1. This petition has been referred to a Division Bench by Venkataramiah, J.
2. The petitioner was an applicant for admission to Kasturba Medical College at Manipal (respondent-2). In this petition under Articles 226 and 227 of the Constitution of India, he has prayed for quashing Rule 3 of the Karnataka Medical Colleges (Selection for Admission) Rules, 1975, (hereinafter referred to as the Rules). He has also prayed for issue of a writ in the nature of mandamus directing respondent-2 to affirm his admission to that College ignoring Rule 3 of the Rules.
3. Before adverting to the facts of the case, it is useful to state the set up of Medical Colleges in Karnataka State and how students are admitted to them.
4. In Karnataka State, the State Government has been running 4 Medical Colleges at Mysore, Bangalore Hubli and Bellary and there are 5 non-Government Medical Colleges including respondent-2 College. These private Medical Colleges do not get any grant in aid either from the Central Government or the State Government, However, four of these private Medical Colleges including respondent-2 College, have been permitted by the State Government to utilize clinical facilities in Government Hospitals.
5. Admission to Government Medical Colleges is governed by Rules made by the Government from time to time. At a meeting of the representatives of the State Government and the representatives of the management of these private medical Colleges held on 27-6-1975, it was agreed as to bow certain numbers of seats in these Colleges should be allotted to different categories of applicants. The management of respondent-2 College agreed, inter-alia, that 33 seats should be reserved for 'students of Karnataka' on payment of a capitation fee of Rs. 10,000 only, that selection of 'Karnataka Students' should be done by the Governing Body of that College at a meeting at which the Additional Director of Health Services in Karnataka State should be present and that selection of 'Karnataka Students' should be done purely on the basis of merit.
6. Rule 2 of the Rules which prescribes the eligibility for admission to Government medical Colleges, sets out the academic qualifications and the minimum percentage of marks in optional subjects for being eligible for admission.
7. The heading of Rule 3 is 'Domicile, etc.'. main part 4 sub-rule (1) of that Rule, reads:
'No person who is not a citizen of India and who has not studied in any educational institution in the State of Karnataka for Dot less than ten years at any time prior to the date of the application for a seat shall be eligible to apply;'
8. The proviso to that sub-rule exempts certain categories of applicants from the requirement of the main part of that sub rule.
9. Sub-rule (2) of Rule 3 provides that in the cases of children and wards of members of Parliament, the period during which they (such children and wards) studied in any educational institutions in New Delhi while staying with their parents and guardians who were members Of Parliament, shall be treated as the period of study in educational institutions in the State of Karnataka.
10. Rule 4 sets apart certain numbers of seats for certain special categories of applications like applicants from neighbouring States and countries and children of defence personnel, ex-defense personnel, and political sufferers.
11. Rule 5 provides for reservation of certain percentages of seats in favour of Scheduled Castes, Scheduled Tribes and socially and educationally Backward classes.
12. Rule 10 prescribes the procedure for selection of candidates on the basis of marks secured by them in the Pre-University examination or Degree examination, subject to reservation for Scheduled Castes and Scheduled Tribes and other Backward classes.
13. We shall now briefly set out the facts of this case. The petitioner's parents were born in Karnataka State, but have been residing outside Karnataka State since several years. The petitioner was residing with them till the year 1972 when be joined a school in Bangalore. After passing out from that school, he studied in a College in Bangalore and passed the pre-University in the year 1975. In the final Pre-University examination he secured a first class and 83 per cent marks in the optional subjects. He applied for admission to respondent-2 College which, by its letter dated 26-7-1975 (Exhibit-A), informed him that ho had been selected for admission to the first year of the M. B. B. S. course for the academic year 1975-76 and that he should join the College on or before 1-8-1975 after producing certain documents including the proof of his 'domicile status'. On 5-8-1975 respondent-2 College issued a receipt (Exhibit-B) for having received Rupees 11,450 from the petitioner's grandfather towards provisional reservation of a seat for him (the petitioner) in that College. The Petitioner did not produce any proof of his having studied in educational institutions in Karnataka State for 10 years. On 9-8-75, respondent-2 College addressed a letter to the petitioner's grand father in which it was stated, inter alia, that the petitioner could be admitted only if the State Government waived '10 years residency rule' and that alternatively be could be considered for allotment of a seat as a 'Non-Karnataka' student in which case he bad to pay a capitation fee of Rs. 35,000. However, at his request the petitioner was permitted to attend classes pending completion of his admission. Respondent-2 College Informed him that be must produce all the documents before 14-8-1975 which was the last date fixed by the Indian Medical Council for admission to Medical Colleges. He neither produced any documents to show that be had studied for 10 years in schools and colleges in Karnataka State nor did he express his willingness to be considered for admission as a 'non-Karnataka' student. He presented this petition on 28-81975. On 29-8-1975, the learned single judge made an interim order, by virtue of which he has been attending classes in respondent-2 College. On 5-9-1975 the learned single judge recalled the above interim order and directed respondent-2 College to admit the petitioner to the Ist year M. B. B. S. class subject to the result of the petition. Accordingly the petitioner has joined respondent-2 College and has been attending classes.
