D. P. Joshi vs The State Of Madhya Bharat Andanother

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Petition No. 367 of 1954

Decision Date: 27 January 1955

Coram: Mukherjee, Bijan K.R., Vivian Bose, B. Jagannadhadas, Bhuvneshwar P. Sinha, Venkatarama Ayyar

In the matter titled D. P. Joshi versus The State of Madhya Bharat and another, the Supreme Court of India delivered its judgment on 27 January 1955. The case was recorded with the citation 1955 AIR 334 and also appeared in the 1955 SCR (1) 1215. The bench that heard the petition comprised Chief Justice B. K. Mukherjee, and the judges Vivian Bose, B. Jagannadhadas, V. Aiyar, T. L. Venkatarama Sinha, and Bhuvneshwar P. Sinha. The petitioner, identified as D. P. Joshi, challenged a rule promulgated by the Government of the State of Madhya Bharat concerning the imposition of a capitation fee for admission to the Mahatma Gandhi Memorial Medical College in Indore.

According to the headnote, when the State assumed control of the college from a private committee, it replaced the existing admission rule with a new regulation. The new rule stipulated that no capitation fee should be charged to any student who qualified as a “bona‑fide resident” of Madhya Bharat. By contrast, non‑residents of Madhya Bharat were required to pay the fee, set at Rs. 1,300 for nominated candidates and Rs. 1,500 for others. The definition of “bona‑fide resident” under the rule comprised four categories: (a) a citizen of India whose original domicile lay in Madhya Bharat and who had not acquired domicile elsewhere; (b) a citizen of India whose original domicile was outside Madhya Bharat but who had obtained domicile in Madhya Bharat and had resided there for at least five years as of the date of application; (c) a person who had migrated from Pakistan before 30 September 1948 and intended permanent residence in Madhya Bharat; and (d) a person or class of persons, or citizens of an adjoining area or territory, for whom a Declaration of Eligibility had been issued by the Madhya Bharat Government.

The central issue for determination was whether this classification infringed fundamental rights guaranteed by Articles 14 and 15(1) of the Constitution of India. In its decision, Justice Venkatarama Aiyar, speaking for the majority together with Chief Justice Mukherjee, Justice Vivian Bose, and Justice Sinha, held that the rule did not violate Article 15(1). The Court explained that residence and place of birth represent distinct concepts, each bearing different legal and factual connotations. Since Article 15(1) expressly forbids discrimination on the basis of place of birth, it could not be interpreted as proscribing discrimination founded on residence. The Court further observed that the term “domicile” generally denotes a permanent home and is sometimes used synonymously with residence. Consequently, the imposition of the capitation fee on non‑resident students, while exempting resident students, was not deemed discriminatory under Article 14, because the classification rested upon a ground that bore a reasonable relationship to the objective of the legislation, namely, to assist Madhya Bharat residents in pursuing their studies and to encourage education within the State’s jurisdiction.

In its reasoning the Court observed that the purpose of the classification embodied in the impugned rule was to assist, to some extent, those students who were residents of Madhya Bharat in pursuing their studies, and that such a purpose was a commendable objective for a State seeking to promote education within its territorial limits. The Court held that a classification based on geography is inherently just and reasonable when it pertains to education, an area that is primarily the concern of the State. Justice Jagannadhadas expressed the view that Indian law does not recognise a concept of regional domicile. He explained that, in the present context, the expression “original domicile in Madhya Bharat” was intended to denote the place of birth of the applicant in Madhya Bharat. While acknowledging that “domicile of origin” and “place of birth” are distinct concepts, he observed that the distinction is relevant only when the phrase “domicile of origin” carries a definite legal meaning. In this case, the phrase “domicile of origin in Madhya Bharat” possessed no clear legal definition, and any meaning that could be attached to it would necessarily refer to the place of birth. Accordingly, Justice Jagannadhadas concluded that the rule primarily concerned the place of birth in Madhya Bharat and therefore violated Article 15 of the Constitution. He further stated that even if the rule were interpreted as referring to the juristic concept of regional domicile and thus fell outside the ambit of Article 15, a distinction based on such domicile could not be regarded as reasonable under Article 14. The Court listed several authorities that were referred to, including Bitstam Mody v. State, Sumitra Devi v. State (I.L.R. 1953 Madhya Bharat 87), Whicker v. Hume ([1859] 28 L.J. Ch. 396), Somerville v. Somerville ([1801] 5 Ves. 750), Winans v. Attorney General (1904 A.C. 287), Udny v. Udny ([1869] L.R. I Sc. & Div. 441), McMullen v. Wadsworth ([1889] 14 A.C. 631), The State of Punjab v. Ajaib Singh and another ([1953] S.C.R. 254) and Om Prakash v. The State (A.I.R. 1953 Punjab 93). The judgment was delivered in the original jurisdiction under Petition No. 367 of 1954 filed under Article 32 of the Constitution for the enforcement of fundamental rights. Counsel for the petitioner included N.C. Chatterjee and Veda Vyas, assisted by S.K. Kapur and Ganpat Rai. Counsel for respondent No. 1 was M.C. Setalvad, Attorney‑General of India, assisted by Shiv Dyal and P.G. Gokhale. The judgment dated 27 January 1955 recorded that the petition was filed by a Delhi resident who had been admitted to the Mahatma Gandhi Memorial Medical College at Indore in July 1952 and was then in the third year of the M.B.B.S. course. The petitioner alleged that the college rules discriminated with respect to fees.

