97 4

STATE OF KERALA v.

KUMARI T. P. ROSHANA & ANR.

January 17, 1979

[\'. R. KRISHNA !YER AND R S. PATHAK, JJ.]

Consti:ution of India 1950-Al't. 14-Medical College admission-Selection of students /ro1n different universities with no unifonnity of standards--Reser11a- :io11 of 5<'t:1~ 011 territorial basis-Validity-H'11t:rhcr vio/, uiie of Art. 14.

Auiclcs 32 and 136-When root of' the r; riei'l.'liCr? and the fruit of writ are nor ilulhid1ud but cC9llective courts power is l1Tle cf a.f]innative structuring of C rtdrt.\S 10 nu1kc it n1eani11gful and sociall.v re!l'(l.'!f-Dccf ,.innaf t,'1tidclir.es 10 be _.-

ghen.

The State of K.crala appointed a Comn1i&Sion to recommend which sections oi the people required spe-.::ial tr ec.tn1ent under Art. 15 ( 4) having reganl to thl!ir scdal and educational conditions.

That Commission recommended equitable allJcali()fi of seals on the basis of educational b:ick\vardness o.f the -:Vlnlahar nrca.

Subgtantinlly foui.1ding itself on these recommendations the State Government evolved a formula, which by polling all applications for admission to the four medical colleges in the state, one cons.olidated list was prepared and c; indidate, s \Vere selected strictly ac,..::ording to the marks secured by thenl.

This schen1~ having been stn1ck down by the High Court, a fresh exp'ert committee was appointed to cxarnine the quo 111odo of admissions to medica.l colleges. 'fh:e Government on the basis of these recommendafons decided that seats available for the nledical course might be distributed for the students of the two Uni1:crsities of Kcrala and Calicut in the ratio of the candidates registerl!d for the pre-degree 21nd B. Sc. course in them.

In a writ petition under Art. 226 the High Court held that the ~...:h'en1e of selection for admission to the medical colleges on on assessment of inerits of students drawn from different universities with no uniforn1ity of standards is obje<."tionabl'e and the linknge of the division of seats \Vith the registered studentstrength of the universities bears no nexus :ind is Yiolative of Art. 14 of the Constitution.

On the question of the validity of the scheme of selection for admission to the medical roJleg'es.

J!ELD : 1. Current conditions warrant the classification of student comn1unity on the Zonal basis-not as a legitimation of endless perpetuation but a9' a transient panacea for a geo-human handicap which the State must actively strive to undo. f980 E]

2. 1he principle of reservation with weightagc for th,,: geogrnphical area of the t1lalabar district is approved. [980 G] H

3. The reasoning of the High Court that ther'e is such substantial difference iR the pre-degree courses and evaluations bet\vecn the sister univers-ities within the same State that the breach of Art. 14 by equal treatment of the nutrks nn-

~ ~

I ' ' '

;'.'::'. . Ii

\- ••

KE!b\LJ! v. ROSHANA 97 !j

eqillilty secured by the examinees ifi the !>Vo U11itetsi1ies may be spelt out.

A Evet'f inctmsequentilll differentiation between two things does not cortstitute the . viCe or di:sctln'llnatfo .. 1, if lzm clubs them together igr.oring vanial varittnces.

Atlitle l 4 is not a voodoo which visits. wi h invalidation every executive or regWahYe fu:rion of things or categories where there are no pronounced inequali ..

tiCS. Matbem•tical equality is not the touchstone of constitutionality. [983 E-FJ

St.W of Jammu & Kashmir v. Triloki Nath Khosa & AllT. [1974] 1 SCC 19 B at 42; referred to.

4. A latge latitude is allowed in this area to the State to classify or declaasify based ()fl diverse considerations of relevant pragmatisn1 and the judiciary should

IIOl "nlllb. in" Where the executive vatily treads.

[984 A]

5. Many colleges are run by the State or institutional rnanagement9 where pre-degree or degree courses are undertaken.

The teachers move from one university ju1hdiction to the o_ther, the teaching materi2J is. inevitably of a, like

naturt, the sut:jects taught must ordinarily be :ilik.!. The xaminers are ustinlly dra\\n from \\'ithin the s ate or neighbouring States.

Even the coinpositio:n ot the &el'idetttit bodie~ in the two universities may have common members.

The Uuivetsity Act& themselves are sub5tanti<•lly similar. To surmise discrimination.

from j:los&ibilities is alien to the forensic prOC'!~5 in the <:!Jsence ot bard facls~ Grrus dtvcrgenc~ exist among Universities affeCting the quality of the teaching and the marking, the anomalies of grading and the absurdity of. equating the end producf on the blind r;; sumptic•.1 that the s.ame marks mean the same excellence.

But not glib surmises but oolid facts supply the sinews of discriminatory inequality or equality.

Some backward universities and colleges have degenerated into degree-'lealers bringing rapid discredit to Indian Academic st~1.tu'i. [984 D-F]

6. The vagarious element in marking aud moden:.ion of marks may be a fact of Jife, but too marginal to qualify for substantial difference unless otherwise made 011t Indeed, there may be differeoces among_ the coileges under the same University, among the examiners in the Siame University. Such fleeting factors or e9hemerail differences cannot be the solid foundation for a subsantial differentiation Whih is the necessary pre-condition for quhh:ng an executive or legislative . act as too discriminatory to satisfy the egalitarian essence of Art 14. [984 H-985 Al .

7. The functional validation of the writ jurisdiction is an appropriate cXMni nation of tbe subst.:1.ntiality of the alleged di-sparity. [985 BJ

8. The corner-stone of classification adopted for medical adrnissioos by the Government was University-wise allocation. By itself, this approach had constitutional sanction. r986 c1

D. N. Chane/la/a v. State of Mysore & Ors. etc. [1971] Supp. SCR 608; relied on.

9. TI1e discriminatory vice, if University-ise classification rrnd c:on<ieou-Cntial cllocation of seats were resorted to, was pressed therein but repelled. The fundamental 'educational_ realities and rCSuitant resolution of the legal imbrofio are

fnatruthely presented therein, which havespedi\1 relevance to the ins+ant case the social facts, con&titutional cont_rontations and administrative an.11Wem H in !lie Keraln and Karnataka litigations are similar .. [986 J), 986 H-~~7 .A]

6-"H9 BCI179

10. 1he injection of the University-wise studc.nt strength is drawing_ W.," red herring across the trail-an irrelevance that invalidates the scheme. Tl; lere .is no , nexus between the registered student strc.'.1gth and the seats to be allotted. The

fewer the o.Jlleges the fewer the pre-degree or degree students. And so, thC linkages of the division of s'cats with the registered student strength would make au

irrational inroad into the University-wise allocation. Such a formula would be a punishment for backwardness, not a promotion of the advancem'ent.

The 8 discriminatory paring down based on unreasoa cannot be upheld. [990 G-H]

11.

La~ is not unimaginative, especially in th'e writ jurisdiction where res~ ponsible lustie is the goal. The court cannot adopt a rigid attitude of negativity and it back after striking down the scheme of Government Jeavin& it to the helpless Government caught in a crisis to make-do as best as it may, or throwing the situat:on open to agitational chaos to find a solution by demonstrationa in the streets and \\Drse. Jn the instant case unnble to stop with merely declaring that the scht-me of admission accepted by Government is ultra virs and gnmting the relief to the petitioner of admission to the medical colleges, the need for controlling its repercussions calls for judicial response.

[991 H-992 A]

12. An incisive study of the exercise of the writ power in India may reveal that it limits its actioruf by quashing or nullifying orders proceeding on a viola tion of law, but stops short of a reconstruction whereby a valid scheme may replace a void project.

This is symptomatic of an obsolescent aspect of the judicial process, its remedial shortcomings in practice and the need to innovate the n1eans, to widen the base and to organise the reliefs so that -the Court

actualise.~ sr>eial justice even as it inhibits injustice. [978 A-B]

13. This community perspective of the justice system explains why the Court bas resorted to certain unusual directions ood bas s-haped the ultimate com~ pl ex of orders in thes'e proceedings in a self acting package.

Chronic social disability cannot be amenable to instant administrative surgery and law. 6hall not bury its head, ostrich fashion, in th'c sands of fiction and assume equality where the opposite is the reality.

[978 C, 980 CJ

14. The rule of law runs close to the rule of life and where societal. life, as between one part of the State and another, is the victim of die-hard disparities, the constitutional mandate of equal justice under the law responds to it pragmatically and permits classification geared to eventual equalis&tion.

!'80 DJ

J.5, The writ of this Court binds the parties on record who must abide by the <lirections issued necessitated by the exigency of the situation and the need to do justice. [993 DJ

16. 'fhe court system belongs to the people and must promote constructive justice; and aU institutions, including the Governments and Universities~ likewise belong t"' the people.

This commitment is the whet-stone for doing j\istice in the wider context of social good. [993 B-F]

i7 .. Leaving the Judgment of the High Court in the conventional fofm of merely quashing the formula of admision the remedy would have &gg:raVatecl the '.malady; confusion, agitation, paralysis. The root of the grievance and the fruit n . pf. the writ are riot individual but co1Iective and white the "adv'ersaty system"

makes the Judge a mere umpire, traditionally speaking, the co'mmunity orientation of the judic; al function, so desirable in the Thtrd WOrld remMial juri!r

• I

~ ;

~ "-

• J

~· ,. '

KERALA v. ROSllANA (Krishna Iyer, !. ) 9 7 7

a.....} prudence, transforms the courts' power info affirmative structuring of redress so A at to make it personaJly meaningful and soci<!Jly relevant.