14. The State of Karnataka, respondent-1, has not filed any statement of objections, but respondent-2 has filed its statement of objections in which it has pleaded, inter alia, as follows: The Rules are applicable to admission to Government Medical Colleges only. In view of the fact that certain clinical facilities are made available to respondent-2 College in Government Head Quarters Hospitals, Mangalore, the State Government wanted to have a say in the allotment of seats in respondent-2 College. It was agreed in the meeting of the representatives of the Government and private Medical Colleges that for the sake of convenience, the criterion for selection of 'Karnataka students' should be as defined in Rule 3 of the Rules and that a candidate would be entitled for admission as a Karnataka student if he fulfilled the requirement of Rule 3. As the petitioner failed to produce documents in proof of his domicile status as a Karnataka student on or before 14-8-1975, the last date fixed for admission, respondent-2 College was constrained to allot the seat which bad been allotted to him, to the next best student in the waiting list. All the 100 seats in that College have been allotted to students who have since joined the College. By admitting him the maximum number of students permitted by the Indian Medical Council and the State Government would be exceeded Even if he is admitted, he will have to be treated as a 'Non-Karnataka Student' who has to pay a capitation fee of Rs. 35,000.
15. Respondent-2 College has also pleaded that as it is a private institution, it is not subject to the writ jurisdiction of this Court and that no writ can be issued as against it when no statutory duty has been cast upon it and that hence the petition is unsustainable as against it (respondent-2) and is liable to be dismissed.
16. At the hearing of this petition, a preliminary objection was raised on behalf of both the respondents that the petitioner could not ask for quashing Rule 3 since the Rules had no application to admission to respondent-2 College which is not a Government College, that no writ could be issued against respondent-2 which is neither the State as defined in Article 12 of the Constitution nor a public authority and that no writ could be issued against respondent-1 also as the petitioner has not shown any order or direction by respondent-1 by which he can be regarded as being aggrieved.
17. It is true that Rule 3 (1) of the Rules which provides that a student should have studied in educational institutions in Karnataka-State for not less than 10 years prior to the date of his application to a Medical College, does not, in terms, apply to admission of students to respondent-2 College since that College is not a Government College and no seats were reserved in that College for being filled by the Government in the academic year 1975-76. But, as stated earlier, at the conference at which the representatives of the Government and the private Medical Colleges were present, it was agreed that respondent-2 College should admit 33 'Karnataka' students to its College. This was followed by a letter dated 30-61976 (Exhibit-1) from the State Government to respondent-2 College stating, inter alia, that in respect of selection of candidates the procedure agreed to in the aforesaid conference, should be followed and that under no circumstances there should be any deviation in the distribution of seats and the method of selection of candidates.
18. The expression 'Karnataka' students was not defined or explained by the State Government. But, not unnaturally, respondent-2 understood this expression as meaning students who fulfil the requirement of Rule 3. Since the direction of the Government as to how the seats should be filled in respondent-2 College, has to be obeyed by the latter, failing which it runs the risk of deprivation of clinical facilities in Government hospitals at Mangalore, it is reasonable to regard Rule 3 as embodying a direction by the Government to respondent-2 College. Hence, it would be too technical to hold that the validity of Rule 3 (1) does not arise for determination in this petition. Though respondent-2 is a private institution which does not come within the definition of 'State' in Article 12 of the Constitution and is also not a public authority, since it (respondent-2) feels obliged to obey the direction of the Government to admit certain number of 'Karnataka' students to its College, the petitioner can ask for a writ restraining respondent-1, the State of Karnataka, from enforcing any direction given by it (respondent-1). Hence, it would, in our opinion, be too technical to dismiss this petition solely on the ground that respondent-2 is a private institution. Though the petitioner has asked for a writ, direction or order as against respondent-2, what he has, in substance, sought for is a writ to respondent-1, the State of Karnataka, not to enforce its direction to admit certain number of 'Karnataka' students to respondent-2 College. Hence, we overrule the preliminary objection of the respondents and proceed to consider the petition on its merits.
