FARZANA BATOOL versus UNION OF INDIA AND OTHERS on 9 April 2021

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SUPREME COURT REPORTS

[2021] 4 S.C.R.

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FARZANA BATOOL

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UNION OF INDIA AND OTHERS

(Writ Petition (Civil) No. 364 of 2021)

BAPRIL 09, 2021

[DR DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Constitution of India – Article 32 – Petition under – Admissionto MBBS degree course – Two seats from central pool seats, one atCLady Hardinge Medical College (LHMC) and the other at MaulanaAzad Medical College (MAMC) were allocated to the UnionTerritory of Ladakh – Petitioners-students from Ladakh thoughnominated by the administration of the Union Territory of Ladakhfor admission thereto, however were not admitted – Held: SinceDdue allocations were made in favour of the two petitioners, there isno justification to deny them the benefit of admission to the coursesfor which the allocation was made – Admission formalities for thepetitioners be completed – General directions issued for similarlyplaced students.

Constitution of India – Education – Professional education –EAccess to – Obligation of State– Held: While the right to pursueprofessional education is not a fundamental right in Part III of theConstitution, however access to professional education is not agovernmental largesse – State has an affirmative obligation tofacilitate access to education, at all levels – Universal DeclarationFof Human Rights – Article 26(1).

International Convention/Treaties/Covenants– InternationalCovenant on Economic, Social and Cultural Rights (ICESCR) – Indiabeing a signatory, obligations of – Discussed.

Allowing the petitions, the Court

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HELD: 1.1 The Government of the Union Territory ofLadakh and the Union MHFW are represented by the AdditionalSolicitor Generals. Both the ASGs state that since due allocationshave been made in favour of the two petitioners, there is noreason and justification to deny them the benefit of admission toH

the courses for which the allocation has been made. It is directedthat the admission formalities for the petitioner, Ms Farzana Batoolbe completed at the LHMC immediately and, in any event, withina week from today. Similarly, the admission formalities pertainingto Mr Mohammad Mehdi Waziri at MAMC be completedimmediately and, in any event, within a week from today. In orderto obviate the hardship which has been caused to these students,it is also directed that all the students who are referred to inAnnexure A to the Notification dated 19 February 2021 be grantedadmissions to the concerned institutions, if not already given sofar. These general directions are being issued in order to obviatethe possibility of each of the similarly placed students beingrequired to move this Court. Financial hardship should not preventthe students from getting admission in terms of the allocationwhich has been made in their favor legitimately under the centralpool seats. [Paras 7, 8][393-D-H]

1.2 While the right to pursue higher (professional) educationhas not been spelt out as a fundamental right in Part III of theConstitution, it bears emphasis that access to professionaleducation is not a governmental largesse. Instead, the State hasan affirmative obligation to facilitate access to education, at alllevels. This obligation assumes far greater importance forstudents whose background (by virtue of such characteristics ascaste, class, gender, religion, disability and geographical region)imposes formidable obstacles on their path to accessing qualityeducation. Article 26(1) of the Universal Declaration of HumanRights, which is a source of persuasive value, obligates everyState Party to ensure that technical and professional education ismade generally available and that higher education is equallyaccessible to all on the basis of merit. In its General Comment13, the ICESCR committee outlined four essential features thateducation at all levels must possess. Pertinently, one such featureis ‘accessibility’. Two of the components of accessibilityhighlighted by the ICESCR Committee bear emphasis. First, theguarantee of non-discrimination, in relation to which it notes that,“education must be accessible to all, especially the most AB

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Avulnerable groups, in law and fact, without discrimination on anyof the prohibited grounds”. Second, economic accessibility,meaning that the state party must take steps to ensure thatfinancial constraints do not come in the way of accessing education.The ICESCR Committee pertinently notes that disparities inspending policies that result in differing qualities of educationBfor persons residing in different geographic locations mayconstitute discrimination under the Covenant. Each state partyis required, inter alia, to fulfill the right to education, by facilitatingand providing for its realization. Pursuant to these obligationswhich India has undertaken by being a signatory to the Covenant,Cthe Union MHFW and the DHSL shall ensure proper co-ordination so that students allocated colleges under the centralpool seats are not put to hardship in enrolling once they havebeen duly allocated their seats. Specifically, the Union MHFWand the DHSL can consider appointing a nodal officer tasked withthe responsibility of ensuring that students who are dulyDnominated under the central pool seats are in fact admitted intheir chosen course of study. Such an officer can serve as a one-point contact for students who may otherwise face numerousdifficulties in securing their admission, even after they have beenallocated the seat. The details of such officer can be widelyEpublicized on the websites of the aforesaid two authorities. Suchan institutional framework will ensure that students are not leftin the lurch due to lack of help in securing their legitimateadmission to the appropriate course. [Paras 9-12][394-B-D,E-G; 395-A-D]

FICESCR Committee, ‘General Comment No. 13: Theright to education (Article 13)’ (8 December 1999) UnDoc E/C.12/1999/10, para 1 – referred to.