In this case the petitioner alleged that the college imposed a financial requirement on students who were not residents of Madhya Bharat that was not imposed on those who were residents of that State. Specifically, the petitioner asserted that non‑resident students were required to pay, in addition to the ordinary tuition fees and other standard charges that all students had to meet, a sum of Rs 1,500 per year as a capitation fee. He claimed that this differential treatment violated the guarantees of equality before the law contained in article 14 of the Constitution and the prohibition against discrimination on the basis of residence found in article 15(1). Consequently, the petitioner prayed that the Court issue a writ directing the respondent not to collect the capitation fee from him for the current academic year and further ordering the return of Rs 3,000, which had been collected from him as capitation fees for the first two years of his study. The respondent opposed the petition. In an affidavit filed on behalf of the respondent it was explained that the medical college originated as a private enterprise and had been managed by a committee. The affidavit stated that the same committee had framed the rule requiring the capitation fee from students who were not residents of Madhya Bharat, and that the State of Madhya Bharat later assumed control of the college subject to the existing arrangements concerning the reservation of seats. The respondent argued that the imposition of the capitation fee on non‑resident students did not contravene either article 14 or article 15(1). The Court noted that a concise history of the institution would aid in understanding the respective contentions. According to the historical account, the institution began in 1878 when Dr Beaumont founded the Indore Medical School as an annex to the Indore Charity Dispensary. The school received substantial financial assistance from the rulers of Gwalior and other princely states and soon became a well‑established centre of medical education, with many graduates practicing in Central India, Rajasthan and neighboring regions. In 1910 the school was renamed King Edward Memorial School, Indore, and continued under committee management. In 1940 the committee resolved to elevate the school to the status of a first‑class medical college and began raising funds for its equipment. Those arrangements were completed in 1947, and in 1948 the institution was affiliated to the University of Agra, thereafter becoming known as Mahatma Gandhi Memorial Medical College. In 1950 the college council resolved to invite the Madhya Bharat Government to assume the running of the college, while preserving the existing agreements with various states and donors regarding the reservation of seats for their nominees. The government accepted the proposal, and by a resolution dated 17 March 1951 formally took over the administration of the college. At that time the admission rules limited annual intake to fifty students, categorising them as either nominees—students whose seats were earmarked for the donors—or ordinary students. The committee had previously arranged to raise funds for the college on the basis of promises made by donors to contribute a specified amount in exchange for the right to nominate a student.

It was stipulated that any person who contributed Rs 7,000 to the College would be entitled to nominate one student for admission, and that each such nominated student, called a nominee, had to pay, in addition to the ordinary tuition and other charges, a capitation fee of Rs 1,300 per year. The seats that had to be kept for nominees were therefore set aside, and the balance of the seats were opened to all eligible applicants who were thereafter described as self‑nominees. Those self‑nominees were selected in the required number on the basis of merit. A rule subsequently came into force which formed the foundation of the present dispute. That rule declared that “Madhya Bharat students are exempted from capitation fees” (see 1952 Calendar, page 5 and Exhibit G). After the State assumed management of the College, it introduced certain alterations to the existing rules, and the petition before the Court concerned those new rules, since the petitioner had been admitted under the revised regime.

In place of the original provision granting exemption to all Madhya Bharat students, a new rule was substituted. The new provision read: “For all students who are ‘bona‑fide residents’ of Madhya Bharat no capitation fee should be charged. But for other non‑Madhya Bharat students the capitation fee should be retained as at present at Rs 1,300 for nominees and at Rs 1,500 for others” (see Exhibit 6/1 quoted in Rustam Mody v. State; Sumitra Devi v. State). The rule also provided a definition of “bona‑fide resident” for the purpose of applying the exemption. According to that definition, a bona‑fide resident was any person who satisfied one of the following conditions: (a) a citizen of India whose original domicile was in Madhya Bharat and who had not acquired domicile elsewhere; (b) a citizen of India whose original domicile was not in Madhya Bharat but who had acquired domicile in Madhya Bharat and had resided there for at least five years on the date of applying for admission; (c) a person who had migrated from Pakistan before 30 September 1948 and who intended to reside permanently in Madhya Bharat; or (d) a person or class of persons, or citizens of an area or territory adjoining Madhya Bharat or India, for whom a Declaration of Eligibility had been made by the Madhya Bharat Government.

In summary, the amendment altered the earlier blanket exemption, limiting exemption from the capitation fee to those who qualified as bona‑fide residents of Madhya Bharat rather than to all students who were merely identified as Madhya Bharat students. The petitioner, through counsel Mr N. C. Chatterjee, contended that the new rule contravened Articles 14 and 15(1) of the Constitution and therefore should be declared unconstitutional and void. Article 15(1) provides: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” The petitioner argued that the rule, in so far as it imposed a capitation fee on students who did not belong to …

