JAGDISH SARAN & ORS. v. UNION OF INDIA & ORS

Citation: [1980] 2 S.C.R. 831

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK, O. CHINNAPPA REDDY

Case summary

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.

Judgment text

JAGDISH SARAN & ORS. v. UNION OF INDIA & ORS. • January 28, 1980 [V. R. KRISHNA l¥ER, R. S. PATIIAK AND 0. CH! NNAPPA REDDY, JJ. ] 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 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 u 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. 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, 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 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 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 A 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 postc graduate courses. The role of high grade skill or special talent m·ay 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. E 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 back- F ward 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 • A 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 university. An institutional quo~a is not invariably a constitutional F 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 reserva- G tion.

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 impera- H tive. 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 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 ·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 exa~geration of 'national' considerations and personal merit, where local protection is essential for the bumbler people's interests, bas a depressing reper- ' 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 JAGDISH v. UNION (Krishna Iyer, I. ) 83 ~) 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 practi~ed 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 gradu- " ales get house job~ in the local hospitals and qualify themselves for 16-91SCI/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 ex- • cellence 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,' B 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 c 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 enlarge- D ment of their quota. But all grievances are not constitutional. Also, by remedy F 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 B 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 c 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 D 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 E ' 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 F 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 G 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 H (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 legis- • lation. 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 E 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 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 exception 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 ani- • mates 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 I) 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. 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 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 conclu- ~ion that under certain circumsL~nces 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 practi- ' • tioners 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. H (3) [1971] 3 S. C. R. 449. (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 : fl "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. 2 15(4). ( ) J "Once the power to lay down classifications or cate-. gories of persons fron1 whom a,dn1i. ssion is to be given is .

F 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 n 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 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 n 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. [1980] 2 S. C. R. 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. ·B 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 1l score that every individual has entitlement on pure merit of marks. This narrow 'unsocial' pedantrY subverts the seminal essen~e 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 2 . c:; excerpt : ( ) "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. JAGDISH v.

UNION (Krishna Iyer, !. ) 851 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 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 2 to insure hh; moven1ent ;nto larger society. "( ) (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 Rai1water and William L. Pancey, p. 49. (2) 'The American Democracy' Magrath, Cornwell and Goodman P. 1 S. s---- A 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 B 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 c 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 2 in Khosa's case by Chandrachud, J. (as he then was): ( ) " ........ 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? " (I) Mr. Justice Brennan concurring with the majority opinion in lllinious v. Allen, 197 U. S. 337 (1970).

(2) State ofI. 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. Lawle~sness, 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 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. 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 r~ervation • 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. The mechanics of merit measurement is simple.

All applicants, c 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 n 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 t~t 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 F 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 G 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 re~rd to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical depart- H ments of higher knowledge, crucial to material progress, the peopl , professional organisations, the Supreme Court, the High Court, and thelr D uatur~l human conc 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 Univecs~ty, the students who will settle down to alleviate suffering in that region, F Secondly, and more importantly, it is 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 prnp~ition 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. 1 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;