Frustration of in-

. validity is part of the Judicial duty; fulfilment of legality is complementary, . nm principIC of affirmative action is within the court's jurisdiction under Art.

1.36 and Art. 32 and the present cases deserve its exercise. Decisional auideline• giver., [994 B-F]

CivIL APPELLATE JURISDICTION : Civil Appeal No. 2297 of 1978.

Appeal by Special Leave from the Judgment and Order dated 13-11-78 of the Kerala High Court in O.P. No. 3239/78.

AND

WRIT PETITION NO. 4705/78

M. M. Abdul Khader, Adv. Genl. for Kerala, V. J. Francis and Mustafa K. Rowter for the Appellant in C.A. 2297 /78 and Respondents in W.P. 4705/78.

P. V. Govindan Nair, N. Sudhakaran and Mrs. Baby Krishnan for the Petitioner in W.P. No. 4705/78 and Respondent No. 1 in CA 2297/78.

Dr, V. A. Sayid Muhammad, S. K. Mehta, P. K. Shamshuddin, P. N. Puri and E. M. Sarul for the Interveners .

A. S. Nambiar for Respondent No. 3 in CA 2297 /78.

The Judgment of the Court was delivered by

KRISHNA IYER, J.-Thc dynamics of the writ jurisdiction and the potential for affirmative court action, as part of remedial jurisprudence, constitute the key thought which animates the ultimate decision and direction we give in this couple of cases which have come up by

Special Lellve and under Art. 32 to this Court, aware as we are of a host of like proceedings which pend in the High Court.

Tho State of Kerala is the appellant in the civil appeal and 1st rei; pondent in the Writ Petition but the collective litigation springs from a traditional type of action and typical kind of relief granted in exercise of its writ jurisdiction by the High Court striking down a transitory scheme of adriiission to the medical colleges of the State evolved by the Government but invalidated by the High Court on the ground of discrimination in the distribution of seats among the eligible student$ drawn from two disparate regions of the State. Of course, the instant repercussion of the dC£isiQn is apt to be confusion in the admission . to the academic courses which have hardly commenced and this desperate situation has driven the Government to this Court seeking reversal of_ the Judgment under appeal.

Law promotes order, not anomie. '

Any incisive study of the exercise of the writ power in India may reveal that it limits its action t<l' quashing or nullifying orders prOCtleding on a violation of law, but stops short of a reconstruction whereby a valid scheme may replace a void project.

This is no reflection on the High Court's ruling but is symptomatic of an obsolescent aspect of the judicial process, its remedial shortcomings in practice and the need to innovate the means, to widen the base and to organise the reliefs so that the court actualises social justice even as it inhibits injustice.

This community perspective of the Justice System explains why we have resorted to certain unusual directions and have shaped the ultimate complex of orders in t_hese proceedings in a self-acting package. With this exordium we proceed to narrate briefly the necessary facts and developments revelatory of the course of events and the cause of action, the impact of the High Court"s judgment and the compulsions which have brought the State in appeal t<l' this Court.

The Kerala State, notwithstanding its striking demographic, cultural, linguistic and political integrality and educational advance, has certain histQrical hangovers of academic disparity and devel<l'prnen~ maldistribution which have survived for two decades as this case testifies.

We are not concerned with the etiological enquiry into this malady but recognise it as a reality since the authentic materials from Commission reports and prior rulings of the High Court concurrently so establish. B.roadly speaking, this 'composite' State may be dichot<l'mised as Travancore-Cochin and Malabar regions woven into ooe fabric by the States Reorganisation Act, 1956. Gaping disparities of development cannot be wished away by political fusion into ooe State and determined efforts at equalisation of human conditions, economic and cultural, alone lend living validity to geo-political homogeneity.

Malabar being admittedly laggard in the educational field, the State endeavoured to wipe out this weakness by starting or supporting new colleges in this neglected segment; and one such institution was the medical college at Calicut.

Indeed, the drive to upgrade the educational status of this backward !egion persuaded the State to set up the Calicut University to which were affiliated all the colleges in that

CTndrella area, including the Calicut Medical College.

An adjoining district, Trichur, was also tacked on, for convenience, maybe.

The cynQ1; ure of attention in this litigation is the scheme c4 admission to medical colleges in the State; and so we may adjust the forensic IL lens to focus on the struggle for seats in the four medical c<l'ilege&

in the State-all run by Government but providing for five hundred and odd students, as against several thousands of applicants. This 'musical +.

• ,

KERALA v. 11.0SllANA (Krishna Iyer, J.) 979

chair' situation naturally led to many qualified claimants beiug rejected A and litigative adventures being inaugurated on grounds of discrimination. One such \\Tit petition having been allowed, the State has, by specialleave, come up in appeal.

The points raised in the writ petition under Art. 32 are identical .

A sensitive appreciation of the grievance successfully ventilated B by the writ petitioners in the High Court is possible only if we unfold a fuller conspectus of the facts.

Cognizance of some essential ci.rcwnstances is necessitous as the first step.

There are three Universities in the State but we are concerned only with two-the Kerala and the Calicut Universities..-to which the four medical colleges are affiliated,

three of which are unde; r the jurisdiction of the first and the fourth C under the latte<r.

Broadly speaking, the latter caters to the academic requirements of the Malabar segment plus a neighbouring district and the former to the rest of the State.

The Malabar area has been regarded as notoriously backward from the point of view of collegiate education so much so, the number -0f colleges which provide pre-degree courses necessary by way of qualification for entrance into the medical colleges, are relatively fewer and, on the contrary, the remaining part of the State thanks to many factors, has been on a higher level, with colleges more numerous and pre-deg; ree students more prolific.

Geographic justice, a component of social justice, has to take note of these comparative imbalances.

Rightly, therefore, the State Government, based on certain reports of Commissions, con•idered the two territorial divisions as separate units :and regulated seat allocations to medical colleges in the State on an

equitable basis.

The social thrust of the classification, based on geographical dissimilarities, was the core factor in formulation of that scheme of admissions.

This principle found favour with the High Court in its Ful! Bench ruling in Rafia Rahim's( 1) case.

While over the 'years, amelioration produced by State Plans has reduced the degree of backwardness, the fact remains that substantial equalisation of opportunities between the two areas is a "consummation devoutly to be wished." We agree with the High Court that

"in considering the question of the educational backwardness of a particular class of people. or a particular tract of territory of this State, we cannot forget that the evolution of human society and its march from backwardness to progress must essentially be a slow and gradual process. It is not as if, by a Government or executive fiat, a class of people or a bit of territory has been condemned to backwardness, and with

, .+ (I) State of Kerala v. Rafla Rahim, 1978 KLT 369.

the lifting of the ban by effi.ux of time or otherwise, they automatically spring back into a progressive or forward class of people or tract. It is useful to recall the observations made by this Court in State of Kerpla v. Jacob Mathew ( 1964 KLT 298).

"9. In these regions of human life and values the clear-cut distinctions of cause and effect merge into each other.

Social backwardness contributes to educational backwardness; educational backwardness perpetuates social backwardness; and both are often no more than the inevitable corollaries of the extremes of poverty and the deadening weight of custom and tradition."(') If we may add, chronic social disability cannot be amenable to instant administrative surgery and Jaw shall not bury its head, ostrich fashion, in the sands of fiction and assume equality where the opposite is the reality.

The rule of law runs close to the rule of life and where societal life, as between one part of the State and another, is the victim of die-hard disparities the constitutional mandate of equal justice under the law responds to it pragmatically and permits classification geared to eventual equalisation.

We, therefore, agree with the High Court that current conditions warrant the classification of the student community on the Zonal basis-not as a legitimation of endless perpetuation bui as a transient panacea for a geo-human handicap which the State mnst actively strive to undo.

In Kerala, as in some other States, reservation policies of Governments and 'equal protection' pronouncements of courts have chased each other. A happy harmony among the great instrumentalities for accomplishment of constitutional goals by complementary action is the desideratum for developing countries, if we may say so respectfully.

The principle of reservation with weightage for the geographical area of the Malabar District has our approval in endorsement of the view Of the High Court. An earlier decision of the Kerala High Court ( 1964 KLT 298) i,:ave rise to a Commission appointed to recommend whLh sections of the people required special treatment under Art. 15(4) of the Constitution, having regard to their social and educational conditions.

That Commission, inter alia accepted the educational backwardness of the Malabar area and recommended equitable allocation of seats on that footing. Substantially founding itself on these recommendations but modifying them in some measure Government hammered out a formula, a basic feature of which was pooling together the applications for admission to the four medical colleges in the State in one consolidated list

(I) 1978 KLT 369 at 387.

KERALA v. ROSHANA (Krishna Tyer; J.)

98 I ;

and selecting students for medical courses strictly according to the matks secured-of course, making allowance for seats reserved for a limited percentage of students from outside and the customary bonus of rescrva.. tion of seats for Scheduled Castes, Scheduled Tribes and backward classes. This part of the 'selection calculus' is beyond cavil before ns, as the nation with all its social engineering boasts and all its tumultuous bungling, is distances away from human justice through human law.

