Delhi High Court
Jayshree Ravi And Another vs University Of Delhi And Another on 14 December, 1992
Equivalent citations: 1993(25)DRJ303, AIR 1993 DELHI 171, AIR 1993 DELHI 108, (1993) 2 SCT 157, (1994) 53 DLT 801, (1993) 25 DRJ 303
ORDER Mahinder Narain, J.
1. Rule D. B.
2. By consent of parlies, we have heard the matter on merits.
3. By this writ petition, Jayashree Ravi and Anil Kaushal question the legality and vires of a condition imposed by the University of Delhi in the matter of eligibility of the persons to take an entrance examination for the 3 Year LL.B. course conducted by the University of Delhi through its Law Faculty.
4. It is stated in the petition that Jayashree Ravi did obtain a degree in B.A. from the University of DeIhi(10+2+3) scheme in the year 1983, having passed the B.A. examination in the third division.
5. It is also stated in the petition that Anil Kaushal did obtain B.Com. (Pass) degree in the Year 1980, having passed the examination held for that purpose by the University of Delhi, in the third division.
6. Jayashree Ravi holds a degree dated 24-03-1984, and Anil Kaushal holds a degree dated 28-02-1991.
7. It is stated in the petition that on 22-06-1992, the respondent University issued an advertisement in the local newspaper declaring that there will be a test for admission to the LL.B. Three Year Degree Course for the Academic year 1992-93, and that the same was open only to candidates who have passed Masters/B.A. Degree examination securing at least 50% in the aggregate. The last date for receipt of application was fixed as 17-07-1992, and the date of admission test was fixed as 26-7-1992. On 18-07-1992, however, the last date was extended to 25-07-1992, and the date of the entrance examination was changed to 02-08-1992. The petitioners state that inasmuch as the condition of 50% marks in the aggregate was illegal, arbitrary, irrational, and that their application for taking the examination was likely to be rejected, they instituted the instant civil writ petition, questioning the eligibility condition of 50% aggregate marks in the B. A. examination, asserting that such a condition denies them a chance to study the LL.B. course in violation of their fundamental rights, and in violation of the provisions of Art. 14 and Art. 21 of the Constitution.
8. In the petition it is asserted that the petitioners rights under Arts. 14 and 21 of the Constitution were violated by the aforesaid eligibility requirement of 50% marks in the B.A. examination. It is also asserted that the said condition was without any intelligible differentia, and that the said condition did not have any relationship or nexus to any object which is sought to be achieved.
9. The meaning of, and the content of the provisions of Art, 21 of the Constitution have undergone a considerable change, as is apparent from the pronouncement of the Supreme Court. These changes were noted in the judgment reported as Maneka Gandhi v. Union of India, . The meaning of life and personal liberty has been further enlarged in the case reported as Bandhua Mukti Morcha v. Union of India, . Now in a case Miss Mohini Jain v. State of Karnataka, reported as (Kuldip Singh and R.M. Sahai, JJ.), the Supreme Court has held that right to education is one of the rights to personal liberty and life ensured by Art, 21 of the Constitution.
10. In Maneka Gandhi v. Union of India (supra) the question was whether an order passed under Section 10(3)(c) of the Passport Act, 1967 was violative of Arts. 14 and 21 of the Constitution, as also violative of Art. 19(1)(a) or (g) of the Constitution. Justice Bhagwati with whom other Judges had concurred, said that, "it is not a valid argument to say that the expression personal liberty in Art. 21 must be so interpreted as to avoid overlapping between that Article and Article 19(1). The expression personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Art. 19".
11. It was also observed by Justice Bhagwati that, "if a law depriving a person of personal liberty' and prescribing a procedure for that purpose within the meaning of An. 21 has to stand, the test of one or more of the fundamental rights conferred under An. 19 which may be applicable in a given situation, as hypothetical it must also be liable to be tested with reference to Art. 14.
12. Justice Bhagwati also observed that the procedure prescribed under Art. 21 must also "answer the test of reasonableness in order to be in conformity with Art. 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it should be no procedure at all and the requirement of Art. 21 would not be satisfied".
13. In this way, no doubt, Justice Bhagwati traced the history of narrow interpretation of personal liberty in Art. 21 in A.K. Gopalan v. State of Madras, as confined to freedom of person against unlawful detention and the widening of the concept of personal liberty in Kharak Singh v. State of U.P., to include the residue of all the rights left over from those enumerated in Art. 19 of the Constitution. It was noted that Art. 21 is couched in negative language, that it confers fundamental right to life and personal liberty. The same conclusion can be reached if we take into account the significant words used in Chapter on Fundamental Rights of the Constitution, which must be read and understood as conferring rights. Chapter III uses the words right is conferred for the first time by the Constitution shall have the right in Us various provisions".
14. IV seems to me that wherever a more emphatic declaration seems to have been needed to be made. Chapter III containing fundamental rights, as stronger declaration was made either by an absolute prohibition, of an absolute injunction against the impairment of a right considered to be fundamental by the Constitution makers. By way of illustrations, the words mandating an injunction of prohibition are to be found in Arts. 13, 14, 15, 16(2), 20, 21 and 22(2), and so on.
