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

S. CHAUDRI v. U.0.1. [S.B. SINHA,J.] 195 Elimination of All fonns of Discrimination against Women)." f\.

The validity of institutional reservation must by judged on the touchstone of equality clause.

While considering the reasonableness of the institutional reservation, we have taken into consideration the effect of equality clause contained in B Articles 14 and 15 of the Constitution of India.

The question as regard merit of the students vis-a-vis right of development and human rights angle had been considered at some length in Islamic Academy of Education and Anr. v. State of Karnataka and Ors., JT (2003) 7 SC 1 and following Pradeep Jain v. Union of India, (1984) 3 SCC C 554 it has been held:

For the purpose of achieving excellence in a professional institution, merit indisputably should be a relevant criterion. Merit, as has been noticed in the judgment, may be detennined in various ways (Para 59). There cannot be, however, any fool-proof method whereby and whereunder the merit of a student for all times to come may be judged. Only, however, because a student may fare differently in a different situtation and at different point of time by itself cannot be a ground to adopt different standard for judging his merit at different points of time. Merit for any purpose and in particular for the purpose of admission in a professional college should be judged as far as possible on the basis of same or similar examination. In Other words, inter se merit amongst the students similarly situtated should be judged applying the same norm or standard. Different types of examinations, different sets of questions, different ways of evaluating the answer books may yield different results in the case of the same student. F Selection of students, however, by the minority institutions even for the members of their community cannot be bereft of merit. Only in a given situtation less meritorious candidates from the minority community can be admitted vis-a-vis the general category; but therefor the modality has to be worked out. For the said purpose de facto G equality doctrine may be applied instead of de jure equality as every kind of discrimination may not be violative of the equality clause, (See Pradeep Jain v. Union of India, [I 984] 3 SCC 654.

Even applying the said tests, institutional reservation cannot be held to H

196 SUPREME COURT REPORTS [2003) SUPP. S S.C.R.

A be unconstitutional. Mr. Nariman contended that provision for reservation being a suspect legislation the strict scrutiny test should be applied. Even applying such a test, we do not think that the institutional reservation should be done away with having regard to the present day scenario. We may notice that such a B test has been applied of upholding a statute recently in Bairam Kumawat v. Union of India (2003) 7 SCC 626.

DR. AR. LAKSHMANAN, J. While concurring with the conclusion arrived at the by Hon 'hie the Chief Justice, I would like to add the following few lines for streamlining the policies and processes for admission to Medical Courses and other Professional Courses. The issues and options are discussed below: Every year during the admission season several lakhs of students undergo immense suffering and harassment in seeking admission to Professional Courses caused by uncertain policies, ambiguous procedures and inadequate information. The miseries of students and parents are escalating year after year due to boundless expansion in the number of professional institutions and their intake capacity, emergence of a large variety of newer disciplines and mobility of students seeking admissions beyond the boundaries of States. The students who are about to complete their high school education go through E a period of acute anxiety caused by the uncertain situation about their chances for further education. The number of qualified students wanting to go for higher studies has been swelling largely motivated by hopes of better economic security and partly be a desire to attain greater upward social mobility. Theri begins their trauma due to many prevailing unfair practices in admissions and devious ways of fee collections exploiting the anxiety of students and uncertainty of procedures. Most of the efforts to deal with these problems are ad-hoc in nature often decided under judicial orders. Different State and Central authorities take many different actions often leading to serve inconsistencies. There is substantial scope for streamlining the admission process, even within the regulatory powers of the authorities, provided these issues are not dealt with on an emergency basis during the admission season but done in a co-ordinated and comprehensive manner ahead of time. Issue Number One: Entry Qualification:

H For admissions to under-graduate programmes, there are several different

S. CHAUDRI v. U.0.1. [LAKSHMANAN, J.) 197 eligibility nonns among the different categories of institutions and among the A various State. Some are based on Twelfth Standard marks or grades only, some are based on the Entrance Examination only, and some are detennined by a combination of these with different weightages. There is endless number of justifications for each of the above, confusing the students from different parts of the country. B The preferred option, in my view, should be for a designated agency or the University concerned to conduct the entrance examination for professional as well as non-professional institutions in the specified subjects, (an option suggested by this Court). The marks awarded in those subjects should be the basis for detennining the merits of the students for admission to the institutions to which they apply.

ISSUE NUMBER TWO:

UNPLANNED GROWTH OF INSTITUTIONS:

The growth of the Professional Institutions has been at an geometrical rate during the least five years. During recent years the expansion of educational facilities for higher education has been nearly exclusively in the private unaided sector due to the financial incapacity of Governments .

. Those who have ventured to state the new institutions are motivated by commercial interests and not by educational and social interests. Political considerations have become paramount in sanctioning of colleges. There has been a high level of exploitation of students in certain disciplines through unethical and illegal collection of unauthorized payments. The discontent among the meritorious students is simmering also because only those, even with poor competence, but who could pay high illegal amounts can get into many institutions.

OPTIONS:

I. The country needs to evolve urgently a predictable pattern of growth for the Higher Education system in Technical, Managerial, and other G Pr9fessional disciplines as well in Science and Humanities at least for the next five years. The present level of ad-hoc approach and stampade should be eliminated.

2. The national blue print and the road map for the development of H

198 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A professional education should be based on maintaining credible level of quality standards and anticipated' demand structure in economic and social sectors.

ISSUE NUMBER THREE:

FEE STRUCTURE: B This Court states: "A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation lee. Appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering."