19. Mr. B. R. L. Iyenger, learned Counsel for the petitioner, made it clear at the very commencement of his arguments, that his attack on Rule 3 (1) is not on the ground of violation of Articles 14 and 15 of the Constitution. This is presumable in view of the rulings of the Supreme Court in D. P. Joshi v. State of Madhya Bharat : 1SCR1215 In D. P. Joshi's case, the impugned rule provided that for all students who were bona fide residents of Madhya Bharat, no capitation fee should be charged for admission to the Medical College at Indore and that for non-Madhya Bharat students certain capitation fee should be charged. For the purpose of that rule, the expression 'bona fide students' was defined as:
'one who is
(a) a citizen of India whose original domicile is in Madhya Bharat, provided he has not acquired a domicile elsewhere, or
(b) a citizen of India, whose original domicile is not in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for not less than 5 years at the date, on which he applies for admission, or(c) xxx xxx xxx(d) xxx xxx xxx'
Repelling the contention that prescription of domicile as the basis for preferential treatment in regard to payment of capitation fee, was violative of Articles 14 and 15 of the Constitution, this is what Venkatarama Iyyar, J., who delivered the majority judgment, said at page 336:
'The rule as modified is clearly not open to attack as infringing Art. 15(1). The ground for exemption from payment of capitation fee as laid down therein is 'bona fide' residence in the State of Madhya Bharat. Residence and place of birth are two distinct conceptions with different connotations both in law and in fact, and when Article 15(1) prohibits discrimination based on residence.'
His Lordship rejected the contention that though the rule purported to grant exemption based on residence within the State, the definition of 'bona fide students' in that rule was really based on the place of birth. His Lordship said that when the rule-making authorities referred to domicile in clauses (a) and (b) of that Rule, they were really thinking of residence. The attack on that rule on the ground of violation of Article 14, was also repelled by his Lordship. Upholding the classification of students into bona fide residents of Madhya Bharat and those who were not so, his Lordship observed thus:
'It is well-known that it requires considerable finance to maintain a Medical College. A concession given to the resident of the State in the matter of fees is obviously calculated to serve that end, as presumable some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality.'
20. The validity of Rule 3 of the earlier Rules framed by the Government of Karnataka for selection of candidates for admission to Medical College, came up for consideration in Vasundhara v. State of Mysore, : AIR1971SC1439 . The main part of that Rule read as follows:
'No person who is not a citizen of India and who is not domiciled and resident in the State of Mysore for not less than ten years at any time prior to the date of the application for a seat shall be eligible to apply.'
The above Rule had been impugned, not on the ground of being violative of Article 14 of the Constitution. The Supreme Court, after referring to its earlier decision in D. P. Joshi's case, observed that the word 'domicile' occurring in the above Rule, was used to convey the idea of the intention to reside or remain in the State of Mysore. The Supreme Court held that that Rule did not offend Article 14 of the Constitution.
21. In this petition, Mr. Iyengar urged the following contentions:
(i) The requirement under Rule3 (1) that an applicant should have studied for 10 years in educations institutions in Karnataka State, is applicable only to applicants who are non-citizens and not to applicants who are citizens of India:
(ii) if Rule 3 (1) is construed as requiring even an application who is a citizen of India, that he should have studied for not less that 10 years in educational institutions in Karnataka had no competence to make such Rule: and
(iii) The State Government had no competence to make, in exercise of its executive power under Article 162 of the Constitution, Rule 3 (1) which seeks to classify applicants into distinct classes, to prescribe a binding rule of eligibility and to impose certain disabilities on certain class of applicants.
22. Elaborating his first contention, Mr. Iyengar referred to the words, no person who is not a citizen of India' occurring in the opening part of Rule. 3 (1) and argued that what that sub-rule provides is that a non-citizen of India who has not studied in educational institutions in Karnataka State for not les than 10 years, is ineligible to apply for admission to Government Colleges in Karnataka and that that sub-rule has no application to an applicant who is a citizen of India. In other words, Mr. Iyengar's contention was that Rule 3 (1) does not require that an applicant who is a citizen of India, should have studied for not less than 10 years in educational Institutions in Karnataka State in order to be eligible for applying for admission to Government Medical Colleges.
23. On the other hand, the learned Government Advocate contended that what Rule 3 (1) provides is that in order to be so eligible, a person should have two qualifications, namely, being a citizen of India and having studied in educational institutions in Karnataka State for not less, than 10 years and that it is not enough that he is merely a citizen of India. The learned Government Advocate maintained that Rule 3 (1) could not have intended conferring eligibility on a non-citizen if he merely studied for 10 years in educational institutions in Karnataka State and that that sub-rule cannot reasonably be construed as requiring study in educational institutions in Karnataka State for not less than 10 years, only in the case of a non-citizen.
24. It is well settled that in order Ito ascertain the meaning of a section or a rule, it is legitimate to take the aid of other sections or rules in an enactment or a body of rules.
