Following the footprints of state governments in Karnataka and Odisha, Rajasthan state government has also proposed to extend domicile reservation in National Law University, Jodhpur. Last year, an amendment bill which provided for reserving 50% of seats in National Law School of India University, Bangalore for the residents of Karnataka was passed by the legislative assembly. Similarly, on 29th June 2017, the Delhi Assembly passed a resolution which provides for reserving 85% of seats in the colleges affiliated to Delhi University. The domicile reservation also plays a huge role in admissions to medical colleges. The domicile rules in National Eligibility cum Entrance Test (NEET) provide that the respective state government can reserve a maximum of 85% of the seats for the students domiciled in the particular state, leaving a mere 15% for all India allotment. The continuous extension of domicile reservation to educational institutions in recent past has brought the policy back into discussion.
The Supreme Court of India in its line of judgments on the issue of the legal validity of domicile reservations has ruled in favour of the policy providing the essential basis to the state governments to formulate them in the first place. This decision was first pronounced by a three-judge bench in the case of Dr. Pradeep Jain v. Union of India in the year 1984 wherein the court provided two broad justifications for the domicile reservation- financial assistance by the state and backwardness of particular region. The first consideration was premised on the fact that state government provides a considerable financial assistance to the universities within its borders and this money is derived from the taxes paid by the people domiciled in that particular state. Hence there exists a legitimate state interest to promote education within its borders as there is a likelihood that people domiciled in the state will serve as medical practitioners in their state after receiving the higher education. In the case of D.P. Joshi v. State of Madhya Bharat the court held that the objective of encouraging education by providing some concession in the fees to the residents of the state is a legitimate and laudable objective which fulfils the requirements of Article 14 of the constitution of India. Relying on the reasoning provided in D.P Joshi the Court held that State’s claim of promoting education amounts to a legitimate object and the classification based on domicile bears a rational nexus with such object.
It has to be seen that the claim of state interest adequately fulfils the formal requirements of Article 14 wherein the enquiry is restricted to the dual test of intelligible differentia and rational nexus with the object. However, such an approach has been criticised by Tarunab Khaitan in his article titled ‘Equaity: Legislative Review under Article 14’. He argues that the classic test of ‘Unreasonable Comparison’ is highly limited and formalistic as it completely ignores the impact and consequences of the classification on the concerned parties or groups. Moreover, the limits of the classic doctrine are clearly visible when in order to avoid unjust outcomes the court invalidates the classification by placing certain values or interests above the formal requirements of the test. Such approach is visible in the case of Subramanian Swamy v Central Bureau of Investigation where even though the classification on the basis of rank or status of public servant was justified on the reason that lower ranking officials do not have discretionary powers the classification was held to be invalid by expanding the formal requirements to incorporate the value of ‘Corruption-free Administration’. Hence it has been suggested that an assessment with respect to the impact of the classification on the beneficiary and non-beneficiary group becomes a relevant enquiry depending on the facts of the particular case.
In so far as domicile reservations are concerned, it has to be seen that the judiciary in these cases is substantially concerned with the impact of domicile reservation within a state without giving any attention to the equally important consideration of the national effect of these policies. The Impact of the policy on the non-beneficiary group which constitutes the people from other states (especially the states which lack high-ranked educational institutions) is an equally important aspect to consider while examining the constitutionality of domicile reservation. It is a known fact that states in India differ in terms of backwardness. There are several states which have a good number of educational institutions providing opportunity for the students in diversity of fields whereas some regions face dearth of significant institutions. Since these areas do not have the sufficient number of institutions, the students from these regions prefer to travel to other regions to seek admissions in the well-performing institutions. If most of the States which have institutions of national importance adopt the policies of domicile reservation, which is effectively the present day scenario, then a national effect of ghettoization would be observable restricting the students from other states (which lack high-ranked educational institutions) to seek education in metropolitan areas for better academic pursuits. Hence in the case of domicile reservation the important consideration of national interest should also be considered over and above the formal requirements of dual test under Article 14.
The second consideration provided in Dr. Pradeep Jain was the claim of backwardness by a particular region. This means that the justifications for domicile reservation are to be found in the compelling interest for a particular State or Union Territory to provide an opportunity to the weaker and backward section of the state. In terms of establishing a nexus between the classification (based on domicile) and the objective of alleviating and helping weaker section, the Supreme Court provided two overarching reasons in favour of the domicile reservation. Firstly, it was stated that there exists a disparity between the different states in the country wherein the states which are backward and where the students do not have adequate opportunity will fail to compete with advanced states in an all India open competition. Secondly, there may be many students who do not possess adequate means to travel to far off states and pursue their higher education. Based on the aforesaid reasoning the Court upheld the validity of domicile reservation.
It is important to consider that under an Article 14 challenge the courts have also conducted an enquiry on the aspect of over-inclusiveness and under-inclusiveness of the classification. The likelihood of achieving the intended objective is also a relevant enquiry under article 14 challenge. Building on the aspect of over-inclusiveness of the policy, it can be argued that any particular state in India is not homogenous in terms of backwardness and there is a great rural-urban divide within the states. This may be more so in the case of states with larger population, where a claim that an over-inclusive or blanket policy of providing reservation to all its residents in order to aid the weaker section of the state would be a logically fallacious claim. Hence a domicile based reservation that fails to account for intra-state differences would necessarily result in providing a more advantageous position to the stronger and advanced section without substantially contributing to the alleviation of weaker section of the states.
Apart from the two considerations that were stated by the Supreme Court, a third aspect of regional diversity also needs attention while analysing domicile reservations. In his work Universities at Crossroads, Andre Beteille, highlights the importance of universities as social institutions which provide a space for a distinctive interaction between students from different communities and backgrounds. The crossroad that he talks about is the challenge of making Indian universities socially inclusive and diverse without compromising with academic standards. The policy of domicile reservation clearly fails on the aspect of regional diversity. The conception of universities as social institutions gets completely compromised considering the inconsistency between domicile reservation and notions of social inclusion and diversity.
The foregoing discussion highlights that the intended objectives of domicile reservation should be seen in juxtaposition with adverse consequences that it necessarily entails. Its national impact of depriving opportunity to backward states of the country and compromising with the diversity of the students in the institutions of national importance are pertinent factors that require consideration. Hence it is important for policymakers to engage in the discussion considering the merits and demerits of the domicile based reservation and overhaul the current system to provide a workable solution.
Tushit Mishra is a 4th year student of NALSAR University of Law, Hyderabad.