The rough and tumble of academic life, based on the Pooling System seemed to run smooth for some years when a new attack was mow1ted on it in the High Court with constitutional artillery from the inexhaustible armoury of Art. 14. A Full Bench hit the scheme fatally this time, not with the familiar hut fruitless archery of geographical discrimination hut with the weaponry of 'reverse discrimination' in a different manifestation.

TI1e strategy of attack was neatly expressed by the learned Single Judge whose judgment on this point was endorsed by the Full Bench.

Discrimination was discovered by the Court in attributing parity to !he marks of examinees in pre-degree and degree courses of the Calicut University with those of the candidates of the Ke.rala University.

The Full Bench framed the question, tell-tale fashion :

"The question is not whether one_ University is superior to the other or maintains higher standards in the matter of syllabus, examination and evaluation than the other, hut whether the operation of different Universities with varying standards of their own is productive of inequality.'('}

The descriptive presentation of this discriminatory facet was given by the learned single Judge in the same case :

"To compare the marks obtained by students of two different Universities valued by different examiners on answer papers of different patterns may not he the proper mode of determining comparative merit.

Even in the case of candidates appearing for the same examination in the same university tl1ere may be a cause for complaint in the matter of marks awarded to the candidates. Quite often revaluation has shown that at least in some cases there is justification for the plea for such revaluation. Different examiners value the answer papers and though there is a Chief Examiner his role is quite limited.

But these are inevitable and the marginal errors may have to be ignored. By and large the comparative merits of the candidates will be reflected in the marks they obtain in the exami-

( l) 1978KLT369at375

982 SUPl!EME COUJ.\T REPORTS

[1979] 2 S.C.R.

n:; ition to which all candidates are uniformly subjected to. B11t the same could not be said in the case of examinations condllCted by two or more Universities.

It is well-known that solill'- times question papers are tough and sometimes valuation is liberal. Quite of'en valuation is guided by the percentage of pass

expected in an examination.

Moderation is also resorted to.

While all these may work uniformly on all the candidates appearing for the same examination in the same University that could not be the case with regard to the candidaes appearing for the same qualifying examination from another University writing different papers, which are valued by a different set of examiners.

When comparison is between two candidates passing out from two Universities taking respective examinations of the Universities the equation of candidates in matters where near-accuracy is called for becomes difficult.

May be the examinations are similar and the valuation also is similar, but the other factors cannot be ruled out.

If admissions to courses like medicine and engineering is to be on the basis that the best talent is to be preferred, where students from more than one University passing the qualifying examination have to compete some method other than comparing their marks shuud be devised to determine their comparative !alent."( 1)

The Full Bench agreed with this anathematization of equal treatment of 'unequals' and voided the Selection Process. The Court, with helpful realism, concluded by adding a positive guideline to the decla- . --'-, ration of nullification : (')

"As a result of our discus'sion, we are of the opinion, that the scheme of selection for admission to the Medical Colleges on an assessment of merit of students drawn from different Universities with no uniformity of standards is objedonablc and violative of Art. 14 of the Constitution.

We grant a declaration to the writ-petitioner to that effe, st.

We deny effective relief to the writ-petitioner on account of non-joinder of the selected candidates, and the fu'ility and ineffectiveness of upsetting the selections and directing fresh admission at this stage.

We consider that the best scheme of selection in the circumstances would be th!' method of selection of candidates by holding a uniform Entrance Examination to se<:ure

(I) 1978 KLT 359 at 371-372

(2) Ibid, 382.

KERALA v. ROSH/.l<A (Krishna Tyer, J.) 983

mufQmlity of stam, lards, as .recommended by the Indian Medical Council-vide El!.ts.

PS and PS-and as endorsed by the University authorities (vide Ex. P7). We direct the State Government to forthwith devise a scheme of selection by holding such an Entrance Examination and publis? the same within three months from today so that the candidates wishing to apply for selection to the Medical Colleges of this .

State for the next academic year, have due notice of the scheme of selection. The object being to secure uniform'ty of standards for assessment and evaluation of students drawn from different Universities, our directicrn should not be understood as unalterably and inelastically fixing the limits for Governmental action.

Methods for securing un'.formity of syllabus, pattern of examination, and mode of evaluation in the different Universities, would well be within the province of the Government to undertake. We allow this writ appeal to the limited extent indicated above."

In •he end, the writ petitioner won the battle but lost the war, for she got an abstract declaration that her exclu5ion was invalid but was denied the concrete direction to be admitted into the college.

We are not impressed much with the surmise which colours the reasoning of the Full Bench and •he learned Single Judge that there is such substantial difference in the pre-de!!Jee courses and evaluations between the sister •rniversities w; thin the same Stole that the brearh f'f Art. 14 by equal treatment of the marks unequally secured by examinees i:l the two universities may be spelt out. It is trite law that every inconsequential differentiation be•ween two things does not constitute the vice of discrimination, if law clubs them lo!!ether i"110ring venial variances.

Art. 14 is not a voodoo which visits with invalidation_ every execu'ive or legislative fusion of things or categories where there are no pronounced inequalities.

Mathematical equality is not the touchstone of constitutionality. This Court in Triloki Nath Khosa(') cautioned

"Mini-classifications based on micro-distinctions are fa1se to our egalitarian faith and only substantial and straightforward c' assifications plainly promoting relevant goals can have constitutional validity.

To overdo classification is to undo equality."

In the same ruling there was a caveat entered by Oiandrachud, J (as be then was) against "a charter for making minute and microcosmic

" ~

q) tattof Jammu & Kashmir v. Tri/oki Nath Khosa & Anr. [1974) I SCC 19 at 42.

classifications." What is more, a large latitude is allowed in this area to the State to classify or declassify based on diverse considerations of relevant pragmatism, and the judiciary shonld not "rush in" where the executive warily treads.

The core question is whether there is such substantial differentiation between the two universities in regard to the predegree or degree courses and system of examinaions as too glaring to imperil the equal protection clause.

The presumption is in favour of the vircs of legislative and executive action where Art. 14 is the basis of challenge.

We see no factual disparities disclosed in the Full Bench ruling to reach the result of substantial difference in the syllabi, in the pattern of examinations, in the marking systems or in the choice of the examiners so as to warrant invalidation on account of equal regard being accorded to the marks secured by the examinees from the two universities. We cannot forget that many colleges are run by the State

or institutional managements where pre-degree or degree courses are undertaLen.

The teachers move from one university jurisdiction to the other, the teaching material is inevitably of a like nature; the subjects ·

taught must ordinarily be alike.

The examiners are usually drawn from \vithin the State or neighbouring States.

Even the comition of the academic bodies in the two universities may have common members.

The University Acts themselves are substantially similar.

To surmise discrimination from possibilities is alien to the forensic process in the absence of hard facts.

We are aware that there arc Universities and Universities, that gross divergences among them exist affecting the quality of the teaching and the marking, the anomalies of grading and the absurdity or equating the end products on the blind assumption that the same marks mean the same excellence.

But not glib surmises but solid facts supply the sinews of discriminatory inequality or equality. Going by vague reports, some backward universities and colleges have degenerated into degree-dealers bringing rapid discredit to Indian academic status.

The Indian Medical Council Act, 1956 has constituted the Medical Council of India a's an expert body to control the minimum standards of medical educa'ion and to regulate their observance.

Obviously, tht' high-powered Council bas power to prescribe the minimum standards of medical ed{1cation.

It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions.

Thus there is an overa11 invigilation by the Medical Council to prevent iubstandard entrance qualifications for medical courses.

The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out.

Indeed, there may be differences among the

KERALA v. ROSHANA (Krishna Iyer, I.) 985

colleges under the same University, among the examiners in the same nniversity.

Such fleeting factors or ephemeral differences cannot be the olid foundation for a substantial differentiation which is the necessary pre-condition for quashing an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Art. 14. The functional validation of the writ jurisdiction is an appropriate examination of the substantiality of the alleged disparity. We do not, however, proceed finally to pronounce on this point with reference to the two universities since nothing is available. before us, or, for that matter, was before the High Court to warrant a fair conclusion on the issue.

We are persuaded to make these observations for future guidance, so .that academic scheme!! may not be struck down as arbitrary or irrational save where some sound basis has been laid.

We get back to where we left off before this divagation into the Full B.ench decision's ratio on discrimination as between the two universities.

The sole question that survives is of alloca'ion of 'seats on a universitywise classification.

Following upon the Full Bench decision which struck down the pool scheme of selection, a constitutionally viable process had to be evolved.

Government, therefore, appointed a fresh expert committee to examine and report the quo modo of admissions to medical colleges in the light of the directives contained in the Full Bench decision.

Two solutions were seriously considered by the Committee, namely ( 1) .a common entrance examination such as is in vogue in many SUI.tea and has the approval of the Medical Council of India; and (2) the •tandardization of the syllabi uiiiformly for the two universitie's and the elimination of different yardsticks in regard to the setting of question papers, marking systems and the like.

The first one, though the better, was given up as productive of public and student resistance. However wise a measure may be, its viability depends on its acceptance by the consumers, namely, the student community and the parent community.