15. The Supreme Court in the Maneka Gandhi case, on the basis of a statement made by the Government, that reasons shall be supplied for impounding of the passport of the petitioner, and that she will have a right to make representation against the same, dismissed the petition, (M.H. Beg, CJ to the contra). The following order was passed by the majority in Maneka Gandhi case:--
"Having regard to the majority view and in view of the statement made by the learned Attorney-General to which reference has already been made in the judgments we do not think it necessary to formally interfere with the impugned order. We accordingly, dispose of the writ petition without passing any formal order. The passport will remain in the custody of the Registrar of this Court until further orders. There will be no order as to costs".
16. The concept of Art. 21 and its interaction with Art. 14 was carried further in Bandhua Mukti Morcha case (supra). It is laid down in this case that, "Art. 21 assures the right to live with human dignity, free from exploitation. The State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Both the Central Government and the State Government are. therefore, bound to ensure observance of various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy".
17. As has been recapitulated above, the Supreme Court has observed that the procedure prescribed by Art. 21 has also to meet the tests prescribed by Art. 19and also Art. 14 of the Constitution.
18. In the instant case, what has been done with regard to admission in the law faculty will have to be tested, not only in the light of Art. 21, but also Art. 14 of the Constitution.
19. It is contended by the petitioners that the prescription by the University of necessity to obtain 50% marks in the B. A. examination as an eligibility condition for the LL.B. entrance examination is illegal, arbitrary, discriminatory, irrational and without any basis, and has no nexus with the object sought to be achieved.
20. The petitioners contend that the LL.B. entrance examination is only an entrance examination into the first year of LL.B. course. It cannot possibly pre-determine the standard of excellence, achieved at the time of completion of LL.B. course, which may be a requirement for obtaining of LL.B. degree. It is only after a person has undergone the course prescribed, taken the examination papers in various subjects, that he can be tested, and either found fit or unfit regarding achievement of requisite standard set down for obtaining the degree, not before. It is rightly contended that merely because a person takes the LL.B. entrance examination and gets a seat on merits, is no guarantee that he would be able to get the law degree also, for that will depend upon successful completion of course and after imbibing all that is needed to imbibe is lectures, tutorials and any other methodology adopted by the University.
21. It is contended that inasmuch as the University grants B.A. degree to persons who have obtained much less marks than 50% marks, there is no rational basis for having a standard higher than the one which is needed to obtain B.A. degree for a mere entrance examination.
22. Prior to the discussion of the eligibility condition for the entrance examination following must be kept in view :--
1. The eligibility condition is for an entrance examination not the course itself.
2. Even after success there is no assurance that the person found fit will complete the full LL.B. course.
3. Proficiency in the graduation discipline has no relationship with the law course.
4. In Kanishka Aggarwal's case preference was not struck down. There was no entrance examination. The reasoning therein does not apply. In order that we dismiss the petition, we must decide that the questions framed in the entrance examination are more significant than the graduation disciplines, which were answered by each of the students. The questions in the entrance examination, we have seen the question papers in connection with another case are of general nature, and are designed to test the general knowledge of the graduate students, on the basis whereof a seat is to he provided to the 1500 students who obtain the highest marks in the entrance examiantion. Because of the nature of the examination of the LL.B. entrance examination, in my view, opportunity must be provided to all the graduates. One of the reasons being the fact that University has given up reliance upon the relevance of the graduate examination results, so opportunity must he provided to all graduates, who wish to compete for obtaining a seat in the LL.B. course on the basis of their merit established by and in the entrance examination.
5. Classification on the basis of those with merit and those without merit is valid -- the entrance examination appears not to be designed lor testing aptitude for law, but to be exclusionary.
It has been repeatedly said by the Supreme Court that the classification on the basis of merit is valid. To me. it is clear that this particular entrance examination for LL. B. course docs not determine merit or aptitude for studying law. It is merely designed to be exclusionary.
A graduate of University of Delhi, or a graduate of any other University is a graduate.
23. Since the LL.B, course is a postgraduate course, the right to take the examination should be available to all graduates, and there can be no rational basis for I denying to all graduates a right to compete for a position in the merit list of an entrance examination, to compete for a particular seat in the LL.B. 1st Year course. The only way that each graduate can be given an equal opportunity of competing with others is to open the entrance examination to all graduates, so that any graduate can be among those in the merit list who qualify for entrance in the examination, 1 am supported by the following observation of the Supreme Court : -
24. In the case Charles K. Skaria v. Dr. C. Mathew AIR 1980 SC 1230 at page 1232, it was observed that, "the necessary implication of the constitutional mandate is that every basic degree-holder who fills the bill can apply for admission for post-graduate courses". In the cases Dr. Pradeep Jain etc. v. Union of India, , it was observed that, "Any one 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, speciality or employment".
25. There are 1500 seats to be filled in this fashion, and anybody who is a graduate, and anybody who score high enough marks in the entrance examiantion, can stand the chance of being selected as one of the 1500 candidates for undergoing LL. B. course.