The petitioner contended that the Madhya Bharat rule, while exempting students who are residents of Madhya Bharat from the capitation fee, actually discriminated on the basis of place of birth in violation of Article 15(1). Even if that contention might have possessed some merit when applied to the original rule that existed at the time the State assumed administration, the rule was subsequently amended in 1952, and the petition concerns only that amended rule. The Court observed that the amended rule cannot be attacked as contravening Article 15(1) because its exemption criterion is expressly limited to bona‑fide residence within the State of Madhya Bharat. The distinction between residence and place of birth is well recognised both legally and factually, and Article 15(1) forbids discrimination based solely on place of birth, not discrimination based on residence. This distinction was not seriously contested by the parties. The petitioners argued, however, that despite the rule’s language of residence, the definition of bona‑fide residence relied on domicile, and that the concept of domicile of origin effectively reduced to place of birth. They emphasized clauses (a) and (b) of the rule, asserting that “original domicile” as used in the rule could in substance mean only the place where a person was born, thereby converting a residence‑based exemption into a birth‑based exemption. The Court rejected that characterization and stated that the correct legal position identifies domicile as a person’s permanent home, not merely the place of birth. Lord Cranworth, speaking in Whicker v. Hume, described domicile as a permanent home and noted that without that understanding no illustration could render the concept intelligible. Domicile of origin, according to Dicey’s Conflict of Laws, is the domicile a person acquires at birth, but it does not necessarily coincide with the country of birth, parental residence, parental allegiance, or the infant’s nationality. The same source further explains that the domicile of origin, although received at birth, may be distinct from the actual place where the infant is born. In Somerville v. Somerville, Master of the Rolls Arden explained that he refers to domicile of origin rather than place of birth and observed that succession law gives no effect to place of birth; a child born abroad follows the father’s domicile. The petitioner, Mr. N. C. Chatterjee, suggested that domicile of origin is often termed domicile of birth and cited observations of Lord Macnaghten in Winans v. Attorney‑General. However, Lord Macnaghten himself qualified that the phrase “domicile of birth” may be inaccurate, and the Court noted that this qualification undermines the petitioners’ argument.

It was observed that irrespective of whether the expression employed is “domicile of origin” or “domicile of birth,” the concept it denotes differs fundamentally from the notion conveyed by the words “place of birth.” Consequently, because “domicile of birth” and “place of birth” cannot be treated as synonymous, the prohibition contained in article 15(1) of the Constitution against discrimination on the ground of place of birth does not extend to a discrimination founded on domicile. An argument was advanced that the Constitution permits only a single citizenship for the entire territory of India and that it would be contrary to that principle for a State to enact statutes predicated upon domicile within its own borders. However, the distinction between citizenship and domicile was emphasized, explaining that citizenship relates to a person’s political status whereas domicile concerns his civil rights. A classic exposition of this distinction was quoted from Lord Westbury in Udny v. Udny, wherein he explained that the law of England and of almost all civilized nations ascribes to each individual at birth two separate legal conditions: one, by virtue of which the individual becomes the subject of a particular country, binding him by national allegiance—this is the political status; the other, by virtue of which he is regarded as a citizen of a particular country, conferring on him certain municipal rights and obligations—this is the civil status, which may differ from his political status. The political status may be governed by varying laws in different jurisdictions, whereas the civil status is universally determined by the single principle of domicile, which is the legal criterion for establishing civil status. On this basis, personal rights such as the law governing majority or minority, marriage, succession, testacy or intestacy must depend upon domicile.

Dicey’s discussion at page 94 was then cited, noting that historically a confusion between domicile and nationality led to the erroneous belief that a person could not change his domicile—for example, moving from England to California—without first taking steps to become an American citizen, a doctrine summarized as “intend quatenus in illo exuere patriam.” Dicey explained that this doctrine has since been declared erroneous by the highest authority. Further observations of Lord Lindley in Winans v. Attorney‑General were also referred to. The authoritative statement from Halsbury’s Laws of England, volume VI, page 198, paragraph 242, was subsequently quoted, which declares that English law resolves all questions admitting the operation of a personal law by applying the test of domicile. For this purpose, the law regards the organization of the civilized world in civil societies—each consisting of all persons residing in a territorial area subject to a single legal system—as distinct from political societies or states, each of which may be co‑extensive with a single legal system or may unite several systems under its own sovereignty. The passage concluded with a citation to the case reported as (1) [1869] L.R. I Sc.

The Court observed that the reference to Division 441 and Division 457 in the 1904 All‑India Court Reports (pages 287 and 299) concerned the organization of the civilized world into civil societies, each comprising all persons residing within a territorial area subject to a single legal system, rather than the organization of political societies or States, each of which might be co‑extensive with a single legal system or might encompass several systems under its own sovereignty. The Court then explained that Article 5 of the Constitution, which defined citizenship, proceeded on the premise that citizenship differed from domicile because domicile alone was not sufficient to confer the status of a citizen of the country. A further, more serious question arose as to whether the law recognized a domicile of Madhya Bharat distinct from an Indian domicile, given that the law recognised only the domicile of a country as a whole and not of any specific place within that country. To answer this, the Court examined the meaning of “domicile” in law. It stated that when a person was said to have the domicile of a particular country, it meant that for matters such as succession, minority and marriage, the person was governed by the law of that country. Domicile therefore referred to the legal system by which a person was governed, and it was assumed that the same legal system prevailed throughout the entire country. However, the Court acknowledged that it was possible for laws relating to succession and marriage to vary within different regions of a State, resulting in distinct legal rules in different areas. In such a situation, each area with its own set of laws would be regarded as a “country” for the purpose of determining domicile. The Court quoted Dicey, who explained on page 83 that the area contemplated in the rules relating to domicile was a “country” or territory subject to one system of law. Dicey further noted that the purpose of the treatise on domicile was to show how a person’s rights were affected by having his legal home within a territory governed by a single legal system. If a part of a country, generally governed by one system of law, was subject to special rules—such as California within the United States—then it would be necessary to determine whether the person was domiciled within that particular part, which would, for the purposes of the rules, be regarded as a separate “country.” The Court also cited Halsbury’s Laws of England, Volume VI, page 246, paragraph 249, which affirmed that a domicile was acquired in the part of the State where the individual resided, and noted that an instructive decision on this point was Somerville v. Somerville.

