Full Judgement
Dr. Pradeep Jain Vs. Union of India & Ors [1984] INSC 115 (22 June 1984)
BHAGWATI, P.N.
BHAGWATI, P.N.
SEN, AMARENDRA NATH (J) MISRA RANGNATH
CITATION: 1984 AIR 1420 1984 SCR (3) 942 1984 SCC (3) 655 1984 SCALE (1)894
ACT:
Constitution of India-Art. 14-Equal opportunity- Reservation of seats in medical colleges for M.B.B.S. and post-graduate medical courses on basis of domicile or residential qualification and institutional preference-By State and Union Territories-If valid. What should be the extent of such reservation. For admission to M.B.B.S. and Higher courses-Merit only consideration-Whether and when departure can be made.
Constitution of India-Art. 141-Judgment in this case applicable to all States and Union Territories except the State of Andhra Pradesh and Jammu & Kashmir.
Constitution of India-Art. 5-Only one domicile-Domicile in the territory of India-To say domicile in one State or another-Not right.
Words and Phrases-'Domicile'-Concept of-Basically a legal concept.
Words and Phrases-'Merit'-What is.
HEADNOTE:
In regard to admission to M.B.B.S. and post-graduate medical courses, a somewhat uniform and consistent practice had grown in almost all the States and Union Territories to give preference to those candidates who had their domicile or permanent residence within the State for a specified number of years ranging from 3 to 20 years and to those who had studied in educational institutions in the State for a continuous period varying from 4 to 10 years. Sometimes the requirement was phrased by saying that the applicant must have his domicile in the State. The petitioners and the appellant who sought admission in M.B.B.S. and M.D.S.
courses in different universities of different States and Union Territory of Delhi challenged the residential requirement and institutional preference on the ground of being violative of Constitution. The question which arose for consideration was whether, consistently with the constitutional values, admissions to a medical college or any other institution of higher learning situate in a State could be confined to those who had their 'domicile' within the State or who were resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those 943 who do not possess 'domicile' or residential qualification within the State, irrespective of merit.
Disposing of the writ petitions and the civil appeal.
^ HELD:
(Per Bhagwati and Ranganath Misra, JJ.) The entire country is taken as one nation with one citizenship and every effort of the Constitution makers is directed towards emphasizing, maintaining and preserving the unity and integrity of the nation. Now if India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India, irrespective of the place where he is born or the language which he speaks or the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India and is entitled to equality before the law and equal protection of the law with other citizens in every part of the territory of India, it is difficult to see how a citizen having his permanent home in Tamil Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra or speaking Marathi language be regarded as an outsider in Karnataka. He must be held entitled to the same rights as a citizen having his permanent home in Uttar Pradesh or Karnataka, as the case may be. To regard him as an outsider would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent States. [954F-H; 955A-B] Article 15, clauses (1) and (2) bar discrimination on grounds not only of religion, race, caste or sex but also of place of birth. Art. 16(2) goes further and provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for or discriminated against in respect of, any employment or office under the state. Therefore, it would appear that residential requirement would be unconstitutional as a condition of eligibility for employment or appointment to an office under the State which also covers an office under any local or other authority within the State or any corporation, such as, a public sector corporation which is an instrumentality or agency of the State.
[955H; 956A-C] Ramana Dayaram Shetty v. International Airport Authority of India & Ors., [1979] 3 S.C.R. 1014, referred to.
So far as admissions to an education institution such as a medical college are concerned, Art. 16(2) has no application. If, therefore, there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Art, 16(2). Nor can Article 15 clauses (1) and (2) be invoked for invalidating such residence requirement because these clauses prohibit discrimination on ground of residence and, as pointed out by this Court in D.P. Joshi v. State 944 of Madhya Bharat, residence and place of birth are "two distinct conceptions with different connotations both in law and in fact". The only provision of the Constitution on the touch-stone of which such residence requirement for admission to a medical college in a State can be required to be tested is Art. 14 and that is precisely the challenge which falls to be considered in these writ petitions. [957C- E] D.P. Joshi v. State of Madhya Bharat, [1955] 1 SCR 1215, referred to.
The word 'domicile' is to identify the personal law by which an individual is governed in respect of various matters such as the essential validity of a marriage, the effect of marriage on the proprietory rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables. [957F-G] Halsbury's Laws of England (Fourth Edition) vol. 8, paragraph 421 & 422 and Wicker v. Homes, [1858] 7 HL Cases 124, referred to.
Domicile is basically a legal concept for the purpose of determining what is the personal law applicable to an individual and even if an individual has no permanent home, he is invested with a domicile by law. There are two main classes of domicile: domicile of origin that is communicated by operation of law to each person at birth, that is the domicile of his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person of full age is free to acquire in substitution for that which he presently possesses. The domicile of origin attaches to an individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to reside there permanently or indefinitely. Now the area of domicile, whether it be domicile of origin or domicile of choice, is the country which has the distinctive legal system and not merely the particular place in the country where the individual resides. [958B-E] Whether there can be anything like a domicile in a state forming part of the Union of India ? The Constitution recognises only one domicile, namely, domicile in India.
