# SAURABH CHAUDRI AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2003] Supp. 5 S.C.R. 152
- **Court:** Supreme Court of India
- **Decided:** 2003-11-04
- **Bench:** V.N. Khare, R.C. Lahoti, B.N. Agrawal, S.B. Sinha, Dr. Ar. Lakshmanan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/saurabh-chaudri-and-ors-v-union-of-india-and-ors-19380
- **Pages:** 50

## Headnote

Constitution of India-Articles 14 and 15 (1)-ReservationC Reservation-based on domicile residence or institutional preference in
technical and medical courses-Reasonableness-Held, such reservations not
discriminatory or arbitrary given the imbalances and disparities in countryReservation restricted to 50% of the seats-Directions issued-Constitution of
India-Articles 41 and 47.
D
E
Constitution of India-Articles 14 and 15 (/)-Reservation-Reservation
based on domicile/residence or institutional preference in technical and medical
courses-Reasonableness-Super-speciality courses-Held, such reservations
impermissible in super-speciality courses.
Constitution of India-Article 15(/)-'Place of birth'--Dijference between
'Place of birth' and 'domicile'l'residence'-Held, the expressions reflect different
concepts and are not the same-Constitution of India-Article 16(2).
Constitution of India-Seventh Schedule-Entry 66, List II and Entry
25, List I/I-Education-Reservation in-Legislation regarding-Competence
F of States-Held, in absence of any Parliamentary legislation, State is competent
to enact statute providing for reservation.
Interpretation of Statutes-Strict Scrutiny Test and Intermediate &rutiny
Test-Applicability of-Held, can only be applied where legislation is ex facie
unreasonable or puts the life and liberty of a citizen in jeopardy-There is
G presumption of constitutionality of a statute-Constitution of India-Articles
14 and 21.
H
Considering the question of reservation to technical and medical
courses on the basis of domicile/residence or institutional preference as
152
S. CHAUDRI v. U.0.1.
153
provided for by various states, the Court, in its judgment in Dr. Pradeep A
Jain and Ors. v. Union of India and Ors., 11984) 3 SCC 654, held that
wholesale reservation on the basis of domicile or institutional preference,
regardless of merit, is unconstitutional and violative of Article 14 of the
Constitution ol India. However, recognising the factual position as to
inequalities existing in the society aml need for affirmative action and B
following earlier judgments of the Court, the court allowed reservation
based on domicile/residence and institutional preference up to a certain
percentage in MBBS courses. In case of post-graduate courses, the Court
held that though it was not desirable to provide reservation based on
residence requirement or institutional preference, having regard to the
broader considerations of equality of opportunity and institutional C
continuity, the States could provide for reservation on the basis of
institutional preference up to 50% of the total number of open seats. The
Court further directed that there should be no reservation on the basis of
institutional preference in respect of the super-speciality courses and
admission should be granted purely on merit on all-India basis.
D
The percentage of seats to be allotted on all-India basis was modified
by the subsequent judgment of the Court. In Dr. Parag Gupta v. University
of Delhi and Ors., (2000) 5 SCC 684), the Court upheld even residential
preference in post-graduate course in the facts and circumstances of the
case. In Magan Mehrotra and Ors. v. Union of India and Ors., (2003) 3 E
SCALE 101, the Court noted the divergence between the judgment of the
Court in Dr. Pradeep jain and Dr. Parag Gupta and held that apart from
institutional preference, no other preference, including reservation on the
basis of residence was envisaged by the Constitution of India.
Pursuant to the judgment of the Court in Magan Mehrotra, the Delhi F
university issued a notification that only Delhi University medical
graduates would be eligible against the 75% reserved seats for the students
from Delhi and the students who had taken admission in the University/
States under the 15% all-India quota would not be eligible to seek
admission in the P.G. Degree/Diploma Courses of Delhi University against G
the 75% reserved seats.
The petitioners, though original residents of Delhi, h

## Text

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A
B
SAURABH CHAUDRI AND ORS.
v.
UNION OF INDIA AND ORS.
NOVEMBER 4, 2003
[V.N. KHARE, CJ., R.C. LAHOTI, B.N. AGRAWAL, S.B. SINHA AND
DR. AR. LAKSHMANAN, JJ.]
Constitution of India-Articles 14 and 15 (1)-ReservationC Reservation-based on domicile residence or institutional preference in
technical and medical courses-Reasonableness-Held, such reservations not
discriminatory or arbitrary given the imbalances and disparities in countryReservation restricted to 50% of the seats-Directions issued-Constitution of
India-Articles 41 and 47.
D
E
Constitution of India-Articles 14 and 15 (/)-Reservation-Reservation
based on domicile/residence or institutional preference in technical and medical
courses-Reasonableness-Super-speciality courses-Held, such reservations
impermissible in super-speciality courses.
Constitution of India-Article 15(/)-'Place of birth'--Dijference between
'Place of birth' and 'domicile'l'residence'-Held, the expressions reflect different
concepts and are not the same-Constitution of India-Article 16(2).
