CASE BRIEF
Citations: 1984 AIR 1420, 1984 SCR (3) 942
Case Type: Civil case
Case No: 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.
Decided On: 22/06/1984
Petitioner: Dr. Pradeep Jain Etc.
Respondent: Union of India And Ors. Etc.
Bench:
Bhagwati, P.N.
Bench:
Bhagwati, P.N.
Sen, Amarendra Nath (J)
Misra Rangnath
Statutes Referred: Article-5, Art.14, Art15, Art 16(2) Art-19(1) Art 301 and Art.141 of Constitution of India.
Cases Referred:
Ramana Dayaram Shetty v. International Airport Authority of India & Ors
Jag dish Saran union of India. (1980) 2 SCR 831.
D.P. Joshi v. State of Madhya Bharat [1955] 1 SCR 1215,
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]
D.P.Joshi v. State of Madhya Bharat, [1955] 1 SCR 1215,
Vasundrav. State of Mysore, [1971] Suppl. SCR 381
St. Xavier’s College Society and Anr. v. State of Gujarat, [1974]
State of Uttar Pradesh v. P.Tandon, [1975] 2 SCR 761,
Jag dish Saran v. Union of India
Facts:
- With respect to admission in MBBS and PG medical courses in most of the states and union territories a practice was grown in which preference was given to those candidates who had their domicile or permanent residence within that state which ranged from 3-20 yrs. and to those students who had their education in that State or UT continuously from 4-10 yrs.
- The petitioners and the appellant who wanted admission in M.B.B.S. and M.D.S.courses in various universities of different States and Union Territory of Delhi challenged the requirement of residence in the state and institutional preference saying it violated the fundamental rights enshrined in the Constitution of India.
- The question which arose for consideration was whether preference given to students on the basis of permanent residence irrespective of merit to students in medical college or those who had domicile within the state for a specified number of years is violative of the FR’s given in constitution
Issues Involved:
The question which arose for deliberation was whether, constantly with the constitutional values, entrance to a medical college or any other institution of higher learning located in a State could be restrained to those who had their ‘domicile’ within the State or who were resident within the State for a definite number of years or can any reserved seat in admissions be made for them so as to give them preference over those who were not ‘domiciled’ or could not fulfil residential qualification within the State, irrespective of merit.
Observations/Obiter Dicta:
- The whole India is considered as one country The Citizenship and every effort of the Constitutionalist is aimed to emphasize, and maintain National unity and integrity.
Now, if India is one country and has only one citizenship, i.e. Indian Citizenship, and All Citizens Have the Right to Move freely to live throughout the territory of India settle anywhere in India, no matter where you are from the language he speaks of and or religion he professes .t guarantees freedom of trade, Commerce and sexual intercourse across Indian territory
And there is equality before the law and the right to equality Legal protection to every citizens in every part of Indian Territory
- How the citizens be treated differently who Have a permanent home in Tamil Nadu or speak Tamil Language from the one in Uttar Pradesh or Citizens or citizens who have a permanent home in Maharashtra Speaking Marathi or A PERSON FROM Karnataka are different to one another when they have only one citizenship i.e. Indian Citizenship. He must be given the same rights as Citizens who have a permanent home in Uttar Pradesh or In Karnataka or Maharashtra. To consider him an outsider denying his constitutional rights is not recognizing the essential unity and integrity of the country by treating it as if it were just an aggregate Independent nation.
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 is Residence requirements Unconstitutional as a condition of eligibility Employment or appointment to offices under the state also covers offices under local governments or other authorities within a state or company such as a public institution Sector Corporation that is a means or institution of Status.
Ramana Dayaram Shetty v. International Airport Authority of India & Ors.
Until enrolling in such an educational institution Art, as the medical college is involved. There is no 16 (2) application. Therefore, if you have a residence Admission requirements for state medical colleges, Can’t be blamed for being unconstitutional for any reason Violation of art, 16 (2). In addition, Article 15 (1) and (2) Called to invalidate such residence requirements
These provisions prohibit discrimination for the following reasons: Place of residence and as pointed out by this court D.P. Joshi v. State of Madhya Bharat, place of birth, place of birth is “2”. Different concepts with different meanings in both laws and in reality, “The only provision of the Constitution is Touchstone for such residence requirements Admission to State Medical University It is art that is tested. 14 And it’s just a challenge this will be taken into account in these written petitions.
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 proprietary rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveable’s.
Halsbury’s Laws of England (Fourth Edition) vol. 8, paragraph 421 & 422.
Domicile is basically a legal concept for the purpose of determining what the personal law applicable to an individual is 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 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. 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.
Rationale
In its current position, medical schools are quite short of seats to meet the growing demand for admission students, so some principles need to be developed to make choices for admission to a medical college, and such principles must comply with the requirements of the arts. 14. Now, the most important imperative of art. 14 is an equal opportunity for all in the country for education and progress and cannot be dependent on where the citizens live.
Judgement:
The court said that it was therefore of the view that 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 border considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a 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 colleges 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 we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the M.B.B.S. course. But, even in regard, to admissions to the post-graduate course, we would direct 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.
What we have said about 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 far 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 by us to the Indian Medical Council in regard to admissions to M.B.B.S. and post- graduate courses. The directions given by us to the Indian Medical Council may therefore be read as applicable mutatis mutandis to the Indian Dental Council so far as admissions to BDS and MDS courses are concerned.
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.
The decisions reached by us in these writ petitions will bind the Union of India, the State Governments and Administrations of Union Territories because it lays down the law for the entire country and moreover we have reached this decision after giving notice to the Union of India and all he State Governments and Union Territories. We may point out that it is not necessary for us to give any further directions in these writ petitions in regard to the admissions of the petitioners in the writ petitions, because the academic term for which the admissions were sought has already expired and so far as concerns the petitioners who have already been provisionally admitted, we have directed that the provisional admissions given to them shall not be disturbed but they shall be treated as final admissions. The writ petitions and the civil appeal will accordingly stand disposed of in the above terms. There will be no order as to costs in the writ petitions and the civil appeal.
Conclusion:
The Constitution identifies only one domicile, i.e., domicile in India. Art. 5 of the Constitution is very clear at this take and it only talks about one domicile, namely, “domicile in the territory of India.. “There is only one legal system which prevails in INDIA. Legal system in India doesn’t vary from state to state.
The court said was consequently of the view that as far as admissions to post-graduate courses, like M.S., M.D. and the like are concerned, it would be highly desired not to provide for any reservation based on a requirement of residence in the same state .
Preference may be given for admission to the post-graduate course in the same medical colleges or university but such reservation should not exceed 50 per cent of the total number of All India seats available for admission to the post- graduate course
The judgment will be implemented the next academic year 1985-86. The present admission which has already taken place for the academic year 1984-85, shall not be disturbed on the basis of the judgment. The judgement is applicable to whole of India except the state of Jammu and Kashmir and state of Andhra Pradesh.
Prepared by Anushka Choudhary