 'house' jobs in the local hospitals and qualify themselves for post-graduate courses. As the graduates from the Delhi University could not be accommodated fully or even in part for the post-graduate courses in medicine and as D these graduates were not considered for admission into other universities on account of various regional hurdles such as prescription of domicile, graduation in that very university, registration with the State Medicad Council, servic'e in the State Medical service etc., the Delhi University had earmarked some seats at the poet-graduate level in medicine for the m'edical graduates of Delhi University.

Until April 1978, the nlle for selection of candidates for admission into the post-graduate cla.sses in nledicine provided that s'election for 52% of the total number of seats was to be made on the basis of combined merit of Delhi University and other university medical graduates, and 48 per cent from the Delhi University graduates only, The rule was amended, reserving 70% of the seats at the post-graduate l'evel to Delhi gradua.tes and 30% being open to all,

including graduates of Delhi.

The petitioner who was a medical graduate from the Madras University applied for the post-graduate degree in Dermatology in th'e University of Delhi.

He passed the common entrance test for admission, but his admission was turned down because of the rule of the University reserving 70% of the seats at th1J post-graduate level to Delhi University graduates.

The petitioner in his writ petition under Article 32 challenged th'e rule as violative of Articles 14 and 16 of the Constitution and sought the court's writ to direct the University to admit him to the M.D. Course in Dermatology.

It was contended that the University was sustained by Central Government finances, collected from the whole country and the benefits must likewise belong to all qualified students from ever}"vhere. The University justified the reservation on the ground of exclusivism practised by every other University by forbidding Delhi University graduates from getting admission in th'eir colleges and also on

accciunt of the reasonableness of institutional continuity in educational pursuits f0r students who enter a. un_iversity for higher studies.

A Dismissing the writ petition.

HELD : (per Krishna Iyer & Chinnappa Reddy, JJ.)

1. Reservation of 70% is too high at the post-graduate level. But the rule is not invalidated because the facts are impcrlect, the course has already started and the court must act only on sure ground, especially when matters of policy, B socio-educational, investigation and expert evaluation of variables are involved.

When fuller facts are placed, the court will go into this question more con fidently. [858 D-EJ -0

2. If 70% reservation is on the high side and the petitioner is hop'efully near __...... 'admission' going by marks it is but just that be is given a chance to do his post-graduate course. His coming to Delhi itself was a compulsion beyond his C control. [858 FJ

3. Petitioner directed to lie admitted to the degree course this year, If the rulesi>'of attendance etc., do not stand in the way and the Medical Council makes an exception by agreeing to addition of one scat as a special cas'e for this yeru.

[858 G]

4. (i) The University forthwith-not later than two months from today-to appoint a time-bound committee to investigate in depth the justification for and the qua.ntum of res'ervation at the post-graduate level from the angle of equality of opportunity for every Indian.

That comn1ittee will study facts and figures and the reservation realities of other universities and make recommendations on

the question of university-based reservations and allied aspects as well as modus operandi for implementation.

The Committee will benefit if it has a. constitutional expert and a representative of the Indian Medical Council on it.

Its report shall be consid'ered by the University as soon as may be, so that, if possible, the "..dmissions for the next year may be governed by the revised decisions of the concerned organs informed by the report. [858 H-859 C]

(ii) The Union of India has a; special responsibility to ensure that in higher education provincialism does not erode the integrity of India. Anyone who lives in India can n'ever be considered an 'outsider' in Delhi. Blind and bigoted local patriotism in xenophobic exclusivism is destructive of freedom and only if compelling considerations of gross injustice, desperate back\vardness and glaring inequality desiderate such a course can protective discrimination gain entrance into the pcrtals of college campuses. (859 D, 860 A, BJ

5. The philosophy and pragmatism of universal excellence through universal G equal opportunity is part of our culture and constitutional creed. [843 A]

6. The Indian Constitution is wedded to equal protection and non-discrimination. Arts. 14, 15 and 16 &re inviolable and Art. 29(2) strikes a similar note though it does not refer to regional restrictions or reservations.. Art. 15 save.OJ the State's pow'er to make special provisions for women and children or for advancement of socially and educationally backward classes. [842 BJ

7. University-wise preferential treatment may still be consistent with the rule of equality of opportunity where it is calculated to correct and imbalance or handicap and permit equality in the larger sense. [849 FJ

8. What is fundamental is equality, not classification. What is basic is equal opportunity, for each according to his ability, not artificial, compartmentalisation and institutional apartheidisation, using the mask of handicaps. A clanish ex .. clusivism based upon a particular university cannot be contemplated as consistent with Article 14. [852 Al

9. A blanket ban which ls the indirect result of a wholesale reservation is

constitutional heresy.

There must be substantial soci2'1 justice as raison d'etre B for a high percentage of alumni reservation. [853 H]

...,_

10. If equality of opportunity for every person in the country is th'e consti ..

~ tutional guarante'e, a candidate who gets more marks than another is entitled to •-"-- -preference for admission.

Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance \Vhen we reach the higher levels of education like postgraduate courses.

The role of high grade skill or special talent may be less at the lesser levels of education jobs and disciplines of social incons'equence, but more at the higher levels of sophisticated skills and strategic employment.

To devalue merit at the summit is to tem_i:orise with the country's development in the vital areas of professional expertise. [854 E-G]

11. The class which enjoys reservation must be educationally handicapped.

The reservation must be geared to getting oYcr the handicap. The rationale D of reservation must be in the case of medkal students, removzJ of regional or class inadequacy or like disadvantage. The quantum of reservation should not be 'excessive or societally injurious, measured by the over-all competency of the end-product, viz. degree-holders. A host of variables influence the quantification of the reservation. [855 B-C]

12. The higher the level of the sp'eci:::Jity the lesser the role of reservation.

M.B.B.S. is a basic medical degree and insistance on the highest talent may be relaxed by promotion of backward groups, institution-wise chosen, without injury to public w'elfare. It produces equal opportunity on a broader basis and gives hope to neglected geographical or human areas of getting a chance to rise.

~Ioreover, the better chances of candidates from institutions in neglected regions

getting down for practice in these very regions also warrants institutional preference because that policy helps the supply of medical services to these backward areas. [855 D, } 1

13. It is difficult to denounce or renounce the merit criterion where the selec tion is for post-graduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom

as the best. [856 F-G] G

14. Neither Delhi nor the Delhi University medio:.::al colleges can be designated as categories \Vhich \varrant reservation. Reservation for Delhi graduates is not that invidlous, because the students are from families drawn from all over

India~ Not sons of the soil• but sons 2dld daughters of persons who ar'e pulled into the capital city for reasons beyond their control.

This reservation, is, the)"efore, qualitatively different. [857 D-F] H

15. Institution-\.vis'e reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to.

But even such rules, until revised

by competent authority or stn1ck down judidally, will rule the roost. Until the signpost of 'no admission for outsiders' is removed from other uni"Versities and some fair percentage of seats in other universities is left for open competition, the Delhi students cannot be made m, artyrs of the Constitution.

R'eservation must be administered in moderatidn, if it is to be constitutional.