In this matter the Court referred to the case Somerville v. Somerville (1). In that case the dispute concerned the personal estate of Lord Somerville, who died intestate in London while his domicile of origin was Scottish. The litigation was between parties who claimed the right to inherit on the basis that Lord Somerville’s domicile was Scottish and parties who claimed the right to inherit on the basis that his domicile was English. Counsel for the latter side argued that because Lord Somerville died in London, the law of English domicile should control succession. While examining that argument, the learned Master of the Rolls noted that the law of succession in the Province of York differed from that prevailing in the rest of England and bore a close resemblance to Scottish law. He therefore posed the hypothetical question whether, if a man of Yorkshire died intestate in London, the succession to his personal estate should be governed by the law of the Province of York or by the general law of England. He observed: “It is surprising that questions of this sort have not arisen in this country when we consider that till a very late period and even now for some purposes a different succession prevails in the Province of York. The custom is very analogous to the law of Scotland. Till a very late period the inhabitants of York were restrained from disposing of their property by testament …………. And the question then would have been (1) [1801] 31 E.R. 839. whether during the time the custom and the restraint of disposing by testament were in full force, a gentleman of the county of York coming to London for the winter and dying there intestate, the disposition of his personal estate should be according to the custom or the general law.” The Master of the Rolls then set out the principle that succession to the personal estate of an intestate must be regulated by the law of the country in which the deceased was a domiciled inhabitant at the time of death, without any regard to the place of birth, the place of death, or the location of the property at that time. Applying that principle to the facts of Somerville v. Somerville, the Court held that Lord Somerville’s domicile of origin, which was Scottish, governed the succession. The significance of that decision, as noted by the Court, is that it recognises that within a single political entity there may exist multiple domiciles corresponding to different systems of law. Accordingly, a Scottish domicile, an English domicile and even a distinct York domicile may coexist within Great Britain for the purpose of succession. The Court then turned to the constitutional framework applicable in India. Under the Constitution, the power to legislate on matters of succession, marriage and minority is placed in Entry 5 of the Concurrent List, which is shared by both the Union Parliament and the State Legislatures. Consequently, until the Union enacts a uniform code that applies throughout the country, it is conceivable that each State could have its own legislation on those subjects, giving rise to different domiciles for different States. For that reason, the Court found no merit in the argument that a domicile of Madhya Bharat could not exist under the Constitution.

The Court observed that nothing in the Constitution prohibited the existence of a domicile of Madhya Bharat. The respondent argued that the term “domicile” appearing in the rule should not be given its technical legal meaning but rather should be understood in its popular sense as simply “residence.” To support this view, the respondent quoted a passage from Wharton’s Law Lexicon, Fourteenth Edition, page 344, which stated: “By the term ‘domicile’, in its ordinary acceptation, is meant the place where a person lives or has his home. In this sense the place where a person has his actual residence, inhabitancy, or commornery, is sometimes called his domicile.” The respondent also relied on the observation in Mcmullen v. Wadsworth ([1889] 14 A.C. 631) that the Judicial Committee had held that the word “domicil” in article 63 of the Civil Code of Lower Canada was used in the sense of residence and did not refer to an international domicile. The Court noted that the essential question was whether, in the present context, the word “domicile” was employed to mean residence. The rule that required the payment of a capitation fee and provided for exemption thereof expressly referred only to bona‑fide residents within the State. The rule itself did not mention domicile; however, the Explanation that followed the rule contained clauses (a) and (b), which used the term “domicile” as part of the definition of “bona‑fide resident.” The Court cited Corpus Juris Secundum, volume 28, page 5, which explains that “the term ‘bona‑fide residence’ means the residence with domiciliary intent.” This authority gave considerable weight to the respondent’s contention that the references to domicile in clauses (a) and (b) were intended to convey the notion of residence. Consequently, the Court concluded that the argument that the rule was repugnant to article 15(1) of the Constitution could not succeed.

There was extensive argument before the Court regarding the validity of clause (d) of the rule. The petitioner contended that this clause introduced a new element unrelated to domicile or residence, that it placed foreign nationals on a more advantageous footing than Indian citizens, and that, on that basis, the entire rule should be struck down for lacking any rational or intelligible principle. The Court acknowledged that clause (d) indeed introduced a novel provision. It is possible that, as a matter of policy, the institution’s management decided that associating citizens of other countries with Indian citizens in educational institutions would be beneficial, and therefore reserved a limited number of seats for them on the basis of most‑favoured‑nation treatment. The Court clarified, however, that the validity of this reservation did not fall for determination in the present petition. Since clauses (a) to (c) are based on a classification grounded in domicile and residence, and are distinct and severable from clause (d), they would remain valid even if clause (d) were held to be unconstitutional. The Court further noted that the rule concerning the payment of the capitation fee had subsequently been amended by the institution’s management following the decision of the High Court of Madhya Bharat, a fact that was recorded for completeness but did not affect the analysis of the issues presently before the Court.

