In an article published in EPW on July 11th, Alok Prasanna Kumar had argued in favour of having domicile-based reservations in National Law Universities (NLUs). Mr. Kumar argued that the elite resistance to domicile reservation reflects an unfounded fear of the ‘local’, and argued that domicile reservations can be one among the many methods through which NLUs can be made more inclusive. He also states that criticizing domicile reservations on the ground that they affect the ‘standards’ of an NLU is an elitist, and a flawed argument.
In this piece, we aim to rebut the arguments made by Mr. Kumar. We shall also attempt to show that a mere tokenistic implementation of domicile reservations may end up having the opposite effect – and can effectively reduce inclusivity in NLUs.
Before we proceed with our reasons, it is pertinent to note that Mr. Kumar does not explicitly specify as to whether he is in favour of any restriction or a ‘cap’ in the percentage of seats reserved for locals. This is significant, as different NLUs are reserving different percentages of seats for domiciles. For instance, while NLSIU Bangalore had reserved 25% of total seats for domiciles, NLU Delhi had issued a notification to reserve 50% of total seats for domiciles. Hence, while we debate on the need and justification for domicile reservations, an examination of the threshold up to which such a reservation should be granted, also merits a discussion.
Providing domicile reservation may make NLUs less inclusive
Now, we shall present two main reasons to show that contrary to what Mr Kumar claims, domicile reservations may reduce inclusivity in NLUs.
First, many States such as Uttarakhand, Mizoram, Sikkim and Goa still do not have NLUs. Among the north-eastern states, only Assam has an NLU. Also, many NLUs such as the Himachal Pradesh NLU or the 3 NLUs located in Maharashtra were established very recently, and are in the nascent stages of their development. In this situation, a significant increase in domicile reservation hampers opportunities for law aspirants in States and Union Territories which do not have NLUs, and which have NLUs which were set-up very recently, and are not yet well-established.
As per the IDIA Diversity Survey for the year 2018-19, which interviewed 515 students from the top 5 NLUs, less than 0.2% respondents marked Goa, Manipur, Meghalaya, and Tripura as their home state, while there was no respondent from Arunachal Pradesh, Himachal Pradesh, Mizoram, Nagaland and Sikkim. In these five NLUs, most of the students hailed from MP, UP, Rajasthan and Maharashtra. This over-representation of some states, and lack of representation of others, is also observable in the IDIA Diversity survey for the year 2016-17, where all eight northeastern states, Goa and Uttarakhand collectively accounted for merely 2% of the students studying in the top 5 NLUs. Out of this 2%, 1.32% belong to Uttarakhand. This data reiterates that domicile reservations may lead to over-representation of some States, and shall create further bars for other States that are already not adequately represented.
Second, it is incorrect to assume that domicile reservations shall automatically make an NLU more inclusive. Admissions to all NLUs (except NLU Delhi) are based on the Common Law Admission Test (CLAT) – which is an exam held only in the English language, and consists of a number of questions which test a candidate’s aptitude of the English language. This naturally benefits students who are based in metropolitan cities – which provides them with access to schools that impart the skills required to excel in English.
For instance, a 25% reservation in NLSIU, Bangalore is likely to provide an advantage to students based in Bangalore only, and is unlikely to help students based in other parts of Karnataka. There is sufficient empirical data available for this claim, in the student diversity reports of NLSIU, Bangalore and NUJS, Kolkata. It is pertinent to note here that NUJS, Kolkata and NLSIU, Bangalore are the only NLUs which have placed the relevant data in the public domain, after carrying out their diversity surveys.
As per the data given in the NLSIU Diversity Report (2016) – out of 389 Respondents, 37 were from Karnataka. Out of these 37 students from Karnataka, 29 students (76% of the total) belonged to Bangalore. Also, 34 out of 37 students finished their 11th and 12th Grade from a School or College in Bangalore. The NLSIU Report also stated that the proportion of students from Karnataka was 9.34 % of the entire student body – which is higher than the share of Karnataka in India’s total population – which is 5.05%.
A 25% reservation for domiciles in NLSIU may hence only aid students from cities such as Bangalore, without serving the larger purpose of making the University accessible to students from the entire State. This also indicates that domicile reservations may in itself not serve any purpose, unless there are other systemic reforms – such as making the CLAT exam accessible in languages apart from English.
While taking NLSIU, Bangalore as an example, it is also pertinent to refer to the recent decision of the Karnataka High Court in Master Balachandar Krishnan v. State of Karnataka – which struck down an amendment made to the NLSIU Act, that incorporated 25% horizontal domicile reservation. Although the amendment was struck down on the ground that the State Legislature lacked the power to direct the University to provide reservations, the Court also made two other important observations –
- It was stated that domicile reservations cannot be justified merely on the ground that such reservations have been implemented in a majority of law schools. Each instance of reservation shall have to be evaluated on its own merits, by taking into account the mandate laid down in the governing statute of the University.