[858 B-C]

16. Litigation, on a socio-legal issue of critical constitutional moment, should

B not end with general assertions, affida.vits of formal denials and minimal materials, but needs feeding the court with nutritive facts which build the flesh and blood of the administrative or legislative action under challenge and 111 other surrounding and comparative data v.'hich legitim<hte the 'reservation' or other -~ procedure under attack from the constitutional angle. Ingenious or im!lginative

orality in court can never be a substitute for \Vell-rescarched down-to-ealfth factuality in the brief. In the adversary system, advoc2cy in the superior courst (l \Vhich by their decisions, declare the law for all must broaden beyond the particular !is into a conspectus of sociological facts, economic factors and educational conditions so that other persons aggrieved ¥/ho will potentially be bound by the decision, do not suffer by not being eo 110111ine parties. [841 F-G, H 837 E]

(Per Patltak. J.)

1. Classification is a feature of the very core of equality.

It is a vital conc'ept in ensuring equality, for those who are similarly situa.ted form a class between themselves, and the classification is not vulnerable to chaJlenge if it.;; constituent basis is reasonably related to achieving the object of the concerned law.

An institutional preference as in the instant case does not offend the constitutional guarantee of equality.

[861 D-E]

2. The br:.sis of th'e reservation is that the candidate for admission to the ... post-graduate classes is a medical graduate of the same university. Th0 relationship is institutional.

There is sufficient validity in that criterion as a basis of classification under Article 14. [860 F, G]

It is not beyond reason that a student ¥/ho 'enters a medical college for bis_ --' graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post-graduate studies.

There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic 2ud psychological pressures.

But much more J than convenience is involved. There are all th'e. advantages of a continuing frame of educational experience in the same educational institution.

In the post-graduate class, it is not an entirely different course of studies which is contemplated; it is a specialised and deeper experience in what bas gone before.

The student has becom'e familiar with the teaching techniques and standards of scholarship, aftd has adjusted his responses and reactions accordingly.

The continuity of studies ensures a higher degree of competence in the assimilation

-OJf knowledge and experience. Not infrequently some of the same staff of Professors and Readers may lecture to the post-graduate <classes also.

Over the under-graduate years the teacher has come to understand the particular n'eeds of the student, where he excels and where he ne'eds an especial encouragement

in the ren1oval of deficiencies. There is good reason in an educational institution 'extending a certain degree of preference to it.;; graduates for admission to its post-graduate classes. [860 H-861 CJ

3. htledical courses a.re not all necessiarily to be found only in New DeU1i.

They are located in other pa.rts of India and some are well-known centres of medical education.

The proposition that because New Delhi is the political, legislative and jU.dicial capital of India, an education of quality is not Lo be found • in other cities is not acceptable. Merely because New Delhi is the new Capital of Delhi does uot justify a disproportionate treatment of the claim to equality on a national level made by its medical graduates. [862 C-D]

4. But too excessive a reservation could result in preference t.o graduate candidates of severely limited aptitude and competence over meritorious candi-· dates from other institutions whose exclusion could result in aborting a part of the national talent. [861 F]

5. Whether or not a res'ervation of 70% was called for h2.s not been estab~ fished conclusively. There is hardly anything to show that th'e authorities applied their mind to a cool dispassionate judgment of the problem facing them. The judgment and decision of the authority must be evolved from strictly concrete and unemotional material relevant to the issue before it. [862 F]

ORIGINAL JURISDICTION: Writ Petition No. 214 of 1979.

(Under Article 32 of the Constitution)

S. Balakrishnan and M. K. D. Namboodiri for the Petitioners.

Lal Narain Sinha Attorney General and Miss A. Subhashini for Respondent No. 1.

Shanti Bhushan, Jitendra Sharma, V. P.

Chaudhry and R. L.

Gupta for the Respondents Nos. 3, 4 & 5.

The Judgment of Krishna Iyer, and 0. Chinnappa Reddy, JJ was delivered by Iyer, J., R. S. Pathak, J. gave a separate concurring Opinion

KRISHNA IYER, J.-Many a case in this Court is the dramatisation. on the forensic stage, of social stress or community conflict which seeks resolntion or release through the litigative process. This' Writ Petition turns the focns on one such tense issne and ventilates a widespread grievance which deserves constitutional examination.

The petitioner, Dr. Ramesh, is a medical graduate from the Madras University. His father, an officer under the Central Government, was transferred to Dell:ri and the son, desirous of taking a post-graduate degree in Dermatology, applied for admisison to the University of Delhi which offers that course. He took the common entrance test and secured enough marks to qualify for admission bnt was turned down becanse 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 Iesser marks at the entrance test, and so the judicial lens must be fixed on the validity of such a considerable reservation or virtual monopoly for the Delhi graduates. The petitioner challenges its vires as violative of Arts. 14 to 16 and seeks the court's writ to direct the respondent University to admit him to the M.D. course (Dermatology).

While litigating for his right to a seat in the postgraduate degree course in dermatology, he is now doing his diploma course in the same subject in the same University, which is inferior to his aspiration and entitlement if the right to equality is fatal to the quota policy.

We are not investigating the plea based on Art. 16 because it ls not clear whether the stipend paid to a post-graduate student makes the course an employment and, apart from that, the meat of the matter is whether there is discrimination. If there is, Arts. 14 and 15 are lethal enough, without resort to Art. 16.

The University of Delhi (we may use the shorthand form 'Delhi • University' hereafter) refutes this challenge and justifies the reservation

in the concrete educational plight of Delhi graduates as an inevitable evil, if it be evil because of the exclusivism practised by every other > university.

An institutional quoa is not invariably a constitutional anathema and, in the present case, the Delhi University offers an explanation for this recourse to higher institutiona,1 reservation. Many universities now adopt the exclusionary or segregative device of de facto monopoly of seats for higher medical courses to its own alumni, Indians from other Indian Universities being treated as aliens. This xenophobic trend has forced the Delhi University to reciprocate with high reservation.

If reservation of seats, as a strategy of admission to techniclli colleges, is void there may be a wider impact on a number of the institutions and individuals than on the parties here.

The law laid down by this Court binds other institutions because Art. 141 is imperative.

Sri Shanti Bhushan, appearing for the University, assertively suggested to the contrary remembering only the rule of res judicata, but later realised the obvious error and recanted. He agreed that if

JAGD!SH v. UNION (Krishna Iyer, J.) 837

this Court invalidated reservation, as such, many universities would be upset in their admission processes, although they were not party-a

weakness of the adversary system which needs remedying.

So, we invited the learned Attorney General also to help the Court, which he did and we record our gratitude. Unfortunately, the petitioner has not been able to present, the social facts, the educational milieu, the statistical materials and other vital data bearing on the constitntional vice of

the rule of excessive reservation, and the respondent University, despite our repeated suggestions to its counsel, has not enriched its brief with sufficient facts which enlighten the court, although some additional information has been brought in. On the other hand, counsel's submissions were scary, if we may say so with respect, to the effect that when students went on a fast unto death, Government had to intervene and save the situation and provide larger reservation.

As the Attorney General agreed, hunger strikes cannot amend the Constitution, and Government, if impressed with the grievance which has led to the protest fast, mnst set in motion changes in the basic Jaw, as was done in the first constitntional 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 Jaw for all must broaden beyond the particular lis into a conspectus of sociological facts, economic fuctors and educational conditions so that other persons aggrieved who will potentially be bound by the decision, do not suffer by not being co-nominee

parties. Surely, on the available material, counsel have done their best.