Art. 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, "domicile in the territory of India. "The legal system which prevails throughout the territory of India is one single indivisible system. It would be absurd to suggest that the Legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the States have power to make laws. The concept of 'domicile' has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, be right to say that a citizen of India is domiciled in one state or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India. When a person who is permanently resident in one State goes to another State with intention to reside there permanently or indefinitely, his domicile does not undergo any 945 change: he does not acquire a new domicile of choice. His domicile remains the same, namely, Indian domicile. Moreover to think in terms of state domicile with be highly detrimental to the concept of unity and integrity of India.
[958H; 959A; D;F-H] The argument of the State Governments that the word 'domicile' in the Rules of some of the State Governments prescribing domiciliary requirement for admission to medical colleges situate within their territories, is used not in its technical legal sense but in a popular sense as meaning residence and is intended to convey the idea of intention to reside permanently or indefinitely, is accepted. Therefore, the Court would also interpret the word 'domicile' used in the Rules regulating admissions to medical colleges framed by some of the States in the same loose sense of permanent residence and not in the technical sense in which it is used in private international law. But even so the Court wishes to warn against the use of the word 'domicile' with reference to States forming part of the Union of India, because it is a word which is likely to conjure up the notion of an independent State and encourage in a subtle and insidious manner the dormant sovereign impulses of different regions [959H; 960A-D] D.P. Joshi v State of Madhya Bharat, [1955] 1 SCR 1215 and Vasundro v. State of Mysore, [1971] Suppl. SCR 381, referred to.
It is dangerous to use a legal concept for conveying a sense different from that which is ordinarily associated with it as a result of legal usage over the years.
Therefore, it is strongly urged upon the State Government to exercise this wrong use of the expression 'domicile' from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions. [960E-G] As the position stands today, there is considerable paucity of seats in medical colleges to satisfy the increasing demand of students for admission and some principle has therefore, to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Art. 14. Now, the primary imperative of Art. 14 is equal opportunity for all across the nation for education and advancement and that cannot be made dependent upon where a citizen resides. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious deteriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up. Moreover, it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available, 946 simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote substandard candidates and bring about fall in medical competence, injurious in the long run to the very region.[963G-H; 964D-H] Jagdish Saran v Union of India, [1980] 2 SCR 831, P.
Rajendran v. State of Madras. [1968] 2 SCR 786 and Periakaruppan v. State of Tamil Nadu, [1971]2 SCR 430, referred to.
What is merit which must govern the process of selection? It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor. Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social value of a member of the medical profession. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation.[967E-F; H; 968A] Jagdish Saran v. Union of India, [1980] 2 SCR 831, referred to.
The scheme of admission to medical colleges may depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals.
[969F] Ahmedabad St. Xavier's College Society and Anr. v State of Gujarat. [1974]1 SCR 717 at 799 and Jagdish Saran v. Union of India. (1980) 2 SCR 831. referred to.
There are, in the application of this principle, two considerations which appear to have weighed with the Courts in justifying departure from the principle of selection based on merit. One is what may be called State has by and large been frowned upon by the court and struck down as invalid interest and the other is what may be described as a region's claim of backwardness. [969G] D.P. Joshi v. State of Madhya Bharat [1955] 1 SCR 1215, referred to.
Though intra-state discrimination between persons resident in different districts or regions of a State as in Minor P. Rajendran's case and Perukaruppan's case the Court has in D.N. Chanchala's case and other similar cases upheld institutional reservation effected through university-wise distribution of seats for admission to medical colleges. The Court has also by its decision in D.P. Joshi's case and N. Vasundhara's case sustained the constitutional validity of reservation based on residence requirement within a State for the purpose of admission to 947 medical colleges. These decisions which all relate to admission to M.B.B.S. course are binding upon the Court and it is therefore not possible for the Court to held, in the face of these decisions, that residence requirement in a State for admission to M.B.B.S. course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the mandate of equality of opportunity contained in Art. 14. The Court is therefore of the view that a certain percentage of reservation of seats in the medical colleges on the basis of residence requirement may legitimately be made in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State and for this purpose, there should be no distinction between schools affiliated to State Board and schools affiliated to the Central Board of Secondary Education. [979C-F; 981D-F] P. Rajendran v. State of Madras, [1968]2 SCR 786, Periakaruppan v. State of Tamil Nadu, [1971] 2 SCR 430, D.N. Chanchala v. State of Mysore, [1971] Supp. SCR 608, D.P. Joshi v. State of Madhya Bharat, [1955] 1 SCR 1215, Vasundra v. State of Mysore, [1971] Suppl. SCR 381, Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat, [1974] 1 SCC 717 at 799 and State of Uttar Pradesh v. P. Tandon, [1975] 2 SCR 761, referred to.