Agitational opposition or determined dead-locking may make it unwise to inflict it on an unwilling constituency.

Of course, by a gradual process of enlightenment the wisdom of such a measure may dawn.

What is rejected to-day may be greeted tomorrow.

The Committee jettisoned the first proposal of a common entrance examination

tly scared of its impracticability at the moment. So it opted for the second, namely uniformity of standards, frnm the formulation of syllabi upto assignment of marks at the el!1aminations.

Surely either of the proposals is an effective answer to Art. 14. Even so, when the Committee's recommendations were placed before the Government it rellected carefully on the pragmatics of implementation and reached the

conclusion that it would take some time to fulfil the pre-requisites to give effect to that formula. Time runs, university applications rush Ui,

arlmissions must begin, courses must start and administrative paralysis in decision-making is no alibi.

Implementational dilatoriness cannot stall the flow of medical education. Caught in this crisis, caused, in part, by the court ruling, Government fabricated a quick scheme of admission to the four medical colleges, which, again, bas now been struck down by the High Court resulting in the appeal before us.

The corner-stone of classification adopted for medical admi<sioM by the Government this time was uuiversitywise allocation. By itself, ths

approach had constitutional sanction, having regard to the ratio in Chanchala' s case(').

The ratio in Chanchala conclndes the dispute in this case. 'The discriminatory vice, if university-wise classification and consequential allocation of seats were resorted to, was pressed but repelled.

She lat, J. speaking for the Court, formulated the contention thus : (')

"The next contention was that r.9( 1 ), which prescribes university-wise distribu'.ion of seats results in discrimination for it lays down a classification which is neither based on any inte'ligible differentia, nor has a rational nexus with the object of the rules.

The argument was that although there i"s one selection committee for all the Government medical colleges in all the three universities and for the said 59 seats in private colleges, students passing from colleges affiliated to a parlicu'ar university arc first admitted in Government medical colleges affiliated to that university and only seats upto 20% in each of such medical colleges can be allotted to outsiders in the discretion of the committee.

The result is that a student having higher marks than the last admitted student is deprived of a seat only for the reason that he bad passed his P.U.C. examination from a college affiliated to another university.

According to ccunsel. such a classification has no rational basis and has no reasonable nexus with and is in fact inconsistent with the very object of cs<ablishment of Government medical colleges, namely, to train in medicine the most meritorious amongst the candidates seeking admission."(')

The fundamental educational realities and resultant resolution of the legal imbroglio are instructively presented in Chanchala's case, which

(I) D. N. Chancha/a v. St te of Mysore & Ors. etc. [19711 Supp SCR 608.

(2) Ibid pp. 617-618.

(3) [19711 Su.op. S.C.R. 608 at 619-€21.

...

KERALA v. ROSHANA (Krishna Iyer, J.) 987

haV() special relevance to our case because the social facts, constitutional confrontations and administrative answers in the Kerala. and Karnataka litigations are similar. Shelat J. observed : (')

"The three universities were set up in three diffuent places presumably for the purpose of catering to the educational and academic need~ of thdse areas.

Obviously one university foc the whole of the State could neither have been adequate nor foasible to satisfy those needs.

Since it would not be possible lo admit all candidates in the medical colleges run by the Government, some basis for screening the candidates had to be set up.

There can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centres for medical training, have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not $uller from infirmities, constitutional or otherwise.

Since the universities are set up for satisfying-the educational needs of different areas where they are set up and medical colleges are es'ablished in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training -0f those attached to those universities.

In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in spec'alised subjects, like medicine,, satisfied through colleges affiliated to their own universities.

Such a basis for selection has not the disadvantage of districtwise or unitwise selection as any student from any part of the state can pass the qualifying examination in any of the three universities irrespective of the place of his

birth or residence.

Further, the rules confer a discretion on the selection committee to admit outsiders upto 20% of the total available seats in any one of these colleges, i.e. those who have passed the equivalent examination held by any other university not only in the S•ate bnt also elsewhere in India ....

The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advan'age over a more meritorious one.

As is well known, different universitie& have different standards in the eliaminatiom held by them.

A preference to one attached to< one university in its own institutions. for posl-8faG!uate

OI'

\' (I) [1971] Supp. S.C.R. 608 at 619-621. .. \)

H i '

technical training is not unco=on ..... Further, the Government which bears the financial burden of running the Govern- ·. ment colleges is entitled to Jay down criteria for admission in its own colleges and to decide the sonrces from which ad mis8ion would be made, provided of conrse, such classification is not arbitrary and has a rational bass and a reasonable connection with the object of the rules.

So long as there is no discrimination within each of suc.h sonrces, the validity of the rulei laying down such sonrces cannot be succe'ssfully challen:- ed. [See Chitra Ghosh v. Union of India(')] In our view, the rules lay down a valid classification.

Candidates passing through the qualifying examinations held by a university form a class by themselves as distingnished from those passin8 through such examination from the other two universities.

Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies.

In our opinion. the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Art. 14:''

We do not mean to lay down, as an inflexible dogma of universal application, that under utterly different social and educational environ!; university-based grouping of candidates for specialised courses will, willy-nilly, be valid.

But the basic identity of pertinent circumstances bearing on the university-centred descrimen in Chanchala and here constitutionalize the scheme of selection adopted by Government grouping all eligibles from colleges affiliated to each University as separate . "">

units.

The High Court's perspective in this regard is impeccable.

It is an interesting sidelight that in Chanchala as much as 20% o! the total s_eats were thrown open to 'outsiders' i.e. 'those who have passed the equivalent examination he, Jd by any other university not only in the State but also elsewhere in India.

The underlying unity of syllabus and broad agreement on evaluation are assumed in this pool system, confined to 20% but open to se.veral universities.

Having held in the earlier Full Bench ca8e that university-wise categorisation for seats allocation was good the High Court, in the impugned judgment, still struck down the new scheme as discriminatory.

The vice was traced to a certain feature which went beyond mere universitywise allocation and made further modifications governed by the propor-

(1) [197011 S.C.R. 413 at 418. . ' ' .

KERALA v .. ROSl!ANA (Krishna Iyer, J.) 989 ... ( {,. ti.on. of the number of students presented by the two universities for the A

pre-dgree and B. Sc. examinations. 'Ay, there's the nib'.

• •

Tho Committee's long range proposal of uniformity between the two universities was unexceptionable and, if adopted, would end apprehensions of injustice stemming from dissimilarities flowing from diver- .gent syllabi and examination methodology. Indeed Government has ac B cepted it as the long-term solution and rightly.

The relevant

G.0. dated July 14, 1978, sums up the Committee's unification solution .. thus :

"As a long term solution Government may move the Universities of Kerala and Calicut to unify the curriculum and courses of study for pre-degree course and form Inter University Board for the conduct of examination.

When such a scheme is established pre-degree will be the only qualifying examination for selection to all courses in the medical colleges.

The Committee has pointed out that unification of the syllabus, course of study and examination in the four disciplines of B.Sc., viz., Physics, Chemistry, Zoology and Botany would be impossible and thus the reservation now given to grad.uate candidates for selection to Medical and dental colleges will have to be abolished."

And the decision of Government is in these terms :

"Government.. . have accepted the recommendation of the committee to have unified curriculum and course of study and common board for conduct of examinations for the Kerala and Calicut Universities.

But Government consider that unification of syllabus and method of examination should be made also at degree level in respect of the 4 disciplines of Physics- Chemistry, Zoology and Botany and that the reservation now given to the graduates for admission to the medical and dental colleges should be continued.

The Universities concerned are being requested to take further action in the matter."

But the modus operandi for nnification of syllabi and what not are incapable of instant execution by unilateral declaration, since it is the business of the Universities.

And Universities are self-consciously autonomous and often politicised, with the result that the writ of Government may not run there.

Moreover, administrative slow-motion is the genius of, governmental and university processes.

Universities, with plural bpd\es, many voices and contradictory cerebrationll, may meet and

!I ·. delite, appoint sub-committees and discuss their reports, await reactions

A of other organs and hold joint meetings to consider academic iSsUM iJle. all their dimensions and act generally only after leisurely reflect:ort. Ata-~ demics cannot be hus'led and often hasten slowly.

Meanwhile, the year rolls 011, students stagnate and medical education grinds to a halt.

These painful realities apparently induced the Government to fabri- B cate in its secretariat foundry a transitory strategy for the current ye4r.

This short-run project adopted each University as a unit which, as we have earlier explained, was good so far as it went.

But a dubious rider was added which invited the judicial Waterloo.

That is the bone of contention and so we excerpt the relevant portion :

"After considering the proposal in all its aspects Government have decided that lhe seats available for MBBS course after deducting the seats for mandatory admission may be distributed for the students of the two Universities in the ratio of the candidates registered for the pre-degree and B.Sc. course in the two Universities, taking the average of 1hc number of candidates registered for the pre-degree and B.Sc. degree courses with eligibility for admission to Medical Colleges for the last three years as the basis."

This operated as a cut back on the total 'Calicut' sea's as wholly available for the Calicut University studenl:S and, indeed, as urged by counsel for the respondent, subtly subverted the criterion of 'Ma'abar' backward-- • ness.

The Calicut Medical College and the Calicut University were created as the purpose-oriented mechanisms for progre3sivc elicfr, otbn of educational backwardness in that territory.