Constitution of India-Seventh Schedule-Entry 66, List II and Entry
25, List I/I-Education-Reservation in-Legislation regarding-Competence
F of States-Held, in absence of any Parliamentary legislation, State is competent
to enact statute providing for reservation.
Interpretation of Statutes-Strict Scrutiny Test and Intermediate &rutiny
Test-Applicability of-Held, can only be applied where legislation is ex facie
unreasonable or puts the life and liberty of a citizen in jeopardy-There is
G presumption of constitutionality of a statute-Constitution of India-Articles
14 and 21.
H
Considering the question of reservation to technical and medical
courses on the basis of domicile/residence or institutional preference as
152
S. CHAUDRI v. U.0.1.
153
provided for by various states, the Court, in its judgment in Dr. Pradeep A
Jain and Ors. v. Union of India and Ors., 11984) 3 SCC 654, held that
wholesale reservation on the basis of domicile or institutional preference,
regardless of merit, is unconstitutional and violative of Article 14 of the
Constitution ol India. However, recognising the factual position as to
inequalities existing in the society aml need for affirmative action and B
following earlier judgments of the Court, the court allowed reservation
based on domicile/residence and institutional preference up to a certain
percentage in MBBS courses. In case of post-graduate courses, the Court
held that though it was not desirable to provide reservation based on
residence requirement or institutional preference, having regard to the
broader considerations of equality of opportunity and institutional C
continuity, the States could provide for reservation on the basis of
institutional preference up to 50% of the total number of open seats. The
Court further directed that there should be no reservation on the basis of
institutional preference in respect of the super-speciality courses and
admission should be granted purely on merit on all-India basis.
D
The percentage of seats to be allotted on all-India basis was modified
by the subsequent judgment of the Court. In Dr. Parag Gupta v. University
of Delhi and Ors., (2000) 5 SCC 684), the Court upheld even residential
preference in post-graduate course in the facts and circumstances of the
case. In Magan Mehrotra and Ors. v. Union of India and Ors., (2003) 3 E
SCALE 101, the Court noted the divergence between the judgment of the
Court in Dr. Pradeep jain and Dr. Parag Gupta and held that apart from
institutional preference, no other preference, including reservation on the
basis of residence was envisaged by the Constitution of India.
Pursuant to the judgment of the Court in Magan Mehrotra, the Delhi F
university issued a notification that only Delhi University medical
graduates would be eligible against the 75% reserved seats for the students
from Delhi and the students who had taken admission in the University/
States under the 15% all-India quota would not be eligible to seek
admission in the P.G. Degree/Diploma Courses of Delhi University against G
the 75% reserved seats.
The petitioners, though original residents of Delhi, had obtained their
MBBS degrees from medical colleges outside Delhi in 15% all-India quota.
they had applied for admission to Post graduate Medical Courses in Delhi.
Being aggrieved by the aforesaid notification, they filed writ petitions H
154
SUPREME COURT REPOR·; S (2003] SUPP. 5 S.C.R.
A before the Court.
The issue, which arose for determination before the Court was
whether any reservation, made on residence or institutional preference,
is violative of Articles 14 and 15 of the Constitution of India.
B
The petitioner challenged reservations contending, inter alia, that
reservations, whether based on domicile or institutional preference, would
be unconstitutional being violative of Articles 14 and 15(1) of the
Constitution of India. The term 'place of birth' was synonymous with the
term \domicile' and therefore, any reservation on the basis of 'domicile'
C would be violative of Article 15(1) of the Constitution of India.
Reservations, whether on the basis of domicile or on the basis of
institutional preference, would be impermissible having regard to the
constitutional scheme and therefore, they would fall within the purview
of 'suspected classification'. Therefore, they must pass the 'strict scrutiny
test' or 'intermediate scrutiny test'.
D
Disposing of the writ petitions with directions, the Court
HELD: Per V.N. Khare, C.J. (for himself and R.C. Lahoti and B.N.
Agrawal, JJ.)
E Validity of reservation on the basis of domicile
1. Reservation on the basis of domicile is not impermissible in terms
of clause (I) of Article IS of the Constitution of India. The term 'place of
birth' occurs in clause (1) of Article 15 but not' domicile'. It may be true
that 'place of birth' appeared to be synonymous with 'domicile' to some
F of the members of the Constituent Assembly but the same cannot be a
guiding factor. If a comparison is made between Article 15(1) and Article
16 (2) of the Constitution of India, it would appear that whereas the former
refers to 'place of birth' alone, the latter refers to both 'domicile' and
'residence' apart from 'place of birth'. A distinction, therefore, has been
G made by the makers of the Constitution themselves to the effect that the
expression 'place of birth' is not synonymous to the expression 'domicile'
and they reflect to different concepts. (171-H; 172-A-BI
D.P. Joshi v. The State of Madhya Bharat and Anr., (19551 1 SCR 1215
and State of Uttar Pradesh and Ors. v. Pradip Tandon and Ors., (19751 1
H sec 267, referred to.
(
S. CHAUDRI v. U.0.1.
155
Applicability of strict scrutiny test.
