Editorial Note

Shreyas Sinha (Managing Editor, LSPR & Co-Convenor, NLSIU Kautilya Society)

Affirmative action remains a contentious legal and political issue in liberal constitutional democracies. How affirmative action works vis-a-vis the right the equality, what categories of affirmative action are permissible, what ought to be the criteria for implementing affirmative action, etc. are some of the primary issues that dominate politico-legal discourse.

In late-December, 2021, the NLSIU Kautilya Society, with the support of the Vidhi Centre for Legal Policy, released a research brief on a particular form of affirmative action in a specific context – residency-based/domicile reservations in India’s National Law Universities. Our fundamental goal was to identify key law and policy questions with regards to this issue and attempt a comprehensive analysis of the same so as to provide policymakers, legal researchers, and other stakeholders with the knowledge-based tools they would need in proposing appropriate legal measures going ahead.

To build on the report’s findings, we conducted two panel discussions in February, 2022 under the broad theme of ‘Constitution, Domicile, and Inclusivity in Indian Legal Education‘. These panel discussions focussed on two primary issues – (1) the constitutional law and policy questions around domicile reservations in National Law Universities; and (2) inclusivity-oriented reforms in Indian legal education. The panel discussions saw participation by esteemed legal researchers, practitioners, academics, and NGO professionals.

The following rapporteur report, prepared by a team of NLSIU Kautilya Society members, sums up the discussions that took place and the pertinent points made by the panellists. We are hopeful that an account of these discussions, alongside our research brief, will make for an important and meaningful contribution to contemporary discourse on this issue.

Panel 1 – Constitutional Issues Surrounding Domicile Reservations in National Law Universities

Celine Cordeiro and Barath Arjun B.K.

The first panel discussion looked at the constitutional law and policy questions surrounding residency-based/domicile reservations in National Law Universities.

Panellists:

1. Mr. C.K. Nandakumar (Senior Advocate, High Court of Karnataka).
2. Prof. (Dr.) G. Mohan Gopal (ex-Director, NLSIU, Bengaluru).
3. Prof. Sidharth Chauhan (Assistant Professor, NALSAR, Hyderabad) [Moderator].

Prof. Sidharth Chauhan:

The panel discussion was kicked off by Prof. Chauhan. He started by speaking on the centralised nature of discourse around NLSIU’s domicile reservations alone, and the need to accommodate a larger reality of NLUs instead of just a singular college. The CLAT 2022 notification, he pointed out, gives almost all NLUs some form of domicile reservations, just in varying quantum. The foremost question in the issue is whether domicile reservations are undercutting the original design of the word ‘national’ in National Law Universities. How do we look at allocations based on territorial ties? He referred to the Karnataka High Court case about the 25% domicile reservation at NLSIU. Central to the discussion was if the domicile reservation fit into the category of socio-economic background. While the case itself has lost significance, the broader themes about reservation policies that arose from the case still matter.

States in India don’t have uniform sizes or circumstances, which is the cause of asymmetric federalism. Questions were raised about if there is a case for “underprivileged” states to have a claim for territorial reservation. Is there an effect on overall student experience and graduation outcome in colleges with such policies? There is no empirical data on this yet, which takes the edge away from any answer to this question. One argument in the High Court was that there is no guarantee graduates stick to working in the state, negating the argument that the state benefits from such reservations.

There are also long-term questions of viability and internal administration. How do we negotiate with all the stakeholders? Prof. Chauhan, drawing from his experience at NALSAR, stated that domicile reservations have been in place for 11 years and has even been increased recently without much dissent at the university.

The same has not been the case with the reactions of NLSIU alumni, who seemed to strongly react against the domicile reservation. Perceptions on this vary from law school to law school. It was also rightly pointed out that across other law schools, this issue did not get litigated.There is also the matter of centralisation of the National Law Universities, considering that they are currently state-run universities. Additionally, discussion about cooperation with the state and central government has come up, given that subsidised land and funding comes from them.

Mr. C.K. Nandakumar:

Mr. C.K. Nandakumar, one of the lawyers in the litigation about domicile reservations at NLS, shared his views on the matter of domicile reservations. He chose to address the larger general matter, stating that it does tend to get heavy when debated. Issues like reservation need a careful and nuanced analysis instead of intemperate voices. Reservations are offered as principled solutions to the problems of inequity in our society. However, the are not just about the why or the reason, it is about the how or the execution. The weakest argument in this debate is that because the state offers resources, the state is entitled to domicile reservations. The question surrounding reservation should be a need-based one and not aimed at addressing a political constituency. A possible model used to illustrate this point was as follows – some districts in Karnataka are backward on certain parameters and a good reservation policy would be one that is nuanced enough to accommodate those districts that need special attention.