What should be the extent of reservation based on residence requirement and institutional preference ? Wholesale reservation made by some of the State of Governments on the basis of 'domicile' or residence requirement within the State or the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit, must be condemned, and are unconstitutional and void as being in violation of Art. 14 of the Constitution. [982G; 983E-F] Jagdish Saran v. Union of India [1980] 2 SCR 831, referred to.
It is not possible to provide a categorical answer to this question for, as pointed out by the policy statement of the Government of India, the extent of such reservation would depend on several factors including opportunities for professional education in that particular area, the extent of competition, level of educational development of the area and other relevant factors. But the Court is of the opinion that such reservation should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made. The Medical Education Review Committee has suggested that the outer limit should not exceed 75 per cent but in the opinion of the Court it would be fair and just to fix the outer limit at 70 per cent. This outer limit of reservation is being laid down in an attempt to reconcile the apparently conflicting claim of equality and excellence.
It may be made clear that this outer limit fixed by the Court will be subject to any reduction or attenuation which may be 948 made by the Indian Medical Council which is the statutory body of medical practitioners whose functional obligations include setting standards for medical education and providing for its regulation and coordination. This outer limit fixed by the Court must gradually over the years be progressively reduced but that is a task which would have to be performed by the Indian Medical Council. The Indian Medical Council is directed to consider within a period of nine months from today whether the outer limit of 70 per cent fixed by the Court needs to be reduced and if the Indian Medical Council determines a shorter outer limit, it will be binding on the States and the Union Territories. The Indian Medical Council is also directed to subject the outer limit so fixed to reconsideration at the end of every three years but in no event should the outer limit exceed 70 per cent fixed by the Court. The result is that in any event at least 30 per cent of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such admissions shall be granted purely on merit on the basis of either all India Entrance Examinations or entrance examination to be held by the State. Of course, it need not be added that even where reservation on the basis of residence requirement or institutional preference is made in accordance with the directions given in this judgment, admissions from the source or sources indicated by such reservation shall be based only on merit, because the object must be to select the best and most meritorious students from within such source or sources. [983G-H; 984A-H; 985A-B] But different considerations must prevail while considering the question of reservation based on residence requirement within the State or on institutional preference for admission to the post-graduate courses, such as, M.S., M.D. and the like. There excellence cannot be allowed to be compromised by any other considerations because that would be deterimental to the interest of the nation. Therefore so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But having regard to broaded considerations of equality of opportunity and institutional continuity in education which has its own importance and value, it is directed that though residence requirement within the State shall not be ground for reservation in admissions to post- graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B.S. course from a medical college or university may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which is being fixed will also be subject to revision on the lower side by the Indian Medical Council in the same manner as in the case of admissions to the M.B.B.S. course. But even in regard to admissions to the post-graduate course, it is directed that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis. [985C-D; 987F-H;
988 A-B] 949 What has been said in regard to admissions to the M.B.B.S. and post graduate courses must apply equally in relation to admissions to the B.D.S. and M.D.S. courses. So for as admissions to the B.D.S. and M.D.S. courses are concerned, it will be the Indian Dental Council which is the statutory body of dental practitioners, which will have to carry out the directions given to the Indian Medical Council in regard to admissions to M.B.B.S. and post-graduate courses. The directions given to the Indian Medical Council may therefore be read as applicable mutatis mutands to the Indian Dental Council so far as admissions to B.D.S. and M.D.S. courses are concerned. [988C-E] In the instant case, the provisional admissions given to the petitioners shall not be disturbed but they shall be treated as final admissions. [988H] (Per Bhagwati, Amarendra Nath Sen and Ranganath Misra, JJ.) The judgment shall be implemented with effect from the next academic year 1985-86. Whatever admissions, provisional or otherwise, have been made for the academic year 1984-85, shall not be disturbed on the basis of the judgment. The judgment will not apply to the State of Andhra Pradesh and Jammu & Kashmir because there were special Constitutional provisions in regard to them which would need independent consideration by this Court.
[991G-H; 992A] (Per Amarendra Nath Sen, J.) I agree with the orders passed by my learned brother Bhagwati J. and also the directions given by him. [989A] The question of constitutional validity of reservation of seats within reasonable limits on the basis of residence and also the question of institutionalised reservation of seats clearly appear to be concluded by various decision of this Court, as has been rightly pointed out by my learned brother in his judgment in which he has referred at length to these decisions. These decisions are binding on this Court and are to be followed. Constitutional validity of such reservations within the reasonable limit must, therefore, be upheld. [989H; 990A-B] The real question is the question of the extent of the limit to which such reservations may be considered to be reasonable. The question of reasonableness of such reservations must necessarily be determined with reference to the facts and circumstances of particular cases and with reference to the situation prevailing at any given time.