2.1. Article 14 of the Constitution of India forbids class legislation
but permits reasonable classification subject to conditions that it is based
on an intelligible differentia and that differentia must have a rational
relation to the object sought to be achieved. [173-A, BJ
Shri Ram Krishna Dalmia v. Justice S.R. Tendolkar and Ors., (1959)
SCR 279, referred to.
A
B
2.2. The strict scrutiny test or the intermediate scrutiny test
applicable in the United States of America cannot be applied as such a
test is not applied in India courts. In any event, such a test may be applied C
in the case where the legislation ex facie is found to be unreasonable. Such
a test may also be applied in the case where by reason of a statute the life
and liberty of a citizen is put in jeopardy. This Court since its inception
apart from a few cases where the legislation was found to be ex facie wholly
unreasonable proceeded on the doctrine that constitutionality of a statute D
is to be presumed and the burden to prove contra is on him who asserts
the same. The courts always lean against a construction which reduces
the statute to a futility. A statute or any enacting provision therein must
be so construed as to make it effective and operative on the principle
expressed in the maxim: ut res magis valeat quam pereat. Applying the test
of presumption of constitutionality no case has been made out for invoking E
the doctrine of strict construction or intermediate construction.
(174-F-H; 175-A-B)
C!Tv. Teja Singh, AIR (1959) SC 352 and Tinsukhia Electric Supply
Co. Ltd v. State of Assam, AIR (1990) SC 123, referred to.
Validity of reservation by institutional preference
3.1. Reservation by way of institutional preference must be held to
be not offending Article 14 of the Constitution of India. [190-E)
F
3.2. It is true that the country should strive to achieve a goal of
excellence which In turn would mean that meritorious students should not G
be denied pursuit of higher studies. Ideal situation may have been to see
that meritorious students irrespective of cast, creed, sex, place of birth,
domicile/residence are treated equally but history is replete with situations
to show that India is not ready therefor. Sociological condition prevailing
in India compelled the makers of the Constitution to bring in Articles 15 H
156
SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.
A and 16 in the Constitution. The said Articles for all intent and purport
are species of Article 14 which is the genus in a sense that they would
provide for exception to the equality clause also. Preference to a class of
persons whether based on caste, creed, religion, place of birth, domicile
or residence is embedded in our constitutional scheme. (175-C, E, Fl
B
3.3. Whereas larger interest of the country must be perceived, the
law makers cannot shut their eyes to the local needs also. Such local needs
must receive due consideration keeping in view the duties of the State
contained in Articles 41 and 47 of the Constitution of India. The test to
uphold the validity of a statute on equality must be judged on the touchC stone ofreasonableness. (175-Fl
3.4. Constitutional interpretation is a difficult task. Its concept varies
from statute to statute, fact to fact, situation to situation and subject matter
to subject matter. Perceptions are yet to be perceived by the Court which
would meet all situations while laying down emphasis for achieving
D excellence in all spheres of life keeping in view Chapter IV-A of the
Constitution of India which provide for fundamental duties. Circumstances
and compulsions faced by the State in this behalf led the courts to uphold
a statute providing for reservation for a special class of people. Mostly
they suffer from disability either being belonging to an oppressed
community or by way of economical, cultural or social imbalances. The
E courts should all along strive bard for maintaining a balance. [176-A-C)
Missouri v. Holland, 252 US 416; Jagadish Saran and Ors. v. Union of
India, [198012 SCC 768; D.P. Joshi v. The State of Madhya Bharat and Anr.,
(19551 1 SCR 1215; Km Chitra Ghosh and Anr. v. Union of India and Ors.,
[196912 SCC 228; D.N. Chancha/a v. The State of Mysore and Ors. [1971)
F 2 SCC 293 and MR. Mini (Minor) represented by her Guardian and Father
MP. Rajappan v. State of Kera/a and Anr. (1980) 2 SCC 216, referred.
3.5. A scheme has been framed by the Court in Dr. Pradeep Jain,
which is a law within the meaning of Article 141 of the Constitution of
India and is binding on all States in terms of Article 144 of the Constitution
G of India. In the said judgment, a distinction was made between the
Undergraduate Course, i.e, MBBS Course and Post Graduate Medical
Course as also super speciality courses. The Court in the said judgment,
therefore, sought to strike a balance of rights and interests of all concerned.
Institutional preference has been preferred in earlier judgments too. There
H is no reason to depart from the ratio laid down by the Court in Dr. Pradeep
-
S. CHAUDRI v. U.0.1.
157
Jain. (183-A, G, HJ
A
Dr. Pradeep Jain and Ors. v. Union of India and Ors., (1984) 3 SCC
654; Jagadish Saran and Ors. v. Union of India, (19801 2 SCC 768; Dr.
Dinesh Kumar and Ors. v. Moti/al Nehru Medical College, Allahabad and
Ors., [1985) 3 SCC 22; Dr. Dinesh Kumar and Ors. (II) v. Motilal Nehru
Medical College, Allahabad and Ors., (1986) 3 SCC 727; Dr. Dinesh Kumar B
and Ors. (III) v. Motilal Nehru Medical College, Allahabad and Ors., (1987)
4 SCC 122; Dr. Dinesh Kumar and Ors. (IV) v. Motilal Nehru Medical
College, Allahabad and Ors., (1987) 4 SCC459; Dr. Dinesh Kumar and Ors.