C OPTIONS: One possible remedy is to make a rule under the Prevention of the Capitation Fee Act that collecting any fee that was not previously announced in the college publications and any fee collected without a formal receipt should be punishable offences. This rule should be strictly enforced. D ISSUE NUMBER FOUR:

CERTIFICATES HASSLES:

When we consider the size of our country and the large number of E institutions and huge volume of applicants, the man hour and money lost in running around for getting the certificates during the admission season must run into equivalent of several crores of rupees. A more hassle-free system for authenticating the required information from students should be evolved.

OPTIONS: F Every student be provided with a basis identity certificate while he/she is in the higher secondary stage (10th to 12th std.). This should provici;, all essential information such as date of birth, community, domicile, photo identity etc., authenticated by a designated official. This should be acceptable for G admission requirements in any institution and in any State in India.

Superspeciality institutions and institutions where highly skilled Training/ Education is imparted:

On the issue whether there can be Article 15(4) reservations in super- H speciality courses, this Court was categorical when it declared that there

S. CHAUDRI v. U.0.1. [LAKSHMANAN, J.] 199 could not be any reservation at the level of super-specialisation in medicine A because any dilution of merit at the level would adversely effect the national interest in having the best possible at the highest level of professional and educational training. "

Similar view was already taken by this Court in Pradeep Jain v. Union of India, AIR [1984] SC 1420. B In similar vein, in Jagdish Saran v. Union of India, AIR [1980] SC 820, this Court observed that Merit must be the test when choosing the best according to this rule ofequal marks. This proposition has greater importance when we reach the higher levels of education for postgraduate courses. This C Court further observed that the host of variables influence the qualification of the reservation as one factor deserves great emphasis, the higher the level of the speciality the lesser the role of reservation.

In the case of Article 15(4) reservations, this Court has made in clear that the claims of national interest demands that these reservations can never exceed 50% of the available seats in the concerned educational institutions.

The view was approved by this Court in the case of Indra Sawhney v. Union of India. If one looks at this issue in the light of the sprit of the ratios laid down in Preeti Srivatsava v. State of MP., AIR [1999] SC 2894 and in AIMS Students Union v. A.I.I.MS., AIR [2001] SC 3262, one would come to the inevitable conclusions that the constitutional reservations contemplated under Article 15(4) should be kept at the minimal level so that national interest in the achievement of the goal of excellence in all fields is not unduly affected.

Of course, as between the reserved category candidates, there should be inter-se merit observed. This has been emphasised by this court in several cases.

As regards the constitutional validity of jnstitutional/regional/university wise reservation/preference, in view of this court's emphasis on the need to strive for excellence which alone is in the national interest, it may not be possible to sustain its constitutional validity. However, the presently available decisional law is in support of institutional preference to the extent of 50% of the total available seats in the concerned educational institutions.

Conclusions: H

200 SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A (1) in the case of Central educational institutions and other institutions of excellence in the country the judicial thinking has veered around the dominant idea of national interest with its limiting effect on the constitutional prescription of reservations. The result is that in the case of these institutions the scope for reservations is minimal.

B (2) As regards the feasibility of constitutional reservations at the level of super-specialities, the position is that the judiciary has adopted the dominant norm, i.e. "the higher the level of the speciality the lesser the role of reservation". At the level of super-specialities the rule of "equal chance for equal marks" dominates. This view equally applies to all super-speciality C institutions.

(3) As regards the scope of reservation of seats in educational institutions affiliated and recognised by State Universities, the constitutional prescription of reservation of 50% of the available seats has to be respected and enforced.

D (4) The institutional preference should be limited to 50% and the rest being left for open competition based purely on merits on an All India basis.

(5) As regards private non-minority educational institutions distinction between government aided and unaided institutions. While government/State can prescribe guidelines as to the process of selection and admission of students, the government/State while issuing guidelines has to take into consideration the constitutional mandate -of the requirement of protective discrimination in matters of reservation of seats as ordained by the decisional law in the country. Accordingly, the extent of reservation in no case can exceed 50% of the seats. The inter-se merit may be assessed on the basis of a common All India Entrance Test or on the basis of marks at the level of qualifying examination. (6) The position with respect to minority aided institutions is that they are bound by the requirement of constitutional reservation along with other regulatory contracts. However, the right to admit students of their choice being part of the right of religious and linguistic minorities, to establish and administer educational institutions of their choice, the managements of these educational institutions can reserve seats to a reasonable extent not necessarily 50% as laid down in Stephens College case. Out of the seats left after the deduction of management quota, the State can require the observance of the requirement of Constitutional reservation. H

S. CHAUDRI v. U.0.l. [LAKSHMANAN, J.] 201 (7) As regards the unaided institutions, they have large measure of autonomy even in matters of admission of students as they are not bound by the constraints of the demand of Article 29(2). Nor are they bound by the constraints of the obligatory requirements of Constitutional reservation.

Before parting with this case, I am of the opinion that the younger generation in our society nurturing fond hopes and aspiration for their future professional careers should feel it as a pleasurable experience to explore the available options in higher education. They should be spared from the mental torture due hassles and unsavoury experiences in getting to the first base. To the extent possible they should be made to feel that they are part of one nation. Tensions and frustrations at their impressionable age will surely result in a society with distorted and negative values damaging the foundations of a healthy society. The policies and procedues for admissions should be viewed from the-iarger impact on the future of India.

B.K.M. Petitions/Appeals disposed of.