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.364of 2021G(Under Article 32 of The Constitution of India)With Writ Petition (Civil) No.375 Of 2021

Neeraj Shekhar, Rohit Kumar Singh, Advs. for the Petitioner.H

K. M. Nataraj, Rupinder Singh, ASGs, Ms. Sunita Sharma, RanjanKumar Chaurasia, B. V. Balram Das, Anmol Chandan, Ms. PriyankaDas, P. V. Yogeshwaran, G. S. Makker, Advs. for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. These proceedings under Article 32 have been instituted bytwo students from Ladakh. They have been nominated by theAdministration of the Union Territory of Ladakh for admission to theMBBS degree course under the ‘central pool’ seats set apart by theUnion Ministry of Health and Family Welfare. One of them has beenallocated against a seat at Lady Hardinge Medical College (“LHMC”).The other has been assigned to Maulana Azad Medical College(“MAMC”). Unfortunately, these students have not yet been admittedto their course of studies despite due nomination by the Administrationof the Union Territory of Ladakh and in terms of the seats notified bythe Union Government. We have been constrained to take up the issueunder Article 32, since the fundamental rights of students from Ladakhto pursue professional education are implicated. We will in the course ofthis judgment deal of course with the grievance of the two students. Butwe intend to deal with the issue on a systemic basis so that other studentswho may lack resources, or simply the knowledge about legal remedies,are not deprived of education.

2. Notice was issued in these proceedings on 26 March 2021. Inpursuance of the order, Mr Rupinder Singh Suri, Additional SolicitorGeneral appears for the Union of India while Mr K M Nataraj, AdditionalSolicitor General appears on behalf of the Administration of the UnionTerritory of Ladakh through the Director of Health Services, Ladakh(“DHSL”). The Office Report indicates that LHMC and MAMC havebeen served.

3. By a Memorandum dated 9 April 2020, the Government ofIndia through the Ministry of Health and Family Welfare (“MHFW”),issued guidelines for the allocation of the general pool MBBS/BDS seatsfor 2020-2021. By a Notification dated 23 November 2020, the MHFW(Department of Health and Family Welfare) allotted, inter alia, oneseat at LHMC to the Union Territory of Ladakh from the central pool. Asimilar allocation of one seat was made at MAMC. These allocationswere made for the Ladakh central pool medical seats for the year 2020-2021.

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SUPREME COURT REPORTS

A4. Through a communication dated 19 February 2021 issued bythe Administration of the Union Territory of Ladakh, the DHSL forwardedthe list of selected candidates from Ladakh to be admitted in the centralpool medical seats for the year 2020-2021. For convenience of reference,Annexure A to the Notification DHSL(21) of 2021 dated 19 February2021 is extracted below:B

Annexure -“A”(Selected/Nominated list)

Order No:27/DHSL(21) of 2021, Dated 19/02/2021

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(emphasis supplied)

The name of the petitioner in Writ Petition (Civil) No 364 of 2021appears at serial no 4, while the name of the petitioner in Writ Petition(Civil) No 375 of 2021 appears at serial no 1.

5. The two writ petitions before this Court under Article 32 of theConstitution have been instituted for seeking directions to facilitate thestudents to be admitted respectively at LHMC and MAMC, so as tofacilitate them to pursue their studies for the MBBS degree course. Thepetitioner in the first of the two petitions (Writ Petition (Civil) No. 364 of2021) is Ms Farzana Batool. The petitioner in the second writ petition(Writ Petition (Civil) No. 375 of 2021) is Mr Mohammad Mehdi Waziri.

6. The grievance is that though the petitioners have been dulynominated by the DHSL, the admission process of the petitioners hasnot been confirmed. This is even though other similarly placed studentsnominated by the DHSL, who were allotted to different institutions, havehad their admissions confirmed.

7. Having regard to the predicament of the petitioners, this Courtissued notice and as noted above, the Government of the Union Territoryof Ladakh and the Union MHFW are represented by the AdditionalSolicitor Generals, Mr Rupinder Singh Suri and Mr K M Nataraj. Boththe ASGs state that since due allocations have been made in favour ofthe two petitioners, there is no reason and justification to deny them thebenefit of admission to the courses for which the allocation has beenmade.