25. As stated earlier, clause (b) of the proviso to Rule 3 (1) exempts children of Central Government servants and employees of statutory Corporations from the requirement of having studied for 10 years in educational institutions in Karnataka State if they (such servants or employees) are serving in Karnataka State on the date of making application and during the period of 24 months immediately before such date. Clause (c) of that proviso exempts the children of State Government employees serving outside the State on deputation and the children of members of All India Services borne on the Karnataka State cadre serving in the State on the date of application or have retired within 4 years Prior thereto, from the requirement of having studied for 10 years in educational institutions in Karantaka State. If the requirement of 10 years' study in educational institutions in Karantaka State, is applicable only to non-citizens and has no application to citizens of India, then there would have been no necessity to grant exemption in the cases of children of the aforesaid categories of Government servants and employees, because it is very unlikely that non-citizens would be Central Government employees or employees of such statutory Corporations or members of All India Services.
26. As stated earlier, sub-rule (2) of Rule 3 provides that the Period during which children or wards of members of Parliament resided with their parents or guardians in New Delhi when the latter were or are members of Parliament, shall be treated as equivalent to the period of study in educational institutions in Karnataka State. If sub-rule (1) of Rule 3 has no application to citizens of India and applies only to non-citizens, then sub rule (2) would have been wholly unnecessary because a non-citizen cannot be a member of Parliament.
27. Rule 4 provides for reservation of one seat for a student from Nepal. If Rule 3 (1) contemplated a non-citizen becoming eligible for admission to a Government Medical College by studying for 10 years in educational institutions in Karnataka State, it is very unlikely that reservation would have been made under Rule 4 for a student from Nepal.
28. It is well-known that establishment and running of Medical Colleges, require huge initial outlay as well as heavy recurring expenditure. The number of seats in Medical Colleges is very limited. Only a small proportion of applicants can be provided seats in Medical Colleges. When most of the applicants who are citizens, have to go without seats in Government Medical Colleges, it is very unlikely that the State Government intended that seats in Government Medical Colleges should be available to no citizens if they merely studied in educational institutions in Karnataka State for 10 -years. it is well settled that if a statutory Provision or rule is capable of two constructions, that which accords with the probable intention of the Legislature or the rule-making authority, should be preferred.
29. Having regard to the above considerations, we are of the view that the requirement of having studied for 10 years in educational institutions in Karnataka State, is in addition to, but not as an alternative to, the requirement of Indian citizenship. Hence, we have no hesitation in rejecting the construction sought to be placed by Mr. Iyengar on Rule 3 (1).
30. Elucidating his second contention, Mr. Iyengar referred to Articles 5 to 11 in Part II of the Constitution. Article 5 deals with citizenship at the commencement of the Constitution. Article 6 deals with the rights of citizenship of certain categories of persons who migrated to India from Pakistan. Article 8 deals with rights of citizenship of a certain category of persons of Indian origin residing outside India. Articles 7 and 9 provide that notwithstanding anything in Articles 5 and 6 a person loses his Indian citizenship by migrating to Pakistan after 1-3-1947 or by acquiring the citizenship of any foreign State. Article 10 provides for continuance of the rights of citizenship under the foregoing Articles subject to the provisions of any law made by Parliament. Article 11 provides that nothing in the foregoing Articles shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
31. Mr. Iyengar next referred to Entries 17 and 81 of List I of the Seventh Schedule to the Constitution, which read:
17. Citizenship, naturalisation and aliens.
81. Inter-State migration; inter-State quarantine.
Mr. Iyengar contended that having regard to Article 11 read with Entries 17 and 81 of List I of the Seventh Schedule to the Constitution, it is only Parliament which has competence to legislate on matters which affect the rights, privileges and immunities of citizens, that State Legislatures have no competence to make any law on such matters and that hence it follows that the State Government could not, in exercise of its executive power under Article 162 of the Constitution, make rules in respect of a matter not within the power of the State Legislature.
32. Elaborating his contention, Mr. Iyengar submitted that unlike in United States where there is dual citizenship, namely, citizenship of the United States and citizenship of any of the Individual States, our Constitution envisages only a single citizenship of entire India and not citizenship of any individual State in India. Mr. Iyengar maintained that from the concept of the single citizenship of the whole of India, it follows that there can be only one domicile for the whole of India, that there can be no domicile in any of the individual States in India and that it is not competent for a State Legislature to provide for domicile within that State or to provide that residence within that State shall be the basis for any rights, privileges or disabilities of a citizen of India. Mr. Iyengar added that the State Legislature has no competence to make any law similar to Rule 3 (1) of the Rules which puts a disability on a citizen of India on the basis of the accidental or adventitious circumstance of his residence in that State for any particular length of time. According to Mr. Iyengar, citizenship, domicile and residence are so inter-related that domicile and residence are also matters in respect of which Parliament alone has exclusive power to make laws.
33. Mr. Iyengar argued that if each State in India erects barriers on the ground of domicile or residence and imposes, any disability on a citizen on the ground thereof, such barriers would affect the quality and content of the citizenship of India, attenuate the rights and privileges of a citizen and would also infringe Articles 301 to 304 of the Constitution which ensure freedom of trade, commerce and intercourse throughout the territory of India and also interfere with the rights of citizens to move freely throughout the territory of India and to reside and to settle in any Part thereof which rights have been guaranteed by sub-clauses (d) and (e) of clause (1) of Article 19 of the Constitution.