The Court referred to earlier decisions of the High Court of Madhya Bharat in Rustam Mody v. State and Sumitra Devi v. State(1). The Court then described the present rule, which had been amended and was the rule then in operation. The rule states that only students who are genuine residents of Madhya Bharat and who have been selected according to the allocation scheme are exempt from capitation fees. It further requires that the selection must follow the admission rules for seats specifically reserved for Madhya Bharat residents. All other students admitted to seats that are not reserved for Madhya Bharat residents are required to pay the capitation fees prescribed by the authority. Accordingly, the exemption under the amended rule continues to apply solely to bona fide residents of Madhya Bharat. Consequently, when the Court examined the matters presently before it, it found that the effect of the current rule is essentially the same as that of the earlier rule. The Court observed that further discussion of this point was unnecessary because counsel for both parties agreed that the petitioner’s rights must be measured against the rule that was in force at the time of his admission. The petitioner then argued that imposing a capitation fee on some students while exempting others is discriminatory and therefore violates Article 14 of the Constitution, rendering the rule void. The Court noted that the impugned rule creates two categories among self‑nominated students: those who are bona fide residents of Madhya Bharat and those who are not. The rule obliges the non‑resident category to pay the capitation fee, while it waives the fee for the resident category. The essential question, the Court said, is whether the classification based on state residence bears a fair and substantial relation to the purpose of the law or is merely arbitrary. The Court cited the earlier judgment (1) I.L.R. 1953 Madhya Bharat 87, observing that the purpose of the classification is to assist students who reside in Madhya Bharat in pursuing their studies. The Court emphasized that encouraging education within a state’s boundaries is a legitimate and commendable objective for any government. Education falls within the State’s jurisdiction, and Part IV of the Constitution, specifically Article 41, directs the State to make effective provisions for education within its economic limits. The Court explained that the State must contribute to the maintenance and operation of its educational institutions, including the medical college involved in this petition. Maintaining a medical college, the Court observed, requires substantial financial resources, and therefore it is reasonable for the State to design an educational system that yields some benefit back to the State. The fee concession granted to residents of Madhya Bharat, the Court concluded, is calculated to serve that purpose, as some of those students may later serve the local community as doctors.

In this case the Court observed that a classification based on residency of the state is grounded in a reasonable relation to the purpose of the legislation and therefore cannot be attacked as arbitrary. The Court referred to the decision in The State of Punjab v. Ajaib Singh and another, where it was held that a geographical classification is permissible. Such a classification is considered just and reasonable when it pertains to education, an area primarily within the State’s responsibility. Consequently, the argument that the rule imposing a capitation fee violates article 14 of the Constitution was rejected. The Court continued that the analysis had been undertaken on the premise that the contested rule constitutes a “law” within the meaning of article 13. If the rule were not a law, article 14 would not be applicable. The Attorney General, appearing for the respondent, contended that the rule was merely an administrative or executive order and, even if the term “law” were interpreted broadly, it should be limited to expressions of legislative power and not encompass executive orders. He relied on the decision in Om Prakash v. The State to support this view. However, because the Court had already concluded that, assuming the rule is a law, it does not offend article 14, it found no need to express an opinion on whether the rule is indeed a law. Another argument raised by the respondent concerned the manner in which the medical college had originally been managed privately and later taken over by the State subject to certain conditions. The respondent argued that the State was therefore bound to continue the rule regarding the payment of the capitation fee that had previously been in force. The Court examined the terms of the State’s takeover and found that they expressly preserved only the agreement for reserving seats for nominees of participating States and donors, and made no commitment to maintain the capitation‑fee rule. Accordingly, the question of whether such a commitment, if made, could be invoked to defend a fundamental right did not arise for decision. As a result, the petition was dismissed, and no order as to costs was made. The judgment was delivered by Justice Jagannadhadas, who expressed a dissenting view, questioning whether the petitioner, a resident of Delhi admitted in July 1952 to the Mahatma Gandhi Memorial Medical College at Indore by the State of Madhya Bharat and required to pay a capitation fee of Rs 1,500 per annum in addition to regular tuition and other charges, was entitled to a writ restraining the authorities from levying that fee on the ground that the rule was repugnant to the Constitution.

In this case the petitioner asked the Court to restrain the levy of a capitation fee on the basis that the rule compelling the payment was contrary to the Constitution. The background of the institution and the evolution of the relevant rules had already been described in the judgment of the majority, so it was unnecessary to repeat that material. Nevertheless, the Court found it appropriate to point out at the outset two important matters. The first matter concerned the exact source of authority for the rules in question – whether they were created under a rule‑making power that possessed a legislative foundation, or whether they were merely executive orders that the State Government could alter at its discretion. This distinction had not been clearly explained. The learned Attorney General, during his arguments, contended that the rules were only executive orders and therefore did not fall within the operation of article 14 of the Constitution. However, the evidence placed before the Court did not illuminate this issue. Likewise, the Court had not received sufficient discussion on whether such executive orders, issued by the State and applied generally within their subject matter, should be treated as laws that come within the ambit of article 14. Consequently, the discussion proceeded on the assumption that the validity of the rules could be examined with reference to both article 14 and article 15, with no other constitutional provision appearing to have a direct bearing on the matter.

The Court noted, as indicated in the majority judgment, that when the College was taken over by the State from private management, the original rule at that time provided that “Madhya Bharat students are exempted from capitation fees.” After the takeover, the State substituted that rule with a new provision stating that no capitation fee should be charged to any student who was a “bona‑fide resident” of Madhya Bharat, while all other, non‑Madhya Bharat students would continue to be liable to pay a capitation fee of Rs 1,300 for nominees and Rs 1,500 for other students. The rule defined a “bona‑fide resident” for its purposes as follows: (a) a citizen of India whose original domicile is in Madhya Bharat and who has not acquired a domicile elsewhere; (b) a citizen of India whose original domicile is outside Madhya Bharat but who has obtained a domicile in Madhya Bharat and has resided there for at least five years at the date of his admission application; (c) a person who migrated from Pakistan before 30 September 1948 and intends to reside permanently in Madhya Bharat; and (d) a person or class of persons, or citizens of an area or territory adjacent to Madhya Bharat or India, for whom a Declaration of Eligibility has been made by the Madhya Bharat Government. The Court understood that this rule was in force when the petitioner was admitted to the College, and it was further reported that the rule had been modified recently, as reflected in the subsequent amendment cited in the judgment (see (1) A.I.R. 1953 Punjab 93).

