This article has been written by Harshita Varshney, from Faculty of Law, Aligarh Muslim University, Aligarh. This article aims to analyze the domicile reservation system in National Law Universities. Further, the author has tried to analyze whether the domicile reservation system is constitutionally valid or not. 

Introduction 

The topic of whether the government should provide reservation in educational institutions or not has always been a matter of debate. The reservation in educational institutions is not only limited to caste-based reservation it also includes domicile reservation. The seeds of the reservation were sown by the drafters of our Constitution. At that time, their objective behind the introduction of the reservation system was to uplift the backward sections of our society. But now the situation has been changed and due to this people have started speaking against it. In this matter, people have formed their opinion on the basis of these two arguments. First, the reservation should be removed and selection should be made on the basis of the student’s talent and capabilities, which is the only fair process of selection to an educational institution. Second, there should be a reservation system so as to lift up the lower section of our society. 

What is domicile reservation 

Domicile reservation means favouring someone on the basis of his or her residence. Initially, the system of domicile reservation was started with the medical examination but now it has been adopted by many National Law Universities of different states. With the help of domicile reservation, the state government can reserve certain seats for the students domiciled in a particular state.

Indian states are famous for their diversities. Every state differs from another state in every aspect. It is possible that one state can have a good number of educational institutions providing quality education to the students. But another state may not have an adequate number of educational institutions in the state and due to this reason, the students of that state or many other states with no good institutions would apply in the institutions of different states. Now, if such a state with good institutions would have a domicile reserve system then it would create difficulty for students of other states. The policy of domicile reservation of one state would affect the interests of the nation. 

National Law Universities 

The need for National Law Universities was felt after the second generation reforms of legal education were passed. Therefore, the first National Law University (hereinafter NLU) was established in Bangalore under the National Law School of India Act, 1986 and it was known as National Law School of India University, Bangalore (NLSIU). Generally, according to UGC, any university established by the central or the state government will be granted the status of National University. However, every NLU has been established in the states under the legislations issued by the state government. For example, the National Academy of Legal Studies and Research, also known as NALSAR is an NLU in Hyderabad. This University was established in 1998 by an Act of Andhra Pradesh State Legislature. Similarly, different NLUs were established in different states through the legislation passed by the state governments. 

History of domicile reservation in NLUs

The concept of domicile reservation is not a new one. It is not something which has come into the news recently. This concept is an old one but the thing is that earlier people didn’t question it due to some barriers but now they want reasonable arguments behind this system. 

The National Law School of India University, Bangalore (NLSIU) first came up with an idea of domicile reservation in 2017. In 2017, the then congress state government passed an amendment in the National Law School of India Act, 1986 according to which 50% of seats were reserved for the local students. But, the governor of the state returned the bill to the legislative assembly and didn’t give his assent. 

However, the first NLU to implement the domicile reservation system was the National University of Juridical Sciences (NUJS), Kolkata. The government of West Bengal presented a bill to make an amendment in the West Bengal National University of Juridical Sciences Act, 1999 in the legislative assembly to introduce 30% domicile reservation for students who’ve been in West Bengal for at least 10 years, or to those whose parents are resident in the state. The West Bengal National University of Juridical Sciences (Amendment) Bill, 2018 was passed by the assembly on 28th November 2018 and it got assent from the governor on 21st May 2019. The students and their union stood against the bill and said that NUJS will be the first NLU to implement a domicile reservation system which will affect the excellence of the university due to political interference. 

Recent changes

This issue regarding the domicile reservation in NLSIU was raised in 2019 when the Bharatiya Janata Party came to power. The government proposed that 25% of seats should be reserved for the local students in the university. The Cabinet approved an amendment to the National Law School of India University Act, 1986. 

On 4th January 2020, the General Council of NLU Odisha decided to provide 25% of domicile reservation to the people of Odisha for the admission in under-graduate and postgraduate courses at NLU, Odisha. On May 4, 2020, the governor gave his assent to the National Law School of India (Amendment) Act 2020. Now, the reservation will apply to any student who has studied for ten years in a qualified school of Karnataka before qualifying the examination. 

On 2nd March 2020, the NLU Delhi issued a notice on its official website, according to which 50% of the seats were reserved for the students of Delhi in both undergraduate and postgraduate programmes. The students of Delhi wrote a letter to the Delhi High Court against this order and made a request to the Court that the court should intervene against the order reserving 50% of seats for the students of Delhi. The students argued that the diversity of thought and background are under threat. Later, a plea was filed in the High Court by Pia Singh, who submitted that “reserving 50% of seats for the people of Delhi not only violates Article 15(3) but also it is against all reasonable and logical reasons”. The respondents i.e. the Delhi Government argued in its defence that NLU Delhi is a State University and not a national institute so it hasn’t undermined the national character. 

The Delhi High Court on 29th June 2020 put a stay on the notice of NLU Delhi, which made 50% domicile reservations in the institute. The court directed the university to bring out a fresh admission notification before 2nd July and also directed to publish the same on its website. A further one week period should be given to the students so that those who are interested can apply for the admission process.

Later, in July 2020, a petition was filed before the Delhi High Court challenging the validity of a new amendment passed by Karnataka state assembly which provides 25% domicile reservation at National Law School of India University, Bangalore (NLSIU). The Delhi High Court asked the petitioner to withdraw the petition and approach an appropriate forum as the Delhi High Court doesn’t have the jurisdiction to entertain the petition of said matter. 

