The constitutionality of ‘Domicile Reservation’ both in public employment and Educational Institutions in India has often caused deep confusion. AMAN GARG analyses the landmark Pradeep Jain case, and argues that the apex court failed in identifying relevant criteria while upholding the constitutionality of domicile reservation.
THE Karnataka High Court recently quashed the National Law School of Indian University (Amendment) Act, 2020 that reserved 25% of seats in NLS for “students of Karnataka ” only.
A Division Bench, comprising Justice B.V. Nagarathna and Justice B.V. Hosmani held that only the Executive Council of the Law School, and not the state government, can consider the issue of reservation. It observed that NLSIU is an autonomous and independent institution and does not come under the state government as it was not dependent on funds or financial aid from the latter. The court further held that the law did not meet the twin tests under Article 14 of the Constitution and thus is unconstitutional.
On similar lines, the Delhi High Court too last month stayed the NLU Delhi’s decision to reserve 50 percent of its total seats for ‘candidates passing the qualifying examination from a recognised school, college, or institute located within NCT of Delhi’. Currently, except for NLU Jodhpur and NLSIU, there is hardly any NLU left that does not have some form of state domicile reservation in place.
But the chain of preferences for domestic people doesn’t end here.
Just two weeks back Madhya Pradesh Chief Minister Shivraj Singh Chauhan announced that only the “children of the state” would be given all government jobs.
His counterparts in Haryana and Telangana too have endorsed similar policies, through ordinance and cabinet approval respectively, in their states preferring state’s residents to other people. Some states have deployed indirect criteria such as language tests to prioritise local people.
At the outset, it is important to mention that almost the majority of the precedents of domicile reservations that were the subject matter of controversy before the SC (as has been cited in this piece) were pertaining to medical colleges.
Though specific arguments may differ, the broader theme and reasoning of every case has been similar. And therefore, the arguments contended in this piece does not become rescinded merely because the nature of institutions in the present case differs from the above precedents.
Domicile Reservation in Public Employment
Jurisprudence since the 1950s makes a significant distinction between domicile and place of birth, and between the place of education and employment.
The Supreme Court in DP Joshi v. State of Madhya Pradesh has held that the term “domicile” is not synonymous with “place of birth” and drew a distinction between “place of birth” and “residence”. It observed that the latter did not exist in Article 15 of Indian Constitution though found in Article 16(2). Thus a state’s action that gives preference to ‘student’ residents of that state would not violate Article 14 or 15 of the Constitution. This has been reiterated several times by the Apex Court, most notably in the cases of State of UP v Pradeep Tandon and Saurabh Chaudri v. Union of India.
What the Supreme Court’s rulings implied was that the Constitution doesn’t prohibit the government from giving preference in educational institutions to those residing in an area, provided it doesn’t extend the same criterion to public employment as Article 16(2) clearly forbids it from doing so. Article 16(3) too only empowers the Parliament, and not any state legislature, to use the residence as a criterion in public employment reservations.
It is clear that the impending notifications of the government of Madhya Pradesh, Haryana, and Telangana, promising reservations to the ‘sons of the soil’ are unconstitutional on the plain terms of Art 16(2) and Art 16(3).
Flawed Justifications
State Domicile reservations in educational institutions have withstood the touchstone of Article 14 mainly on three considerations (as discussed in DP Joshi v. State of MP & Dr. Pradeep Jain v. UOI). First, since the state finances these colleges from taxpayers, the taxpayers deserve a reciprocal benefit. Second, there is a high possibility that the majority of the talent generated in the state will be retained within the state, which lies in the larger development interest of the state. Third, the state has a duty to provide opportunities to the weaker and disadvantaged sections, and it will be able to do so through domicile reservations.
All these reasons falter on various levels of reasoning and jurisprudence.
As for the first consideration, it must be noted that citizens do not have a right to domicile reservations. Though Courts have affirmed such reservations as constitutionally valid, they have never declared it as a constitutional right.
Justice Bhagwati clearly elaborated this in Pradeep Jain’s case wherein he observed:
“If India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India….. To regard him as an outsider would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent states……….it is strongly urged upon the State Government to exercise this wrong use of the expression “domicile” from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions.”
State domicile quotas are nothing but an exercise of state power for the welfare of its residents. It would have been completely legitimate had it not been to ‘national’ universities.
Permitting intra-state reservation in universities that conduct All-India entrance exams for admission, will be discriminatory since A. Peeriakaruppan v. State Of Tamil Nadu has held such classification to be unconstitutional.
As for the second consideration, there seems to be no fair assurance that a person living in a state will pursue a career in his or her own State after graduation.
In fact, the latest survey on Higher Education by the HRD Ministry (now the Ministry of Education) indicates that a significant number of individuals, after graduation, pursue their professions in different states or in different countries. Thus, this consideration fails to meet the very end that it pursues.
The third factor is the compelling duty of the state to provide an opportunity for the weaker and disadvantaged section of the state. The Supreme Court acknowledged two main explanations in terms of forming a connection between the classification (based on domicile) and the goal of supporting poorer sections of the state. First, there is a difference in educational standards between different states. Second, many students lack access to sufficient resources to pursue higher education in other states.
Not every single state in India is homogeneous in terms of backwardness. Domicile-based reservation that fails to accommodate for intra-state disparities would inevitably result in providing a more favourable position to the stronger and elite section without contributing to the alleviation of weaker sections of the state.
Therefore, there exists no rational nexus between the differentia (based on place of residence) and the state’s purpose in framing the law.
Expansionist approach to Article 14
The claim of state interest adequately fulfills the conventional requirements of Article 14, when the enquiry is restricted to the dual test of intelligible differentia and rational nexus with the object. However, this formal test is limited and highly formalistic as it completely disregards the real-world impact of the classification on the concerned parties or groups.
As far as domicile reservations are concerned, courts in these cases are predominantly concerned with Intra-state impact rather than inter-state consequences.
If states with institutions of national significance start following domicile reservation policies, then a nationwide segregation trend will be observed. It will restrict students from other states from pursuing education in metropolitan areas. For instance, except for NLU Assam, there is no other NLU established in any other state in North-East.
Impermissible classification
At times, the objective of law can be very benign and profound, however, a classificatory measure achieves it to such a small degree that any benefits may be outweighed by the mischief of classification.
Justice Indu Malhotra in Navtej Johar judgment interpreted intelligible differentia as reasonable differentia, observing that the yardstick of classification is reasonable only if it is not based on an intrinsic and core characteristic of an individual. Thus, differentia based on an individual’s intrinsic characteristics is impermissible.
The pertinent question here is whether a person’s residence, especially a student, lies beyond one’s effective control.
In general, except for a very limited number of people, citizens seldom select their place of residence due to cultural, social, and economic conditions. Children barely have any say in deciding their domicile as they are completely dependent upon their parents or guardians. Therefore, if seen reasonably, place of birth and domicile cannot be treated any differently in case of students and would be considered an impermissible classification.
The Supreme Court has itself acknowledged that the concept of equality under Article 14 cannot be equated with ‘broad egalitarianism’.
Even so, the rule in Article 14 need not remain so astonishingly narrow, and limited. It is high time the doctrine evolved. The Hon’ble Court of Delhi needs to consider all the above questions under the classification doctrine when adjudicating upon the domicile reservation in NLU Delhi.
(Aman Garg is a law student from Gujarat National Law University (GNLU). Views are personal.)