(V) v. Motilal Nehru Medical College, Allahabad and Ors., (1989) Supp. 2
SCC 428; Dr. Dinesh Kumar and Ors. (VJ) v. Motilal Nehru Medical College, C
Allahabad and Ors., (1987) l SCALE 1232; Dr. Dinesh Kumar and Ors. (VII)
v. Motilal Nehru Medical College, Allahabad and Ors., (1987) 2 SCALE 222;
Dr. Dinesh Kumar and Ors. (VIII) v. Motilal Nehru Medical College,
Allahabad and Ors., (1988) l SCALE 428; Dr. Dinesh Kumar and Ors. (IX)
v. Motilal Nehru Medical College, Allahabad and Ors., (1990) 4 SCC 627;
Dr. Parag Gupta v. University of Delhi Ors., (2000) 5 SSC 684; Magan, D
Methrotra and Ors. v •. Union of India and Ors. (2003) 3 SCALE 101; State
of U.P. and Ors. v. Vineet Singh and Ors., (2000) 7 SCC 262; Abhinava
Aggarwal and Anr. v. Union of India Ors., (2001) 3 SCC ~25; Dr. Prachi
Almeida v. Dean, Medical Co//eg'l and Ors., (2001) 7 SCC 640; K. Duraisamy
andAnr. v. State of Tamil Nadu and Ors., (2001) 2 SCC 538; All India Institute E
of Medical Sciences Students Union v. All India Institue of Medical Sciences
and Ors. (2002) 1 SCC 428; MR. Mini (Minor) representd by her Guardian
and Father MP. Rajappan v. State of Kera/a and Anr., (1980) 2 SCC 216
and Km. N. Vasundhara v. State of Mysore and Anr., (1971) 1 Supp. S~
381, referred to.
Relevance of an entry in the State List or Concurrent List
4. Education appears both in Union List as also the Concurrent List
F
of the Seventh Schedule of the Constitution of India. Argument that
different interpretation is needed having regard to the shift of
constitutional entry from St.ate List to the Concurrent List is not correct. G
Shifting of the entry from the State List to the concurrent list is not
relevant inasmuch as the State, in absence of any Parliamentary Act, has
the legislative competence to enact a statute laying down reservation for
entry in any course of studies including the medical courses.
(187-E, H; 188-E) H
158
SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.
A
T.MA. Pai Foundation and Ors. v. State of Karnataka and Ors., [20021
8 sec 481, referred to.
Directions issued by the Court
5.1. Having regard to the facts and circumstances of the case,
B reservation by way of institutional preference should be confined to 50%
of the seats since it is in public interest. [190-H; 191-AJ
Dr. Pradeep Jain and Ors. v. Union of Indian and Ors., [1984] 3 SCC
654, referred to.
Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College,
C Allahabad and Ors .. (1985] 3 SCC 22, over-ruled on this aspect.
MR. Balaji and Ors. v. State of Mysore, [1963] Supp. I SCR439, cited.
5.2. For the purpose of selecting the candidates, it is necessary to
hold an All India Entrance Examination by an impartial and reputed body.
D One test should be held for all the students taking admission throughout
the country. The disparity arising from one common entrance test for
admission against 25°/e of the All-India quota and other tests being held
be respective Universities, should be done away with and merit of the
students should be judged on the basis of one test held therefor.
E
[191-B-D]
5.3. In the All India Institute of Medical Sciences (AIIMS) and the
medical colleges of the Central University, merit should have primacy
subject of course to institutional preference to the extent of 50% of the
seats in the MBBS course. In all other respects the decision of the Court
p in All India Institute of Medical &iences Student Union shall operate.
[191-EJ
All India Institute of Medical Sciences Students' Union v. All India
Institute of Medical &iences and Ors. (2002] I SCC 428, referred to.