- It was observed that domicile reservations in NLSIU shall in fact reduce the diversity of a pan-Indian law school, by reducing access for students who do not hail from Karnataka. Hence, along with favouring students who hail from metropolitan cities, domicile reservations also make it difficult for students outside the State to access a law school. This, as pointed out above, may especially affect students in regions such as Arunachal Pradesh, Sikkim etc, which do not have any NLU.
Let us also refer to the data given in the Diversity Report of NUJS, Kolkata. In the NUJS Diversity Survey, around 94 students out of 544 respondents filled West Bengal as their home state – which is 17.27% of the total respondents. This is much above West Bengal’s share in the national population, which is 7.54% as per the Census of 2011. Among the respondents, 5.33% (29 students) got their admission through the domicile category.
Even if these 29 students are excluded, and we take into account the remaining 515 students, 65 marked West Bengal as their home state – which is 12.62%. This is again higher than the Census, and shows that it is incorrect to state that without domicile reservation, locals do not get the opportunity to study in the NLU which is located in their home State. Also, 16 (55%) out of the 29 students who got their admission through the domicile category went to a top private school in their vicinity.
Based on the data above, if we were to take NLSIU, Bangalore and NUJS Kolkata as case studies, we can infer that – bringing in domicile reservation without making other systemic changes may lead to a situation where that reservation caters only to those who manage to get educated in Bangalore or Kolkata. This inevitably hampers opportunities for students who hail from smaller cities, towns, and villages, as exposure and awareness of CLAT continues to spread in these areas. Hence, for the reasons mentioned above, it is incorrect to state that granting domicile reservation shall automatically make an NLU more inclusive, and less elite.
The way forward
As most of the NLUs have already implemented domicile reservation, the State Government under which the NLU falls is unlikely to completely abolish the same, even if this reservation does not have any significant impact on making the University more inclusive. The Academic and Executive Councils of NLUs are also unlikely to terminate the domicile reservation criteria that they have already implemented. For this reason, domicile reservation is something that is here to stay. Hence, it is important to also examine mechanisms through which domicile reservation can indeed be made more inclusive.
In this regard, it is pertinent to refer to a Report (2018) of the Ministry of Law & Justice, on Reforms in National Law Universities (prepared in collaboration with NALSAR University, Hyderabad). The Report suggests that domicile reservation should not exceed 20% of the strength of a batch. This suggestion recognizes that if a large proportion of seats are reserved in the domicile category, it hampers access to quality legal education for those students who hail from non-metropolitan areas, or from States and Union Territories which do not have a well-established NLU. Now, even if a small percentage of seats are reserved for domiciles, those seats can be allocated in a manner that will facilitate the goal of achieving inclusivity.
This can be done by reserving seats for each area or segment of the State. To illustrate, if NUJS Kolkata reserves 22 seats for domiciles, each of those 22 seats can be allocated to different segments/districts of West Bengal – based on the population, exposure and opportunities available in a particular region. If a given segment/district does not have any eligible student after the CLAT exam, the seat can be passed on to the next segment/district, based on well-established parameters. Districts with a larger population can also be given a greater number of seats. This way, the fruits of reservation can be made directly accessible beyond the realm of Kolkata, which is the city that is most likely to benefit from the same.
Besides this, an income-based bar, based on the total income of the parents of the candidate, can also be enforced. Through this mechanism, a candidate shall be eligible to apply for domicile reservation only if the parents’ income falls below the prescribed threshold. This will benefit the middle-class and lower middle-class population of the State, and also facilitate diversity within the University.
One of the authors of this piece has also proposed a middle ground model in another article on Bar & Bench, basing the division of seats on urban agglomerations/cities on Census 2011 parameters, for a sample NLU i.e. NUJS. This model aims to ensure representation of the remotest of areas in NUJS – without diluting the national character, and without being exclusive for candidates from States without NLUs.
Representation of these states is only possible with enough safeguards being implemented, to ensure that this reservation reaches those people and places that are inadequately represented. Some NLUs initiating reservation for Jammu & Kashmir students is a welcome step for promoting diversity, as students from this region are not adequately represented in the NLU framework. Similar region-specific reservation frameworks can be explored for other inadequately represented areas as well, such as the northeast.
We acknowledge that the models we have discussed above may not be completely fool-proof, and may also bring about practical difficulties. But, at the same time, such models would ensure adequate representation from all the regions of a State, and a more level playing field for those parts of India that are not adequately represented in the NLU framework. Hence, while merely providing for domicile reservations may not make an NLU more inclusive, mechanisms can be developed through which this reservation becomes more inclusive, and fruitful.
Instead of categorizing opposition to domicile reservation in NLUs as ‘elitist’, it is important for us to tackle the root of the problem, and develop mechanisms through which such reservations actually achieve the objective of inclusivity. Until this is done, merely providing a tokenistic form of domicile reservation shall not make these ‘islands of excellence’ any more accessible.