This objective would be fulfil- F led if the entire number of seats of the Calicut Medical College were exclusively made the entitlement for eligible students from colleges affiliated to that University.

A further slice knifed out of the cake would spell reversal OF policy.

We agree with the High Court that the injection of the universitY- G wise student-strength is drawing the red-herring across the trail-an irrelevance that invalidates the scheme.

We cannot see the nexus between the registered student-strength and the seats to be allotted.

The fewer the colleges the fewer the pre-degree or degree students.

And so, the linkage of the division of seats with the registered student-strength would make an irrational inroad into the university-wise allocation. Such H a formula would be a punishment for backwardness, not a promotion of their adrnncement.

We cannot uphold the discriminatory paring down based on unreason.

-~.

~··

KERALA V, ROSHANA (Krishna Tyer, J.) 991

Once this premise is reached the calculus is non-controversial.

The three medical colleges affiliated to the Kerala University have a total strength of 345 students and the only college affiliated to the Calicut University has a 'student strength of 180.

On these basic figures, the arithmatic worked out on the principles of deduction is beyond controversy. 42 students form the reserved quota and have to be apportioned between the two universities in the ratio of their student strength.

Making available of seats for candidates from other universities rs also common ground.

Both sides agree that the net number of seats available to be filled up, if we proceed solely on the principle of university-wise allocation, will be 166 for the Calicut University students and 317 for the Kerala University students.

The admissions, even on these agreed figures, will be subject to the die-hard rule of Communal reservation.

The further divi'sion of seats in the ratio of 60 : 40 as between the graduates and pre-degree candidates also has to be mamtained.

No question of complicating the numbers by any further injection of the population ratio between Malabar and Travancore-Cochin arises because the new formula takes care of the backwardness of Malabar and there cannot be double benefits.

Decoding the rules in simplex form, what we get in arithmatical terms is that the Calicut University students who have now been alloted under the Government formula 136 seats will be entitled to an extra 30 seats.

If we rigidly direct that these additional seats be assigned to the students emerging from the colleges under the Calicut University an equal number may have to be expelled from the students already admitted from out of the Kerala University quota.

This consequence becomes compulsive since the total strength sanctioned for the four medical colleges fixed by the two Universities and approved by the Medical Council of India is 525 seats.

Here comes the play of processual realism in moulding the relief in

!he given milieu.

The rule of law should not petrify life or be inflexibly mulish.

It is tempered by experience, mellowed by principled compromise, informed by the anxiety to avoid injustice and softens the blow G within the marginal limits of legality.

That is the karuna of the law .

Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make"1o as H best as it may, or throwing the situation open to agitational chaos to find a t

7-119 SCI/79

solution by demonstrations in the streets and worse.

We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vires and granting the relief to the petitioner of admission to the medical college.

The need for controlling its repercussions calls for judicial response.

After all, law is not a brooding omnipresence in the sky but an operational art in society.

The High Court's ultimate direction is : "We allow this writ petition and quash Exh. P2 G.O. to the extent to which it accepts alternative proposal of the committee referred to in Exh. P.l''.

The Court also observes : "We think it will be unfair in the circumstances to deny effective re.1ief to the writ petitioner ... " The relief claimed was admission to the medical college.

The upshot of the judgment, in terms of student impact, government policy, college admissions and potential for agitation, may be envisioned for a while.

We may also take note of the gregarious trend of one writ petition being followed by many when the grievance is common and the first case is in essence a test case and class action.

What is granted to the petitioner has to be granted to others who follow her.

In terms of numbers several candidates may have to be admitted into the medical college•.

More than that is the chaotic consequence of the pro tempore project of the Government being struck down with no alternative methodology of selection.

Governments have no magic remedies to tide over sudden crisis.

Their proceS&es are notoriously slow and the temper of the student community is notoriously inflammable.

Thus the negative stroke o! voiding the G.O. and granting relief to the pe; itioner is to throw out a number o! students already undergoing their course and to incite unwittingly student unrest of magnitude, apart from leaving the academic algebra for admissions in a state of vacuum.

One thing is ce1 tain.

If the syndrome of campus chaos is to be obviated, the court should come to the assistance of the Kera la University students already admitted and undergoing their medical course who might otherwise have to be jettisoned.

We, therefore, do not think it right to force into the medical colleges any students who may be qualified for admission by virtue of our order at the expense of another who has already b'en admitted and is undergoing the medical course.

This means that 30 students from the colleges affiliated to the Calicut University will have to be provided for ab extra.

But how to find accommodation for 30 more students?

The Universities concerned have the. power to increase the strength

<1d hoc when gripped by a crisis such as has occurred here.

TI1e Medical Council of India has an overall control in this field, being the statu-

• •

KERALA v. ROSHANA (Krishna Iyer, !.) 993

tory body created under the Indian Medical Council Act, 1956. Thus, A the concurrence of the Calicut and the Kerala Universities and the Medical Council of India becomes necessary for working out effective reliefs in terms of adding to the strength on a temporary footing, with a sense of equity and anxiety to do justice to the existing entrants .

Unfortunately, neither the Universities concerned nor th~ students B affected are parties.

The presence of the Medical Council of India also has to be secured.

Confronted by this situation, we directed, as a measure of emergency,, issuance of notice to the two Universities and made them party to the record.

A similar step was taken in the case of the Medical Council of India.

At short notice, all the three parties entered appearance.

Although Shri A. S. Nambiar, appearing for the Unive"ity, expressed inability to con'sent to any course of addition of strength, lie agreed that the concerned academic bodies were likely to meet shortly and the Universities themselves would abide by any directions this Court issued in the interests of Justice.

The learned Advocate General had earlier represented that the Univer'sities were likely to agree to a temporary addition of strength, provided the Medical Council of India would also approve of the course.

We need hardly say that the writ of this Court binds the parties on record and all the three bodies are before us and must abide by the directions we issue necessitated by the exigency of the situation and the need to do justice.

After all, the Court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong to the people.

This commitment is the whet stone for doing justice in the wider context of social good.

The Universities, as we gather from counsel representing all the parties, may not find it difficult to accommodate 30 students more, apportioned among the four medical colleges of the State.

This addition is compelled by the critical condition set out above.

This need will not survive this acade1nic }ear nnd, in that sense, no long term trauma for academic stan dards will be inflicted by each of the colleges accommodating a few more students for their courses this year.

After all, not much time has passed since the teaching session began.

Compared to their existing strength. the additions are negligible.

The Medical Council of India, through the learned Additional Solicitor General, has cxpressed that it has no objection to this proposal for n miniscule addition confined to this academic year.

We see no ground for either University to plead inability to help the cause of Justice.

The insistence on standards, measured by marks, is not being relaxed, so much so the quality of the admission of additional students does not suffer.

A marginal strain in the

matter of teaching and perhaps extra burden in regard to the practicals may have to be endured.

We are, therefore sure that the Universities " ' the colleges concerned, the teaching community and the alumni themselves will appreciate; the goal and cooperate in the success of the direction we make.

Had we left the Judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady-confusion, agitation, paralysis. The root of the grie\; ance and the fruit of the writ are not individual but collective and while the 'adversary system' makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprud'ence, transforms the court's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant.

Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary.

This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32 and we think the present cases deserve its exercise

We direct the State Government to admit 30 more willing students who are qualified under the rules and who are students from the colleges affiliated to the Calicut University-in order of the marks E secured.

They will be distributed by the Selection Committee among the four medical colleges of Government in an equitable way and their decision will be final.

The Kerala and the Calicut Universities will be bound to expand the strength of the medical colleges concerned for this year in obedience to this direction of the Court and the respective bodies under the Universities will act accordingly.

The selection of these 30 students will not be confined to those who have moved this Court or the High Court by way of writ proceedings or appeal.

The measure is academic excellence, not Iitigative persistence. It will be thrown open to the first 30, strictly according to merit measured by marks secured. The apportionment as between graduates and pre-degree students and the application of the communal reservation will apply to these 30 to be selected. The Selection Committee will make its decision on or before the 31st January 1979. The Universities concerned will convey their approval to the Government for the nceessary addition to the student strength in obedience to the direction of this Court on or before the 27th January 1979.

We direct the State Government for the coming academic year 1979-80, to allot 166 seats for the students from the colleges affiliated

- ~

• • '

KERALA v. ROSHANA (Krishna Iyer, J.) 995

to the Calicut University and 317 seats to the students from the colleges affiliated to the Kerala University, the formula regarding every other aspect being as indicated in this Judgment such as for the mandatory admissions, the apportionment between pre-degree students and th~ degree holders and other reservations .

hnother imperative step we cast on the two Universities, which are parties before us, and are, therefore, bound by this Order deserves to be clearly expressed.

Having regard to the utter confusion in medical studie's that may be produced by keeping the unification of syllabi and methodology of examinations in a flux we think it absolutely essential to fix a time target for the University bodies to act.

Government will issue necessary directions to its representatives on these bodies to accelerate the pace.

We expect both the Universities to implement the proposal made by the Committee and accepted by the Government regardnig the uniform curricula and common examination system and allied matters in such manner that there will be no inequality as between students emerging from one University and the other within the State.

This process shall be completed on or before 31st May 1979.