5.4. The directions being issued are interim in nature. The Parliament
G having regard to Entry 66, List I of the Seventh Schedule of the
Constitution of India has the legislative competence which would take care
of the country as a whole. While making such a legislation, the Parliament
undoubtedly would take into consideration the special needs of some small
States, having regard to their backwardness-economic, social and
H educational as also geographical conditions. The Parliaments has also the
•
S. CHAUDRI v. U.0.1.
159
legislative competency in terms of Entry 25, List III of the Seventh A
Schedule of the Constitution of India. It, while enacting law for education
and particularly higher education where excellence is required, must also
foresee that in the era of liberalisation and globalisation, Indian citizens
must compete with their counterparts of the developed countries. Merit,
thus, must be allowed to explore to the fullest extent. (191-F-H)
5.5. The courts are normally reluctant to issue any direction to the
Central Government for making law. Following the practice, no direction
B
is being issued in this regard. There is hope and trust that the Central
Government expeditiously considers making legislation or taking such
steps as are necessary in this behalf keeping in view the requirement of C
coordination in higher education in terms of Entry 66, List I of the Seventh
Schedule of the Constitution of India. [192-B, CJ
Per S.B. Sinha, J. (concurring)
6.1. Article 14 of the Constitution of India prohibits discrimination D
in any form. Discrimination at its worst form would be violative of the
basic and essential feature of the Constitution. It is trite that even the
fundamental rights of a citizen must conform to the basic feature of the
Constitution. Preamble of the Constitution in no uncertain terms lays
emphasis on equality. (192-F)
Kesavanada Bharti v. State of Kera/a, [1973) 4 SCC 225; L. Chandra
Kumar v. Union of Indian and Ors., [1997) 3 SCC 261 and Maharao Sahib
Shri Bhim Singhji v. Union of India and Ors., (1981) 1 SCC 166, referred
to.
The validity of institutional reservation must be judged on the
touchstone of equality clause of the Constitution of India. While
considering the reasonableness of the institutional reservation the effect
E
F
of equality clause contained in Articles 14 and 15 of the Constitution of
India has to be taken into consideration. Even applying the strict scrutiny
test, having regard to the present day scenario, institutional reservation G
should be done away with. [195-A, B; 196-8)
Islamic Academy of Education and Anr. v. State of Karnataka arid Ors.,
JT [2003) 7 SC I; Dr. Pradeep Jain and Ors. v. Union of India and Ors.,
[1984) 3 SCC 654 and Bairam Kumawat v. Union of India, [2003) 7 SCC
628, referred to.
H
160
SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.
A Per A.R. Lakshmanan, J. (concurring)
7.1. In the case ofCentral educational institutions and other
institutions of excelleace in the country the scope for reservations is
minimal. At the level of super specialities the rule of "equal chance for
equal marks" dominates. The higher the level of speciality the lesser the
B role of reservation. This view equally applies to all super speciality
institutions. (200-B, CJ
.
. ..
Dr. Pradeep Jain and Ors. v. Union of Indian and Ors., (1984) 3 SCC
654 and Jagadish Saran and Ors. v. Union of India, (1980) 2 SCC 768,
C referred to.
7.2. As regards the scope of reservation of seats in educational
institutions affiliated and recognised by State Universities, the
constitutional prescription of reservation of 50% of the available seats has
to be respected and enforced. The institutional preference should be limited
D to 50% and the rest beiAg left for open competition based purely on merits
on an ail-India basis. (200-C, DJ
Indra Sawheny v. Union of India, [1992) Supp. 3 SCC 217; Preeti
Srivastava v. State of MP. Air., (1999) SC 2894 and All India Institute of
Medical Sciences Student's Union v. All India Institute of Medical &iences
E and Ors., [2002) I sec 428, referred to.
7.3. In case of aided institutions government/State can prescribe
guidelines as to the process of selection and admission of students. The
Government/State, while issuing guidelines, has to take into consideration
F the constitutional mandate of the requirement of protective discrimination
in matters of reservation of seats as ordained by the decisional law in the
country. Accordingly, the extent of reservation in no case can exceed so•;.
of the seats. The inter-se merit may be assessed on the bas.is of a common
all-India Entrance Test or on the basis of marks as the level of qualifying
examination. [200-E, F)
G
H
7.4. In case of un-aided institutions, they have large measure of
autonomy even in matters of admission ofstudents as they are not bound
by the constraints of the demands of Article 29 (2) of the Constitution of
India. Nor are they bound by the constraints of obligatory requirements
of Constitutional reservation. [201-A)
S. CHAUDRI v. U.0.1.
161
7 .5. The position with respect to minority aided institutions is that A
they are bound by requirement of constitutional reservation along with
other regulatory controls. However, the right to admit students of the
Choice being part of the right of religious and linguistic minorities to
establish and administer educational institutions of their choice, the
management of these educational institutions can reserve seats to a B
reasonable extent not necessarily 50%. Out of the Seats left after the
deduction of management quota, the State can require the observance of
the requirement of Constitutional reservation. (200-G, HJ
[Ed.-A.R. Lakshmanan, J. also suggested following options for
streamlining the policies and processes for admission to Medical Courses and C
other Professional Courses]
Entry Qualification
8. For admission to undergraduate programmes, there are several
different eligibility norms among the different categories of institutions D
and among the various States thereby confusing the students from different
parts of the country. The preferred option should be for a designated
agency or the University concerns to conduct the entrance examination
for professional as well as non-professional institutions in the specified
subjects. The marks awarded in those subjects should be the basis for
determining the merit of the students for admission to the institutions to E
which they apply. [196-H; 197-A-C)
Unplanned growth of institutions
9.1. The country needs to evolve urgently a predictable pattern of F
growth for the Higher Education system in Technical, Managerial and
other Professional disciplines as well as in Science and Humanities at least
for the next five years. The present level of ad-hoc approach and stampede
should be eliminated. (197-G]
9.2. The national blueprint and the road map for the development G
of professional education should be based on maintaining credible level
of quality standards and anticipated demand structure in economic and
social sectors. (197-H; 198-A)
H
162
SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.