[990C] On the question of admission to post-graduate medical courses I must confess that I have some misgivings in my mind as to the further classification made on the footings of super-specialities. Both my learned brothers, however, agree on this. Also in a broader perspective this classification may serve the interests of the nation better, though interests of individual States to a small extent may be effected. This distinction in case of super-specialities proceeds on the basis that in these very important spheres the criterion for selection should be merit only without any institutionalised reservations or any reservation on the ground of residence. I also agree that the orders and directions proposed in regard to admission to M.B.B.S. and post-graduate 950 courses are also to be read as applicable mutatis mutandis in relation to admission to B.D.S. and M.D.S. courses, [990E-G]
CIVIL APPELLATE/ORIGINAL JURISDICTION: Writ Petition Nos. 6091, 8882-83, 9219, 9820 of 1983 and 10658, 10761 of 1983 & CMP. No. 29116/83 (in WP. No. 9618/83) (Under article 32 of the Constitution of India) With Civil Appeal No. 6392 of 1983 Appeal by Special leave from the Judgment and Order dated the 17th August, 1983 of the Delhi High Court in C.W.P. No. 1791 of 1983.
V.M. Tarkunde, A.K. Srivastava, S.K. Jain and Vijay Hansaria, for the petitioners.
R. Venkataramani for the Appellant in CA. 6392/83.
A.K. Ganguli, S.K. Baga & N.S. Das Bahl for the Respondents in CA. No. 6392 of 1983.
P.P. Rao and A.K. Ganguli for the Delhi University.
S.N. Chaudhary for the Respondents (State of Assam) K.G. Bhagat, Addl. Sol. General, Miss A. Subhashini & R.N. Poddar for the Respondent-Union of India.
Kapil Sibal and Mrs. Shobha Dixit for the Respondent- State of U.P.
D.P. Mukherjee and G.S. Chatterjee for the Respondent- State of West Bengal.
G.S. Narayana, Ashivini Kumar, C.V. Subba Rao, Swaraj Kaushal & Mr. M. Veerappa, for the Respondent-State of Karanataka.
K. Parasaran and B. Parthasarthi for the Respondent- States of Andhra Pradesh.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Respondent.
P.K. Pillai, for the Respondent-State of Kerala.
P.N. Nag, for the State of H.P.
P.R. Mridul, and R.K. Mehta for the State of Orissa.
Altaf Ahmed for the State of J & K.
The following Judgments were delivered 951 BHAGWATI, J. This group of Writ Petitions raises a question of great national importance affecting admissions to medical colleges, both at the under-graduate and at the post-graduate levels. The question is, whether, consistently with the constitutional values, admissions to a medical college or any other institution of higher learning situate in a State can be confined to those who have their 'domicile' within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess 'domicile' or residential qualification within the State, irrespective of merit. This question has assumed considerable significance in the present day context, because we find that today the integrity of the nation is threatened by the divisive forces of regionalism, linguism and communalism and regional linguistic and communal loyalties are gaining ascendancy in national life and seeking to tear apart and destroy national integrity. We tend to forget that India is one nation and we are all Indians first and Indians last. It is time we remind ourselves what the great visionary and builder of modern India, Jawaharlal Nehru said, "Who dies if India lives : who lives if India dies ?" We must realise, and this is unfortunately that many in public life tend to overlook, sometimes out of ignorance of the forces of history and sometimes deliberately with a view to promoting their self- interest, that national interest must inevitably and forever prevail over any other considerations proceeding from regional, linguistic or communal attachments. If only we keep these basic considerations uppermost in our minds and follow the sure path indicated by the founding fathers of the Constitution, we do not think the question arising in this group of writ petitions should present any difficulty of solution.
The history of India over the past centuries bears witness to the fact that India was at no time a single political unit. Even during the reign of the Maurya dynasty, though a large part of the country was under the sovereignty of the Mauryan kings, there were considerable portions of the territory which were under the rule of independent kingdoms. So also during the Moghul rule which extended over large parts of the territory of India, there were independent rulers who enjoyed political sovereignty over the territories of their respective kingdoms. It is an interesting fact of history that India was forged into a nation neither on account of a common language nor on account of the continued existence of a single political regime over its territories but on account of a 952 common culture evolved over the centuries. It is cultural unity something more fundamental and enduring that any other bond which may unite the people of a country together-which has welded this country into a nation. But, until the advent of the British rule, it was not constituted into a single political unit. There were throughout the period of history for which we have fairly authenticated account, various kingdoms and principalities which were occasionally engaged in conflict with one another. During the British rule, India became a compact political unit having one single political regime over its entire territories and this led to the evolution of the concept of a nation. This concept of one nation took firm roots in the minds and hearts of the people during the struggle for independence under the leadership of Mahatma Gandhi. He has rightly been called the Father of the Nation because it was he who awakened in the people of this country a sense of national consciousness and instilled in them a high sense of patriotism without which it is not possible to build a country into nationhood. By the time the Constitution of India came to be enacted, insurgent India, breaking a new path of nonviolent revolution and fighting to free itself from the shackles of foreign domination, had emerged into nationhood and "the people of India" were inspired by a new enthusiasm, a high noble spirit of sacrifice and above all, a strong sense of nationalism and in the Constitution which they framed, they set about the task of a strong nation based on certain cherished values for which they had fought.