34. Mr. Iyengar referred to some observations in decisions of the Supreme Court and the High Courts emphasizing unity and oneness of India. In N. B. Khare v. State of Delhi, : 1SCR519 , Mukherjea, J., (as he then was), observed at page 216:
'What the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned.' In C. Philip v. Travancore-Cochin, (AIR 1952 Trav Co 274), Govindapillai, J., observed at page 276 that the right contemplated in Article 19(1)(d) of the Constitution, has for its object the removal of all internal barriers in the country and to make India as a whole the abode of citizens of India.
35. Mr. Iyengar sought to draw sustenance from several decisions of the United States Supreme Court for his contention that no State legislature can place any restriction on a citizen which affects equality of treatment in any Part of the territory of India.
36. In Ellis Ward v. State of Maryland (United States Supreme Court Reports, (1871) 20 Law Ed 449), a statute of a State prohibited the sale, within a certain district of the State, of goods other than agricultural products and articles manufactured in that State, by persons not residents therein, without first obtaining a license and paying therefor. Section 2 (d) of Article 4 of the American Constitution provides that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. Clifford, J., who delivered the opinion of the Court, held that the statute in question was repugnant to the Federal Constitution and invalid for the reason that it imposed a discriminating tax upon all persons trading in the manner described in the district mentioned in the indictment, who were not permanent residents in the State of Maryland.
37. In his separate but concurring judgment, Bradley, J., observed thus:
'... ... ... ... the Act of the Legislature of Maryland, complained of in this case, discriminates in favour of residents and against non-residents of the State and, consequently, is in violation of the 4th Article of the Constitution of the United States and, therefore, pro tanto void.'
38. In what are popularly known as Slaughter-House cases (United States Supreme Court Reports, (1872) 21 Law Ed 394), the scope of Section 2 (d) of Article 4 of the American Constitution was explained thus by Miller, J., who delivered the majority opinion of the Court:
'Its sole Purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction'.
39. In Blake v. McClung (U. S. Supreme Court Reports, (1898) 43 Law Ed 432) the Supreme Court invalidated a State statute which gave to residents of that State a priority over non-residents in the distribution of the assets of a foreign corporation which, by filing its charter of articles of association in the State, was deemed a corporation of that State, in so far as it discriminated against citizens of other states.
40. Harlan, J., who delivered the opinion of the Court, observed thus at page 439:
'We hold such discrimination against citizens of other States to be repugnant to the second section of the fourth Article of the Constitution of the United States, although, generally speaking, the state has the power to prescribe the conditions upon which foreign corporations may enter its territory for Purposes of business. Such a power cannot be exerted with the effect of defeating or impairing rights secured to citizens of the several States by the Supreme law of the land. Indeed, all the powers possessed by a State must be exercised consistently with the privileges and immunities granted or protected by the Constitution of the United States.'
41. In Edward v. California (U. S. Supreme Court Reports, (1941) 86 Law Ed 119), a State statute penalised the bringing into the State of any indigent Person. That statute was held to be unconstitutional even in cases of persons who were destitute of property and without resources to obtain the necessities of life and who had no relatives or friends able and willing to support them. Douglas, J., said thus at page 129:
'Thus it is plain that the right of free ingress and egress rises to a higher constitutional dignity than that afforded by State citizenship ... ... ... ... ... ... The conclusion that the right of free movement is a right of national citizenship stands on firm historical ground ... ... ... ... ... ... ... ... a State statute which obstructs or in substance prevents that movement must fall ... ... ... ... ... ... ... it would -permit those who were stigmatized by a State as indigents, paupers, or vagabonds to be relegated to an inferior class of citizenship. It would prevent a citizen because he was poor from seeking new horizons in other States. It might thus withhold from large segments of our people that mobility which is basic to any guarantee of freedom of opportunity. The result would be a substantial dilution of the rights of national citizenship, a serious impairment of the principles of equality. Since the State statute here challenged involves such consequences, it runs afoul of the privileges and immunities clause of the Fourteenth Amendment.'
42. Black, J., in his separate but concurring judgment, observed thus at page 130:
'This Court should, however, hold squarely that it is a Privilege of citizenship of the United States, protected from state abridgment, to enter any state of the Union, either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof. If national citizenship means less than this, it means nothing.'