8. In view of the above position, we direct that the admissionformalities for the petitioner, Ms Farzana Batool be completed at theLHMC immediately and, in any event, within a week from today. Similarly,the admission formalities pertaining to Mr Mohammad Mehdi Waziri atMAMC be completed immediately and, in any event, within a weekfrom today. In order to obviate the hardship which has been caused tothese students, we also direct that all the students who are referred to inAnnexure A to the Notification dated 19 February 2021, as extractedabove, be granted admissions to the concerned institutions, if not alreadygiven so far. We are issuing these general directions in order to obviatethe possibility of each of the similarly placed students being required tomove this Court. Financial hardship should not prevent the students fromgetting admission in terms of the allocation which has been made in theirfavor legitimately under the central pool seats.

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A9. Given that the issue raised in this case concerns access toeducation, albeit at the professional level, we would like to take thisopportunity to underscore the importance of creating an enablingenvironment to make it possible for students such as the petitioners topursue professional education. While the right to pursue higher(professional) education has not been spelt out as a fundamental right inBPart III of the Constitution, it bears emphasis that access to professionaleducation is not a governmental largesse. Instead, the State has anaffirmative obligation to facilitate access to education, at all levels.

10. This obligation assumes far greater importance for studentswhose background (by virtue of such characteristics as caste, class,Cgender, religion, disability and geographical region) imposes formidableobstacles on their path to accessing quality education. Indeed, as theCommittee on Economic, Social and Cultural Rights (“ICESCRCommittee”)[1] notes in General Comment 13, “As an empowermentright, education is the primary vehicle by which economically andDsocially marginalized adults and children can lift themselves out ofpoverty and obtain the means to participate fully in theircommunities”[2].

11. Article 26(1) of the Universal Declaration of Human Rights,which is a source of persuasive value, obligates every State Party toEensure that technical and professional education is made generallyavailable and that higher education is equally accessible to all on thebasis of merit. In its General Comment 13, the ICESCR committee outlinedfour essential features that education at all levels must possess.Pertinently, one such feature is ‘accessibility’. Two of the componentsof accessibility highlighted by the ICESCR Committee bear emphasis.FFirst, the guarantee of non-discrimination, in relation to which it notesthat, “education must be accessible to all, especially the mostvulnerable groups, in law and fact, without discrimination on anyof the prohibited grounds”. Second, economic accessibility, meaningthat the state party must take steps to ensure that financial constraintsGdo not come in the way of accessing education.

1 This is a committee formed to monitor the implementation of International Covenanton Economic, Social and Cultural Rights (the “Covenant”), which was ratified by Indiain 1979. Further, it also issued ‘General Comment(s)’, which function as interpretativetools for the various provisions of the Covenant.

2 ICESCR Committee, ‘General Comment No. 13: The right to education (Article 13)’H(8 December 1999) Un Doc E/C.12/1999/10, para 1.

12. The ICESCR Committee pertinently notes that disparities inspending policies that result in differing qualities of education for personsresiding in different geographic locations may constitute discriminationunder the Covenant. Each state party is required, inter alia, to fulfill theright to education, by facilitating and providing for its realization. Pursuantto these obligations which India has undertaken by being a signatory tothe Covenant, the Union MHFW and the DHSL shall ensure proper co-ordination so that students allocated colleges under the central pool seatsare not put to hardship in enrolling once they have been duly allocatedtheir seats. Specifically, the Union MHFW and the DHSL can considerappointing a nodal officer tasked with the responsibility of ensuring thatstudents who are duly nominated under the central pool seats are in factadmitted in their chosen course of study. Such an officer can serve as aone-point contact for students who may otherwise face numerousdifficulties in securing their admission, even after they have beenallocated the seat. The details of such officer can be widely publicizedon the websites of the aforesaid two authorities. Such an institutionalframework will ensure that students are not left in the lurch due to lackof help in securing their legitimate admission to the appropriate course.In this way, it will help remedy the broader problem of which the casebefore us is a symptom.

13. We would also like to place on record our appreciation for thefact that Mr Rupinder Singh Suri and Mr K M Nataraj approached theseproceedings on behalf of the Union of India and the Administration ofthe Union Territory of Ladakh in a spirit of dialogue, as opposed toadopting an adversarial approach.

14. A copy of this order shall be forwarded to the Principals of theLHMC and the MAMC for compliance. The DHSL shall also forwarda copy of this order to all the concerned institutions, referred to inAnnexure A to the Notification dated 19 February 2021, as extractedabove, for compliance.

15. The Petitions are accordingly allowed in the above terms.

16. Pending applications, if any, stand disposed of.

Divya Pandey

Petitions allowed.

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