We are aware that these various directions and orders call for high pressure activisation.

Perhaps, we may emphasise the need for guarding against the slow march of bureaucratic movement embodied in Lord Curzon 's lament respecting the administration of his time, a state of affairs wholly opposed to the dynamic fulfilment of the imperatives cast by the Constitution upon the nation and its institutions. Said Lord Curzon in a despatch to the Secretary of State :

"Your despatch of August 5th arrived. It goes to Foreign Department.

Thereupon Clerk No 1 paraphrases and comments upon it over 41 folio pages of print of his own composition, dealing solely With the Khyber suggestions in it. Then comes Clerk No. 2 with 31 more pages upon Clerk No. 1.

Then we get to the region of Assistant Secretaries, Deputy Secretaries and Secretaries.

All these gentlemen state their wcrthles£ views at equal length.

Finally we get to the top of the scale and we find the Viceroy and Military Member, with a proper regard for their dignity, expanding themselves over a proportionate space of print.

Then these papers wander about from Department to Department and amid the various Members of Council.

I am grappling with this vile system in my own department, but it has seated i{self like the

Old Man of the Sea upon the shoulders of the Indian Government and every man accepts, while deploring the burden."(!)

Hopefully, we part with this case with the thought that there will be no occasion for any party to move for extension of time or to prove that the curse Lord Curzon spelt out still haunts the wheels of administration.

The appeal is allowed; so also the writ petition-in the manner and to the extent we have directed.

The parties will bear their costs.

The decisional guidelines herein given will, we dare say, so he, Jp dispose of the many Writ Petitions pending in the High Court.

The journey to the Supreme Court is not always necessitous for final justice.

ORDER.

WhiJe, there is agreement that thirty seats more have to be added as has been indicated in the judgment making the total number of seats allocable to the students of the Calicut University to 166, there is some dispute regarding the number of seats available for the students belonging D to the Kerala University.

We have mentioned in the judgment that it is 317.

It is open to the State Government or to the concerned Universitie's to bring it to the notice of the court in case there is any clarification necessary.

N.V.K.

Appeal & Petition allowed.

(1) Culled from David Dike-Curzon in India

• ,

4

STATE OF KERALA

KUMARI T. P. ROSHANA & ANR

R S. PATHAK, JJ.

Art. 14

S 10

State of K.crala

Art. 15

Kcrala

Calicut

Art. 226

Art. 14

Art. 14

Siame University

Art 14

India

Art.

1

Art. 32

CivIL APPELLATE JURISDICTION

M. M. Abdul Khader

V. J. Francis

Mustafa K. Rowter

P. V. Govindan Nair

N. Sudhakaran

Baby Krishnan

V. A. Sayid Muhammad

S. K. Mehta

P. K. Shamshuddin

P. N. Puri

E. M. Sarul

A. S. Nambiar

KRISHNA IYER

Art. 32

Kerala

Kerala State

Calicut University

Calicut Medical College

Trichur

Art. 32

Malabar

Rafia Rahim

Malabar District

Kerala High Court ( 1964 KLT 298)

Art. 15(4)

Art. 14

Ke.rala University

Art. 14

KERALA

Krishna Tyer

Art. 14

Art. 14

Triloki Nath Khosa

Oiandrachud

Art. 14

Indian Medical Council Act, 1956

Medical Council of India

Art. 14

Art. 14

Chanchala

Chanchala

She lat

Shelat

Art. 14

Krishna Iyer

July 14, 1978

Kerala and Calicut Universities

Kerala University

Malabar

Travancore-Cochin

Council of India

Indian Medical Council Act, 1956

Calicut

A. S. Nambiar

Art. 136

Art. 32

Calicut Universities

31st January 1979

27th January 1979

ROSHANA

We direct the State Government for the coming academic year 1979-80, to allot 166 seats for the students from the colleges affiliated
~

• • '

KERALA v. ROSHANA (Krishna Iyer, J.) 995

to the Calicut University and 317 seats to the students from the colleges affiliated to the Kerala University, the formula regarding every other aspect being as indicated in this Judgment such as for the mandatory admissions, the apportionment between pre-degree students and th~ degree holders and other reservations .

31st May 1979

Curzon

Indian Government

Supreme Court

N.V.K.

David Dike-Curzon


• '

MOHD. SHABIR

STATE OF MAHARASHTRA

lanuarv I 7, 1979

jS, MURTAZA FAZAL Au AND A. D. KOSHAL, JJ.J

Drugs and Cos1netics Act, 1940, S. 27, "Stocks or ixizibits for sale" interpre1:11.un--Pos:, e:,., ior1 sitnpliciter of drug, w!1ctfi,.,. sufficient for conviction.

The appellant \Vas apprehended at the Bhusawal railway statitJn, and 17 containers with 17,000 white tablet~ v.rere recovered from him. The tablets were tested by the public analyst, and found to be not in accordance with the

standard specified under s. 18(a) of the Drugs and Cosmetics Act. The appel- C lant was duly tried and convicted by the Trial Magistrate, under Sections 27(a){ii) and 28 of the Act.

The appellant pleaded guilty, and in view of his young aae, and that it was his first offence, the Magistrate sentenced him only till the rising of the Court. But in revision, the High Court enhanced the sentence to cine venr"~ R.l.

It was contended that as there was no evidence to shov.· that the tablets were ''for sale", their possession simpliciter, of any quantity whatsoever, 'vould not constitute <1'fl offence under s. 27.

Allowing the appeal as regards the conviction under s. 27, the Court,

HELD : 1.

Thr absence of any comma after the word "stocks" clearly indi~ cates that the clause "stocks or exhibit'\ for sale" is one indivisible whole and it contemplates not mere stocking the drugs, but stocking the drugs for the purpose of sale, and unless all the in2:redients of this category are satisfied, section 27 of the Act would not be sati..fied. [999 F-Gl

2. There i') no evidence to show that te appellant had either ot these tablets. for sale. or 'vas selling them or had stocked them for s2Ae.

Before a person can be liable for prosecution or conviction under s. 27(a)(i)(ii) read with s. 18(c) of the Act, it must be proved by the prosecution affirmatively

that he was manufacturing the drugs for sale or was selling the same, or had F

~!Lcl.:ed lhun or exhibited the articles for sale.

The pos'.lession si111pliciter of the artiles does not app'ear to be punishable under any of the provisions of the Act. f999 G. 1 000 B-Cl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 103 of I 975.

Appeal by Special Leave from the Judgment and Order dated 12-2-1973 of the Bombay High Court in Criminal Application No. 774/ 72 ..

U. I'. Sinph for the Appellant.

H. R. Khanna and M. N. Shroff for the Re>pondent.

The Judgment of the Court was delivered by H

FAzAL Au, J.-Tn this appeal by special leave the appellant ha!!' been convicted under section 27 (a) (i) of the Drugs and Cosmetics

Act, 1940 and sentenced to rigorous imprisonment for one. year and a fine of Rs. 200/- as modified by the High Court.

The trial court also convicted the appellant under section 27 (a) (ii) and section 28 of the Act but no separate sentence was awarded under these counts. The trial court had, in fact, imposed a sentence of imprisonment only till the. rising of the Court but the High Court in its revisional jurisdiction enhanced the sentence lo one year's rigorous imprisonment, and hence this appeal by sepcial leave.

According to the prosecution, on 5.5.1970 at about 11.30 a.m. the complainant Drugs Inspector, Jalagaon received a telephonic meassage from the Senior Railway Sub-Inspector Bhusawal to the effect that the appellant had been caught at the Bhusawal railway station with 17 plastic containers containing 17,000 white coloured tablets.

On receiving this message the complainant went to Bhusawal railway station on the next day and after taking permission from the magistrate he took the sample or the tablets and sent it to the public analyst and after receiving his report, he filed a complaint against the appellant under the various sections of the Drugs and Cosmetics Act,

1940. The learned trial magistrate framed two charges against the appellant.

One charge was under section 27 (a) (i) and 27 (a) (ii) of the Drugs and Cosmetics Act (hereinafter referred to as the "Act") and the other charge related to section 28 read with section 18A of tho Act.

The appellant pleaded guilty to the charge and admitted all the facts contained in the charge.

The appellant, however, stated that as this was his first offence, he promised not to commit any offence again and as he was an agriculturist and a young man, he pleaded for mercy.

The prosecution in support of the case examined the complainant to prove the facts leading to the prosecution of the appellant. The learned magistrate accepted the plea of guilty and convicted the appellant as indicated in the judgment.

The High Court, however, enhanced the sentence as mentioned above.

Mr. U. P. Singh appearing in support of the appeal has raised a short point before us.

He has submitted that taking the prosecution case at its face value, no offence can be said to have been committed under G section 27 (a) (i) or (ii) of the Act.

It was submitted that the ingredients reguired by section 27 have not been proved in this case and therefore, even if, the accused pleaded guilty, that will not enable the prosecution to convict him on his plea of guilty.

Section 18 ( c) runs tlius

"manufacture for sale, or sell, or stock or exhibit for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter."