A Fee Structure
t 0. One possible remedy is to make a rule under the Prevention of
the Capitation Fee Act that collecting any fee that was not previously
aanounced in the college publications and any fee collected without a
formal receipt should be punishable offences. This rule should be strictly
B enforced. [198-C-D]
Certificate Hassles
11. Every student should be provided with the basic indentity
certificate while he/she is in the higher secondary stage. This should
C provide all essential information such as date of birth, community,
domicile, photo identity etc., authenticated by the designated official. This
should be acceptable for admission requirements in any institution and
in any State in India. (198-F, G)
D
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 29 of
E
2003.
(Under Article 32 to the Constitution of India).
WITH
W.P. (C) Nos. 54, 57, 68, 69, 84, 85, 89, 91, 95, 98, 99, 1001.,:003 and
C.A. No. 8581 of 2003
Kailash Vasdev, Shanti Bhushan, M.C. Dhingra, Ms. Gulnar Khan, S.
Sadashiva Reddy, Ms. Sudha Gupta, Syed Ali Ahmad, Syed Tanweer Ahmad,
F Mohan Pandey, A.S. Bhasme, Sanjay Visen, Manoj K. Mishra, S.K.
Bhattacharya, M.N. Shroff, A.D.N. Rao, Rajiv K. Garg, Abhijeet Chatterjee,
Chanchal Kumar Ganguli, Ms. Rekha Pandey, Ms. Sunita Sharma, D.S. Mabra,
Maninder Singh, Ms. Pratibha, M. Singh, Ankur Talwar, Kriti Maan Singh,
A. Mariarputham, Ms. Aruna Mathur, Anurag D. Mathur, Ms. Kamini Jaiswal,
G Ms. Shyonmila Bakshi, Ashok K. Srivastava, Ashok K. Mahajan, K.R.
Sasiprabhu, (NP) Ms. Krishna Sharma, Ms. Asha G. Nair, V.K. Sidharthan,
Anil Srivastav, B.B. Singh, (NP), Ms. H. Wahi, Ms. Aruna Gupta, Ms. A.
Subhashini Satinder S. Gulati, Neeraj Kumar Jain, Ms. Kavita Waida, (NP),
J.S. Attri, Sanjay R. Hegde, Satya Mitra, Anil K. Mihra, KH. Nobin Singh,
U.U. Lalit, S.S. Shinde, Mukesh K. Giri, Ranjan Mukherjee, Ms. Kamakshi
H S. Mehlwal, (NP) Nillay Dutta General for State of Nagaland, Ms. V.D.
S. CHAUDRI v. U.0.1. [KHARE, CJ.]
163
Khanna, S.K. Nandy, R.S. Jena, (NP), Rs. Suri, Ranji Thomas, Ms. Bharati A
Upadhyaya, V.N. Rghupathy, Ms. Sandhya Goswami, (NP), A.T.M. Sampath,
V. Balaji, P.N. Ramalingam, Gopal Singh, Navin Prakash, A.S. Pundir, (NP),
Jatinder Kumar Bhatia, T.C. Sharma, Ms. Neelam Sharma, Ms. Sunita Sharma,
D.S. Mehra, Anis Suhrawardy, Ms. Shamama Anis, V.G. Pragasam, Prakash
Srivastava, Ashok Mathur, Nikhil Nayyar, Gautam Narayan, Mukul Gupta, B
. Ankur Jain and T.A. Khan for the appearing parties.
The Judgments of the Court were delivered by:
V.N. KHARE, CJ. Leave granted in the Special Leave Petition.
The core questions involved in these writ petitions and appeal centres C
round the constitutional validity of reservation whether based on domicile or
institution in the matter of admission into Post Graduate Course in government
run medical colleges.
For determination of the said question factual matrix of the matter, is D
being noticed from Writ Petition (Civil) No. 29 of 2003.
The petitioners who are 52 in number are original residents of Delhi.
They joined various medical colleges out of Delhi for undertaking their MBBS
Courses of studies against the 15% all-India quota on being qualified therefor
in the All India Medical Entrance Exam.ination.
E
The appellants intended to join the medical colleges of Delhi for their
Post Graduate Medical Courses. They applied for and were granted admission
forms having regard to the decision of this Court in Dr. Parag Gupta v.
University of Delhi and Ors .. [2000) 5 SCC 684. In the Bulletin of Information F
issued by the University of Delhi, it was stated, that candidates like the
appellants would be entitled for admission in Post Graduate Courses subject
to the decision of a matter pending in this Court, i.e. Magan Mehrotra and
Ors. v. Union of India and Ors. Since reported in (2003) 3 SCALE 101.
A three-Judge Bench of this Court in Magan Mehrotra (supra) inter G
alia, therein held that from institutional preference, no other preference
including reservation on the basis of residence is envisaged in the Constitution,
in view of the decision of this Court in Dr. Pradeep Jain and Ors. v. Union
of India and Ors., [1984) 3 SCC 654.
H
164
SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.
A
The Delhi University or About 31.12.2002 relying on or on the basis
B
c
D
of the decision of this Court in Magan Mehrotra (supra) issued the following
notification.