In this case, the Court examined the rule governing payment of capitation fees at Mahatma Gandhi Memorial Medical College. The rule provided that only students who were bona‑fide residents of Madhya Bharat and who had been selected for admission in accordance with the allocation scheme and the specific rules for seats reserved for Madhya Bharat residents were exempt from paying capitation fees. All other students who were admitted to seats that were not reserved for Madhya Bharat residents were required to pay the capitation fees as prescribed. An affidavit filed in this Court by Shri H. L. Gupta, who held the position of Assistant Secretary to the Government of Madhya Bharat, stated that the wording of the rule was intended merely to restate the Government’s true intention and to clarify what the earlier rule was meant to convey. The petitioners argued that because the rule used the term ‘exemption’, it indicated that a certain class of students enjoyed a benefit of non‑payment and that consequently other students could not claim that they were victims of discriminatory treatment. The Court was then presented with a copy of the rules for admission to the regular M.B.B.S. courses, taken from the Mahatma Gandhi Memorial Medical College, Indore, Calendar of 1954. This document formed part of the enclosures to the petitioner’s affidavit and occupied pages 34 to 38 of the paper‑book. A careful reading of page 37 showed that the capitation fee was described as an amount payable in addition to the normal fees and that it was required only from certain students, while all students in general were required to pay a set of prescribed fees. Whether the rule operated as an exemption for some students or as an additional charge imposed on others, the Court observed that a clear distinction existed between the two groups, a distinction that adversely affected those required to pay the extra charge. The very use of the expression ‘capitation fees’ for the additional amount levied on a subset of students, the Court held, signified its discriminatory character. The only remaining issue, therefore, was whether this differentiation fell within the mischief of article 14 or article 15 of the Constitution. To resolve that issue, the Court deemed it necessary to obtain a precise understanding of what the rule meant at the date when the applicant was admitted to the college. The rule, the Court noted, had to be read in conjunction with the allocation scheme for admission, as explained in the affidavit of Shri H. L. Gupta. According to that affidavit, the basis of allocation of seats each year was that, out of the total number of candidates to be newly admitted, a certain number of seats were reserved for ‘nominees’ of such States as well as for individuals with whom a contract of reservation of seats existed, and a certain number of seats were reserved specifically for Madhya Bharat. The remaining seats were assigned to other categories.

The Court examined the allocation scheme for admission to the college as set out in the affidavit of the Assistant Secretary to the Government of Madhya Bharat. The scheme provided that each year a certain number of seats were reserved for nominees of various States and for individuals with whom the Government had a contract of reservation of seats, and a further number of seats were reserved for Madhya Bharat itself. All remaining seats were designated for “self‑nominees”. Although candidates who were not Central Government nominees had to sit for a competitive examination, the Court noted that the selection was made on the basis of merit within each separate category. In the applicant’s reply affidavit it was asserted that the competitive examination was identical for every candidate, but that the marks obtained by candidates were evaluated only against those in the same group. According to the Assistant Secretary, the allocation fell into three broad categories: (1) seats reserved for “bona‑fide students of Madhya Bharat”; (2) seats reserved for certain specified States and for the original donors, whose nominees were required to pay capitation fees that were somewhat lower; and (3) the remaining seats, whose holders had to pay higher capitation fees. The Court observed that category 2 was irrelevant to the present petition because it depended on pre‑existing contractual obligations and the petitioner did not belong to that class. Consequently, the issue of discrimination centred on categories 1 and 3 and hinged on the precise meaning of the phrase “bona‑fide residents” as defined in the rules. The Court considered that if the definition were meant simply to indicate residence in Madhya Bharat, the classification might not offend article 15 and could represent a reasonable classification for article 14, given the particular facts of the State. The Attorney‑General had at one stage argued in favour of this interpretation of “bona‑fide resident”, yet he did not definitively espouse it as the sole reasonable meaning, presenting it instead as one possible view. Moreover, the Assistant Secretary’s affidavit categorically stated that the imposition of capitation fees was not based on residence, and the Government’s restated rule was also ambiguous because it again employed the phrase “bona‑fide residents of Madhya Bharat”. The Court noted that the definition of “bona‑fide residents of Madhya Bharat” differed markedly from the ordinary concept of residents of Madhya Bharat. Of the four sub‑categories contained in the definition, sub‑categories (c) and (d) bore no relation to actual residence. The Court further found it difficult to discern any principle that could justify discrimination favouring, for example, a Pakistani migrant whose sole intention was to make Madhya Bharat his permanent home, or a person from contiguous areas of Madhya Bharat or India, while excluding other citizens. The primary categories under the definition were (a) and (b). Category (b) required both domicile in Madhya Bharat and residence in the State for the preceding five years, whereas category (a) referred only to “original domicile in Madhya Bharat” and did not insist on prior residence. Even assuming that “domicile” meant a permanent home, as expressed in the cited authority, the Court observed that this notion did not necessarily correspond to the applicant’s actual residence at the relevant time, rendering the justification for preferential treatment unclear.

