Civil Appeal No. 8170 of 2009 and Writ Petition (Civil) Nos. 320 of 2009 and 192 of 2010. Case: 1.Indian Medical Association, 2.Ashima Mutneja, 3.Rachit Gupta and Ors. Vs 1.Union of India (UOI) and Ors. , [Alongwith Civil Appeal No. 8171 of 2009], 2.Guru Gobind Singh Indraprastha University and Ors., [Alongwith Writ Petition (Civil) No. 528 of 2009], 3.Guru Gobind Singh Indraprastha University and Anr.. Supreme Court

Case Number:Civil Appeal No. 8170 of 2009 and Writ Petition (Civil) Nos. 320 of 2009 and 192 of 2010
Party Name:1.Indian Medical Association, 2.Ashima Mutneja, 3.Rachit Gupta and Ors. Vs 1.Union of India (UOI) and Ors. , [Alongwith Civil Appeal No. 8171 of 2009], 2.Guru Gobind Singh Indraprastha University and Ors., [Alongwith Writ Petition (Civil) No. 528 of 2009], 3.Guru Gobind Singh Indraprastha University and Anr.
Counsel:For Appearing Parties: Gaurab Banerjee, ASG, K.K. Venugopal, Jaideep Gupta, T.S. Doabia, A. Sharan, J.S. Attri, Sr. Advs., Aman Hingorani, Priya Hingorani, Reema Bhandari and Swati Sumbly, Advs. for Hingorani and Associates, Dipak Kumar Jena, Minakshi Ghosh Jena, Shyam Mohan, Man Mohan, Dharam Das, Sadhna Sandhu, Shailender Saini, D.S. Mahra, ...
Judges:B. Sudershan Reddy and Surinder Singh Nijjar, JJ.
Issue:Guru Gobind Singh Indraprastha University Act, 1998 - Sections 6, 6(2) and 27; Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence) Act, 2007 - Sections 2, 12, 12(1), 12(2), 13, 14, 18 and 23; Constitution of ...
Citation:AIR 2011 SC 2365, JT 2011 (6) SC 505, 2011 (6) SCALE 86, 2011 (7) SCC 179, 2011 (3) UJ 1905 (SC)
Judgement Date:May 12, 2011
Court:Supreme Court
 
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Judgment:

B. Sudershan Reddy, J.

  1. Where the mind is without fear and the head is held high Where knowledge is free Where the world has not broken up into fragments By narrow domestic walls Where words come out from the depth of truth Where tireless striving stretches its arms towards perfection Where the clear stream of reason has not lost its way Onto the dreary desert sand of dead habit Where the mind is led forward by thee Into ever-widening thought and action Into that heaven of freedom, my Father, let my country awake.

    - Poet Laureate, Rabindranath Tagore

    I.

  2. The vexed question of access to education has hounded India from times immemorial. The futile pleadings of an Ekalavya for a teacher, that could not even be suppressed in the recesses of our cultural consciousness, to the modern day demands for exclusion from portals of knowledge of the "others", deemed to be unfit even if lip service of acknowledgement is paid that such "unfitness" may be due to no fault of theirs but is rather on account of their social, economic and cultural circumstances, gouges our very national soul. Even as higher levels of knowledge becomes vital for survival, and its technologies become capable of empowering those who belong to groups, that historically and in the present have been excluded from the liberating prowess of knowledge, this country seems to witness, as in the past, a resurgence in demands that knowledge be parceled out, through tight fisted notions of excellence, and concepts of merit that pander to the early advantages of already empowered groups.

  3. For much of our history, most of our people were told that they were excluded, for no fault of theirs in this and here, but on account of some past mistakes. Hope was restricted to the duty that was supposed to attach itself to station ascribed by a cruel fate, cast as cosmic justice. This order that parceled knowledge, by grades of ascribed status, chiefly of birth and of circumstances beyond the control of the young, weakened this country. It weakened our country because it reduced the pool of those who were to receive higher levels of knowledge to only a small portion of the upper crust. This in turn weakened our method of knowing and creating new knowledge - knowledge of the deductive kind was extolled primarily for its elegance, and its practical significance derided, and soon enough turned into metaphysics of mysticism that palliated the deprived with paens of a next life. This weakened our ability to apply knowledge to practical affairs of all segments of population, and effectively shut off the feed back loop that practice by users could have provided, so that new knowledge could be generated. Our practical knowledge ossified, and deductive knowledge became ever more ready to justify the worth of the high and the mighty, for such justification brought status to the peddlers of mysticism and enabled the high and the mighty to evade questions of accountability to the masses.