26. In my view there is force in the contention of the petitioners. Right to education has been held to be a part of right to life, to be a fundamental right by the Supreme Court in by reading together the provisions of Arts. 14, 19 and 21 of the Constitution, and the directive principles of State policy as contained in the provisions of Arts. 36 to 51 of the Constitution. Where right to life and personal liberty is involved, 1 do not think it is appropriate to accept any person of body as an imperium in imperio whose decision should not be subject-matter of judicial reviews by Courts, especially the rights conferred by, or rights ensured by various injunctions and prohibitions contained in the Constitution, which include mandates not only in Chapter 111 of the Constitution, but any other Articles of the Constitution. I am unable to concede such absolute power over the citizens to any person or body, constituted by to under a statute like the Delhi University Act, 1922, Even well intentioned action of such bodies may amount to deprivation of life and personal liberty.
27. In view of the fact that to become a lawyer, it is necessary to study law, and as law can be studied only in educational institutions, and it is necessary to ensure attaining of particular standard by students of law before they are permitted to practise law for the purposes of administration of justice in accordance with law, it would be desirable if not actually necessary, that all persons equally situate compete with each other, have an equal chance and opportunity of undertaking the study of law, completing the course of law, obtaining a law degree, and either practicing law, or undertake teaching of law on successfully completion of prescribed courses and obtaining the qualification requisite for either.
28. To do otherwise is to act arbitrarily, and without application of mind, and to act in a way in which a bar at the threshold is made to operate against certain graduates, and not the others.
29. In my view there is no need of cut-off point of 50% marks for eligibility to take LL.B. entrance examination as the said cutoff point will not ensure that every one who gets to sit in the entrance examination, will qualify for one of the seats in the LL.B. 1st Year course, each of those with over-50% marks are competing for one seat. None has previously studied law, so there is no possibility of asserting that the ones with the greatest aptitude for law are going to be selected. The merit must also relate to law -- if merit is relevant to the law course. In any case, there is also no guarantee that even after qualifying in the entrance examination any person would qualify for the law degree at the end of the 3-Year LL.B. course.
30. What is stated above is with a view to emphasise that there must be a rational basis for having 50% marks eligibility criteria for the LL.B. entrance examination. This 50% eligibility criteria does not appear to have any nexus to the object which is sought to be achieved, that is to say the standard of excellence in the knowledge of laws at the time of conferment of law degree at the end of 3-Year degree course.
31. A person who is denied the right to compete for a seat in the LL.B. 1st year course, is also denied, at the threshold, the right guaranteed under Art. 19 of the Constitution to carry on any profession or business. No one can carry on the profession of law unless he obtains a law degree, unless he has acquired the discipline of law by a study of the law, and if by denial of a right to compete a person is denied, the right to try for and obtain a seat on merit in the LL.B. 1st year course, such a denial would also be not satisfying the requirements of reasonable restriction, postulated by Art. 19 of the Constitution.
32. Any person who is familiar with the history of civilisation shall have no difficulty in recalling that the great human rights now in existence have had to be won at a great sacrifice of a multitude of men and women. All the recognised human rights had been won and extracted from ruler, despots and dictators who had at different times of history asserted and acquired powers, whether due to personal strength (in the beginning) or through the combined wishes and or strength of supporters and courtiers.
33. The rulers, despots and dictators claimed and asserted for themselves the right to permit some to live and to direct that some one shall die. They claimed, asserted and enforced the power to deny personal liberty to any person within their sphere of influence, or to take away life. Thus persons could be captured, thrown into a dungeon for indeterminate periods or their lives snuffed out in public or in private.
34. Generations of activists, writers, philosophers struggled against exercise of absolute or arbitrary powers, and finally used the power of people to extract for themselves the right to life by getting rid of the oppressive rulers, dictators and their supporters, and declaring that some rights shall belong to human beings by virtue of their being human.
35. One of the most famous of these declarations was the Magna Carta, which was brought into existence on 12th June, 1215. "King John of England granted these great rights to the Barons at Runnymede with some alterations, the rights contained in the Magna Carta was confirmed in Parliament by Henry III, and Edward I".
36. "This Charter is regarded as the foundation of English Constitutional liberties. Among its 38 Chapters are found provisions for regulating the administration of justice, defining the temporal and ecclesiastical jurisdiction, securing the personal liberty of the subject and his rights to property, and the limits of taxation, and for preserving the liberties and privileges of the Church". --Black's Law Dictionary 6th Ed. 952.
37. One of the great and inviolate rights of all human beings was the right of life, and was available to any person by virtue of his birth. By virtue of birth alone, another right was brought in existence and this was the right of personal liberty.
38. These are the two primary rights of all living pesons; the dead do not need rights; those incarcerated may.
39. The only way available to ensure that allow those that are born shall have the right to life, is to prohibit every other person from taking it away. To prohibit any person human or legal to snuff the life of any human being; to prevent any person from taking away the personal liberties of any person. It is by these prohibitions, mandated by Art. 21 of our Constitution that the right to life and personal liberty is ensured to human beings within India.
40. One of the arguments which has been advanced by the University in support of the 50% qualifying marks in the B. A. examination, is that it is administratively inconvenient to throw open the entrance examination to all graduates.
41. As far as this argument is concerned, it appears to me that this is another way of putting the principle of executive necessity into operation despite the fact that the Supreme Court had in AIR 1978 SC 718 (The Union of India V. M/s. Anglo Afghan Agencies), decided that the principle of executive necessity does not exist in India.