It was then re-iterated that all states are not equal. In the North East of India, there is only one NLU in total. Does a city like Bangalore really need reservation? Most students here are proficient in English. The question of whether the domicile reservation was being tied in with economic or social backwardness was raised. Is domicile reservations about students who are going to contribute back to the state or on the objective of uplifting communities? What would then happen to students from defence forces who get continually transferred? They would simply fall out of the sight of such reasoning because domicile reservations are inexplicably tied to a stable, singular location. Domicile reservations without these other considerations as it stands is harder to defend.

Mr. Nandakumar shared that from his days at NLS, a few marks were added to entrance exams scores of students from relatively underprivileged schools, which benefitted everybody irrespective of their class status. Domicile reservations hardly address inequity in the system. Is there a case for nationalising the whole system of National Law Universities? The intention of Dr. Madhava Menon with NLSIU was to set a benchmark to follow. This benchmark should not be lowered, and other universities should match it and push the bar up themselves. That the process of betterment won’t be furthered without domicile is another argument. How should NLUs upgrade themselves to reach the level of institutes of national eminence?
One IDIA report states that 96% of students in top NLUs come from English medium schools. Are we catering to forms of diversity where language can be an inhibiting factor? Each NLU has a different percentage of domicile reservation. This needs to be reconciled with the problem to be solved. There is serious deliberation about how NLUs perceive themselves as centres of excellence. Are these places of excellence linked to a larger sphere or are they simply isolated regions of excellence in states? In its current form, reservation leaves a lot to be desired.

Prof. (Dr.) G. Mohan Gopal:

He started off with a caveat about not getting involved in institutions after he left, prefacing that the comments were not just about NLS, but about all NLUs.

The first, and possibly most salient question asked was about why the term ‘domiciliary reservation’ was still being used. He agrees with Justice Bhagwati who decried the usage of the term as the word domicile is a very technical term for lawyers. Justice Bhagwati used the term ‘residence-based requirements.’ Why are we as lawyers ignoring the terminology guidance given by the Supreme Court and not using the framework proposed by the Supreme Court? Justice Bhagwati categorically said in his judgement that we can’t mix Article 15 and Article 16 of the Constitution. Article 16 is about public employment according to the Pradeep Kumar case. Article 15 does not prohibit discrimination based on reservation. Article 14 is about reasonable classification, nexus, and constitutional quality of the object itself. Justice Bhagwati said reservation was not constitutionally impermissible as long as it has the purpose of social justice value and equalising opportunities which went beyond mere legal equality. How do you link the objective of equality with residence requirements? Justice Krishna Iyer stated that the social mandate stems from equality.

Before arriving at the reservation on the level of individual benefits, do you take cognizance of backward classes? Or should there be some other criteria for a different group? There is the EWS or economically weaker sections reservation that does not require an economic AND caste background, but Article 46 states: ‘The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.’ SC/ST classes must thus be given priority in residence requirements to advance social justice.

Moving beyond that, the issue of social reservation has been completely distorted by the Supreme Court and political discourse. Reservations were meant to bring up exploited classes of society to the same level as those who exploited them. The most substantive mentions of reservation are in Article 16, Article 332 and Article 213. Article 16 does not even mention a time limit. Dr. B.R. Ambedkar had told the British in the Roundtable Conference that if safeguards were not put into place before they left, caste oligarchy would prevail. Most positions in today’s society are held by the upper caste and at best, by the creamy layer of Shudras. Oligarchy is doomed to stay as people in positions of power only pass policies beneficial to them. Domicile reservation is also based on how to cater to this oligarchy.

So what about the other classes of people? Even after the commencement of 8th decade of our Constitution, they are still kept trapped. There is concern because of lack of clarity on how it affects the prospects of the upper caste groups, given that it further entrenches reservations – the aim of which was to fight against the oligarchy. Merit should not be a differentiator in and of itself as merit and elitism are intrinsically linked, which feeds the oligarchy. Justice Nariman’s opinion in Chidambaram disallowed reservation at higher levels based on the problematic idea of merit.

To get rid of the oligarchy, pressure has to be put on the executive, judiciary and legislature for representation. The idea behind reservation is representation. There is a qualitative difference between the idea of domicile reservation, and that of which is based in social justice. The question is about how such institutions are representative and how this link between merit and elitism can break the oligarchy.