This preliminary narration leads upto the constitutional problem that

oonfronts the court in this petition under Art. 32 and stresses how it F deserves, for its solution, serious and sensitive judicial and administrative statesmanship enlivened by legal fundamentals, since the crucial issne springs from the pervasive and protective tendency for institutional reservation of post-graduate seats, which, if left uncanalised and indulged in excess, may well imperil the integrated status of higher national education and make a mockery of equal opportunity.

Basically, great G constitutional issues cannot be divorced, even while being viewed from a legal perspective, from their national overtones oand individual impact, since passionate provincialisation and addiction to institutional xenophobia, even in higher education, have a suicidal fascination beyond myopic political perception.

And, on the contrary, elitist exageration of 'national' considerations and personal merit, where local protection H is essential for the bumbler people's interests, bas a depressing reper- <:ussion if pushed beyond a point-an aspect which expert policy-makers

sometimes overlook in unwitting promotion of their gronp interest.

The problem is complex and thorny, charged with practical difficnlties and fraught with explosive possibilies. A short cut, in such situations may well prove a wrong cut and so we are circumspect in our assessment and tentative in our conclusions, especially because counsel, in our adversary system, often do not travel beyond the narrow needs of the case and, despite our prodding, we have not received the social-statistic:oal wealth of material to help us take a comorehensive overview of the issue.

Law, constitutional law, is not an omnipotent abstraction or distant idealisation but a principled, yet pragmatic, value-laden and result-oriented, set of propositions applicable to and conditioned by a concrete stage of social development of the nation and aspirational imperatives of the people. India To-day-that is the inarticulate major premise of our constitutional law and life. We highlight these basics because Shri Shanti Bhushan, for the University, pleaded for a practical appreciation of the lot of the Delhi graduates excluded from everywhere else while Shri Balakrishnan for the petitioner, pressed for a national approach to high-grade talent vis-avis 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 inhibitions. We must never forget two values synthesised in our constitutional culture, as set out in the Preamble-unity and integrity of the nation and equality of, opportunity of weaker sections.

Without the latter becoming a sure reality the former may be mere rhetoric !

An epitome of the social background leading upto the controversy will give a hang of the case and elaboration may await a later stage.

Post Independence India has many universities with facilities for higher learning. Most of them give institutional preferences in the allocation of seats for technical courses and this tendency sometimes reaches the morbid point of total cornering of seats at post-graduate level, especially in the coveted and competitive branches like medicine.

The Delhi University which has M.B.B.S. and post-graduate medical courses, exercises academic jurisdiction over the affiliated colleges in the capital of the conntry, enjoys great prestige for its schools of learning and excellence in teaching and is founded by the Central Government.

It has at once a territorial limitation and national complexion and it caters to a population, by and large, drawn from all over the country because of the vast official, political, parliamentary judicial, educational, commercial and other gravitational pulls which the capital of the

' >

country inevitably exerts. This population is fluid because of movements, transfers and a host of other factors.

The indigenous denizens. of Delhi are perhaps over-run by these super-imposed layers and the student community of the Delhi Universiy is not made up so much by the 'sons of the soil' as in universities in other places but is accounted for by the inflow of groups drawn from all over the country.

In a limited sense, it is a microcosm if India is a macrocosm. This national demographic composition is relevant to the eX'llminat'on of the 'reservation' problem.

The capital city is not just a part of India.

It is miniaturised India, a fact often forgotten by the administration in the field of culture and education, especially vis-a-vis regional minorities.

It is magapolitan and people from all parts flock to this outsized city. But we cannot exaggerate this factor, for the presence of the farther regions like the South and the North East, population-wise, is minimal and precarious. Shri Balakrishnan insisted that the University was sustained by Central Government finances, collected from the whole country, and the benefits must likewise belong to all qualified students from everywhere.

These are valuable aspects to shape policy but the court must test constitutionality and no more.

To that extent alone we will weigh these factors in moulding our verdict.

We will now identify the issues emerging from the matrix cf facts. Since Shri Shanti Bhushan laid stress on these factors, viz. the

•Qf)lagraha crisis created by the students, the obdurate, may be, even obscurantist, exclusiveness of other Universities forbidding Delhi graduates from getting admission in their colleges and the reasonabler.cs:; of institutional continuity in educat:onal pursuits for students who enter a university for higher studies, we must dilate on the foundational facts more fully. Since Sri Balakrishnau emphasised the pathetic plight of meritorious students if 'apartheid' policies were practied by universitie8, 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 opportun; ty for higher education.

These rival contentions justify, albeit a little repetitively, the recapitulation of recent events, parochial realitic~ and institutional behaviour, bearing 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 graduales get house job~ in the local hospitals and qualify themselves for

16-91 SCI/80

~" .,. "

post-graduate courses.

The University has mauy post-graduate degrees and diploma courses but all of them put together come to only 250 seats. Naturally, the graduates from the Delhi University cannot be accommodated fully or even in part for the post-graduate degree courses. If, out of the available seats for the post-graduate courses, a large slice is thrown up for open competition and students from all over the country swarm to take the entrance examination, the Delhi graduates' prospects become bleaker.

The further . cas.e of the University is that there is a harsh handicap for these graduates in that they are not considered for admission in other universities on account of various regional hmdles such as prescription of domicile, graduation in that very university, registration with the State Medical Council, service in the State Medical Service and the like.

The necessary consequence of these road-blocks in the way of getting into post-graduate courses is dissatisfaction frustration, fury and pressure for exclusive earmarking of all seats at the post-graduate level in the Delhi University for the Delhi graduates.

Reservation elsewhere breeds reservation here.

Good and evil become contagious and indivisible and eventually over powering.

The chain reaction had led to the principle of reservation being accepted by the Delhi University, first in moderate measure and next immoderately, maybe, because the pressure of militant Delhi graduates forced the University's hands or because Government, which virtually forced this solution of 70% plus reservation, acted on the easy guidelines : Nothing succeeds like excess.

Reservation begins as a mild remedy but becomes, unless leashed, a Frankensteins monster.

The rule for selection of candidates until April 1978 was as follows:

(a) For the first 52 % seats of the total number of seats available, the selection was to be made on the basis of combined merit of Delhi University and other Universities medical graduates.

(b) The selection of the remaining 48 % seats was to be made from the Delhi University graduates only.

By this method, approximately half the number of seats were reserved for the Delhi graduates. But having regard to the figures of seats and turn-out of graduates earlier mentioned, this did not meet the requirements of the aspirants for post-graduate degrees from Delhi. If must be remembered that Delhi is the seat of the elite, of high officials, of prosperous professionals, of rich businessmen, of important politicians and echelons of consequence and other men of money-power.

JAGDISII v. UNION (Krishna Iyer,];) 841

Tl.Jc.ir sons and daughters, already fed on superior facilities and coached in special schools beyond the reach of most other students in the rest of the country, have an appetite and opportunity for excellence in education ahead of others and wish to lap up all the post-graduate seats, if possible. The cream must belong to the cream, generation to generation, may be a cynical social scientists 'comment,'

Inevitably, a larger number of Delhi medical graduates, relatively speak; ng, 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 thns opens up further vistas for stud:es 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 remedy<ng one group's misfortune other groups may be hurt. The Court can only view rights and wrongs, through the constitutional prism.

