In the Supreme Court of India
Equivalent Citation:
1955 AIR 334, 1955 SCR (1)1215
Petitioner:
D.P. Joshi
Respondent:
The State of Madhya Bharat and Ors.
Decided on
27 January, 1955
Bench
Mukherjee, Bijan Kr. (Cj), Bose, Vivian, Jagannadhadas, B., Aiyyar, T.L. Venkatarama, Sinha,
Bhuvneshwar P.
Relevance of the case
It was in this case that the question of domicile-based classification and its validity came before the Supreme Court for the first time. For the advancement and development of human beings, education is considered a very strong device. The image of the future of an individual is enlarged and becomes more respected. In respect of education, the constitution provisions relate to non-discrimination in the educational institutions, measures for educational promotions and the equal representations for all.
Facts and Background
The case was filed against a medical college at Indore known as the Mahatma Gandhi Memorial Medical College run by the State of Madhya Bharat. The petitioner, who was a resident of Delhi was admitted as a student of this College in July 1952, and at the time of the petition, was studying in the third-year class, M. B. B. S. Course. His complaint was that the rules in force in this institution discriminate in the matter of fees between students who are residents of Madhya Bharat and those who are not, and that the latter have to pay in addition to the tuition fees and charges payable by all the students a sum of Rs. 1,500 per annum as capitation fee.
The petitioner accordingly prays that an appropriate writ under Article 32 of the Constitution might be issued, prohibiting the respondent from collecting from him capitation fee for the current year, and directing a refund of Rs. 3,000 collected from him as capitation fee for the first two years.
According to the rules of the college, the number of seats available at a time for admission were 50, and they were classed into two groups, nominees and ordinary students and that those students called nominees should pay, in addition to the usual fees and charges, a capitation fee of Rs. 1,300 per annum. Then came the rule which is at the root of the present controversy. It provided that “Madhya Bharat students are exempted from capitation fees”.
After the State took over the management, it introduced certain modifications in the rules, in place of the rule that “Madhya Bharat students are exempted from capitation fees” a new rule was substituted, which runs as follows: “For all students who are ‘bona fide residents’ of Madhya Bharat no capitation fee should be charged.
The issue before the court, as brought forth by the contention of the petitioner was that whether this was in contravention of article 14 and 15(1) of the Constitution.
“14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
The court consisted of five judges in which Justice(s) Mukherjee, C.J, Bose, Ayyar and Sinha gave assenting judgement and Justice Jagannadhas gave a dissenting Judgement.
Arguments
Of Petitioner
The main contention of the petitioner stands that the rule enacted by the state is in contravention of article 15 of the Constitution since it discriminates between students on the basis of ‘place of birth.’
Though the rule purports to grant exemption based on residence within the State, the definition of bona fide residence under the rule shows that the exemption is really based on the place of birth. Considerable emphasis was laid on clauses (a) and (b) of the rule wherein ‘residence’ is defined in terms of domicile, and it was argued that the original domicile, as it is termed in the rules, could in substance mean only place of birth, and that therefore the exemption based on domicile was, in effect, an exemption based on place of birth under an alias.
Under the Constitution there can be only a single citizenship for the whole of India, and that it would run counter to that notion to hold that the State could make laws based on domicile within their territory.
Clause (d) introduced a new element unconnected with domicile or residence which formed the basis of the previous clause, that it put foreign nationals on a more advantageous footing than Indian citizens, and that the entire rule must be discarded as based on no rational or intelligible principle.
Of Respondent
The rule in question is a mere administrative or executive order, and that however liberally the word “law” might be construed, it should be limited to what is an expression of the legislative power and cannot comprehend what is an executive order.
As the institution was originally under private management and the State took it over subject to the conditions under which it was run, it was bound to enforce the rule relating to the payment of capitation fee which was previously in operation.
Held
The argument of the petitioner that the rule offends article 15 of the Constitution does not hold ground because there exists significant difference between resident of a place and place of birth. The ground for exemption from payment of capitation fee as laid down therein is bona fide residence in the State of Madhya Bharat.
According to the Court, Domicile of a person means his permanent home. In order to emphasis on the definition of domicile, the Court made use of Whicker v. Hume [1859] and Somerville v. Somervill [1801].[1]
Citizenship and domicile are two different conceptions. Citizenship has reference to the political status of a person, and domicile to his civil rights. In order to make this point more relevant, the Court reiterated what is written in Article 5 of the constitution, which defines Citizenship. This itself is very distinguished from domicile.
“5. Citizenship at the commencement of the Constitution At the commencement of this Constitution every person who has his domicile in the territory of India and
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.”
Hence, there is considerable force in the contention of the respondent that when the rule-making authorities referred to domicile in clauses (a) and (b) they were thinking really of residence. In this view also, the contention that the rule is repugnant to article 15(1) must fail.
The validity of the reservation under article (d) however, does not arise for decision in this petition, and as clauses (a) to (c) rest on a classification based on domicile and residence, and are distinct and severable from clause (d), they would be valid even if clause (d) were to be held bad.
The court further held that the rule was also not violative of Article 14 because the classification was just and reasonable because it was based on a ground which was a primary duty of state i.e. to encourage education within its geographical boundaries.
The Court did not consider it necessary to express any opinion on the question whether it was a law or not because it proceeded on the even footing that it was a law.
The terms under which the State took over expressly reserve only the agreement for reserving seats for the nominees of participating States and donors, and do not contain any undertaking to maintain the rule relating to imposition of capitation fee. Whether if such an undertaking had been given it could have been set up in answer to a fundamental right, does not therefore arise for decision.
But a dissenting judgement was given by Justice Jagannadhas, who held that though “place of birth” and “place of domicile” were two different things but there is no such place for regional domicile in Indian law and under the given circumstances the phrase original domicile in Madhya Bharat is meant to convey the “Place of Birth” and thus this rule primarily offends Article 15(1) of the Constitution and such distinction can also be not termed reasonable under article 14 of the constitution.[2]
Thus by majority the writ was dismissed and it was held by majority that the rule of the Madhya Bharat government was not in contravention with the constitutional norms.
Edited by Dhruval Singh
Approved & Published – Sakshi Raje
Reference
[1] [1859] 28 L.J. Ch. 396, [1801] 5 Ves. 750, Arden, Master of Rolls
[2] Case Analysis: D.P Joshi vs The State of Madhya Bharat, Syed Ahmad, LawLex.org, https://lawlex.org/lex-bulletin/case-analysis-d-p-joshi-vs-the-state-of-madhya-bharat/5235