The Preamble of the Constitution was therefore, framed with the great care and deliberation so that it reflects the high purpose and noble objective of the Constitution makers.
The Preamble declares in highly emotive words pregnant with meaning and significance:
"We, The People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:
Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation;
953 In Our Constituent Assembly this twenty-sixth day of November, 1949, do Hereby Adopt, Enact And Give To Ourselves This Constitution." These words embody the hopes and aspirations of the people and capture and reproduce the social, economic and political philosophy underlying the Constitution and running through the warp and woof of its entire fabric. It is significant to note that the Preamble emphasises that the people who have given to themselves this glorious document are the people of India, the people of this great nation called India and it gives expression to the resolve of the people of India to constitute India into a sovereign socialist secular democratic republic and to promote among all its citizens fraternity assuring the dignity of the individual and the unity and integrity of the nation. The Constitution makers were aware of the past history of the country and they were also conscious that the divisive forces of regionalism, linguism and communalism may one day raise their ugly head and threaten the unity and integrity of the nation, particularly in the context of the partition of India and the ever present danger of the imperialist forces adopting new stratagems, apparently innocuous, but calculated to destabilise India and re-establish their hegemony and, therefore, they laid great emphasis on the unity and integrity of the nation in the very Preamble of the Constitution. Article 1 of the Constitution then proceeds to declare that India shall be a Union of States but emphasizes that though a Union of States, it is still one nation with one citizenship. Part II dealing with citizenship recognises only Indian citizenship: it does not recognise citizenship of any State forming part of the Union. Then follow Articles 14 and 15 which are intended to strike against discrimination and arbitrariness in state action, whether legislatives or administrative. They read as follows:
"Article 14: The State shall not deny to any persons equality before the law or the equal protection of the laws within the territory of India." "Article 15: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth of any of them.
(2) No citizen shall on grounds only of religion, race, caste. sex, place of birth or any of them, be subject 954 to any disability, liability, restriction or condition with regard to- (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places so public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes." Article 19 (1) again recognises the essential unity and integrity of the nation and reinforces the concept of one nation by providing in clauses (d) and (e) that every citizen shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India. Article 301 declares that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free.
Then there are situations envisaged in certain Articles of the Constitution such as Articles 353 and 356 where the executive power of a State forming part of the Union is exercisable by the Central Government or subject to the directions of the Central Government. Thus, the entire country is taken as one nation with one citizenship and every effort of the Constitution makers is directed towards emphasizing, maintaining and preserving the unity and integrity of the nation. Now if India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India, irrespective of the place where he is born or the language which he speaks or the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India and is entitled to equality before the law and equal protection of the law with other citizens in every part of the territory of India, it is difficult to see how a citizen having his permanent home in Tamil Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra or/speaking Marathi language be 955 regarded as an outsider in Karnataka. He must be held entitled to the same rights as a citizen having his permanent home in Uttar Pradesh or Karnataka, as the case may be. To regard him as an outsider would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent states.
But, unfortunately, we find that in the last few years, owing to the emergence of narrow parochial loyalties fostered by interested parties with a view to gaining advantage for them, a serious threat has developed to the unity and integrity of the nation and the very concept of India as a nation is in peril. The threat is obtrusive at some places while at others it is still silent and is masquerading under the guise of apparently innocuous and rather attractive clap-trap. The reason is that when the Constitution came into operation, we took the spirit of nation-hood for granted and paid little attention to nourish it, unmindful of the fact that it was a hard-won concept. We allowed `sons of the soil' demands to develop claiming special treatment on the basis of residence in the concerned State, because recognising and conceding such demands had a populist appeal. The result is that `sons of the soil' claims, though not altogether illegitimate if confined within reasonable bounds, are breaking asunder the unity and integrity of the nation by fostering and strengthening narrow parochial loyalties based on language and residence within a state. Today unfortunately, a citizen who has his permanent residence in a state entertains the feeling that he must have a preferential claim to be appointed to an office or post in the state or to be admitted to an educational institution within the state vis-a-vis citizen who has his permanent residence in another state, because the latter is an outsider and must yield place to a citizen who is a permanent resident of the state, irrespective of merit. This, in our opinion, is a dangerous feeling which, if allowed to grow, indiscriminately, might one day break up the country into fragments, though, as we shall presently point out, the principle of equality of opportunity for education and advancement itself may justify, within reasonable limits, a preferential policy based on residence.