The various universities show concmn for their backward regions and alumni in the name of equal opportunity. But the Indian Medical Council,. apprehensive of fall of standards lays stress on aca- demic merit. This dilemma of the law between equality of opportunity and excellence oi performance leads us to a demand for full facts, but, of course, we are left to speculate on many aspects of fhc

- problem because even the Delhi University and the Union of India have left us in the lurch.

Litigation, on a socio-legal issue of critical constitutional moment, should not end with general assertions, affidav:ts of formal denials and minimal materials but, as stated earlier, needs feeding the court with nutritive facts which build the flesh and blood of the administrative or legislative action under challenge and all other surrounding and comparative data which legitimate the 'reservation' or other procedure under attack from the constitutional angle. 'Reservation' jurisprudence is a tangled knot carefully to be developed and counsel cannot invite judges to make hunches as a cover-up for party's failure. And ingenious or imaginative ora!ity in court can never be a substitute for well-researched, down-to-earth factuality in the brief.

Many a case is lost or won because counsel and court engage in the game of blind man's buff since investigative undertakings and presentation of constitutionally vital data do not find a place in the brief and our f01:ensic process inhibits travels beyond the

 A paper books in court ! Nevertheless, for the nonce, we have to make· do with the record.

Let us go back to the basics. The Indian Constitution is wedded to equal protection and non-discrimination. Arts. 14, 15 and 16 are inviolable and Art. 29 (2) strikes a similar note though it does not refer to regional restrictions or reservations. Art. 15 saves the State's power to make special provisions for women and children or for advancement of socially and educationally backward classes.

Reservations under Art. 15 ( 4) exist and are applied.

There is no dispute about that and the whole debate has left that pattern and policy of 'reservation' out of controversy.

We zero-in only university-wise quotas, reservations and preferences from the constitutional stand-point. $. l

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 tohis ability, is of pervasive validity, and it is a latent, though radical, funckimental that, given propitious environments, talent is more or less evenly distributed and everyone has a prospect of rising te> the peak.

Environmental inhibitions mostly 'freeze the geni_al current of the soul' of many a humble human whose failure is 'inflicted', not innate. Be it from the secular perspective of human equality or the spiritual insight of divinity in everyone, the inherent superiority cult with a herrenvolk tint, is contrary to our axiom of equality. That is why 'equal protection of the laws' for full growth is guaranteed, apart from 'equality before the law'.

Even so, in our imperfect society, some objective standards like common admission tests are pr~

cribed to measure merit, without subjective manipulation or university-wise invidiousness. In one sense, it is a false dilemma te> thlnk that there is rivalry between equality and excellence, although superficially they are competing values. In the long run, when every member of the society has equal opportunity, genetically and environmentally, to develop his potential, each will be able, in his own way,

to manifest his faculty fully. The philosophy and pragmatism of uni-

A versa! excellence through universal equal opportunity is part of our culture and constitutional creed .

This norm of non-discrimination, however, admits of just exceptions geared to equality and does not forbid those basic measures needed to abolish the gaping realities of current inequality afflicting socially and educationally backward classes' and 'the Scheduled Castes and the Scheduled Tribes'. Such measures are rightly being . taken by the State and are perfectly constitutional as the State of

Kera/a v. N. M. Thomas(') has explained. Equality and steps towards equalisation are not idle incantation but actuality, not mere ideal but real, life. But can a university, acting within the constitutional parameters, create a new kind of discrimination viz., reservation for students of a particular university? The literal terms of Art. 14 do not tolerate it, the text of Art. 15 does not sanction it. Can we carve out a fresh ground of preference? Delhi University students, as such, are not an educationally backward class and, indeed, institution-wise segregation or reservation has no place in the scheme of Art. 15, although social and educational destitution may be endemic in some parts of the country where a college or university may. be started to remedy this glaring imbalance and reservation for those alumi for higher studies may be permissible. We will explain this further but, speaking generally, unless there is vital nexus with equal opportunity, broad validation of university-based reservation cannot be built on the vagu, ground that all other universities are practising it-a fact not fully proved before us either.

Universality of illega- -lity, 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, ipsp 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 commumty 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

(I) [1976] 1S.C.R.906.

start a rival starvation exercise? That will lead to testing the rule of law on the immolative or masochist capabiJ:ties of affected groups and not on the Articles of the Constitutional or provisions of the legislation.

Protest fasting, a versatile weapon in our cultural armoury, is meant to sensitize or conscientize the soul of the Adm:nistration when it is too paper-logged or callous to look at human problems from the angle of human justice.

Beyond that, this great Gandhian technique cannot be blunted by promiscuous use, so long as democratic mechanisms are alive and not impervious to legitimate gr:evances and can be sparked into action not merely by sensational, though sincere, tactics like fasting unto death.

While recognisi11g. even reverencing, the role of soul force in quickening the callous conscience of authorities to grave injury and need for urgent remedv, we cannot . . uphold the Delhi University's 'reservation' strategy merely because Government was faced with student 'fasts' and ministers desired a compromise formula and the University bodies simply said 'Amen'.

The constitutionality of institutional reservation must be founded on facts of educational life and the social dynamics of equal opportunity Political panic does not ipso facto, make constitutional logic.

Prima facie, equal marks must have equal chance for medical admissions, as urged by the practitioner.

And. neither universitybased favoured treatment nor satyagraha-induced quota policy can survive the egalitarian attack.

To repulse the charge, equalityorientcd grounds must be made out.

Constitutional equality itself is dynamic, flexible, and moulded by the variables of life.

For instance, if a region is educationally backward or woefully deficient in medical services, there occurs serious educational and health-service dispar:tyfor that human religion which must be redressed by an equality and service minded Welfare State.

The purpose of such a policy is to remove the existing inequality and to promote welfare-based equality for the denizens of the backward regions.

The specific strategy to ameliorate the unequal societul condition .is left to the State, provided it is geared to producing equality in the quality of life of that handicapped area subject, of course, to basic recognition of indivi-· dual quality and criteria of efficiency.

If the State, for example, seeks to remove the absence of opportunity for medical education of adivasis or islanders who have no inclination or wherewithal to go to far-off cities and join medical H 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 canno~ be

castigated as discriminatory.

What is directly intended to aboltsh A 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 outside will, on graduation, leave for the cities or their own regions, it may evolve a policy of preference or reservation for students of that

University.

That strategy ensures the probability of their serving the backward people for whose benefit the medical courses were opened.

Such measures which make for equality of opportunity for medical education and medical service for backward human sectors may be constitutionalised even by Arts. 14 and 15.

But it must be remembered that exceptions cannot over-rule the rule itself by running riot or by making reservations as a matter of course, in every un:- versity and every course.

For instance. you cannot wholly cxclud" meritorious candidates as that will promote sub-standard candidates and bring about a fall in medical competence, injurious, in the long run, to the very region.

It is no bless:ng to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold.

Nor can the very best be rejected from admission because tha~ will be a national loss and the interests of no region can be higher than those of the nation. So, within these limitations, without going into excesses, there is room for play of the State's policy choices.

Before moving to the next aspect we may touch upon a slightly different angle which opens up a new point of view.

What is merit or excellence? If potent'al for rural service or aptitude for rendering medical attention among backward people is a criterion cf merit -and it, undoubtedly, is in a land of sickness and misery. neglect and penury, wails and tears'-then, surely, belonging to a university catering to a deprived region is a plus point of merit.