There are a bunch of petitions which were filed before the Karnataka High court challenging the validity of 25% domicile reservation in NLSIU. The first petition was filed by a 17-year Common Law Admission Test (CLAT) aspirant, Balachandra Krishnan, second by an advocate as PIL and third by BCI. On 12th August 2020, the Bar Council of India (BCI) filed a petition before the Karnataka High Court regarding the validity of 25% domicile reservation at the National Law School of India University, Bangalore (NLSIU). The petitioner argued that the amendment is enacted in the state without prior consultation. Also, the amendment is unconstitutional and unfair in nature and the provision of domicile reservation in NLSIU will affect the percentage of reserved seats for scheduled castes and scheduled tribes in NLSIU. The court asked the respondents to submit their arguments before 24th August. 

The matter was heard by the bench of the Karnataka High Court comprising Justice BV Nagarathna and Ravi Hosmani. The court observed that “Who is this reservation for? Reservation must be to uplift, not to make their life easy. This reservation is for students from elite schools”. It was also observed by the court that “Why is the State wanting to help people who don’t require help?”. Further, the court asked to hear the matter on the next date. 

Present domicile reservation in NLUs

As of now, there are a total of 23 NLUs (22 which offer admission based on CLAT and NLU Delhi which has its own entrance exam) and each of them has their own reservations policies. Generally, all the NLUs have made seats reserved for SC/ST/OBC/Physically disabled and others etc. But now the state governments have started to provide domicile reservations in the NLUs of their respective states. The following table shows the number and percentage of reserved seats for the undergraduate law course provided by the different NLUs.

Statistic’s source:

https://www.livelaw.in/columns/domicile-reservations-in-national-law-universities-152475

Constitutional validity

The constitutional validity of the domicile-based reservation has been challenged before the court in the various cases and the Supreme Court has upheld its validity. The first case where the domicile based system was challenged is D.P. Joshi v. State of Maharashtra (1955). Though the main issue raised in the case was that the government of Madhya Pradesh has made a discriminatory rule, which is that the non-resident students have to pay more tuition fees and local students were exempted, which is a violation of Article 15 of the Indian Constitution, the Supreme Court upheld the constitutional validity of a rule made by the government of Madhya Pradesh and told that it does not violate Article 15 of the constitution because there is a difference between ‘place of birth’ and ‘place of residence’. 

Another case where the concept of domicile reservation was challenged before the Supreme Court was Dr Praddep Jain Etc. v. Union of India & Ors. (1984). In this case, the petitioner challenged the domicile reservation system in the medical colleges on the grounds that it violates Article 14, 15 & 16 of the Indian Constitution. The respondents presented their arguments that the main aim behind this reservation system is to promote welfare and betterment of the local people and therefore, it falls under the domain of ‘reasonable classification’ under Article 14. The court argued that the state collects tax from its people and invests that money in its institution like universities for providing financial assistance to its local people. The same is with the domicile-reservation system. Therefore, the government has a legitimate reason to make reservations for its local people for their welfare. The government made provisions for such a system so as to provide assistance to its local students as there is a high probability that these students in future will serve the state. Therefore, the Supreme Court held that it is constitutionally valid. 

In 2003, again the constitutional validity of the domicile-reservation system was challenged in the case of Saurabh Chaudri & Ors. v. Union of India & Ors. (2003). In this case, the petitioners challenged the constitutional validity of reservation based on domicile in the matter of admission into Postgraduate Courses in government-run medical colleges. They argued that the said system violates Article 14 and Article 15 of the constitution as India has a federal structure which means all Indians have one domicile that is of India. The Court held that Article 15 protects discrimination only on the basis of ‘place of birth’ and not on the basis of ‘place of residence’. Further, the court made a differentiation between the two terms and held that domicile reservation is permitted in Educational institutions but not in the public employment sector. 

An inference can be drawn from this series of the cases that the Indian Judiciary is paying attention to the interests of the people of a particular state and avoiding the national interests. By permitting domicile based reservation the judiciary is avoiding the interests of the students of another state. The court has upheld its validity that the local people of a particular state will serve their state in future but it is not true in every case because the majority of students migrate to different places after completing their education. 

Conclusion 

The concept of providing domicile reservation in educational institutions has always remained a controversial topic. The system of the reservation was started by the drafters of our Constitution. At that time, their objective behind the introduction of the reservation system was to uplift the backward sections of our society. But now the situation has been changed and due to this people have started speaking against it. Similarly, the topic of whether there should be a domicile reservation in the National Law Universities (NLUs) or not, has become a hot topic due to the political influence. Recently, the respective state governments have provided domicile reservation in NLU, Delhi and NLSIU, Bangalore, which has been challenged in the court on the basis of its constitutionality. Though the constitutional validity of the domicile reservation has been upheld by the Supreme Court in the Dr Pradeep Jain’s case on the basis that the state provides adequate funds from the money collected as tax from the people of their state, to the educational institutions in their state so these people get a return in form of reservation. But now we have to see whether the Court will oppose its previous decision or not in the matter which is being heard by the Karnataka High Court regarding the validity of 25% domicile reservation in the NLSIU, Bangalore. 

References

• https://byjus.com/free-ias-prep/gist-of-epw-july-week-4-2020/#Domicile%20Reservations%20in%20National%20Law%20Universities
• https://leggerhythms.org/domicile-based-reservation-a-violation-of-equality/
• https://www.livelaw.in/columns/domicile-reservations-in-national-law-universities-152475
• https://www.barandbench.com/topic/state-domicile-reservation
• https://lawandotherthings.com/2018/06/domicile-reservation-in-india-denial-of-o p p o r tunities-and-compromise-with-diversity/#:~:text=The%20domicile%20r es e  r va t I o n  %20also%20plays%20a%20huge%20role,leaving%20a%20mere%2015%25%20for%20all%20India%20allotment

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