Section 27 is the penal section under which the offence is punishable and this section runs thus :

"Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes-( a) any drug-

(i) deemed to be misbranded under clause, (a), clause (b), clause (e), clause (d), clause (f) or clause (g) of secton 17 or adulterated under section l 7B; or

(ii) without a valid licence as required under caluse (c) of section 18."

shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine.;

Provided that the Court may, for any special reasons to be

recorded in writing impose a sentence of imprisonment of less D than one year;"

It was contended by Mr. Singh that in order to fall within the. ambit of this section the accused must manufacture the drugs for sale or stock or exhibit for sale or distribute the same.

There is no evidence in this case to show that the. appellant had any shop or that he was a distributing agent.

All that has been shown is that the tablets concerned were recovered from his possession.

It was urged that possession simpliciter of the tablets of any quantity whatsoever would not fall within the mischief of section 27 of the Act. On an interpretation of section 27, it seems to us that the arguments of Mr. Singh is well founded and must prevail.

The words used in section 27, name.ly,, "manufacture for sale", sells, have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale".

Thus the section postulate three separate categories of cases and no other. (I) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs.

The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale'' is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, section 27 of the Act would not be attracted.

Jn the present case there is rio evidence to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale.

Mr. Khanna appearing for the State, however, contended that the word "stock" used in section is wide enough to include the possession

of a person with the tablets and where such a person is in the possession of tablets of a very huge quantity, a presumption should be; drawn that they were meant for sale or for distribution.

In our opinion, the contenton is wholly untenable and must be rejected.

The interpretation sought to be placed by Shri Khanna does not flow from a true and proper interpretation of section 27.

We, therefore, hold that before a person can be liable for prosecution or conviction under section 27 (a) (i) (ii) read with section 18 (c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale.

The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act.

If, therefort>, the essential ingredients of section 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant.

As regards the second charge, it seems to us that the case of the appellant is clearly covered by the language contained in section 18A read D with section 28.

Section 18A runs thus :

"Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the same, address and other particulars of the person from whom he acquired the drug or E cosmetic."

Section 28 which makes no disclosure of ! 8A punishable reads thus :

"Whoever contravenes the provisions of section 18A shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both."

In this case, there is unchallengable evidence of the complainant that after recovering tablets from the possession of the appellant, he had served a registered notice to him to disclose the source from which he had acquired the tablets and despite this notice the appellant refused to disclose the source.

Thus the act of the appellant clearly falls within the ambit of section 28 of the Act.

The trial court further did not impose any separate. sentence under this section.

But that will not be a bar to imposing a proper sentence by this Court provided the sentence does not exceed the sentence already imposed under section 27 (a) (i).

When the High Court was moved for enhancing the sentence, it wa's moved only under section 27 (a) (ii) of the Act because under that

• •

section the minimum sentence !o be given was one year.

As the High Court was not satisfied with the reasons given by the trial conrt for giving sentence less than one year it appears to have enhanced the sentence to one year.

In view of our finding that section 27 (a) (i) have no application to this case, the charge on this count against the appellant must fail and the appellant must be acquitted of this charge.

So far as section 28 is concerned the' maximum punishment which can be imposed is only one year.

The appellant is a young man and comes from a respectable family and had made a very candid confession before the Court in pleading guilty.

In these circumstances, we therefore do not think that any deterrent sentence is called for.

We would, therefore, uphold the conviction of the appellant under section 28 but give the sentence till the rising of the Court which he has already undergone. The appellant will now be released forthwith.

The sentence of a fine of Rs. 200 will be maintained under section 28 and not under section 27

(a) (i).

The fine if not paid shall be paid within a month from today.

Accordingly, the appeal is allowed in part.

M.R .

Appeal allowed in [Nirf.

MOHD. SHABIR

STATE OF MAHARASHTRA

A. D. KOSHAL, JJ

S. 27

s. 18(a)

Drugs and Cosmetics Act

Sections 27(a)

s. 27

s. 27

section 27

s. 27(a)(i)(ii)

s. 18(c)

U. I'. Sinph

H. R. Khanna

M. N. Shroff

H

FAzAL Au

section 27

Act, 1940

section 27

section 28

Jalagaon

Bhusawal

Bhusawal railway station

Drugs and Cosmetics Act

section 27

Drugs and Cosmetics Act

section 28

section 18A

U. P. Singh

section 27

section 27

Section 18

Section 27

section 18

Singh

section 27

section 27

section 27

section 27

Khanna

section 27

section 27

section 18

section 27

section 18A

section 28

Section 18A

Section 28

section 18A

section 28

section 27

section 27

section 27

section 28

section 28

section 28

section 27


-- y

VIMAL CHAND JAWANTRAJ JAIN

SHRI PRADHAN AND ORS.

May 4, 1979

[P. N. BHAGWATI AND R. S. PATHAK, JJ.]

Conservation of Forei,::11 Exchange and Prevention of Sn1ug1-Jing Actil'ities Act, 1974 (Act 52 of 1974)-Representation of the petitioner not considered by the State Govenunent-Confinning the detention order 011 the basi, r of the Advisory Bot1rd's report is inta[id being in contravention of Article 22(5) of

the Constitu!ion-Subsieque11t consideration and rejection of the repre, entation C could not cure the itnalidity of confirn1ation of detention.

The detenu under the COFEPOSA challenged the orders detaining him as violative of Art. 22(5) of the Constitution on the ground that his representa tion was neither considered nor disposed of by the Secretary to the Government of Maharashtra, though the latter intimated by his letter dated 22nd December

1978, that the issue of copies of relevant documents and statement to him \Vas D under consideration of the Government and after that issue was decided the petitioner's representation would be considered and a suitable reply would be given. The admitted fact was that the State Government confirmed the order of detention solely on the basis of the report of the Advisory Board.

AllowiI!g the Writ Petition, the Court,

HELD : 1. The power to preventively detain a person cannot be exercised E except in accordance with the constitutional safeguards provided. in clauses

(4) and (5) of Article 22 and if an order of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these constitutional safeguards are incorporated in the Jaw authorising preventive detention because even if they are not, they would be deemed to be ro.rt of law as a superimposition of the Constitution which is the supreme la\v of the laud and they must be obeyed on pain of invalidation of the o: di:T F of detention. [1010 B-D].

2. The constitutional imperative enacted in clause (5) of Article 22 requiring the earliest opportunity to be afforded to the detenu to make a represento.-

tion carries with it by necessary implication a constitutional obligation on the detaining authority to consider the representation as early as possible before making an order confirn1ing the detention. The detaining authority must G consider the representation of the detenu and come to its own conclusion whether it is necessary to detain him. If the detaining authority takes the view, on considering the representation of the detenu, that it is not necessary to detain him, it would be wholly unnecessary for it to place the case of the detenu before thl Advisory Board. The requirement of obtaining opinion of the Advisory Boord is an additional safeguard over and above the safeguard afforded to the detenu of making a representation against the order of detention. The opinion H of the Advisory Board even if given after consideratio~ of thereprese, ntation of the detenu need not necessarily be binding on the detaining authority. [1011 C-E]

SUP>.EME COURT REPORTS [1979] 3 s.c.R.

There are thus two distinct safeguards provided to a detenu: one is that his

cne n1u5t be referred to an Advisory Ilo.1rd for its opinion if it is sought to ddain him fer a longer period than three months and the other is that he should b:: afforded the earliest opportunity of making a representation against the

orl~::r of ct, tcntion and such representation should be conside-red by the detain~

ing auth(1J ity as early as possible before any order is m:ide confirming the dctc>!1tion.

Neither safeguard is dependent on th.:! other and both have to be ob'icrvtd by the detaining authority. The detaining authority is therefore, bound to conider the representation of the detenu on its own and keeping in view all the facts and circumstances relating to the case, come to its own deci5icn whether to confirm the order of detention or to release the di.::tenu.

The subsequent consideration o.nd rejection of the representation could not cure the in\alidity of the order of confirmation.

[1012C~G, 1013E].

Khudiratn Das v. State of West Bengal, AIR 1975 SC 550; Khairul Haque

v. The State of West Bengal, W.P. 246/69 decided on 10-9-69; referred to.

CRIMINAL ORIGINAL JURISDICTION : Writ Petition No. 146 of 1979.

(Under Article 32 of the Constitution)

R. Jethmalani and Mrs. K. Hingorani for the Petitioner.

U. R. Lalit, J. L. Jain and M. N. Shroff for the Respondents.

The Judgment of the Court was delivered by

E BHAGWATI, J., This petition is directed against the validity of an order of detention dated 31st November, 1978 made by the lirst respondent who is the Secretary to the Govermnent of Maharas'., tra, Home Department in exercise of the power conferred under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 197 4 (hereinafter referred to as the Act).

F The petitioner has urged several grounds before us but it is not neces• Fary to refer to them since there is one ground which is in our opinion sufficient to dispose of the petition in favour of the petitioner.

To appreciate this ground, it is necessary to state a few facts.

On 13th November, 1978, an order was made by the !st respon-

. G dent in exercise of the power conferred on him under sub-section (I) of section 3 of the Act directing the detention of the petitioner. Pursuant to the order of detention, the petitioner was arrested and he was immediately served with the grounds of detention which were embodied in a communication dated 13th November, 1978 addressed by the !st respondent to the petitioner.

The grounds of detention were quite

, H elaborate and they alleged various smuggling activit; es against the petitioner and several statements and documents were referred to and relied upon in support of those allegations.

