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D.P. JOSHI V. STATE OF MADHYA PRADESH AIR 1955 SC 334

D.P. JOSHI V. STATE OF MADHYA PRADESH AIR 1955 SC 334

 

FACTS

  • Initially, Madhya Bharat students were exempted from paying capitation fees.
  • A new rule was introduced, specifying exemption only for "bona fide residents" of Madhya Bharat.
  • "Bona fide resident" was defined to include:
    • Citizens whose original domicile is in Madhya Bharat and haven't acquired domicile elsewhere.
    • Citizens who have acquired domicile in Madhya Bharat and resided there for at least 5 years.
    • Persons who migrated from Pakistan before September 30, 1948, and intend to reside in Madhya Bharat permanently.
    • Persons or classes of persons declared eligible by the Madhya Bharat Government.
  • Present petition is filed under article 32 of the Constitution of India challenging the rule.

 

ISSUE

  • Whether the rule imposing a capitation fee on non-residents of Madhya Bharat while exempting bona fide residents violates Articles 14 and 15(1) of the Indian Constitution.

 

RULE

  • Article 15(1): The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.
  • Domicile is a distinct legal concept separate from the place of birth, supporting the decision that the rule in question did not violate Article 15(1) of the Indian Constitution.

 

HELD

  • The petitioner argued that the rule discriminates based on place of birth, which is prohibited by Article 15(1) of the Constitution. However, the court held that the rule, as modified in 1952, did not violate Article 15(1) as it granted exemption based on bona fide residence in Madhya Bharat, not place of birth.
  • The court differentiated between domicile and place of birth, noting that domicile refers to one's permanent home and is not necessarily the same as place of birth.
  • The court referenced Dicey's authoritative text to explain the distinction between domicile of origin and place of birth. Dicey states that domicile of origin, received at birth, need not be the country where the infant is born, where the parents are residing, or the country of the father's nationality.
  • Winans v. Attorney-General (1904 A.C. 287): Lord McNaughten’s observations were cited to clarify the terminology "domicile of birth." Although it is often called domicile of birth, the concept involved is different from the place of birth. The case helped underline that domicile refers to legal residence, not the physical place of birth.
  • Udny v. Udny (1869 L.R. 1 Sc. & Div. 441): This case was used to explain the difference between citizenship and domicile. Lord Westbury stated that each individual has two distinct legal statuses at birth: political status (citizenship) and civil status (domicile). Citizenship binds a person to a particular country politically, while domicile determines their civil rights and obligations.
  • Mcmullen v. Wadsworth (1889) 14 A.C. 631: The Judicial Committee observed that the term domicile in certain contexts could mean residence and not international domicile. This case supported the argument that domicile can sometimes be understood in a non-technical, popular sense as a residence.
  • The Constitution grants both the Union and State Legislatures the power to legislate on succession, marriage, and minorities. Each state may have its own laws on these subjects until a uniform code is enacted for all of India. Thus, there could be different domiciles for different states. Therefore, the argument that there cannot be a domicile of Madhya Bharat under the Constitution is not valid.
  • It concluded that domicile is determined by the system of law governing territory and could vary within a country if different areas have distinct laws.
  • Additionally, the respondent argued that "domicile" in the rule should be interpreted as "residence." The court agreed, noting that the term "bona fide residence" implies domicile with intent, suggesting that the rule focused on residence rather than strict legal domicile.
  • The court dismissed the petition, ruling that the rule did not violate Article 15(1) of the Constitution. It held that the exemption from capitation fees was based on bona fide residence, not place of birth. As a result, there was no unconstitutional discrimination.

 

COMMENTARIES

In this context, it should be noted that the Constitution itself confers certain privileges to the “permanent residents” in the State of Jammu & Kashmir [Article 35A] and Andhra Pradesh [Article371B(2)(c)(ii)].

 

NOTE

In 2019 due to the abrogation of Article 370, Article 35A was also revoked.