Excellence is composite and the heart and its sensitivity arc as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases.

Marks 011 this basis will take us to the same preference as reservations for in-university candidates.

Here we are not preferring one with less marks, but adopting a holistic manner of marking linked up with backward settings, institution or:ented and like considerations has some meaning.

A caveat or two may be sounded even in this approach lest ex-

ception should consume the rule.

The first caution is that reserva- R tion must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications arc

absent.

Similarly, all the best talent cannot be completely excluded by wholesale reservation.

So, a certain percentage, which may be available, must be kept open for meritorious performance regardless of university, State and the like.

Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the altar of equalisation-when the Constitution mandates for every one equality before and equal protection of the lawmay be fatal folly, self-defeating educational technology and antinational if made a routine rule of Sta, te policy.

A fair preference, a reasonable reservation, a just adjustment of the pr; or 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, mnst 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 ll:e making Is a national loss the considerations we have expanded upon as -important Jose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without gravo risk.

The Indian Medical Council has rightly emphasised that playing with merit for pampering local feeling will boomerang.

Midgetry, where summitry is the desideratum, is a dangerous art. We may here extract the Indian Medical Council's recommendation, which may not be the last word in social wisdom but is worthy of consideration :

Student for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted by the Universities.

G Another casuistry needs to be exposed before we proceed. Backward regions and universities in consequence are miles away from forward cities with sophisticated institutions. The former, for a equalic

sation, need crutches and extra facilities to overcome injustices. The latter already enjoy all the advantages of the elite and desen-e no fresh props. That will be double injury to claims of equality of the H capable candidates coming from less propitiously circumstanced universities and societies. Law is no absolute logic but the handmaid of current social facts of life.

' •

We hasten to keep aloof from reservations for backward classes

nd Scheduled Castes and Tribes because the Constitution has assigned a special place for that factor and they mirror problems of inherited injUilices demanding social surgery which if applied thoughtlessly in other situations may be a remedy which accentuates the malady.

At this stage it is appropriate to refer to one ruling of this Court which relates partly to university-wise reservation in the context of backward areas. Support from precedents for the propositions implicit in the above discussion can be derived, but we need not cover many rulings and may confine ourselves to one or two which have closer bearing than the rest. fa Chanchala's case(') university-wise reservation was challenged as unconstitutional. There wes reference to earlier .decisions, such as Rajendran v.

Madras(') and Periakaruppan v.

Tamil Nadu(") and their ratio was distinguished to reach the concluion that under certain circumsLnces university-wise classification and reservation was constitutionally permissible.

In Rajcndran's case

(supra) district-wise quota for medical college admissions was struck down notwithstanding the argument that "if selection was made districtwise, those selected from a district were likely to settle down as practitioners in that district, so that the districts were likely to benefit from their training".(') The Court did not coffsidcr this to be intrinsically irrelevant but negatived the contention.

"On the ground that it was neither pleai:Ied 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 -0n 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."(') The justification for university-wise reservation was

thci educational need and paucity of medical service in the area whero the: lllliversity was iet up. Certain regions poorly served with medical facilities and with few doctors needed to produce more medical men

(!) D.N. Chanc/zala v. Mysore [t971] Supp. S.C.R. 608.

(2) [1968] 2 S.C.R. 786.


(4) [1971] Supp. S.C.R. 608 at 618.

(5) lbidat 619.

who would settle down there. Likewise, in those backward regions the absence of medical colleges effectively inhibited the needs of medical education of the local student community. The question was whether these grounds would suffice for providing reservation institution-wise.

In this setting, the Court observed :

"Since the universities are set up for satisfying--the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to safisiy the needs of medical training of those attached to those universities. In our view there is nothing undesirable in ensuring that those attached to such uni,•ersities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities. Such

a basis for selection has not the disadvantage of district-wise or unit-wise selection as any student from any part of the state can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence, Further, the rules confer a discretion on the selection committee to admit outsiders upto 20% of the total available seats in any one of these colleges, ie. those who have passed the equivalent examination held by any other university not only in the State but also ebewhere m India."(')

Jn the course of the Judgment, Shelat, J. speaking for the Court, was inclined to broaden the principle of equalisation implied in Art. 15(4).(2 )

"Once the power to lay down classifications or cate-. gories of persons fron1 whom a, dn1i.ssion is to be given is granted, the only question which would remain for consideration would be whether such categorisation has an intelligible criteria and whether it has o reasonable relation with the object for which the Rules for admission are made. Rules for admission are inevitable so long as the demand of every candidate seeking admission cannot be complied with in view of the paucity of institutions imparting 1raining in such subjects as medicine. The definition of a 'political "'fferer' being a detailed one and in certain terms, it would be easily possible to distinguish children of such political sufferers from the rest as possessing the criteria laid down by the definition. The object of the rules for admission can obviously

(1) D.N. Chancliala v. Mysore, lbid p. 619M620.

(2) Ibidp. 629.

be to secure a fair and equitable distribution ol 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 wbo, but for the preferential treatment gil'cn to them, would not stand a chance against those who are not so handicapped nd 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 sccicty. 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 bas preg- D nant meaning (') :

"The object of selection for admission to the Medical Colleges, considered in the background of the directive principles of State policy contained in our Constitution, appears to be to select the best material from amongst the E candidates in order not only to pmvide them with adequate means of livelihood, but also to provide the much needed medical aid to the people and to improve public health generally."

(emphasis added)

The conclusion that we reach from this ruling which adverts to earlier procedents on the point is that university-wise preferential treatment may still be consistent with the rule of equality of opportunity where it is calculated to correct an imbalance or handicap and permit equality in the larger sense.

This extensive excursion is necessitated by the subtle tendency of ad\':>ntagc groups to exploit propositions applicable to disabled categories to good account.

Now. let us look at the raw realities of the Delhi University medical graduates and their claim for larger reservation for M.D. and M.S. Facts. and only facts, must be the guide, of course. within the framework of Part III, and this Court has to play the role not only of the sentinel on the qui vive but also

(I) D.N. Chanrhola r. Jl, fysore (Supra) 632.

of the 'hound of heaven', not merely watch but chase, to 3et things right if any constitutioml wrong has been committed.

So we must enquire whether 70% reservation for Delhi graduates which is prima

facie discriminatory can be extricated by any amelioratory constitutional logic or ethic implicit in Arts. 14 and 15.

We have set out the parameters within which alone reservation is permissible.

We must go to the roots of the creed of equality and here the case of State of Kerala v. N. M. Thomas!') has critical relevance.

That decision dealt with the Scheduled Castes and Art. 16 and certain facilities other than reservation.

But the core reasoning has crucial significance in all cases of protective discrimination.

The process of equalisation and benign discrimination are integral, and not antagonistic, to the principle of equality. ln a hierarchical society with an indelible feudal stamp and inenrable actual inequality, it is sophistry to argue that progressive measures to eliminate group disabilities and promote collective equality are anathema on the score that every individual has entitlement on pure merit of marks.

This narrow 'unsocial' pedantrY subverts the seminal essene of equal opportunity even for those who are humble and handicapped. Meritocracy cannot displace equality when the utterly bachnrd masses labour under group disabilities.

So we may weave tho"" special facilities into the web of equality which, in an equitable setti1.g, 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 opportw1ity.

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 Jig,. ablement 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 .c:; 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 lifo--- at the polling place, in the scholarship examinations, tt the

(1) [1976] I S.C.R. 948.

