In late September last year, the Karnataka High Court quashed an amendment which introduced a domicile reservation for The National Law School of India University (NLSIU) in Bengaluru. The NLSIU (Amendment) Act, 2020 proposed the reservation of 25% of eligible seats for “Students from Karnataka” — i.e. those who have studied in recognized educational institutions in the State for a period of ten years. Also proposed was a 5% concession provided to “Karnataka Students” on the last cut-off score in the general merit category through the Notification dated 04.08.2020.
The division bench ruled that the State-mandated domicile reservation was violative of the Right to Equality guaranteed under Article 14 of the Indian Constitution. While NLSIU has always enjoyed a unique non-interference from the State, we have found that domiciliary reservations between 25 to 40 percent are mandated in at least 19 other private universities in Karnataka alone. These reservations can go up to 70 percent in other states.
As the New Education Policy, 2020 presented a clear preference towards granting greater institutional autonomy via the HECI and allowing higher educational institutions (HEIs) in the country to function with minimal interference, the constitutionality of domicile-based reservation in Private (Unaided) Universities deserves serious inquiry. The same yardsticks which exempted NLSIU in Karnataka can be used to understand why domiciliary reservation must be done away with from all Private (unaided) Universities.
Judicial Precedent for Domiciliary Reservation
Reservation in HEIs is not a novel question; it has been addressed in several prior cases in India’s courts of law — from State of Madras v Champakaran Dorairajan1 in 1951 to the Youth for Equality v Union of India2 (which is sub-judice in the Supreme Court). That receiving higher education is a luxury for several socio-economically disadvantaged communities is also no news. Aware of this, reservations had been envisioned by our constitution makers for Scheduled Castes, Scheduled Tribes, women and socially and educationally backward classes owing to their historically marginalized status.
However, unlike reservation for the marginalized, domiciliary reservation, or reserving seats and scholarships for citizens belonging to a particular region/state, does not address historic oppression. Going by judicial precedent, there are two main reasons for domiciliary reservations finding courts’ approval.
First, the departure from the principle of merit can be on the basis of “regional backwardness”3. Such regional backwardness must be determined through a “scientific study and not on some broad generalization, artificial differentiation and irrelevant assumptions”4.
Second, such a reservation should be rooted in a legitimate “State interest”5. Take, for example, a state’s responsibility to cater to the essential medical needs of a region. A state would find it in its interest to educate a student who has lived in a remote region which lacks medical professionals under the reasonable assumption that such a student would go on to practice in the same place after graduating. In 1971, the SC upheld domiciliary reservation in the context of medical education for the same reason6.
Previous judgments have also noted that domicile reservation based on a 10-year cap is not a reasonable threshold, especially for undergraduate applicants who have just passed out of school at 17-18 years of age and have had little or no agency in determining their place of residence or education.7
So who regulates admissions in private HEIs?
Besides technical and medical education, higher education in India is regulated by The University Grants Commission Act, 1956. The Act recognizes three main types of universities: public-funded universities (set up by the Centre or State), private universities (set up by a private endowment or sponsoring bodies), and deemed universities. Although private universities are self-funded and are expected to have a high degree of autonomy in administration, management and admission methodology, provisions for horizontal reservation have been built into Acts governing private universities.
At Pacta, we analyzed the provisions of all 19 Private University Acts in Karnataka and found that a reservation of 25 to 40 percent is mandated in each of them. Besides this, private universities are also required to seek prior approval from the state government to undertake collaborative research and advocacy with any organizations and also for training programs for their faculty and researchers in partnership with any other institutions. One can look at Section 7(x) of The Azim Premji University Act, 2010 or Section 7(ix) of The PES University Act, 2012 for reference in Karnataka.
Moreover, other than Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, and Madhya Pradesh, most other states mandate domiciliary reservation which ranges from 25 to 70 percent under Acts incorporating private universities. It is pertinent to reiterate that private universities are typically self-financed and barred from receiving financial assistance from the State.8
“A ‘One Nation Many Choices’ future should be envisioned for our bright youngsters, instead of dividing and subdividing the available seats and opportunities”, says Sridhar Pabbisetty, the Founding Director of the Kautilya School of Public Policy. “States should reach out to the boards of these HEIs and engage in constructive dialogue on how to pave the way for historically marginalized, disadvantaged, and underrepresented groups to be well accommodated. Governments must offer to play a supportive role in enabling this goal.”
NLSIU’s unique status quashed demands for domiciliary reservation
NLSIU in Bengaluru was set up under the National Law School of India Act, 1986, an Act of the Karnataka State Legislature, upon the interest of the Bar Council of India’s Trust and Society. NLSIU may have been one of the earliest forms of private universities in the state; private universities only became a regular feature of India’s higher education system much later.
Although NLSIU is not a State University as defined under the Karnataka State Universities Act, 2000 (earlier 1976), it did receive a land grant from the government of Karnataka. Further, unlike private universities, NLSIU can de-facto receive grants from different states’ governments. Section 21 of the NLSIU Act provides an overriding effect of this Act against any other laws and makes NLSIU essentially invincible against any other regulation or provision. In this sense, NLSIU has a unique and peculiar status that combines the best of both worlds.