The impact of merit as a concept is vast. For example, we do not have an agreed definition of what are the qualities of a good judge. Without that how can you measure and discern who will have the qualities to meet those criteria? The same applies to a teacher of law. In the absence of such objective criteria, you can’t train people or apply such a claim. Merit as a concept is then less objective than one might assume. Merit then becomes an idea that is difficult to implement on a large scale.

Residence requirements should be used from a social justice perspective to ensure groups from backward classes have representation. Use their life experience to bring diversity of representation. Bring to every classroom a diversity in experience. Even Harvard Law School has a structure of elitism. The question is then – Should NLUs be elitist institutions to reproduce and maintain the oligarchy? Or should we see them as originally conceived-of institutions of social change to create social engineers?

Grassroots change is needed to link people who have faced exploitation together to make it a truly national institution, instead of making it a function of money and inaccessible standardised tests. We have to reconcile the mission of the NLU family as drivers of social change and use residence requirements to bind it to the marginalised using Article 16 and Article 46 to give them another window to achieve substantive equality.

Questions & Answers

Q: Would a mandatory requirement on students to work in a certain place post-graduation help with residence-based reservation meeting its objectives?

A: Mr. Nandakumar replied by stating that on the contrary, such a reservation policy neither possess a legal basis nor corresponds to social realities. Dr. Mohan Gopal stressed on the need for creating community-based educational infrastructure, a project yet to successfully manifest. Despite the present unlikelihood of such infrastructure being created, students still come back and work in states where they undertook education to serve the community. Dr. Gopal further emphasized upon the need to move towards a scientific idea of merit, for which residence requirements can be used.

Q: Won’t the residence requirement foster a different sort of elitism, perhaps a geographical one?

A: Dr. Gopal stated that India is the last operating system of apartheid worldwide.  Housing discrimination is rampant here and there is no right against private discrimination. He stated that a certain kind of elitism may rise by virtue of residence-based-requirements.

Q: What does excellence in legal education mean? What are the parameters of such excellence?

A: Dr. Gopal stated that specific caste groups possess a huge share of power and resources in the current paradigm. All results emerging from the discriminatory concentration of power and resources is secondary. The highest standard of excellence is democracy. Whether the community of a university meets farcical conceptions of “merit” is immaterial to the project of excellence. By being representative, the institution becomes democratic and by extension, closer to excellence. Standardized testing creates significant barriers to inclusivity of an institution and makes it undemocratic. A more customised admission process is the need of the hour.

Panel 2 – Inclusive Legal Education Reforms

Nidhi Agrawal and Sukarm Sharma

The second panel discussion looked at a whole set of inclusivity-oriented reforms that could be implemented in Indian legal education, alongside residency-based/domicile affirmative action.

Panellists:

1. Prof. (Dr.) Amita Dhanda (Professor Emeritus, NALSAR, Hyderabad).
2. Mr. Alok Kumar (Co-Founder, Vidhi Centre for Legal Policy).
3. Ms. Adeeba Rahman (Director, IDIA Karnataka).
4. Ms. Svetlana Correya (Executive Director, IDIA Karnataka).
5. Mr. Husain Khan (Research Fellow, Vidhi Centre for Legal Policy) [Moderator].

Mr. Alok Kumar:

Mr Alok Kumar began by elucidated on the importance of domicile reservation in maintaining and strengthening the federal structure of India and stressed on the need for maintaining diversity not merely in admission tests through reservation, but during university post-admission. He maintained that the current lack of active attempts at maintaining diversity post-admission needs to be rectified.

He further highlighted that the growth in NLUs, to an extent that almost all states have one or more NLUs has taken away from one the rationales behind having domicile, i.e., ensuring people from all states can have access to some form of NLU. This would weaken the case for introducing domicile reservations which had previously been avoided due to an overall dearth of NLUs in India. Mr Alok also pointed out that the argument that domicile reservation vitiates the ‘national’ aspect of NLUs, while having merit, is limited. This is because as discussed he considers that by increasing geographic representation, domicile reservations strengthen a national element, i.e., federalism.

Ms. Svetlana Correya:

She highlighted the geographic split in top 5 NLUs (in order of CLAT preferences), pointing out that since 2013, as per IDIA (Increasing Diversity Increasing Access) surveys the geographic trends in NLU students have remained largely the same, despite an increase in domicile reservations. Moreover, as per IDEA data only 7 students in top 5 NLUs were from the Northeast India. This constituted around 1% of the total student intake, while their representation in India’s population was approximately 5%. This is exacerbated by the requirement of proficiency in English as per the new pattern of CLAT (Common Law Admission Test) which further disadvantages those not from English speaking states. The panellists highlighted more linguistic diversity in CLAT as a prerequisite to a more geographically diverse legal education.