(2) Tbid955-56.

personnel office, on the housing market.

Liberty does, of course, demand that everyone be free to try his luck, er t(ll!t his skill in such matters.

But these opportunities do not necessarily produce equality.

On the contrary, to the extent that winners imply losers, equality of opportunity almost insures inequality of results.

The point of semaQtics is that equality of opportunity now has a different meaning for Negroes than it has for Whites.

It is not (or at least no longer) a demand for liberty alone, but also for equality-in terms of group results.

In Barard Rustin's terms, 'It is now concerned not merely with removing the barriers to full opportunity but with achieving the fact of equality.' By equality Rustin means a distribution of achievements among Negroes roughly comparable to that among Whites.(')

Beginning most notably with the Supreme Court''

condemnation of school segregation in 1954, the United D States has finally begun to correct the discrepancy between its ideals and its treatment of the black man.

T'ne first steps, are reflected in the decisions of the courts and the civil rights laws of Congress, merely removed the legal and quasi-legal forms of racial discrimination.

These actions while not producing true equality, or even equality ot opportunity, logically dictated the next steps: positive use of government power to create the possibility of a real equality. In tha words of Professor Llpset: "Perhaps the most important fact to recognise about the current situation of the American Negro is that (legal) equality is not enough to insure hh; moven1ent ; nto larger society."( 2 )

(emphasis adJed)

We agree with this approach and feel quite clearly that the Slate's duty 1s to produce real equality, rather egalitarian ju, tice in actual life.

If university-wise classification for post-graduate medical education is shown to be relevant and reasonable and the differential has a nexus to the larger goal of equalisation of educational opportnnitits the vice of discrimination may not invalidate the rule.

(1) The Moynihan Report and the Politics of Controversy Eds. Lee Rai1- H water and William L. Pancey, p. 49.

(2) 'The American Democracy' Magrath, Cornwell and Goodman P.1 S.

s----

Even so, what is fundamental is equality, not classification. What is basic is equal opportunity, for each according to his ability, not artificial compartmentalisation and institutional apartheidisation, using the mask of handicaps.

We cannot contemplate as oonsistent with Art. 14 a danish exclu.sivism based upon a particular university, without more.

Alive to these major premises let us examine the merits of the charge of 'adm'ssion' discrimination in the present case.

Justice Brennan, in a different social m; lieu, but wit!J a spiritualsecular meaning which may not be lost on us, stated:(')

"Lincon said this Nation was 'conceived in liberty and dedicated to the proposition that all men are created equaJ'.

The Founders' dre, am of a society where all men arc 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 Jong endure'. It cannot endure if the Nation falls short on the guarantees of liberty, justice, and equality embodied in our founding documents.

But it also cannot endure if our precious heritage of ordered liberty be allowed to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution cannot be reached by judicial trial in a court of law, it will be reached elsewhere and by other means, and there will be grave danger that liberty, equality, and ihe ordl'r essential to both will be lost."

Another national risk we run was sounded in words of caution in Khosa's case by Chandrachud, J. (as he then was): (2 )

G " ........ let us not evolve, through imperceptible extensions, a theory of classification which maY subvert, perhaps submerge, the precious guarantee of equality.

T\1e eminent spirit of an ideal society is eqnaity and so we must not be left to ask in wonderment: what after all is the operational residue of equality and eqnal opportunity?" B (I) Mr. Justice Brennan concurring with the majority opinion in lllinious v.

Allen, 197 U.S. 337 (1970).

(2) State of I. and K. v. T. N. Khosa and Ors. [1974] I S.C.R. 771.

JAGDISH v. UNION (Krishnu Iyer, J.) ~53

Thus t]fe constitutional principles and lim; tation~ are clear and the norms are belighted by the precedents but their application to the

specific situation is an exacting task.

The burden, when protective .discrimination promotional of equalisation is pleaded, is on the party

who seeks to justify the ex facie deviation from equality.

What has the Delhi Un:versity stated here?

The learned AttorneY Genera] frankly admitted that student agitation, without more, could not validate 'reservation' and that excessive reservation was an obvious inequality.

Nor, indeed, is it a good plea that illegal reservation is being practised by other universities and the Delhi University is fore ed to act illegally in self-defence.

Lawlesness, under our system, is corrected by the law, not by counter-lawlessness.

So it is strange for the Delhi University to say our d:sorderly behaviour is orderly

because other universities behave similarly.

Once these misguided defences of direct [!Ction by stude11ts or reprisals against other universities me brushed aside, we come to grips with the real issues.

Is tbece circumstantial justification for constitutionalising the rservation strl!_tegy, especially of 70'.% plus?

The case for reservation ar, gues itself once we establish au operational relationship between the benign basis of such classified quota

or like preference and the object to be achieved viz. promotion of better opportunities to the deprived categories of studen_ts or better supply of medical service to neglected regions of our land.

But the E Delhi University, city or students, do not fit into the criteria.

When a university or other institution may usefully be made the instrument for promotion of facilities for equal educationai opportunity for a class or a region, the State may legitimately resort to institutionally classified reservation but Delhi fails to qualify. 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 bnt 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 higl1er learning ? Can 'unapproachability', a cultural anathema now in India, •attain respectability by beiog labelled as 'reservation ? No. Therefore, a blanket ban which is

the indirect result of a wholesale reservation is constitutional heresy.

B There mnst be substantial social justice as raison d'etre for a high percentage of alumni reservation.

A The argumeut urged in answer is that the doors for admission to post-graduate medical courses are almost completely closed for Delhi graduates by all other universities.

So, protective rervation becomes necessary as the1 'only hopq of Delhi students fol'. post- :raduate studies.

Those real-life factors which show that Delhi p-aduates are denied de facto equ_ality on a national scale by the exclu- B sionism of other universities and that, therefore, they deserve sheltered equal opportunity in actuality by barriers of reservation of a high percentage of seat>-, uch being the University's defence-must be made out and not merely asserted.

This contention deserves close examination, not summ.ary rejection. c The mechanics of merit measurement is simple.

All applicants, whichever the University from where they have taken M.B.B.S. degree, must apply for a common entrance test.

The yard-stick or merit is the marks obtained.

Thereafter 70% of the seats is allotted to Delhi graduates and the balance 30% is selected from out of ~II

the remaining applicants, Delhi graduates included.

So much so, Delhi graduates get much more than 70% of the total seats. Although the stage of application of reservation may bear upon the effective quantum of advantage, the principal question is as to whether a minimum of 70% for the Delhi graduate alone is not far too excessive, based on extraneous agitational factors and essentially contradicting Arts. 14 and 15?

If equality of opportunity for every person in the. country is the constitutional guarantee, a candidate who gets more marks than

another is enttled to preference for admisscon.

Merit must be tl1e

tt when choosing the best, according to this rule of equal chance for e_qual marks.

This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is e nation's human asset without which its advance and development will be stunted.

The role of high grade skill or special talent may be ltss at the lesser levels of education, jobs and disciplines of social inco.- sequence, but more at the higher levels of sophisticated skills alld strategic employment.

To devalue merit at the summit is to klltporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in rerd to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the peopl<t o! India should not be denied the best the nation's talent lying lateiat can produce. If the best potential in these fields is cold-shouldered

JAODlSll v. UNION (Krishna Iyer, I.) 855

for populist considerations garbed as reservations, the victims, in

I.he long run, may be the people themselves.