The counsel for NLSIU argued before the High Court that NLSIU cannot be subject to mandates of domicile reservation because it is an ‘institution of excellence and national significance’, owing to its extremely high academic status and exalted alumni profile. Therefore, it argued that NLSIU must be accorded an almost exquisite status.
The rationale of the judgment, however, hinged on the unique nature of NLSIU, not only as against other State universities but also against the other National Law Schools, seeing the University as one devoid of any state controls. This was held despite the fact that the University receives state government grants.
Interestingly, in the judicial proceedings, the State of Karnataka did not make any reference to or build its arguments upon the existing mandatory domiciliary reservations which are hard-coded into the laws incorporating Private (unaided) Universities such as the Alliance University Act, the Azim Premji University Act 2010, the Khaja Bandanawaz University Act, 2018, etc.
The judgment was heavily based on the autonomy provided to the University by virtue of its Executive Committee being conferred with the powers of administration, management and control. The role of the State was deemed to be limited and the non-obstante (notwithstanding anything contained) clause9 was found to give the NLSIU Act an overriding effect on any other law. Thus, the court held that the State had no power to amend its limited role envisaged under the parent act.
As for the constitutionality of domicile reservations mandated by the State Government, the Court reiterated that reservations given through Article 15 (protection of certain categories of people) must not be at odds with Article 14 (right to equality) of the Constitution. Thus, if provided for by the state, the domicile reservation must satisfy the twin test of reasonable classification:
- The classification for the reservation must be intelligible; and
2. The classification must be logically connected to the ends sought to be achieved.
Moreover, domicile reservation is constitutionally permissible only when the objective behind such a reservation is not otherwise arbitrary or unreasonable. In the NLSIU matter, the court found that a claim for reservations could neither be based on regional backwardness nor the state interest, thereby making it constitutionally incorrect. Further, the court held that, unlike medical education — which assists in improving public health, i.e. a primary goal of the Constitution — domicile reservation for legal education cannot be a ‘state interest’.
Why domiciliary reservation in Private (unaided) Universities is unconstitutional
When the twin-test of reasonable classification is applied to mandating domiciliary reservation to other private universities, they will clearly fail for the same reasons as the NLSIU amendment did. The end sought to be achieved by such a practice is not clear at all. Karnataka is by no means a backward state. As mentioned in the NLSIU judgment, an entire state cannot be argued to be backward, thereby making the reservation claim based on backwardness difficult to establish.
Secondly, admission to universities is based on merit at the national level examinations, akin to entrance examinations in medical colleges. However, unlike education in medicine, “state interest” is difficult to establish in case of other fields of education. Thus, following the judgment, the rule of merit should prevail in such cases.
Finally, the rationale of retaining students within the same state is difficult to digest considering that interstate migration is becoming more common. It should be concerning, then, to see a different yardstick being enforced under the Karnataka state Private University Acts.
These private universities are self-funded and expected to be autonomous in stature. They typically endure long processes for approval and are saddled by multiple restrictions regarding distance education, demonstrating infrastructural capability etc. Adding the compulsion of a domicile reservation to the coterie of regulatory restrictions is arbitrary, unreasonable and contradicts criteria laid down by judicial precedent.
Mr Pabbisetty goes on to say, “As Arvind Panagariya pointed out, the way forward according to the new NEP is to ‘convert the leading colleges into board administered, autonomous, degree giving HEIs’. Attempts to mandate domiciliary reservation are against the spirit of the autonomy being envisaged by the 2020 NEP… the State should preoccupy itself with rigorous efforts to enable more and more institutions to improve their quality of education, rather than infringe upon the limited autonomy of the existing institutions”.
The first step in that direction would be to amend Private University Acts to remove such unconstitutionally prescriptive provisions and truly allow private universities the autonomy to pursue high standards of education. As Justice Krishna Iyer in Jagdish Saran & Ors vs Union Of India said,
A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit – such is the dynamics of social justice which animates the three egalitarian articles of the Constitution.
1AIR 1951 SC 226
2WP (C) 73/2019
3Pradeep Jain v. Union of India (1984) 3 SCC 654
4Kailash Chand Sharma vs. The State of Rajasthan, [(2002) 6 SCC 562, para 31]
5D.P. Joshi v The State of Madhya Pradesh, (1955) AIR 34;
6Kumari N. Vasundara vs. State of Mysore 1971 AIR 1439;
7Kumari N. Vasundara vs State Of Mysore & Anr 1971 AIR 1439, 1971 SCR 381
8Section 5, Azim Premji University Act, 2010; Section 5, REVA University Act, 2012, Karnataka Act No. 13 of 2013
9Section 21, The National Law School of India University Act, 1986
Featured image of Karnataka High Court courtesy Muhammad Mahdi Karim