  4. It was that truth that our national poet spoke about when he prayed that knowledge would be free. It was that truth that the makers of modern India, those great souls, who could see the causes for past events, and foresee the needs of the future, tried to inscribe in our Constitution. It is not any wonder that our first Prime Minister in the excitement of the first seconds of freedom from foreign rule spoke about our "tryst with destiny" to the Constituent Assembly, and yet in the same breath also added "now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially." As Amartya Sen points out those were heady times, of promises made and of hope kindled The Argumentative Indian - Writings on Indian History, Culture and Identity, Picador (2006). And we, as a nation, promised ourselves that our huddled masses, condemned to rot in squalor, ignorance and powerlessness on account of the incessant exploitation by the elites, and on account of enforced hierarchies of social stature and worth, will never again acknowledge as a teacher, a person who will say that he will teach only members of this group, and not that group. To each and every group, and to each and every individual in those groups, we promised that never again would we allow social circumstances of the groups they belonged to be a factor in our assessment of their social worth. We gave our people the hope that we, the upper crust of India will change, and that their patience and tolerance of our inhumanity, over many millennia in the past and for a few decades more into the future, will soon be rewarded by our humanization.

    History says, Don't hope On this side of the grave, But then, once in a lifetime The longed-for tidal wave Of justice can rise up, And hope and history rhyme. Seamus Heaney, The Cure at Troy: A Version of Sophocles' Philoctetes, (London Faber and Faber, 1991); cited in Sen, Amartya, The Idea of Justice (Allen Lane, 2009)

  5. We formed our nation-state to make sure that hope and history, as an actuality of experience of our people - all of our people, belonging to all of the groups into which they belonged to - would indeed rhyme. That is what our Constitution promises. And that is the motive force that informs the basic structure of our Constitution. Our fealty to that motive force is as sacred a promise that we as a nation have ever made to ourselves. Every other commitment can be assessed only on the touchstone of that motive force that balances hope and actuality of history, with hope progressively, and rapidly, being transcribed into actuality of real equality.

  6. In contrast to the above, a strange interpretation has been pressed upon us in this instant matter. On the one hand it is contended that the State has to be denied the power to achieve an egalitarian social order and promote social justice with respect to deprived segments of the population, by imposing reservations on private unaided educational institutions, on the ground that this Court has held that private non-minority unaided educational institutions cannot be compelled to select students of lower merit as defined by marks secured in an entrance test, notwithstanding the fact that the State may have come to a rational conclusion that such underachievement is on account of social, economic or cultural deprivations and consequent denial of admissions to institutions of higher education deleterious to national interest and welfare. On the other hand it is contended that private unaided non-minority educational institutions, established by virtue of citizens claimed right to the charitable occupation, "education", an essential ingredient of which is the unfettered right to choose who to admit, may define their own classes of students to select, notwithstanding the fact that there may be other students who have taken the same entrance test and scored more marks. It would appear that we have now entered a strange terrain of twilight constitutionalism, wherein constitutionally mandated goals of egalitarianism and social justice are set aside, the State is eviscerated of its powers to effectuate social transformation, even though inequality is endemic and human suffering is widely extant particularly amongst traditionally deprived segments of the population, and yet private educational institutions can form their own exclusive communes for the imparting of knowledge to youngsters, and exclude all others, despite the recognized historical truth that it is such rules of exclusion have undermined our national capacity in the past.

  7. The main issues that present themselves to us in these matters before us relate to the following:

    (1) Can the executive abrogate a legislatively mandated and specified social justice program in the field of education?

    (2) Do private non-minority unaided professional educational institutions have the right to pre define a social group and admit into their institutions from only those social groups and exclude all other students the opportunity of being considered for admission into such educational institutions?

    It is against the background of the ark of hope that our Constitution is, that we have to answer the above questions.

    II

    Facts of the Case:

    The Private Non-Minority Unaided Professional Educational Institution

  8. The private educational institution, started and managed by the Army Welfare Education Society ("AWES"), named Army College of Medical Sciences ("ACMS"), located in the National Capital Territory of Delhi ("NCT of Delhi"), seeks to admit only students who are wards or children of current and former army personnel and widows of army personnel (henceforth, we will be referring this entire group as "wards of army personnel" for ease of use).

  9. AWES, it is stated, is a charitable trust that has been set up to cater to the educational needs of wards of Army personnel, both current and former, and widows of Army personnel. It is stated that the operation of its educational institutions is funded purely from regimental funds, which have been recognized to be private funds and not that of the Indian Army. AWES was given on lease, an extent of a little over 25 acres of land in the NCT of Delhi under the control and possession of Ministry of Defence in order to enable it to start ACMS, and meet the regulatory requirement regarding extent of land that a private medical college ought to have for its college campus. In addition, ACMS has also been provided the facility of using the Army Hospital in NCT of Delhi, both for its scholars to fulfill the necessary clinical training at such an hospital, and also to fulfill the regulatory requirement that a medical college possess access to a general hospital of sufficient number of beds as assurance of availability of facilities to meet the curricular requirements.

  10. It is also stated that the wards of army personnel suffer from extensive disadvantages that children of the regular civilian population do not face. It...

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