43. In Oyama v. State of Calffornia (U. S. Supreme Court Reports, (1947) 92 Law Ed 249), the validity of the California Alien Land Law came up for consideration. Under it, aliens who were ineligible for citizenship, were forbidden from acquiring ownership of agricultural lands under penalty of escheat. That law contained a provision that payment by such alien for consideration of a transfer to a third person, was, prima facie, evidence of an intent to evade the statute. The facts of that case were briefly these: The son of a Japanese father was an American citizen by birth. The father had paid the consideration for transfer of a land to his son who was minor. The majority of Judges of the Supreme Court held that the impugned statute, as applied to that case, made an unconstitutional discrimination against the son because of his Parents' country of origin by saddling him with an onerous burden of proof not generally borne by California children for whom parents might purchase property.
44. On the basis of the aforesaid decisions of the American Supreme Court, Mr. Iyengar contended that the State legislature hag no power to enact a law imposing on a citizen of India who is not a resident of that State, any disability from which a citizen of India who is a resident of that State, did not suffer and that such a law can, if at all, be enacted only by Parliament in exercise of the power under Article 11 read with Entries 17 and 81 of List I of the Seventh Schedule to the Constitution. He further contended that When the State Legislature itself has no competence to make such law, it was obvious that the State Government could not make such provision by rules in exercise of its executive power.
45. On the other hand, the learned Government Advocate contended that the question whether a rule which prescribes the qualification based on domicile or residence in a State, affects the rights of citizenship is no longer res integra in view of the pronouncement in the majority judgment of the Supreme Court in D. P. Joshi v. Madhya Bharat State, : 1SCR1215 . He invited our attention to the following observations of Venkatarama Iyer, J., at page 337:
'But citizenship and domicile represent two different conceptions. Citizenship has reference to Political status of a person and domicile to his civil rights.'
At page 338, his Lordship said-
'Under the Constitution Article 5 which defines citizenship, itself proceeds on the basis that it is different from domicile ... ... ... ... ... ... ... ... Domicile has reference to the system of law by which a person is governed and when we speak of the domicile of a country, we assume that the same system of law prevails all over the country ... ... ... ... ... ... ... each area having a distinct set of laws would itself be regarded as a country for the purpose of domicile.'
His Lordship added that within one political unit there can be as many domiciles as there are systems of law in different parts of that political unit.
46. In the light of the distinction between citizenship and domicile as pointed out by the Supreme Court, it follows that a law that makes distinction in regard to civil rights of citizens based on the ground of domicile or residence in a part of India, does not necessarily affect the political status or rights of citizens. What Article 11 of the Constitution states is that the provisions of Articles 5 to 10 are not intended to lay down exhaustive or unalterable law relating to acquisition, continuance and termination of citizenship and that Parliament has power to enact laws regulating citizenship, including acquisition continuance and termination of citizenship. But laws which do not relate to political status of citizens or acquisition, continuance or termination of citizenship, are outside the scope of Art. 11 and Entry 17 of List I of the Seventh Schedule to the Constitution. As pointed out by the Supreme Court in Chitralekha v. State of Mysore, : 6SCR368 by virtue of Entry 11 of List II of the Seventh Schedule to the Constitution (which reads 'Education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III'), the State Government would be within its right to prescribe qualifications for admission to colleges so long as its action does not contravene any other law. As the requirement that an applicant for admission to Medical Colleges should have studied for 10 years in educational institutions in Karnataka State, does not relate to the political status of a citizen or acquisition, continuance or termination of citizenship, we do not see how Rule 3 (1) can be said to lie within the ambit of Article 11 or Entry 17 of List I of the Seventh Schedule to the Constitution.
47. However, Mr. Iyengar argued that Rule 3 (1) abridges the right of citizen to enjoy all the facilities available to citizens who are domiciled or residing in Karnataka State and that any denial of such facilities to him on the ground of his not being domiciled or not residing in this State, would take away or abridge his right of citizenship of India.
48. To examine the above contention, it is necessary to ascertain what are the rights attached to citizenship of India. Such rights have been expressly specified in Part III of the Constitution. Art. 15 which prohibits discrimination on the grounds of race, religion, caste, sex or place of birth, confers a corresponding right on citizens not to be so discriminated against. Art. 16 confers on citizens right to equality of opportunity in matters of public employment; Article 19 confers on citizens, rights to freedom of speech and expression, to assemble peaceably without arms, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any Part of the territory of India, to acquire and dispose of property and to practice any profession, or to carry on any occupation, trade or business. But these rights are subject to reasonable restrictions in public interest. Article 29(1) confers on citizens the right to conserve their language, script and culture. Article 29(2) confers on citizens a right not to be discriminated against on the grounds of race, religion, caste or language in regard to admission to educational institutions maintained by the State or receiving aid out of the State funds.