"In view of the judgment of the Hon'ble Supreme Court of India
dated 17.12.2002 in Writ Petition (C) No. 417 of 2002. It is hereby
notified that for admission of P.G. Courses during the Academic
Session 2003, only Delhi University Medical Graduates would be
eligible against the 75% reserved seats of the students from Delhi
who have taken admission in the University/States under the 15%
All-India quota will not be eligible to seek admission in the P.G.,
Degree/Diploma Courses of Delhi University against the 75% Reserve
Seats. All concern may please be note.
Accordingly the students who have done MBBS under 15% AllIndia quota from the University/States other than Delhi University
and have applied for admission to the P.G. Degree/Diploma Courses
are not eligible to appear in P.G. Medical Entrance Test 2003 to be
held on 9.2.2003. They are advised to apply for the return of the
Bank Draft/Cheque."
The appellants claiming themselves to be "the residents of Delhi" and
"sons of the soil" filed the writ petition in the court questioning the
E aforementioned notification dated 31.12.2002 as also reservation made by
way of institutional preference for admission to Post Graduate Medical
Courses.
A Division Bench of this Court having regard to the decision in Magan
F Mehrotra's case (supra) which was rendered by a three-Judge Bench of this
Court, referred the matter to a Bench of three Judges by order dated 3.2.2003.
However, when the matter was placed before a three-Judge Bench, it by an
order dated 7 .2.2003 directed the matter to be placed before a Bench of five
judges considering the importance of the matter; but no reason was assigned
therefor.
G
H
The question which was initially raised in the writ petition was as to
whether reservation made by way of institutional preference is ultra vires
Articles 14 and 15 of the Constitution of India; but during hearing a larger
issue viz. as to whether any reservation, be on residence or institutional
preference is constitutionally permissible, was raised at the Bar.
.. _
S. CHAUDRI v. U.0.1. [KHARE, CJ.]
165
In view of the importance of the question involved, this Bench in tenns A
of order dated 1.4.2003 directed issuance of notice to all the States and Union
Territories. Pursuant whereto, except State of A.P. and State of Jammu and
Kashmir all the States filed their returns and were heard.
Shri Harish Salve, learned counsel appearing on behalf of the appellants
raised two contentions in support of the writ petition. He submitted that in B
view of the equality clause contained in Articles 14 and 15 (I) of the
Constitution of India, reservation whether based on domicile or institutional
preference would be unconstitutional. The learned council took us through
the decisions of this Court operating in the filed and urged that in view of
the passage of time no reservation should be pennitted either on the basis of C
residence or on institutional preference. Reservation on residential criteria,
the learned counsel contended, is squarely hit by clause ( 1) of Auricle 15 of
the Constitution of India. Placing reliance on the debates on the subjects at
the time of framing of the Constitution, Shri Salve urged that the 'place of
birth' being synonymous with 'domicile' the observations made contrary
thereto is D.P. Joshi v. The State of Madhya Bharat and Anr., [1955] l SCR D
1215 are not correct.
Shri Salve further contended that in tenns of the constitutional scheme,
reservation is pennissible only when there exist compelling Government
objectives therefor and that too on nominal basis if it can be demonstrated E
that 'rule of merit' should not be allowed to be sustained and when the class
in whose favour a departure is sought to be made constitutes a homogeneous
group and such departure satisfies the tests of social justice for securing
equality upon comparison of such disability suffered by such class or group
of persons. The learned counsel submitted that in the matter of reservation
the State must scrupulously follow the requirements of clause (4) of Article F
15 of the Constitution of India, namely, that the same is needed for the
section of society or a homogeneous class and identified by a presidential
order issued in that behalf.
In a case involving higher education even, Shri Salve argued, such a
provision must be handled with care and keeping in view a large number of G
decision of this Court including MR. Ba/aji and Ors. v. State of Mysore, AIR
[1963] SC 649 = [1963] Supp. I SCR 439 not more than 50% of the total
seats can be reserved. The learned counsel would contend that if such
reservation is prima facie impennissible having regard to the constitutional
scheme the same would fall within the purview of 'suspected classification' H
166
SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.
A ·and thus, must pass the 'strict scruiting test' or 'intermediate scrutiny test'.
Any executive order providing for such reservation, the learned counsel urged,
must be construed having regard to the preamble, the fundamental rights of
the citizens and in particular Article 19 (I) ( d), as also that Directive Principles
of the State Policy as contained in Part IV of the Constitution of India and
in particular Articles 41 and 4 7 of the Constitution of India. It was argued
B that meritorious students suffer from lack of mobility as contra distinguished
from the mobility of the employees, and are required to be protected so as
to suffer any discrimination only on a specious plea of the State "our money,
our people". Domicile of all the citizens of India, Shri Salve urged, should
be one; as the concept of State domicile has no role to play in our constitutional
C scheme. He emphasized that keeping the same in view, a profile check is
required to be made so far as meritorious students are c:oncerned, as those
who are born and brought up in small town also would like to have higher
education in the metropolitan towns where having regard to the better
infrastructures and higher resources, the institution therein would provide a
better academic pursuit for them. In terms of Article 14 of the Constitution
D of India, Shri Salve argued, students cannot form different class nor any such
classification made amongst them wouid be in public interest. Relying heavily
upon the observations made in paragraph I 0 of the judgement of this Court
in Dr. Pradeep Jain's case (supra), the learned counsel submitted that as all
students are entitled to equal opportunities all sorts of reservations must be
E given a go bye.