42. Besides the argument of administra tive inconvenience, is an argument which cannot be utilised for the purpose of defeating the right to life of an individual, especially in view of the fact (hat the right to education has been held to be a part of a right to life by the Supreme Court. In the case Miss Mohini Jain v. State of Karnataka, (Kuldip Singh and R. M. Sahai, JJ.). In my view, keeping the right declared in Mohini Jain's case in mind, administrative inconvenience cannot be the basis of not throwing open an entrance examination to all the graduates, because too many graduates will want to take that examination, and avail of the chance of getting a seat oil merit, in the 1st year LL.B. course.
43. Besides this, the argument of administrative inconvenience is of no avail for other reasons too. The other reason being is that every graduate applicant for entering into the 1st year LL. B. course by entrance examination can be asked to make payment of an amount which is spent by the University per head to take the entrance examination once each graduate who seeks admission in the 1st year LL. B. course pays the amount which is necessary for holding the examiantion, then no financial burden would be on the University at all, and all arrangements which are necessary and proper to be made for such an examination can be made without any additional costs to the University. To my mind the argument of administrative inconvenience is also of no relevance to the purpose for which the examination is to be held, and, therefore, not available as to the same arbitrary and fanciful, and in any case, does not relate to any object which may be sought to be achieved.
44. In my view right to education must include within it the right to compete with others for proving his merit and on the basis of his merit his entitlement to further education by admission into a course. There can be no restriction on the right to prove his merit.
The imposition of the eligibility criteria for an entrance examination is a restrictive condition which unreasonably denies a student his right to compete for a seat in an educational course on the basis of provable merit. Such a condition is bad in law and must be struck down, as Art. 21 does not permit, unlike Art. 19, "reasonable restrictions". The said eligibility criteria must, therefore, be struck down, and I hold it to be violative of the right to education, as established by and the said eligibility condition of 50% marks in the B.A. course is ultra vires the provisions of Arts. 14, 21 and 39 of the Constitution.
45. I have already dealt with the matter of 50% marks in the graduate examination not being relevant for the purpose of ensuring high academic standard for law examination. High academic standard in the study of law would be brought into existence only after the law is taught to the students who start their LL. B. course, and attainment of that standard will depend upon various factors, like the ability of the teachers to teach, ability of the teachers to make the students assimilate to what is being taught, and will depend upon the manner in which teaching is resorted to, and what kind of aids are. given by the teachers for the purposes of ensuring that law is taught, and the discipline of law inculcated in the students who undertake the study of law in the LL. B. course. In my view, having a 50% cut-off point for graduates does not automatically ensure a high level of achievement in law. It appears to be a mere device to ensure that so many less persons take the entrance examination. It appears to have no other purpose.
46. Paragraphs 8, 9 and 12 of the judgment in the case Miss Mohini Jain v. State of Karnataka (supra), can be reproduced here to make clear what is right to education. These are set out here below (at page 1863 of AIR) :-
8. The preamble promises to secure justice "social, economic and political" for the citizens. A peculiar feature of the Indian Constitution is that it combines social and economic rights along with political and justiciable legal rights. The preamble embodies the goal which the State has to achieve in order to establish social justice and to make the masses free in the positive sense. The securing of social justice has been specifically enjoined an object of the State under Art. 38 of the Constitution. Can the objective which has been so prominently pronounced in the preamble and Art. 38 of the Constitution be achieved without providing education to the large majority of citizens who are illiterate. The objectives flowing from the preamble cannot be achieved and shall remain on paper unless the people in this country are educated. The three pronged justice promised by the preamble is only an illusion to the teaming-million who are illiterate. It is only the education which equips a citizen to participate in achieving the objective enshrined in the preamble. The preamble further assures the dignity of the individual. The Constitution seeks to achieve this object by guaranteeing fundamental rights to each individual which he can enforce through court of law if necessary. The directive principles in Part IV of the Constitution are also within the same objective. The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily the education which brings forth the dignity of a man. The framers of the Constitution were aware that more than seventy per cent of the people, to whom they were giving the Constitution of India, were illiterate. They were also hopeful that within a period of ten years illiteracy would be wiped out from the country. It was with that hope that Arts. 41 and 45 were brought in Chapter IV of the Constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. This is why the Universal Declaration of Human Rights, 1948 emphasises "Education shall be directed to the full development of the human personality....." Article 41 in Chapter IV of the Constitution recognises an individual's right "to edcuation". It says that "the State shall, within the limits of its economic capacity and development, make effective provision for securing the right ..... to education.....". Although a citizen cannot enforce the directive principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations. We may quote the words of Dr. Ambedkar in that respect :
"In enacting this part of the Constitution, the Assembly is giving certain directions to the future legislature and the future executive to show in what manner they are to exercise the legislative and the executive power they will have. Surely it is not the intention to introduce in this Part these principles as mere pious declarations. It is the intention of the Assembly that in future both the legislature and the executive should not merely pay lip service to these principles but that they should be made the basis of all legislative and executive action that they may be taking hereafter in the matter of the governance of the country." (C.A.D. Vol. VII p. 476)."
9. The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have- to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" under Art. 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.
12. "Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Art. 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavor to provide educational facilities at all levels to its citizens.