49. There is no right expressly conferred on a citizen to be admitted to any educational institution maintained or aided by the State or a right that he should not be discriminated in regard to admission to such educational institution on the around of domicile or residence as distinguished from race, religion, caste sex, language, or place of birth. We are unable to accept the contention of Mr.Iyengar that apart from the rights expressly specified in the provisions of the Constitution, there are certain implied rights attached to citizenship and that the right not to be discriminated against on the around of domicile or residence in a State, in regard to admission to educational institutions, is such implied right of a citizen. When the several grounds on which a citizen shall not be discriminated against in regard to admission to educational institutions, have been expressly specified in Articles 15 and 29(2) of the Constitution, it is unreasonable to Imply any other ground not expressly mentioned in those two Articles.
50. The several decisions of the American Supreme Court relied on by Mr. Iyengar, are based on Section2 (d) of Article 4 of the United States Constitution which expressly provides that the citizens of each State shall be entitled to all the rights, Privileges and immunities of citizens in several States. As there is no corresponding Provision in our Constitution, those decisions have no application to the present case.
51. Elaborating his contention that Rule 3 (1) is inconsistent with the concept of citizenship of the whole of India, Mr.Iyengar argued that a citizen has the right to move freely throughout the territory of India and the right to reside and settle in any Part of the territory of India which rights are guaranteed by Cls. (d) and (e) of Article 19(1) of the Constitution and that those rights would include the right to enjoy the same privileges and advantages which are available to persons having domicile or residence in any State. Mr. Iyengar maintained that the right to move freely throughout the territory of India and the right to reside and settle in any part of India, would be illusory if a citizen who moves into any State in India or resides and settles in any State in India, is subject to any disabilities or disadvantages and is treated as a second class citizen on account of his not being domiciled in, or not having resided in, that State for any particular length of time. Mr. Iyengar said that if discrimination between citizens of India on the ground of domicile or residence for a particular period in State, is permitted, each State may go to the length of denying protection of life and property or supply of water and other civic amenities to citizens of India if they are not domiciled or residents for a particular length of time in that State.
52. Though the above arguments of Mr. Iyengar may look attractive at first sight, on closer examination we cannot accept them. The right to move freely throughout the territory of India, bars any restrictions of such movement and the right to reside and to settle in any part of India, bars any restriction, either temporary or permanent, on inter state migration, except where such restriction is reasonable and is public interest. Those rights do not, by themselves, ensure that every citizen of India will have all the advantages and privileges in every State available to citizens domiciled or residing therein and that no kind of preference is permissible to citizens who are domiciled in, or residents of, that State. But such differential treatment will be bad in law if it is not based on reasonable classification contemplated by Art. 14 of the Constitution. Thus, if a citizen of India is denied protection of life and Property or water and other civic amenities in State solely on the ground that he is not domiciled in that State or has not resided therein for any particular length of time, then such denial may offend Article 14 and therefore be impermissible. But every preference given by a State to citizens who are domiciled therein or have resided therein, is not necessarily bad. For example, in granting agricultural lands or house sites, if preference is shown by a State to citizens who are domiciled therein or who have resided therein for a certain minimum period, such preference may not be violative of Article 14. As stated earlier, in D. P. Joshi v. State of Madhya Bharat, : 1SCR1215 , the Supreme Court held that the preference shown by a State to students domiciled in that State in regard to capitation fee for admission to the Government Medical College, was not violative of Article 14 of the Constitution and in Vasundhara's case : AIR1971SC1439 the requirement of domicile and residence for 10 years in the State of Mysore as a condition of eligibility for admission to Medical Colleges, was held by the Supreme Court as not offending Article 14.
53. There is no merit in the contention of Mr. Iyengar that Rule 3 (1) offends Article 301. Freedom of trade, commerce, intercourse throughout the territory of India enjoined by Art. 301, has no application to the right of a person to be admitted to an educational institution in any part of the territory of India,
54. Thus, we are not persuaded to accept the contention of Mr. Iyengar that the State legislature itself has no power to make a legislation similar to Rule 3 (1) and that hence the State had no power to make that Rule in exercise of its executive power.
55. Elucidating his third contention, namely, that provisions like the impugned Rules could be made only by a legislative enactment and not by administrative rules, Mr. Iyengar submitted that provisions which lay down a binding rule of conduct, classify persons for purposes of eligibility, prescribe the procedure to be followed for a particular purpose, create authorities and confer powers on them to effectuate such purpose, impose consequences for breach of such provisions and operate to the prejudice of a person or a class of persons, are legislative in character and that such provisions can be made only by a legislature and not by the executive. Mr. Iyengar added that if the executive is permitted to make such provisions, it would amount to excessive delegation or abdication of essential functions of the legislature and that hence such provision would be bad in law. Mr. Iyengar maintained that the impugned Rules prescribe conditions of eligibility, restrict the rights of applicants to get admission to Medical Colleges, impose disability on applicants not possessing the qualifications prescribed by them (the Rules), constitute the Selection Committee, empower that Committee to make selection of applicants and prescribe the procedure to be followed by that Committee and provide for cancellation of admission of applicants who furnish false particulars and that hence the impugned Rules are essentially legislative in character and could not have been made by the State Government in exercise of its executive power.