Ms. Adeeba Rahman:

Ms. Adeeba Rahman relied on data collected from IDIA to highlight the differential access to basic facilities such as electricity, internet and laptops in remote geographic areas. Data was collected from 18 NLUs with more than 880 respondents, collating issues faced by the students from different states in online education. Around 35% of the students belonged to rural areas and had electricity access for less than 12 hours a day on an average. Around 40% of the respondents could not access the online databases like SCC, Manupatra from their area. These factors highlight how entrance test based domicile representation alone is not enough, rather geographic representation must be sustained post-admission as well, especially in times on online education.

Mr. Husain Anis Khan:

While moderating, Mr Husain Anis Khan pointed out a ‘double discrimination’ that can result due to domicile reservation for applicants which do not have an NLU in their own state. The two aspects being:

Firstly, being at a disadvantage in not getting into an NLU geographically in their state and hence not having domicile.

Secondly, having lesser available seats and hence facing higher cut-offs in states which do have reservation.

This problem gets exacerbated since many remotely placed, non-English speaking states in the Northeast do not have their own NLUs, so the students have the twin barriers of problems with English, and the double discrimination highlighted above. The issue of domicile reservation also intersects with PwD reservations, with some NLUs only providing PwD reservation for students in domicile categories, and not in other categories. The implication being that domicile reservations have allowed certain NLUs to circumvent their PwD reservation requirement. Finally, he elaborated on the difference between vertical and horizontal diversity in terms of geography. By juxtaposing NLSIU and JMI (Jamia Milia Islamia) they showed that while NLISU had greater horizontal diversity (in terms of students from different states) JMI had more distribution in terms of students from Tier 3 and Tier 4 cities.

Prof. (Dr.) Amita Dhanda:

Dr. Dhanda suggested 2 models of justification regarding the necessity for diversity, emphasizing that diversity is what buttresses the necessity of domicile reservations. The first model, as she describes it is ‘paternalist’ in nature, it focuses on diversity and reservation as a way of correcting historical wrongs and uplifting the communities. In juxtaposition to the first model, the second model is built around the benefits of diversity that accrue not just to the group that gets the reservation, but also to the overall college community through increased proliferation of different ideas, practices etc. Hence, the key difference between the two models being that the first one focuses on diversity for the sake of the underrepresented community, while the second one focuses on the benefits of diversity for all.

For Amita Dhanda, the 2^nd model is underrepresented in the domicile discourse vis-à-vis the first model since it is based on the critical understanding of the need for universities to be a microcosm of the world, which then necessarily requires diversity. Therefore, Understanding and imbibing the second model would also help in post-entrance inclusivity, while the 1^st model is build around entrance test and is hence limited to entrance level inclusivity. Finally, Dr. Amita Dhanda highlighted that while the Kautilya Society research brief presented excellent legal argumentation, it could have used more value-based and moral support to those arguments.

Questions & Answers

Q: Some states do not have NLUs like in the Northeast, in which case they are at a disadvantage compared to students from neighbouring states which may have NLUs with domicile reservations. Is this a problem, and how could it be rectified?

A: Alok Kumar answered affirmatively, that for students which do not have an NLU in their states like in the Northeast they are perhaps at a disadvantage compared to someone from say Maharashtra, where they have 3 NLUs. However, it is not easy to open up NLUs in Northeast there are a lot of procedural requirements to be met. He suggested a higher role of central funding to develop NLUs there. He suggested two mitigating characteristics of this issue at present:

Firstly, a large section of northeast consists of scheduled tribe population which get reservations in almost all NLUs.

Secondly, NLU at Assam could potentially be seen as an overarching NLU for the Northeast at large, as of now.

Q: Since the CLAT pattern is in English, could it make geographic representation from remote regions difficult, and how would that affect the English-specific legal education?

A: Svetlana highlighted how the entrance test in Delhi University was held in multiple languages, and perhaps a similar system could be followed for CLAT. She also pointed out how majority of the work in District Courts is done in regional languages as well. Mr Alok Kumar added to this, by explaining that a lot of conversations even in at the High Court level in Karnataka are done in Kannada (the language spoken in Karnataka).

Credits for Posters – Nidhi Agrawal.