47. I am in respectful agreement with the observations made by the Supreme Court in paragraphs No. 9 and 12 above, and also in respectful agreement with the observations made in paragraph 17, in which the Supreme Court said that, "We hold that every citizen has a 'right to education' under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may dischargers obligation through State-owned or State-recognised educational institutions."
48. The respondent-University relied upon two judgments of this Court; one delivered by D. P. Wadhwa and R. L. Gupta, JJ. in C. W. No. 2661 of 1991, and another delivered by P. N. Nag and R. L. Gupta, JJ. in C. W. No. 2852 of 1992. Though it must be noted that not only the counsel for the petitioners, the counsel for the University also stated that, there was no case available in reports, which covered the instant case of 50% marks in B. A. as an eligibility condition for an entrance examination. It seems to me that some of the observations made by D. P. Wadhwa and R. L. Gupta, JJ. have been watered down by the subsequent pronouncement of the Supreme Court in Mohini Jain's case, and in any event the Hon'ble Judges have not given reasons, as I have attempted to give herein as to why Arts. 14 and 21 are attracted to the instant case. It is to be noted that the D. B. of this Court had denied the existence of such rights to the citizens.
49. As regards the judgment of P. N. Nag, J., the same appears to have been given at a preliminary stage of the proceedings, without hearing both the sides, and the writ was dismissed in liming. It is further to be noted that the judgment delivered by P. N. Nag and R. L. Gupta, ,JJ. related to the examination conducted by the University for giving admission to students in M. A. in Economics course being open, inter alia, to the graduate students of Economics. The 50% cut-off point may have achieved the object of giving admission to students of Economics who had already obtained a certain standard in the study of Economics, so that in the M. A. course of students in Economics already learnt, need not to learn. Time need not be spent in teaching the students what they had already learnt in graduate course, and that may have been a consideration for the Court to decide the way it did, to reject the petition.
50. Admittedly none of the graduate students in the instant case has had any prior education in laws. Therefore, the post-gradu ate course of 1st year in LL. B. course has to be a new course for all those who undertake study of law after having done their grauda-
tion. As such 50% cut-off point seems to have no rational connection with achievement of high standard in learning of laws by the students. ;
51. Besides this, the petitioners rightly contend that other premier examinations held in this country for the purpose of selection of suitable persons to undergo certain courses of study before they are declared fit on merit, are certain examinations, like Indian Administrative Services, National defense Academy. Whereas National defense Academy examination is available to all students who have done the Higher Secondary or Matriculation examination, without a cut-off point in either Matriculation or in Higher Secondary examination, does not make the said examination less prestigious, or less valuable, and does not attempt to prevent those who succeed on merit, attaining of high standard once they undergo the course in the National defense Academy. Similarly those persons who take the Indian Administrative Services Examination, and succeed on the basis of merit, can and del obtain high standard of excellence in acquisition of skill for administration.
52. For all the aforesaid reasons, I am of the view that prescribing a cut-off point of obtaining 50% marks in the graduate exa mination, does not have any reasonable nexus to the object sought to be achieved, and there can be only one object which can be sought, that is to attain a high standard of legal education.
53. For the aforesaid reasons, I would allow the writ petition, and declare that the prescription of minimum 50% marks in B. A. as a condition precedent to a seat in the entrance examination, and a condition precedent to compete on merits for obtaining a seat in the LL. B. 1st year course, prescribed by the University of Delhi, is arbitrary, unreasonable, the same violates the provisions of Arts. 14and2I of the Constitution and the said condition is liable to be struck down, and is hereby quashed. The petitioners are also entitled to mandamus that they be permitted in the entrance examination test for the admission to LL. B. course for the academic year 1992-93.
54. With these observations, the writ petition is disposed of.
Jaspal Singh, J.
55. Is the eligibility requirement of at least 50% marks in graduate/post-graduate examination for appearing in the entrance test for admission to the 1st year LL. B. course violative of the Constitution of India? This, in short, is the question which has led to this order.
56. However, first a brief resume of the facts.
It is the admitted case that before the academic year 1991-92, admission to the First Year LL. B. course used to be made in the following order of preference.
Category 1.
All those who have passed (i) Master's degree, (ii) Honour's degree, (iii) Bachelor's degree Examination in that order in Arts, Science, Business Management, Science or Commerce of the University of Delhi with not less than 55% marks (or equivalent grade).
Category 2.
All those who have passed (i) Master's degree, (ii) Honour's degree, (iii) Bachelor's degree Examination in that order in Arts, Science, Business Management, Science or Commerce of any other University recognised as equivalent to that of this University of Delhi with not less than 55% marks (or equivalent grade).
Category 3.
All those who have passed (i) Master's degree, (ii) Bachelor's degree Examination in that order in Engineering, Medicine (including Ayurvedic and Unani System or Medicine) Surgery, Education Architecture. Agriculture, Nursing, Home Science, Physical Education, Library Science, or any other such like course of Delhi University with not less than 55% marks (or equivalent grade).
Category 4.
All those who have passed (i) Master's degree, (ii) Bachelor's degree Examination in that order in Engineering, Medicine (including Ayurvedic and Unani System of Medicine) Surgery, Education Architecture, Agriculture, Nursing, Home Science, Physical Education, Library Science, or any other such like course of any other University recognised as equivalent to that of this University with not less than 55% marks (or equivalent grade).