56. In support of his above contention, Mr. Iyengar, relied on a few decisions of the Indian and American Supreme Courts.
57. In Dwarakanath v. Bihar State, (AIR 1959 SC 249), the Supreme Court held that Article 182 of the Bihar Education Code, which, inter alia, provided for withdrawal or withholding of recognition in case the managing committee of a school did not carry out the directions of the Board of Secondary Education, could not deprive the managing committee of its right in the properties of the school under its management as that Code was in the nature of administrative rules and not based on statutory authority which could give it force of law. This decision is distinguishable inasmuch as the property rights of the Education Society could be deprived of only in accordance with Article 31 of the Constitution which requires, inter alia, that such deprivation should be under a law enacted by the appropriate legislature. But, in the present case the petitioner had no legal right to be admitted to any Government Medical College or respondent-2 College apart from his right not to be discriminated on the grounds prohibited by Articles 15 and 29,
58. In State of Madhya Pradesh v. Bharat Singh, (AIR 1967 SC 1170), the Supreme Court observed that every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. There, the impugned order of the Government had directed the respondent therein to reside within a particular town, not to enter a particular district and to notify his movements to the police. That order clearly, abridged the freedoms guaranteed by clauses (d) and (e) of Article 10(1) of the Constitution. This decision has no appellation to the present case, because the petitioner who had no legal right to be admitted to the respondent-2 college could not say that Rule 3 (1) operated to his prejudice.
59. In Panama Refining, Co. v. Ryan (U. S. Supreme Court Reports, (1934) 79 Law Ed 446), the validity of delegation of power to the President under the National Industrial Recovery Act, 1933, came up for consideration. The delegation of power to the President under that Act, was held to be unguided and uncontrolled and not within the permissible limits of delegation. But that decision has no bearing on the present case inasmuch as the impugned Rules were made by the Government not in exercise of any power delegated by the legislature to the Government, but in exercise of the executive power under Article 162.
60. Article 162 provides, inter alia, that subject to the provisions of the Constitution, the executive power of the State shall extend to all matters with respect to which the legislature of the State has power to make laws. There is no reason why the Government should not, in exercise of such executive power, make rules for regulating its actions in any matter where there is no legislative enactment regulating such matter. Such rules should undoubtedly be subject to the provisions of the Constitution which expressly provide that exercise of certain executive powers should be authorised by legislative enactment of the appropriate legislature. The following are some of the instances where such legislation is necessary for exercise of executive power:
(i) imposing reasonable restrictions in the public interest under Clause (6) of Article 19 on the exercise of rights guaranteed under sub-clauses (a) to (g) of clause (i) of that Article;
(ii) procedure for deprivation of personal liberty which is guaranteed under Article 21;
(iii) preventive detention permitted under Article 22;
(iv) compulsory acquisition of property (vide Art. 32);
(v) levy and collection of tax (vide Art. 265);
(vi) restriction on freedom of trade, commerce and intercourse throughout the territory of India (vide Art. 302); and
(vii) imposing sentence of imprisonment or levy of fine.
61. Except where the Constitution has expressly provided that exercise of executive power in any matter should be under a law enacted by legislature, the executive power of the State would, in the absence of legislation, extend to making rules regulating the action of the executive. But, such rules cannot offend the provisions of the Constitution and should not be repugnant to any legislative enactment of the appropriate legislature. Such rules will, no doubt be superseded by any legislation of the appropriate legislature in respect of the matters covered by the rules. Thus we are unable to accept the contention of Mr. Iyengar that there is any other limitation on the power of the executive to make rules to regulate its activities. Subject to the aforesaid limitations, such rules may relate to matters of policy, may make classification for purposes of those rules and may determine the conditions of eligibility for receiving any advantage, privilege, grant or aid from the State.
62. In Chitralekha v. State of Mysore, : 6SCR368 , Subba Rao, J. (as he then was), who delivered the majority judgment, said at Page 1830 that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any law. Hence, the competence of the State Government to make the impugned Rules is beyond any doubt.
63. The questions of the legislature not performing its essential legislative functions and excessive delegation of powers by the legislature, will arise only when the legislature has enacted a law on any matter. If in the absence of a legislative enactment on any matter, the, executive has, in exercise of its executive power, made certain rules regarding such matter, there can be no question of abdication of the essential legislative function or excessive delegation even if such rules relate to important matters of policy. Hence, we have no hesitation in rejecting the contention of Mr. Iyengar that Rule 3 (1) is invalid on the around of impermissible delegation of the legislative powers.
64. All the contentions of Mr.Iyengar fail and we dismiss this petition.
65. In the circumstances of the case, we direct the parties to bear their own costs.
66. Petition dismissed.