We may point out at this stage that though Article 15 (2) clauses (1) and (2) bars discrimination on grounds not only of religion, race, caste or sex but also of place of birth, Article 16 (2) goes 956 further and provides that no citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for or discriminated against in state employment. So far as employment under the state, or any local or other authority is concerned, no citizen can be given preference nor can any discrimination be practised against him on the ground only of residence. It would thus appear that residential requirement would be unconstitutional as a condition of eligibility for employment or appointment to an office under the State and having regard to the expansive meaning given to the word `State' in Ramana Dayaram Shetty v. International Airport Authority of India & Ors., it is obvious that this constitutional prohibition would also cover an office under any local or other authority within the State or any corporation, such as a public sector corporation which is an instrumentality or agency of the State. But Article 16 (3) provides an exception to this rule by laying down that Parliament may make a law "prescribing, in regard to a class or classes of employment or appointment to an office under the government of, or any local or other authority, in a state or union territory, any requirement as to residence within that state or union territory prior to such employment." or appointment Parliament alone is given the right to enact an exception to the ban on discrimination based on residence and that too only with respect to positions within the employment of a State Government. But even so, without any parliamentary enactment permitting them to do so, many of the State Governments have been pursuing policies of localism since long and these policies are now quite wide spread. Parliament has in fact exercised little control over these policies States. The only action which Parliament has taken under Article 16 (3) giving it the right to set residence requirements has been the enactment of the Public Employment (Requirement as to Residence) Act, 1957 aimed at abolishing all existing residence requirements in the States and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himchal Pradesh. There is therefore at present no parliamentary enactment permitting preferential policies based on residence requirement except in the case of Andhra Pradesh, Manipur Tripura and Himachal Pradesh where the Central Government has been given the right to issue directions setting residence requirements in the subordinate services. Yet, in the face of Article 16 (2), some of the States are adopting `sons of the soil' policies prescribing reservation 957 or preference based on domicile or residence requirement for employment or appointment to an office under the government of a State or any local or other authority or public sector corporation or any other corporation which is an instrumentality or agency of the State. Prima facie this would seem to be constitutionally impermissible though we do not wish to express any definite opinion upon it, since it does not directly arise for consideration in these writ petitions and civil appeal.
But, it is clear that so far as admissions to an educational institution such as a medical college are concerned, Article 16(2) has no application, If, therefore, there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Article 15 clauses (1) and (2). Nor can Article 16(2) be invoked for invalidating such residence requirement because these clauses prohibits discrimination on ground of place of birth and not on ground of residence and, as pointed out by this Court in D.P. Joshi v. State of Madhya Bharat, residence and place of birth are "two distinct conceptions with different connotations both in law and in fact". The only provision of the Constitution on the touch-stone of which such residence requirement can be required to be tested is Article 14 and that is precisely the challenge which falls to be considered by us in these writ petitions.
Now there are in our country in almost all States residence requirements for admission to a medical college.
Sometimes the requirement is phrased by saying that the applicant must have his domicile in the State. We must protest against the use of the word `domicile' in relation to a State within the union of India. The word `domicile' is to identify the personal law by which an individual is governed in respect of various matters such as the essential validity of a marriage, the effect of marriage on the proprietary rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables. `Domicile' as pointed out in Halsbury's laws of England (Fourth Edition) Volume 8 paragraph 421, "is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law." "(Emphasis supplied.) It is well settled that the domicile of a person is in 958 that country in which he either has or is deemed by law to have his permanent home "By domicile" said Lord Cranworth in Wicker v. Homes we mean home, the permanent home.' The notion which lies at the root of the concept of domicile is that of permanent home." But it is basically a legal concept for the purpose of determining what is the personal law applicable to an individual and even if an individual has no permanent home, he is invested with a domicile by law. There are two main classes of domicile: domicile of origin that is communicated by operation of law to each person at birth, that is the domicile of his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person or full age is free to acquire in substitution for that which he presently possesses. The domicile of origin attaches to an individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to reside there permanently or indefinitely. Now the area of domicile, whether it be domicile of origin or domicile of choice, is the country which has the distinctive legal system and not merely the particular place in the country where the individual resides. This position is brought out clearly and emphatically in paragraph 422 of Halsbury's Laws of England (Fourth Edition) Volume 8 where it is stated: "Each person who has, or whom the law deems to have, his permanent home within the territorial limits of a single system of law is domiciled in the country over which the system extends; and he is domiciled in the whole of that country even though his home may be fixed at a particular spot within it." What would be the position under a federal polity is also set out in the same paragraph of volume 8 of Halsbury's Laws of England (Fourth Edition): "In federal states some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the states or provinces of the federation and the individual will be domiciled in one state or province only." This being the true legal position in regard to domicile, let us proceed to consider whether there can be anything like a domicile in a state forming part of the Union of India.
Now it is clear on a reading of the Constitution that it 959 recognises only one domicile namely, domicile in India.
Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, "domicile in the territory of India." Moreover, it must be remembered that India is not a federal state in the traditional sense of that term. It is not a compact of sovereign states which have come together to form a federation by ceding a part of their sovereignty to the federal states. It has undoubtedly certain federal features but it is still not a federal state and it has only one citizenship, namely, the citizenship of India. It has also one single unified legal system which extends throughout the country. It is not possible to say that a distinct and separate system of law prevails in each State forming part of the Union of India. The legal system which prevails through-out the territory of India is one single indivisible system with a single unified justicing system having the Supreme Court of India at the apex of the hierarchy, which lays down the law for the entire country.