Category 5.
All those who have passed (i) Master's degree, (ii) Honour's degree, (iii) Bachelor's degree Examination in that order in Arts, Social Science, Business Management, Science or Commerce of Delhi University with not less than 50% marks (or equivalent grade).
Category 6.
All those who have passed (i) Master's degree, (ii) Honour's degree, (iii) Bachelor's degree Examination in that order in Arts, Social Science, Business Management, Science or Commerce of any other University recognised as equivalent to that of University of Delhi with not less than 50% marks (or equivalent grade).
Category 7.
All those who have passed (i) Master's degree, (ii) Bachelor's degree Examination in that order in Engineering, Medicine (including Ayurvedic and Unani System of Medicine) Surgery, Education Architecture.
Agriculture, Nursing, Home Science, Physical Education, Library Science, or any other such like course of Delhi University with not less than 50% marks (or equivalent grade).
Category 8.
All those who have passed (i) Master's degree, (ii) Bachelor's degree Examination in that order in Engineering, Medicine (including Ayurvedic and Unani System of Medicine) Surgery, Education Architecture, Agriculture, Nursing, Home Science, Physical Education, Library Science, or any other such like course of any other University recognised as equivalent to that of University of Delhi with not less than 50% marks (or equivalent grade).
57. However, for the academic year 1991-92 the Law Courses Admission Committee decided that an admission test be held and laid rules therefore which were subsequently approved by the Academic Council as per the procedure prescribed by the Delhi University Act, 1922 and the Statutes and Ordinances issued there under. The Rules stipulated that entrance test "will be open to all those who have obtained at least 50% marks in graduate/post-graduate degree examination." The same eligibility requirement has been extended to the academic year 1992-93.
58. The case of the petitioner is that the Rule, laying down the above-noted eligibility requirement is ultra vires and is violative of Arts. 14 and 21 of the Constitution of India inasmuch as it arbitrarily and without any rationale or reasonable basis debars from appearing in the entrance test those who have obtained less than 50% marks in graduate/ post-graduate degree examination. During arguments it was further urged that right to education being a concomitant to fundamental rights, as enshrined in Part III of the Constitution those having obtained less than 50% marks in graduate/ post-graduate degree examination could not be discriminated against or denied the opportunity of getting admission in the LL. B. course.
59. Needless to say the respondents have found no substance in the petition and have, thus, stoutly resisted It. To put it briefly, their defense is that the eligibility requirement is not violative of Arts. 14 and 21 as it does not, in any manner, put any illegal, arbitrary or unreasonable impediment in the way of one getting education. Their armoury comprised of two Division Bench judgments delivered by this Court. The first is Jayant Sud v. The Faculty of Law through the Dean, University of Delhi 1992 (1) Delhi Lawyer 294, while the second is Monica Garg v. University of Delhi, Civil Writ No. 2852/92 decided on September 8, 1992.
60. Before I embark upon an examination of the contentions raised, it may be mentioned that the judgments, referred to above, do lend some support to the defense put up by the respondents as far as Art. 14 of the Constitution is concerned, though they did come under heavy attack from the side of the petitioner. For the present, however, I am leaving the judgments at that.
61. Is the eligibility requirement violative of Arts. 14 and 21 of the Constitution? The respondents say it is not. They have pointed out that such an eligibility condition has been there since long and that the only change effected from the academic year 1991-92 onwards is that they have introduced an entrance examination and the eligibility condition has been made applicable for the entrance examination itself leading to final selection on the basis of merit alone, replacing thereby the preferential basis of selection. The respondents further say that the University has been having such type pf eligibility requirements for its various other courses as well. The objects sought to he achieved by prescribing the eligibility requirements for admission to the 1st year of the LL. B. course are stated to be as follows :--
"(a) Since the seats are limited and the number of candidates is much larger, the best amongst the available candidates, should be selected to promote the standards of legal education.
(b) The administrative inconvenience should be reduced to the extent possible in the process of selection without sacrificing the objective as at (a)."
62. The respondents claim that the first condition of eligibility prescribing that the candidate must have secured at least 50% marks in the graduate/post-graduate examination on the basis of which he seeks admission to the first year of LL. B. course, has the purpose of:
"(i) ensuring that the final selection is made from amongst those candidates who have attained a reasonable degree of proficiency in their own discipline as reflected in the percentage of marks secured by them in their respective examinations, and
(ii) reducing the number of candidates from amongst whom the final selection is to be made."
It is stated that the second condition of eligibility providing for an entrance test and making admission in the order of merit on the basis of the result of that test, has the purpose of:
"(i) getting rid of the problems that arise on account of (a) varying standards of education prevalent in various Universities' or (b) nature of courses pursued by the candidates;
(ii) providing competition for evaluation of relative merits and affording equal opportunity of selection to all those who satisfy the first condition of eligibility; thus making selection according to capability."
It is claimed that both the conditions of eligibility have a direct nexus and rational relation to either of the two objects that are sought to be achieved.