The Court observed that the principal categories relevant to the definition were those labelled (a) and (b). It explained that even for these two categories it was not easy to demonstrate that the criteria depended solely on the individual's residence. Category (b) required that a person possess “domicile in Madhya Bharat” and also have lived in Madhya Bharat for the preceding five years. Category (a), by contrast, spoke only of “original domicile in Madhya Bharat” and did not impose any condition of prior residence. The Court noted that even if “domicile” were taken to mean “permanent home”, as Lord Cranston suggested in Whicker v. Hume (1), such an interpretation would not necessarily link the term to the applicant’s actual place of residence at the relevant time. Consequently, the Court found it difficult to justify why the applicant’s father having a permanent home in Madhya Bharat at the time of the applicant’s birth should confer any preferential right, nor why a person who had established Madhya Bharat as a permanent home but had been away for a period and returned only a year earlier should be denied that right. The Court therefore concluded that the definition of “bona‑fide resident,” whether read in its entirety or limited to categories (a), (b) and (c), could not be said to rely merely on residence in Madhya Bharat. Moreover, the Court could not discern a coherent basis for grouping the categories by interpreting the word “domicile” as simply meaning “residence” or “permanent home.” It further observed that category (b), which combined a requirement of Madhya Bharat domicile with five years of prior residence, closely mirrored the pattern of Indian citizenship under article 5, clause (c) of the Constitution, except that “domicile of Madhya Bharat” replaced “domicile of India.” This similarity raised the issue of a regional concept of domicile, suggesting a move toward the idea of regional citizenship, a point the Court said it would consider later. The Court then turned its focus to category (a), the source of the principal dispute. It held that the phrase “original domicile in Madhya Bharat” could not have been intended to denote either the applicant’s residence or his permanent home in Madhya Bharat. The Court asked what meaning was intended by the term “domicile” in that context and whether it should be understood in its strict legal sense or in the more ordinary sense that a lay person, such as the Director of Public Instruction who drafted the rule, might have employed. To resolve this question, the Court said it was necessary to have a clear understanding of the concept of “domicile” and how it applies to any specific region within a country like India. It then referred to the classic definition of domicile given by Lord Westbury in Udny v. Udny (1), beginning with the statement that “The law of England, and”.

The Court explained that in almost all civilized nations a person acquires two distinct legal conditions at birth. The first condition makes the person a subject of a particular country, binding him by a natural allegiance that may be described as his political status. The second condition confers upon him the character of a citizen of a specific country, granting him municipal rights and imposing certain obligations; this is his civil status. The Court noted that the political status may be determined by different statutes in different jurisdictions, whereas the civil status is universally governed by a single principle known as domicile. Domicile, according to the classic judgment of Lord Westbury in Udny v. Udny, serves as the legal criterion for determining an individual’s civil status. On the basis of domicile, the law decides personal matters such as the age of majority, marriage, succession, testamentary capacity, and intestacy. Accordingly, domicile is the attribute of a person’s status that, under international law, determines which personal law governs him. The Court then turned to the question of whether the concept of domicile could be applied to the expression “domicile in Madhya Bharat.” Referring to A. V. Dicey’s Treatise on Conflict of Laws, the Court quoted that a person’s domicile is the country regarded by law as his permanent home, and that the area relevant to domicile is a “country” or a “territory subject to one system of law.” Similarly, Farnsworth, in his work on the residence and domicile of corporations, described the area considered for domicile as always being a country or a territory governed by a single legal system. The Court acknowledged that some states, although politically unified, contain regions with distinct personal laws; in such cases the sub‑unit possessing its own legal system is treated as the area of domicile. An example cited was Great Britain, where Scotland operates under a different set of personal laws, giving rise to the notion of Scotch domicile, a development rooted in historical evolution. Turning to India, the Court observed that, to date, Indian law has not recognized a concept of domicile for sub‑units within the country. The relevance of domicile in India has traditionally been linked to the personal laws of citizens, which are chiefly determined by religious affiliation—a practice that predates the British period and was acknowledged in early British regulations. The Court thus concluded that the phrase “domicile in Madhya Bharat” cannot be interpreted in the same way as domicile applied to separate legal territories within a single political entity.

According to the Court’s observation, the British practice of referring to personal laws was continued after independence through specific provisions incorporated in the Civil Courts Act and in comparable statutes of the various provinces and states. Those provisions directed the courts to decide matters that involved Hindus, Muslims and other religious communities by applying the personal law applicable to each party. The statutes consistently contained a direction in wording similar to the following: “To decide any question regarding succession, inheritance, marriage, or caste, or any religious usage or institution or the like by the Muhammadan law in cases where the parties are Muhammadans and by Hindu law in cases where the parties are Hindus.”

The Court noted that legislative changes have been made with respect to some of those matters and also with respect to other issues that properly belong to the field of personal law, such as minority and succession. However, the Court emphasized that those legislative modifications have been almost wholly of an all‑India character and have not been based on any regional distinction. Examples of such all‑India statutes include the Indian Majority Act and the Indian Succession Act. The Court stated that, to the best of its knowledge, there are only a few instances of provincial or state legislation dealing with personal law matters, and even those instances are extremely limited in scope.

From this it follows, the Court explained, that the particular province or state to which a Hindu or a Muslim belongs has no relevance to, nor any relationship with, his personal law. The Court further observed that the opposite effect is demonstrated by the fact that a Hindu, even after migrating to a different province or state, continues to be governed by his own school of Hindu law. The Court then turned to Indian citizens who are neither Hindu nor Muslim, for example Indian Christians or Anglo‑Indians. It held that such persons are also governed by personal laws that are uniformly applicable throughout the country, an example being the Indian Succession Act, which is not regional in character.

The Court added a historical comment, noting that even in Europe until the Middle Ages, personal laws were determined by race rather than by domicile, citing a reference to a work on international law. In view of the factual situation concerning the personal laws of the various categories of persons who form the majority of India’s population, the Court concluded that there has been no scope, up to the present time, for the development of a concept of state or provincial domicile that is distinct from a general Indian domicile.