Of course, this . unrelenting strictness in selecting the best may not be so imp.; rative at other !vets where a broad measur.e of efficincy 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. T.be quantum of reservation should not be excessive or societally injurious.

measured by the over-all competency of the end-product, viz. degrecholders. A host of variables infiuece the quantification of the reservation. But one factor deserves great emphas1~. The higher the level of the .speciality the lesser the role of reservation. Such being the pragmatics and dynamics of social justice and equal rights, let us apply the tests to the case on hand.

We are aware that measurement of merit is difficult and the methods now in vogue leave so much to be desired, that swearing by marks as measure of merit may even be s-ark superstition. But for want of surer techniques, we have to make-do with entrance tests, and at any rate, save in clear cases of perversity or irrationality, this is ordinarily out of bounds for courts.

M.B.B.S. is a basic medical degree and insistence on the lrighest talent may be relaxed by promotion of backward groups, institution wise chosen, without injury to public welfare. It produces equal opportunity on a broader basis and gives hope to neglected geograpb1cal or human areas of getting a chance to rise.

Moreover, the better chances of candidates from institutions in neglected regions setting down for practice in these very regions also warrants institutional preference because that policy helps the supply of medical services to these backward areas. ·· After all, it is quite on the cards that

some out of these candidates with lesser marks may prove their real mettle and blossom into great dcx:tors. Again, merit is not measured by marks alone but by human sympathies.

The heart is as much a factor as the head in assessing the social value of a member of the profession. Dr. Samuel Johnson put this thought with telling effect when he said :

"Want of tenderness is want of parts, and is no less a proof of stupidity than of depravity".

17-91SCI/80

' F

856 " SUPRhMJ!. COURT REPORTS [lY80j 2 S.C.R, ~

A We have no <loubt that where the hulljan region from which the

alunuu of an uistJ.rution an~ largely orawn JS D<t<.:K.warn, e1rn;:r uom the angle of opportunities for technical education or av~bility of medic_:ai services for tpe people, the provision of a high ratio ot reservaL1on hdly militates against the quality mandate-viewed in the perspective of social justice.

We have two weighty differentiating factors here.

DeH1i is 41 no

ensi.: an educationauy or economically bad .warJ Jrnman n:g1011,

m_easured against the rest of our count.ry.

The students vf Delhi, who are likely to seek admission to medical coll_eges, belong to classes higher in the scale than in most parts of India.

As explained rlier the presence qf huge central administrative estabshmcnts an<l higher echelons of the public services, members in numbers of the po!iucal aristocracy, thank~ to Delhi being the _ _§_eat of Parliament1 countless executives clustering around big business and industrial houses and offices and many educational, research ~, d other ipstitutionl>, professional organisations, the Supreme Court, the High Court, and thelr

uaturl human conc<imitants in the upper soci<?-educational scale, make Delhi and the Delhi University the cynsure of q1e privileged species in a land of under-privilegd penury.

Of l:Ourse, like in any megalopolis of a developing country, slums and other symptoms of

deprivation show up and the desperately poor denizen~ low the visibility line unbiquitously abound. But they are not the potential candidates for medicl admission or service nd cannot be used as

'libi' for reservation. In what sense, regard l;>eing had to over-all Indian conditions, can it . be said that Delhi or the Delhi University,

i~ backward or serves, through the medical colleges of its Univecsty,

the students who will settle down to alleviate suffering in that region,

Secondly, and more importantly, it is <litlicult to denounce or renounce the merit criterion y; hen the selection is for post-graduate

r post-doctoral courses in specialised subjects.

There is no substi _ tute for sheer flair, for creative talent, for finetuQ.ed performance at the difficult heights of some disciplines where the est alone i~ likely to blossom as the best.

To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is lo punish society as a whole by denying the prospeci of excellence say tn hospital service.

Even the poorest, when strickn by critical illness, needs the attention of super-skilled specialists, not humdrum second-rates. So it is that relaxation on merit, by over-ruling equality and quality altogether, is a social risk where the stage is post-graduate or post-doctoral.

Of course, we should not exaggerate. this factor.

Post-graduate studiell are not all that great and demanding to invite only geniuses.

We cannot be scared by glorifying merit nor be hypnotised by the cult of talent, seeing as we do, crowds of M.Ds, M.Ss and their foreign analogues. Nor, indeed, are the entrance tests any but the feeblest yardsticks to measure innate capabilities. Is it not the wildest hostage to fortune to swear by lll'arks alone which are so freakish and determined by a chancy variety of variables? We find different modes of examining faculties in different universities, commissions and countries and may, on closer scrutiny, pick holes in the scientific basis of our entrance tests themselves. We repeat all this only to stress the !imitations on the current system of selection so that we may not be swept off our feet by the elitist feeling that something sacred or scientific is bemg jettisoned for the sake of accommodating nitwits of backward regions institutions or classes when marks are slightly slurred over. Even so, being realists, we go by existing methodology until better modes are devised.

In the light of thi.s discussion about the know-how a.nd know-why of reservations, what are the conclusions that emerge vis a vis the Delhi graduates? Neither Delhi nor the Delhi University medical colleges can be designated as categories which warrant reservation. But there is one weighty circumstance which must be in our rememberance. Reservation for Delhi graduates is not that invidious because, as stated in the beginning, the students are from families drawn from all over India, Not 'sons of the soil' but sons and daughters of persons who are willy nilly pulled into the capital city for reasons beyond their control.

This reservation is, therefore, qualitatively different.

There is another pathological condition affecting 'medical admissions' which is at the back of the; desparate 'satyagraha' of the students and this factor tilts the scale a great deal. Counsel for the University, supported by fragrne_ntary 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 b.e 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 di8crimination and cannot be wished away and needs to be antidoted by some percentage of reservation or other legitimate device.

Another consideration which justifies some measure of reservation is the desire of students for institutional continuity in education.

Parerits, pupils and teachers will usually prefer such continuity and it has its own value.

We reco!Jlise that institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to.

But even such rules unti1 revised by competent authority or struck down judicially, will rule the roost. That is why we have to concede that until the si111post of 'no admission for outsiders' is removed from other universities and some fair percentage of seats in ether universities is left for open competition the Delhi students cannot be made martyrs of the Constitution.

Even so, 'reservation' must be administered in moderation, if it is to be constitutional. Some central technical institutions like the All India Institute of Medical Sciences, Delhi and Chandigarh and the Pondicherry Medical College have a much smaller fraction.

Their circumstances may be different and we do not have the full facts, neither side having furnished more than fragments. Judicial surmise is too weak to be of decisional certainty. For reasons we have assigned 70% plus is too high at th~ post-graduate level in the half-proved circumstances. But we stop short of invalidating the rule because the facts are imperfect, the course. has already started and the court must act only on ure ground, especially when matters of policy, socio-- educational in.vestigation and expert evaluation of variables are involved. Judges should not rush in where specialists fear to tread. We spare the impul!lled regulation even though we are, prima facie, sceptical about the vires thereof.

To doubt is not enough to demolish. \\'hen fuller facts are placed, the court will go into this question more confidently.