63. As noticed above, even before the academic year 1991 -92 admission to the First Year LL. B. course was regulated. There was an order of preference related to the percentage of marks obtained, and, as rightly pointed out by the respondents that very fibre is still retained with the only change brought about being the introduction of an entrance examination with the eligibility condition having been attached to that examination itself. It is in this context that the earlier scheme assumes importance. And, while dealing with it, the following is what was observed by a Division Bench in Kanishka Aggarwal v. University of Delhi, .
"Does it lay down a scheme which may be condemned as constitutional heresy? Does it provide a blanket ban to the talent waiting in its wings but outside the precincts of the University of Delhi? Is the Order of Preference so obnoxious as to suffer from the vice of excessive ness? Or is it societally so injurious as to cut the very roots of equal opportunity, for each according to his ability? The answer must be in the negative. The Order of Preference neither provides a blanket ban nor suffers from any other vice. In actual practice it has opened doors to not less than 36% of the aspirants from the outside Universities, that is, much more than the required minimum of 25%. It escapes the gallows on this score alone. Reference, it may be mentioned, was made to Greater Bombay Municipal Corporation v. Thukral Anjali, . It does not infuse life to the lifeless. The facts would reveal that it was a case farthest from the issue before us. It was actually related to college-wise institutional preference and it was this which was struck down being violative of Art. 14. The order of Preference before us provides no such college-wise reservation or preference. We thus refuse to lose more breath on it. More so, because complete answer is provided effectively and effusively by Jagdish Saran v. Union of India, .
The soul is in paragraphs 46 and 49 of the Report. They are:
"In the light of this discussion about the know-how and know-why of reservations, what are the conclusions that emerge vis-a-vis the Delhi graduates? Neither Delhi nor the Delhi University medical colleges can be designated as categories which warrant reservation. But there is one weighty circumstance which must be in our remembrance. Reservation for Delhi graduates is not that invidious because, as stated in the beginning, the students are from families drawn from all over India. Not 'sons of the soil' but sons and daughters of persons who are willy nilly pulled into the capital city for reasons beyond their control. This reservation is, therefore, qualitatively different."
.....
We recognise that institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules, until revised by competent authority or struck down judicially, will rule the roost. That is why we have to concede that until the signpost of 'no admission for outsiders' is removed from other Universities and some fair percentage of seats in other Universities is left for open competition the Delhi students cannot be made martyrs of the Constitution."
64. It was, however, contended by Mr. R. K. Saini, Advocate for the petitioner that the Supreme Court, having declared education to be concomitant to Fundamental Rights enshrined under Part III of the Constitution, any requirement coming as a hurdle in the fulfillment of that right would be bad. It was thus argued that setting up of eligibility conditions or holding of entrance examinations could not be justified and that, in any case, the University having decided to hold an entrance examination and thereafter to grant admission on the basis of merit attained, there was no justification to limit the entrance examination to those only who had attained 50% marks or above in their graduation/post-graduation examination.
65. Legal education seems to have always been a hot subject. The fact that there is a larger number of candidates than seats available has created complications. As far back as December 1960, Mr. M. C. Setalvad, the then Attorney General of India, spoke as follows at the Third Conference of the Indian Law Teachers' Association at Lucknow:
"Unless there is a change in the fundamental approach of responsible public opinion in the country and particularly in the views of those who are at the helm of affairs, there is little hope of legal education moving out of the ever-deepening rut in which it has travelled for nearly a century. It has to be recognised and acknowledged that, if an Indian democracy has to develop and the Indian citizen has to live under the rule of law, as is the basic idea of our Constitution, we must have a body of lawyers who are well trained from the first days of their law study ..... It is the lack of appreciation of this fundamental issue which has led not only to funds not being available for legal education, but to legal institutions being used in some places as profit-making concerns..... It appears to me that the two basic problems are, first, the obtaining of the proper student personnel by restricting the number of admissions, and, secondly, the obtaining of teachers with adequate equipment, status and dignity. If these two basic problems can be adequately solved, the comparatively subsidiary questions of the methods of teaching and examination will not present much difficulty.
He further said :
"With so disproportionate a student-teacher ratio, it is impossible to conceive of even a semblance of legal education being imparted at these institutions. What then is the remedy? The obvious answer is the limitation of admissions. Our student world and the general public have long recognised that admission to scientific, medical, engineering and other technical institutions must needs be restricted. There is no reason why similar restrictions should not be imposed on admissions to institutions teaching law. It has to be realised that law is also a technical and scientific subject and that a well-conducted discipline in law is impossible in the absence of restricted classes and a very liberal student-teacher ratio."
66. It may be mentioned that selective method of admissions has been adopted in most of the institutions in the United States and other countries. As already noticed above, a form of this system was in existence in the Respondent university even before the academic year 1991-92 and whatever changes have been made, they are at the instance of a Committee appointed under the Chairmanship of late Mr. V. S. Deshpande, a retired Chief Justice of this Court and comprising of highly experienced law teachers.