F
The learned counsel next contended that in any event, the students, like
the appellants should not be held to have lost their residential status only
because they had gone out of the their State of origin for pursuing their
MBBS Course for a period of five years.
According to Shri Salve, Magan Mehrotra (supra)., does not lay down
the correct law and it is required to be overruled.
Assailing reservation by way of institutional preference, Shri Salve,
further submitted that the very premise upon which it is based is fallacious
G inasmuch as the majority of students, in view of the decision of this Court
in Dr. Pradeep Jain's case (supra) having taken admission on the criteria of
domicile alone, would again be considered for pursuing their Post Graduate
Stutlies only on that basis and, thus, reservation by way of institutional
preference would amount to indirect way of doing things as the same would
H for all intent and purport would be based on domicile and tlius, is liable to
S. CHAUDRI v. U.0.1. [KHARE, CJ.]
167
be struck down.
A
Shri Salve further contended that Delhi University or the States were
required to place before this Court sufficient materials to prove that such
classification on institutional preference is based on an intelligible differentia
Drawing our attention to the statements made in the counter affidavit, the
learned counsel urged. that no such material has been placed except that the B
said practice is in vogue for a long time.
Shri R.F. Nariman, learned senior counsel appearing on behalf of some
of the students of All India Institute of Medical Sciences (AIIMS) submitted
that in view of the decision of this Court in All India Institute of Medical C
Sciences Students' Union v. All India Institute of Medical Sciences and Ors.,
(2002] I SCC 428, out of 40 students only 6 were offered admission in nonclinical subjects which the most of the students would not like to pursue Shri
Nariman urged that plight of the students of AIIMS should be considered
having regard to the stand taken by or the practice prevalent in other
Universities, namely, institutional preference and in the view of the matter D
the students of the institution are also entitled to equal opportunity to compete
with students of other Universities.
Shri Shanti Bhushan, learned senior counsel appearing on behalf of
the students of Delhi University, on the other hand, submitted that Magan
Mehrotra's case (supra) has correctly been decided. The learned counsel E
contended that keeping in view the decisions of this Court e.g. D.P. Joshi
(supra), Dr. Jagadish Saran and Others v, Union of India [ 1980] 2 SCC 768
and Dr. Pradeep Jain (supra), it must be held that reservation by way
institutional preference has held the field for a long time. The impugned
notification, Shri Shanti Bhushan urged, having been issuing pursuant of this p
Court, it is futile to urge that the action on the part of Delhi University in
following the 'same has resulted in arbitrarirtess. According to the learned
counsel reservation by way of institutional preference is not only a matter of
convenience but also forms part of the educational policy. If such a policy
is not allowed to have a little play, a student while undergoing different
courses of studies may have to take admissions in different parts of the G
country wherefor he would face problems involving different languages,
different cultures and different environments. It may not be feasible even for
the parents of middle class family to send their children out of the State.
Furthermore, the learned counsel contended that the chances that the local
students would serve the local people cannot be completely ruled out and, H
168
SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.
A thus, such a criteria cannot be said t.i be illogical or bad in law.
As regard application of strict scrutiny test, Shri Shanti Bhushan relying
on or on the basis of the decision in Shri Ram Krishna Dalmia v. Justice S.R.
Tendolkar and Ors., [1959] SCR 279 submitted that this Court has laid down
the law that the constitutionality of a statute must be presumed and onus to
B prove that the statute is unconstitutional is upon the person who asserts the
same. Only two .tests, namely, as to whether the classification is reasonable
and based on an intelligible differentia stood the test of time and there is no
reason to deviate therefrom. Shri Shanti Bhushan argued that reservation by
way of institutional preference had been holding the field since this Court
C decided Dr. Pradeep Jain's case (supra) and nothing has been pointed out by
the petitioners to show that the said principle should be departed from.
Shri A Mariarputham, learned conusel appearing on behalf of Delhi
University, supplementing the arguments of Shri Shanti Bhushan, submitted
that reservation by way of institutional preference is a definite and identifiable
D criteria and in the view of the matter it satisfies the test of valid classification
as contained in Article 14 of the Constitution of India. The reason assigned
in support of the institutional preference in various decisions of this Court arc
still relevant and such there being no change in the situation, any fresh look
or reconsideration thereof is not warranted. This Court, the learned counsel
E urged that having framed a scheme in Dr. Pradeep Jain's case (supra) which
is binding on all concerned in view of the provisions contained in Articles
141, 142, 143 and 144 of the Constitution of India may not depart therefrom
in view of the fact that this Court in Magan Mehrotra's case (supra) upon
issuance of notice to all States had clearly directed that the law relating in
institutional preference laid down in Dr.