Accordingly, the Court stated that the existing Indian legal framework provides no place for a regional domicile. The Court found no reason to anticipate that such a concept will emerge in the future under the present Constitution. It observed that the exclusive legislative power of a state does not extend to personal laws, which are listed as item number five in the Concurrent Legislative List. Finally, the Court drew attention to Article 44 of the Constitution, which commands the State to endeavour to secure a uniform civil code for all citizens across the territory of India.

In observing that article 44 of the Constitution directs the State to secure a uniform civil code throughout the territory of India, the Court noted that it is highly improbable that regional personal laws will be permitted to operate in any substantial way. The Court further observed that the Constitution provides a single citizenship for the whole of India and that the subjects of “citizenship and naturalisation” lie within the exclusive competence of the Union Legislature. While acknowledging that citizenship is distinct from domicile, the Court emphasized that the notion of a regional domicile does not exist in present Indian law and that, if recognised, such a concept would encourage claims of regional citizenship similar to those existing in the United States of America. This, the Court said, would be wholly contrary to the intention of the Constitution. Consequently, the phrase “domicile in Madhya Bharat” appearing in the rule that defines “bona fide resident of Madhya Bharat” must be examined in light of these constitutional considerations.

The Court held that the concept of a domicile situated specifically in Madhya Bharat is unknown to Indian law and therefore it would be improper to interpret the expression “domicile in Madhya Bharat” as referring to the type of regional domicile recognised in English law. The Court further stated that the mere existence of a regional domicile in English or American jurisprudence does not compel its importation into the Indian legal system when such importation would run counter to the Constitution’s intent. Accordingly, the expression “original domicile in Madhya Bharat” used in the rule must be understood with reference to the existing body of Indian law, which does not acknowledge a regional domicile. The Court reiterated its earlier reasoning that the terms “residence” or “permanent home” of the applicant cannot be read into the phrase “domicile in Madhya Bharat” employed in clause (a). In the circumstances, the Court found it reasonably clear that the phrase “original domicile in Madhya Bharat” is intended to convey the applicant’s place of birth within Madhya Bharat. Although the concepts of domicile of origin and place of birth are distinct where “domicile of origin” has a definite legal meaning, the Court observed that in the present case the phrase bears no such legal definition; therefore, any meaning attached to it must refer to the place of birth. This interpretation, the Court said, aligns with what the framers of the rule likely contemplated, since, in general, a person’s domicile of origin is the place of birth except in rare and exceptional situations. The Court cited a passage from Corpus Juris Secundum, vol. 28, p. 1095, which states: “A person’s domicile of origin is the …”.

The Court observed that a person’s domicile of birth is generally understood to be the place where the person was born, although it is not absolutely necessary that this be the case. It noted that the rule now under consideration had replaced an earlier rule which simply stated, “Madhya Bharat students are exempted from capitation fees.” The expression “Madhya Bharat students” in that earlier provision did not refer to a person’s residence or legal domicile; rather, it was commonly understood to denote students who were born in Madhya Bharat. When the State took over the management of the institution from private hands, it altered the rule by creating a hybrid definition of “bona fide residents of Madhya Bharat,” positioning the category of citizens whose original domicile is in Madhya Bharat at the forefront of that definition. The Court held that this re‑phrasing was an attempt to mask the true implication of the rule so that it would appear consistent with the earlier provision, namely that the exemption from capitation fees should be available only to persons born in Madhya Bharat, while the burden of the fee should fall on persons not born there. In examining the real meaning and effect of the rule, the Court stated that subsequent attempts at clarification or the manner in which the rule is said to be administered, as described in the affidavit of the Assistant Secretary to the Madhya Bharat Government, Shri H. L. Gupta, could not influence the analysis even if the affidavit were accepted as correct. The Court further observed that the fact that some admitted students who are residents of Madhya Bharat might not be entitled to the exemption under the present interpretation is irrelevant so long as a student standing in the petitioner’s position cannot obtain the benefit, even if he obtained the highest marks in the competition. Accordingly, the Court concluded that the rule primarily refers to a person’s place of birth in Madhya Bharat, although other miscellaneous categories might be covered under different headings. Because the rule thus discriminates on the basis of birth, it contravenes article 15 of the Constitution. Even assuming that the rule is grounded in the juristic concept of regional domicile and therefore does not fall within article 15, the Court could not see how a distinction based on such domicile could be regarded as reasonable under article 14, since no suggestion was made to show that “original domicile in Madhya Bharat” is a reasonable ground for classification. Consequently, the Court held that the principal provision of the rule contained in clause (a) of the definition of “bona fide resident of Madhya Bharat” operates to the petitioner’s disadvantage through unconstitutional discrimination. As a result, the State Government could not validly impose capitation fees on the petitioner based on that rule.

The dissenting judge indicated that, in his view, the application should be allowed, but he felt it necessary to point out that the issue concerning whether the notion of regional domicile, as distinct from ordinary Indian domicile, exists or may be admitted, and the effect that such a distinction might have on the interpretation of the rule in question, was never raised or suggested during the hearing before this Court. Consequently, the Court did not have the opportunity to receive any arguments on that particular point or on any matters closely connected with it. Because of this omission, the judge explained that, although he held the majority’s opinion in high regard and despite the fact that he did not receive any assistance from counsel on this specific question, he felt compelled to differ with the majority. He based his divergence on a firm conviction that allowing the recognition—whether expressly stated or implied—of a separate regional domicile through a decision of this Court would run counter to the purpose and intent of the Constitution. Following the reasoning of the majority, the Court therefore ordered that the petition be dismissed without any costs being awarded, and the dismissal was recorded as final.