67. From the very nature of things and considering the fact that there is a larger number of candidates than seats available, it is neither desirable nor possible to throw admission open to all the students. Once this position is accepted, the respondent-University cannot be denied the right to decide the manner and the method by which admissions are to be made unless, of course, the classification results in pronounced inequality. I am firmly of the view that classification of candidates into those who possess merit and those who do not possess merit is a valid classification. It is also worth remembering that Art, 14 does not insist that classification should be scientifically perfect or logically complete. (See Kedar Nath v. State of West Bengal, ). Mere differentiation or inequality of treatment of burden does not per se amount to discrimination within the inhibition of the equal protection clause. It must necessarily be shown, in order to attract the operation of the clause, that the differentiation is unreasonable or arbitrary, and that it does not rest on any rational basis having regard to the object to be achieved. (See Shri Ram Krishna Dalmia v. Justice S. R. Tendulkar, ).
68. The LL. B. course conducted by the respondent-University attracts students from different sources and streams. Thus the marks obtained by them in their qualifying examinations cannot be a reliable guide to assess their meats and the object of selection for admission being to receive cream of the cream, the prescribing of minimum qualifying marks for sitting in the entrance examination itself leading to final selection on the basis of the marks obtained in the entrance examination is a method of selection which ensures fair play and justice and which at the same time affords equal opportunity to all eligible candidates. Viewed in this perspective, the scheme of admission hardly militates against the equality mandate.
69. It was argued that the Supreme Court having declared education as concomitant to Fundamental Rights there could not be any banging, barring and bolting of the doors of the Faculty of Law on the plea of merit. It was further contended that the very fact that some of the unqualified candidates permitted provisionally to sit in the entrance examination had secured more marks than many of the qualified candidates, was sufficient in itself to show that prescribing qualifying marks for sitting in the entrance examination was in no way a surer test to attract the best material.
70. As already emphasised by me above, the only nutritive method of admission and to which there can be no substitute is by way of merit and merit alone. It is a criterion which can neither be denounced nor renounced. To keep the doors ajar for all without regard to merit "is to temporise with the country's development in the vital areas of professional expertise" (Jagdish Saran v. Union of India, ).
71. True, the expression "personal liberty" in Art. 21 is of widest amplitude (See, for example State of Maharashtra v. Chandrabhan, and includes all those aspects of life which go to make a man's life meaningful, complete and worth living (Maneka Gandhi v. Union of India, and that "educational facilities" is one of the "minimum requirements which must exist in order to enable a person to live with human dignity" (Bandhua Mukti Morcha v. Union of India AIR 1984 SC 801 at p. 812), but then by declaring all this and so also that education is concomitant to the Fundamental Rights enshrined under Part III of the Comtitution, the Supreme Court has not sacrificed merit. Rather in Mohini Jain v. State of Karnataka, itself the Supreme Court has repeatedly laid emphasis on merit as being the "only method" of admission "in consonance with fair play and equity" (page 303). This much for the first limb of the contention noticed above.
72. It was not disputed before us that some of the candidates who had secured less than 50% marks in their graduation/post-graduation examination but had been allowed to sit in the entrance examination either on account of an order of this court or on account of the fact that till then the marks obtained by them were not known, have secured much more marks in the entrance examination than those who had secured more than 50% marks in their graduation/ post-graduation examination. It was on the basis of the performance of such initially unqualified candidates that it was contended that prescribing qualifying marks for sitting in the entrance examination was in no way a surer test to attract the best talent.
73. The object of the scheme of admission is to secure the best possible material by first prescribing qualifying marks for sitting in the entrance examination and thereafter by picking up the best on the basis of the merit attained in that examination. Since it would not be possible to admit all candidates, some basis for screening the candidates had to be set up. What should be that basis is essentially a question of policy and depends inter alia on an overall assessment and survey of the requirement, and even administrative difficulties. What the scheme has done is that those considered to be sub-standard are weeded out at the very initial stage. This unrelenting strictness in the matter of selection is imperative. More so in professional post-graduate courses where the "best alone is likely to blossom as the best" and I do feel that this does not fall short on the guarantee of liberty, justice and equality and the right to live with human dignity embodied in our founding document. It creates no privileged species. Of course, it may not be difficult to pick holes in the current system of selection. The very fact that some initially unqualified students when allowed to compete with the qualified, have come out with flying colours proves that the method adopted is not perfect. However, we have to go by the existing methodology at least till better modes are devised.
74. Coming to the two judgments, Mr. Saini was extremely critical of Jayant Sud v. The Faculty of Law through the Dean, University of Delhi. He regarded it as no judgment under Art. 14 as according to him, it was "totally devoid of reasons", and in support he drew our attention to the following observations made by the Division Bench:
"High Court can interfere only if the action of the respondents is arbitrary, unfair or unreasonable. We do not find the action of the respondents to be so in any way."
The grievance of Mr. Saini was that it was a finding sans reasons. And, coming to the judgment in Monica Garg v. University of Delhi, it was contended that since it was based on the judgment in Jayant Sud's case, it too could not be taken as a sound precedent. However, a mere reading of the judgment in Monica Garg's case would reveal that it does give reasons and only in the passing refers to what was held in Jayant Sud's case. Undoubtedly, the judgments do not examine the question from the point of view of Art. 21 of the Constitution but do deal with the method of selection and the requirement of qualifying marks for eligibility to sit in the entrance examination. Both hold the scheme to be not violative of Art. 14 of the Constitution and to that extent, do lend weight to the case of the respondents.
75. For the reasons recorded above, the challenge of the petitioners must fail but with no order as to costs.
76. Order accordingly.