The petitioner, by hi•

fr'f--

' •

advocate's Jetter dated 25th November, 1978, requested the ]st respondent to furnish copies of the statements and documents referred to .and relied upon in the grounds of detention and stated that he required the same for the purpose of enabling him to make a representation against the order of -detention.

It sems that a copy of this letter was also sent by the petitioner to the Collector of Customs.

The Assistant Secretary to the Government of Maharashtra, Home Department, informed the petitioner's advocate by his letter dated 27th November, 1978 that copies of the relevant documents and statements required by the petitioner for the purpose of making a representation against the order of detention may be obtained from the Collector of Customs. The petitioner thereupon addressed his advocate's letter dated 2nd December, 1978 to the Collector of Customs requesting him to furnish copies of the relevant documents and statements.

The Assistant Collector of Customs, however, replied by his letter dated 6th December, 1978 stating that copies of the relevant documents and statements would be supplied after a show cause notice under the Customs Act, 1926 was issued to the petitioner. The petitioner was thus unable to get copies of the relevant documents and statements from the Collector of Customs.

The petitioner obviously could 11ot wait for making a representation since the period of thirty days within which a representation must be made was expiring and he, therefore,

ent a representation dated 4 /9th December, 1978 to the Home Secretary and it was received by the Home Department on 12th December 1978. The Asstt. Secretary, Ho; ne Department, by his letter dated 22nd December, 1978, acknowledged that the representation of the petitioner was received on 12th December, 1978 and intimated that the issue regarding the supply of copies of relevant documents and ' statements to the petitioner was under consideration of the Government .and alter this issue was decided, the representation of the petitioner would be considered and a suitable reply would be given.

Now it appears from the affidavit in reply filed by the !st respondent that the case of the petitioner was in the meanwhile referred to the Advisory Board and since the meeting the Advisory Board was fixed on 20th December, 1978, the representation of the petitioner was forwarded to the Advisory Board for its consideration.

The Advisory Board reported to the 1st respondent that in its opinion there was sufficient cause for the detenion of the petitioner, and this report was received by the 1st respondent on 6th January, 1979.

The !st respondent, .alter considering the report of the Advisory Board made an order dated 15th January, 1979 confirming the detention of the petitioner.

The petitioner on these facts contended that the order confirming the detention of the petitioner was passed by the 1st respondent without considering the representation of the petitioner and the detention of the petitioner was, therefore, unlawful as being in contravention of Article 22 ( 5) of the Constitution.

This contention has in our opinion great force and it must result In invalidation of the detention of the petitioner. It is" now settled Jaw that the power to preventively detain a person cannot be exercised except in accordance with the constitutional safegudards provided in clauses ( 4) and

(5) of Article 22 and if any order of detention is made in vio1ation of such safeguards, it would be liable to be struck down as invalid.

It is immaterial whether these constitutional safeguards are incorporated in the law authorising preventive detention, because even if they are not, they would be deemed to be part of the law as a superimposition of the Constitution which is the supreme law of the land' and they must be obeyed on pain of invalidation of the order of detention.

The 1st respondent was, therefore, bound to observe theconstitutional safeguards provided inter alia in clauses ( 4) and ( 5) of Article 22 in detaining the petitioner.

We are concerned in this; case only with a complaint of violation of the provisions of clause (5) of Article 22 and that clause reads as follows :

"When any person is detained in pursuance of an order E made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

Ill

This Court explained the true meaning and import of this clause 111: Khudiram Das v. The State of West Bengal(') :

"The constitutional im!"'ratives enacted in this article are twofold : (!) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention.

These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security."

(!)A. I. R. 1975 S. C. 550.

• •

It will, therefore, be seen that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention.

Now this requirement wonld become illusory unless there is a corresponding o!Jligation on the detaining authority to consider the representation of the detenu as early as possible. It could never have been the intention of the constitution makers that the detenu should be given the earliest opportunity of making a representation against the order of detention but the detaining authority should be free not to consider the representation before confirming the order of detention.

That would render the safeguard enacted by he constitution-makers meaningless and futile.

There can, therefore, be no doubt that the constitutional imperative enacted in clause (5) of Art. 22 requiring the earliest opportunity to be afforded to the detenu to make a representation carries with it by necessary implication a constitutional obligation on the detaining authority to consider the representation as early as possible before making an order confirming the detention.

The detaining authority must consider the representation of the detenu and come to its own conclusion whether it is necessary to detain him. If the detaining authority takes the view, on considering the representation of the detenu, that it is not necessary to detain him, it would be wholly unnecessary for it to place the case of the detenu before the Advisory Board. The requirement of obtaining opinion of the Advisory Board is an additional safeguard over and above the safeguard afforded to the detenu of making a representation against the order of detention.

The opinion of the Advisory Board even if given after consideration of the representation is no substitute for the consideration of the representation by the detaining authority.

This Court pointed out in Khairul Haque v. The State of West Bengal(')

"It is implicit in the language of Article 22 that the appropriate Gove_mment, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.

It has to consider the r•epresentation on its own without being influenced by any such view of the Board. There was, therefore, no reason for the Government to wait for considering the petitioner's representation until it had received the report of the Advisory Board.

As laid down in Sk. Abdul Karim v.

State of West Bengal (AIR 1969 SC 1028) (supra), the obligation of the appropriate Government under Art. 22 ( 5)

(1) W. P. 245 of 1969, dee. on Sept. 10, 1969.

is to consider the representation made by the detenu as expeditiously as possible.

The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be expressed by the Advisory Board.

The fact that Art. 22(5) enjoins upon the detaining authority to afford to the dctenu the earliest opportunity to make a representation must implicity mean that such representation, must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning."

There are thus two distinct safeguards provided to a detenu; one is that his case must be referred to an Advisory Board for iis opinion if it is sought to detain him for a longer period than three months and the other is he should be afforded the earliest opportunity of making a representation against the order of detention and such representation should be considered by the detaining authority as early as possible before any order is. made confirming the detention.

Neilhc;· safeguard is dependent on the other and both have to be observed by the detaining authority. It is no answer for the detaining authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board has considered the representation and then made a report expressing itself in favour of detention.

Even if the Advisory Board has made a report stating that in its opinion there is sufficient cause for the detention, the State Government is not bound by such opinion and it may still on considering the representation of the detenu or otherwise, decline to confirm the order of detention and release the detenu. The detaining authority is, therefore, bound to consider the representation of the detenu on its own and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to release the detenu.

Here in the present case, the representation of the petitioner was received by the Home Department on 12th December, 1978 and it was immediately forwarded to the Advisory Board because the meeting of the Advisory Board was fixed on 20th December, 1978. ff The report of the Advisory Board stating that in its opinion there was sufficient cause for the detention of the petitioner was received by the !st respondent on 6th January, 1979 and on the basis of this report,

...

• •

_)-

the 1st respondent confirmed the order of detention on 15th January,

1979. There is nothing on the record to show that the 1st respondent considered the representation of the petitioner before making the order confirming the detention of the petitioner. We do not find anywhere in the affidavit of the 1st respondent in reply to the petition any statement that he considered the representation of the petitioner before making the order of confirmation dated 15th January, 1979. On the contrary, there is a positive statement in paragraph 16 of this affidavit that the detention order was confirmed after consideration of the report of the Advisory Board which was of the opinion that the detention should be continued. We called upon the learned advocate appearing on behalf of the 1st respondent to place before us the file relating to the detention of the petitioner and when this file was shown,, we found that there was an endorsement made on 12th March, 1979 which showed that it was only on that date that the representation of the patitim1er was considered by the 1st respondent and rejected. This is also borne out by the letter dated 12th March, 1979 addressed by the Deputy Secretary, Home Department to the petitioner stating that the representation was considered by the "Advisory Board/Government" and his

request for release from detention could not be granted. It is, therefore, amply clear from the record that the representation of the petitioner WGS not considered by the !st respondent before he confirmed the order of detention. The !st respondent thus failed to comply with the constitutional obligation imposed upon him under clause ( 5) of Art. 22. The subsequent consideration and rejection of the representation could not cure the invalidiy of the order of confirmation.

The detention of the petitioner must, therefore, be held to be illegal and void.

These were the reasons for which we made our order dated 11th April, 1979 quashing and setting aside the detention of the petitioner and directing that the petitioner be set at liberty forthwith .

S.R.

Writ petition allowed_

y

VIMAL CHAND JAWANTRAJ JAIN

PRADHAN AND ORS

May 4, 1979

P. N. BHAGWATI

R. S. PATHAK, JJ.

Article 22(5)

Art. 22(5)

22nd December

1978

Article 22

Article 22

AIR 1975 SC 550

Article 32

R. Jethmalani

K. Hingorani

U. R. Lalit

J. L. Jain

M. N. Shroff

E BHAGWATI

31st November, 1978

section 3

13th November, 1978

section 3

2nd December, 1978

6th December, 1978

Customs Act, 1926

4 /9th December, 1978

12th December 1978

22nd December, 1978

12th December, 1978

20th December, 1978

6th January, 1979

15th January, 1979

Article 22

Article 22

Article 22

Article 22

clause 111

Article 22

Art. 22

Article 22

AIR 1969 SC 1028

Art. 22

Art. 22(5)

12th March, 1979

Art. 22