It is true that with respect to subjects set out in List II of the Seventh Schedule to the Constitution, the States have the power to make laws and subject to the over-riding power of Parliament, the States can also make laws with respect to subjects enumerated in List III of the Seventh Schedule to the Constitution, but the legal system under the rubric of which such laws are made by the States is a single legal system which may truly be described as the Indian Legal system. It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India; merely because with respect to the subjects within their legislative competence, the States have power to make laws. The concept of `domicile' has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one state or another forming part of the Union of India.
The domicile which he has is only one domicile, namely, domicile in the territory of India. When a person who is permanently resident in one State goes to another State with intention to reside there permanently or indefinitely, his domicile does not undergo any change: he does not acquire a new domicile of choice. His domicile remains the same, namely, Indian domicile. We think it highly deterimental to the concept of unity and integrity of India to think in terms of State domicile. It is true and there we agree with the argument advanced on behalf of the State Governments, that the word `domicile' in the Rules of 960 some of the State Governments prescribing domicilary requirement for admission to medical colleges situate within their territories, is used not in its technical legal sense but in a popular sense as meaning residence and is intended to convey the idea of intention to reside permanently or indefinitely. That is, in fact the sense in which the word 'domicile' was understood by a five Judge Bench of this Court in D. P. Joshi's case (supra) while construing a Rule prescribing capitation fee for admission to a medical college in the State of Madhya Bharat and it was in the same sense that word 'domicile' was understood in Rule 3 of the Selection Rules made by the State of Mysore in Vasundra v. State of Mysore. We would also, therefore, interpret the word 'domicile' used in the Rules regulating admissions to medical colleges framed by some of the States in the same loose sense of permanent residence and not in the technical sense in which it is used in private international law. But even so we wish to warm against the use of the word 'domicile' with reference to States forming part of the Union of India, because it is a word which is likely to conjure up the notion of an independent State and encourage in a subtle and insidious manner the dormant sovereign impulses of different regions. We think it is dangerous to use a legal concept for conveying a sense different from that which is ordinarily associated with it as a result of legal usage over the years. When we use a word which has come to represent a concept or idea, for conveying a different concept or idea it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity of meaning. The concept of domicile if used for a purpose other than its legitimate purpose may give rise to lethal radiations which may in the long run tend to break up the unity and integrity of the country. We would, therefore, strongly urge upon the State Governments to exercise this wrong use of the expression 'domicile' from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions.
We may now proceed to consider whether residential requirement or institutional preference in admissions to technical and medical colleges can be regarded as constitutionally permissible. Can it stand the test of Article 14 or does it fall foul of it and must be struck down as constitutionally invalid. It is not possible to answer this question by a simple "yes" or "no" It raises a 961 delicate but complex problem involving consideration of divers factors in the light of varying social and economic facts and calls for a balanced and harmonious adjustment of competing interests. But, before we embark upon a consideration of this question, it may be pointed out that there is before us one Civil Appeal, namely, C.A.No. 6392 of 1983 filed by Rita Nirankari and five writ petitions, namely, Writ Petition Nos. 8882 of 1983, 8883 of 1983, 9618 of 1981, 10658 of 1983 and 10761 of 1983 filled by Nitin Aggarwal, Seema Garg, Menakshi, Alka Aggarwal and Shalini Shailendra Kumar respectively. These civil appeal and writ petitions relate to admissions to medical colleges affiliated to the Delhi University and situate in the Union Territory of Delhi. Then we have writ petition No. 982 of 1983 filed by Dr. Mrs. Reena Ranjit Kumar and writ petition No. 9219 of 1983 filed by Nandini Daftary which relate to admission to the M.D.S. Course and M.B.B.S. course respectively of Karnataka University. We have also writ petition No. 6091 of 1983 filed by Dr. Pradeep Jain seeking admission to the M.D.S. course in King George Medical College, Lucknow affiliated to the Lucknow University. When these writ petitions and civil appeal were admitted, we made interim orders in some of them granting provisional admission to the petitioners and we may make it clear that wherever we have granted provisional admissions shall not be disturbed, irrespective of the result of these civil appeal and writ petitions. We may also point out that since these civil appeal and writ petitions challenged the constitutional validity of residential requirement and institutional preference in regard to admissions in medical colleges in the States of Karnataka and Uttar Pradesh and the Union Territory of Delhi and we were informed that it is the Uniform and consistent practice in almost all States to provide for such residential requirement or institutional preference we directed that notices of these civil appeal and writ petitions may be issued to the Union of India and the States of Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamilnadu and West Bengal and the State Governments to which such notices are issued shall file their counter affidavits dealing in particular with the question of reservation in admission on the basis of domicile or residential requirement within two weeks from the date of service of such notices. Some of the State Governments could not file their counter affidavits within the time granted by us and they accordingly made an application for extension of time and by an order dated 30th August, 1983 we extended the time for filing of counter affidavits 962 and directed the State Governments to set out in their counter affidavits facts and figures showing as to what is the procedure which is being followed by them so far as admissions to medical colleges in their States are concerned. It appears that most of the state Governments to whom notices were issued filed their counter affidavits and though no notice was directed to be issued to the State of Himachal Pradesh, the Government of that State also filed a counter affidavit. The