While reluctantly repelli11: the challenge of the petitioner we think two directiMs must bei made in this case. If 70% reservation is on the hi2h side and the petitioner is hopefully near 'admission' going by marks andl reservation, it is bnt just that he is given a chance to do his post-!jCaduate course. Indeed, his coming to Delhi itself was a compulsion beyond his control, as we have noted earlier.

The petitioner, going by marks, deserves admission to the postgraduate degree course althongh he is now in the post-graduate diploma course. So we direct him to_ be admitted to the degree conrse thts year, if the rules of attendance etc., do not stand in the way and the Medical Council makes an exception by agreeing to addition of one seat as a special case for this year.

More importantly, we direct the University forthwith-not later than two months from to--day-to appoint a time-bound committee to

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investigate in depth the justification for and the quantum of reservation at the postgraduate 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 committeewill study facts and figures and the reservation realities of other universities and make recommendation$ on the question of university-based reservations and allied aspects as well as the modus operandi for implementation. The Committee will be ri, cher 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 i; oon as may be, so that, if possible, he admissions for next year may be governeq liy the revised decisions of the concerned organs informed by the report.

We are disturbed by the tendency to wall off each university as an insulated island of education, mindless of the integrated unity and equal opportunity which are an inalienable part of our constitutional value syst.em. There is good reason for reservation in many cases but the promiscuous, even profligate application of ari exception as a rule of educational life by forward cities and universities will boomerang on the nation in the long run. The Union of Indla has a special responsibility to ensure that in higher education provincialism does not erode the integrity of India. Who lives if India dies, is a poignant interrogation with cultural projections in many dimensions which our administrators are not, we hope, innocent off : Mutations in reservations in other' universities need not await litigation but can be undertaken before the court process is set in motion. The dialectic of constitutional protection in the dynamic context of equality in a developing country has been pre5ented by us at some repetitive length so that the voyage of re-thinking may not suffer from navigational errors.

The Indian Medical Council is the statutory body at the national F level whose functional obligations include setting standards for as well as regulation and coordination of medical education. What with a growing number of universities with divergent settings, standards iiii.d goals and a motley crowd of students with diverse academic and social backgrounds and ambitions, the prescription and invigilation of flexible yet principled norms regulating the entrance into medical courses and G training of medical graduates at various levels of specialization rire a

demanding and dynamic task. The I.M.A, cannot be a silent spectator or a static instrument but must initiate, activist fashion, steps to make Indian medical education a meaning asset to the nation's: healirig

and hospital resources and a discipline with broad uniformity and assured standard. The Central Government, witness to a deteriorating H situation, cannot but act to negate the confusing trend of fall in quality and conflict among universities.

We may wind up by articulating the core thought that vitalises our approach. Anyone who lives inside India can never be considered an 'outsider' in Delhi. The people in the States are caught in a happy network of mutuality, woven into a lovely garment of hwnanlty, 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

destmctive of our Freedom and only if compelling considerations of gross injustice, desperate backwardness and glaring inequality desiderato such a purposeful course can protective discrimination gain entrance inJo 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 gi:0ups to stay in the conscience of the nation. viz. the Constitution.

We dispose of the petition with these twin directions leaving tbe 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

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with him that the writ petition should be dismissed, I propose to state • my own reasons.

The validity of a reservation of 70% of the seats in the post-graduate classes by the Delhi University in favour of its own medical graduates is assailed in this writ petition.

The basis of the reservation is thd consideration that the candidate for admission to the post-graduate classes is a medical graduate of the same University.

No question of backward classes, scheduled castes and scheduled tribes, is involved.

Criteria pertinent to reservation concerning them are, it seems to me, not relevant at all. Nor strictly is the test requiring a territorial nexus -the University doe~ not insist that the candidate should hail from any particular region or State for the purpose of the! 70% reservation. The relationship is entirely institutional-those who have graduated from the medical colleges run by the Delhi University are favoured for admission to the post-aduate classes.

In my opinion, there is sufficient validity in that consideration. It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post-graduate studies. There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country i~ subject to varying economic and psychological pressures.

Buti much more

JAGDISH V. UNION (Pathak, J.) 861

than convenience is involved. There are all the advantages of a: continuing frame of educational experience in the same educatiorfal in8titution. It must be remembered that it is not an entirely different course of studies which is contemplated; it is a specialised and deeper experience in what has gone before.

The student has become familiar .with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions according.

The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience. Not infrequently some of the same: staff of Professors and Readers may lecture to the post-graduate classes also.

Over the under-graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies.

In my judgment, them is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post-graduate classes.

The prefocence is based on a reasonable classification and bears] a just relationship to the object Qf the education provided in the postgraduate classes.

Thei 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 prefer- ence to graduate candidates of severely limited aptitude and competence -0ver meritorious candidates from other institutions whose exclusion .could result in aborting a part of our national talent The determining factor, it appears to me, is the measure of reciprocity prevailing between the different educational institutions in India regarding the availability of admission to graduates of other institutions. It can hardly be supposed that if the medical graduates of the Delhi University are shut out from adequate consideration for admission to the post-graduate courses of other institutions merely because they did, not graduate from those institutions they should not think it unjust that thei hospitality of their own University to outside medical graduates leaves insufficient provision for them.

Not to be able to take post-graduate tudies at all implies the termination of their medical studies.

This is a problem whic:h can be tackled only on a national level, with all Universities

and other medical institutions coming together around a common table with the object of fashioning out a mutual reasonable qnota reservation.

A wise and faN>ighted exercise, eschewing narrow parochial considerations, is called for.

IV is only by a joining of hands across the entire nation that a suitable and enduring solution can be evo)ved and the tarbulence which disturbs the student body set at rest.

My learned brother has referred to the considerable attraction whlclr an educational institution in New Delhi exerts over student~ from other parts of the count.ry. I confess I do not share the view entirely. So much, I think, depends on the choice of a particular subject or course of studies by the candidate. And medical courses are not all necessarily to be found only in New Delhi.

They are located in other parts of India and some of those well-known centres of medical educationj have at least an equal reputation in certain fields of specialised study.

I am reluctant to accept the prnpition that because. New Delhi is the political, legislative and judicial capital of India, an education: of quality is not to be found in other cities.

Merely because New Delhi is the new Capital of Delhi does not justify a disproportionate treatment of tl1e claim to equality on a nati®al level made by its medical graduates.

The question remaius : Is a reservation of 70% excessive?

We have travelled through the record, and I agree with my learned brother that the material is so scanty, fragmentary and unsatisfactory that we are prevented from expressing any definite decision on !lie poiuf.

Although we gave sufficient opportunity to the parties, the requisite material has not been forthcoming.

Whether or not a reservation of 70% was called for has not been established conclusively.

Indeed, there is hardly anything to show that the authorities applied their mind to a cool dispassionate judgment of th~ problem facing them. Popular agitation serves at best to arouse and provoke cqmplacent or slumbering authority; the judgment and decisio, n of the authority must be evolved. from strictly concrete and unemotional material re.Jevanf to the issue before it.

Unfortunately, there is little evidence of that in this c;1se.

For that reason, I join my learned brothe.r in the directions proposed by him.

The petitioners have raised other contentions also, principally resting on the allegation that the University of Delhi is a, centrally admii:iisfered institution, but I see no force in those submissions.

Accordingly, subject to the two directions proposed by my learned brother the writ petition is dismissed and the parties shall bear their own costs.

N.V.K.

Petition dismissed;