Delhi University in its counter affidavit gave a brief synopsis summarising the domicile or residential requirement or institutional preference followed by each State Government for admission to the medical colleges situate within its territory. It is not necessary for the purpose of the present judgment to reproduce in detail the precise domicile or residential requirement or institutional preference adopted and prevailing in different States in regard to admissions to medical colleges. Suffice it to state that for admission to M.B.B.S. course, domicile or permanent residence is required in some States, residence for a specified number of years ranging from three to twenty years is required in some other States while in a few States the requirement is that the candidate should have studied in an educational institution in the State for a continuous period varying from four to ten years or the candidate should be a bona fide resident of one State and in case of admissions to M.D.S. Course in Uttar Pradesh the candidate should be either a citizen of India, domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh or a citizen of India, domicile of whose father may not be in Uttar Pradesh but who himself has resided in Uttar Pradesh for not less than five years at the time of making the application and so far as admissions to M.D.S. Course in Karnataka are concerned, the candidate should have studied for at least five years in an educational institution in the State of Karnataka prior to his joining B.D.S. Course. The position in regard to admissions in medical colleges in the Union Territory of Delhi is a little different, because there, out of a total of 410 seats available for admission to the M.B.B.S. course in the three medical colleges affiliated to the Delhi university, 148 are reserved seats and 262 are non-reserved seats and for filling in the 262 non-reserved seats, an entrance examination is held and the first 50 seats are filled from amongst the eligible candidates who pass the entrance examination in order of merit and the remaining 212 seats are filled, again on merit, but by candidates who have passed their qualifying examination from the schools situate in the Union Territory of Delhi 963 only. It will thus be seen that in almost all States and Union Territories admissions to medical colleges are based either on residence requirements or on institutional preferences. The question is whether such reservations or preferences are constitutionally valid when tested on the touch-stone of Article 14.
There can be no doubt that the demand for admission to medical colleges has over the last two decades increased enormously and outstripped the availability of seats in the medical colleges in the country. Today large numbers of young men and women are clamouring to get admission in the medical colleges not only because they can find gainful employment for themselves but they can also serve the people and the available seats in the medical colleges are not sufficient to meet the increasing demand. The proportion of medical practitioners to the population is very low compared to some other countries and there is considerable unmet need for medical services. It is possible that in highly urbanised areas, there may be a surfeit of doctors but there are large tracts of rural areas throughout the country where competent and adequate medical services are not available.
The reason partly is that the doctors who have been brought up and educated in urban areas or who are trained in medical colleges situate in cities and big towns acquire an indelible urban slant and prefer not to go to the rural areas, but more importantly, proper and adequate facilities are not provided and quite often even necessary medicines and drugs are not supplied in rural areas with the result that the doctors, even if otherwise inclined to go to rural areas with a view to serving the people, find that they cannot be of any service to the people and this acts as a disincentive against doctors setting down in rural areas.
What is, therefore, necessary is to set up proper and adequate structures in rural areas where competent medical services can be provided by the doctors and some motivation must be provided to the doctors servicing those areas. But, as the position stands today, there is considerable paucity of seats in medical colleges to satisfy the increasing demand of students for admission and some principle has, therefore, to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Article 14. Now, the primary imperative of Article 14 is equal opportunity for all across the nation for education and advancement and, as pointed out by Krishna Iyer, J. in Jagdish Saran v. Union of India "this" has burning relevance 964 to our times when the country is gradually being broken up into fragments by narrow domestic walls" by surrender to narrow parochial loyalties. What is fundamental, as an enduring value of our polity is guarantee to each of equal opportunity to unfold the full potential of his personality.
Anyone anywhere, humble or high, agrestic or urban, man or woman, whatever be his language or religion, place of birth or residence, is entitled to be afforded equal chance for admission to any secular educational course for cultural growth, training facility, specialty or employment. It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State B. It is axiomatic that talent is not the monopoly of the resident of any particular State; it is more or less evenly distributed and given proper opportunity and environment, everyone has a prospect of rising to the peak. What is necessary is equality of opportunity and that cannot be made dependent upon where a citizen resides. If every citizen is afforded equal opportunity, genetically and environmentally, to develop his potential he will be able in his own way to manifest his faculties fully leading to all round improvement in excellence. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizen in the country and no citizen can legitimately, without serious deteriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up.
Moreover it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote sub- standard candidates and bring about fall in medical competence, injurious 965 in the long run to the very region. "It is no blessing to inflict quacks and medical midgets on people by whole-sale sacrifice of talent at the thresh-hold. Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation." The primary consideration in selection of candidates for admission to the medical colleges must, therefore, be merit. The object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students.
This was the consideration which weighed with the Court in Minor P. Rajendran v. State of Madras in striking down a rule made by the State of Madras allocating seats in medical colleges on district-wise basis. Wanchoo, C.J. Speaking on behalf of the Court, observed:
"The question whether districtwise allocation is vio
