Since the introduction of state domicile reservation in National Law Universities [Hereinafter ‘NLU’ or ‘NLUs’] such as NLIU Bhopal, GNLU Gandhinagar, NLUO Cuttack, it is on upsurge with currently ten NLUs having 50% and seven other NLUs having more than 20% reservation.[i] Recently, NLU Delhi introduced a 50% reservation for the students of Delhi applicable from the year 2020.[ii]NALSAR Hyderabad and NUJS Kolkata, also, have introduced 20% (24/120 seats) and 30% reservation (38/127 seats) respectively.[iii] NLSIU, Bengaluru and NLUJ, Jodhpur, too, will most probably implement 25%-30% state domicile reservation from coming year as legislations from respective state assemblies has already been passed.[iv] Hence, considering the present scenario where every other university is introducing state domicile reservations in NLUs, the author is trying to throw some light on the same from jurisprudential angle.
This analysis in consonance with jurisprudential theories of several jurists, it is upon readers to choose any theory to reach conclusion.
Hans Kelsen’s Pure Theory of Law
Hans Kelsen in “Pure Theory of Law”[v] earmarked a touchstone for the validity of any law. He generated the concept of “grundnorm”[vi] which he explained as a presupposition in the society that the original usurpers were the rightfully created the 1st document.[vii] He propounded that each and every other norm will derive its validity from the grundnorm. Hence, according to him, the first creators of the constitution, i.e. the constituent assembly’s ideology is the gundnorm and every other norm gets its validity from the document created by the constituent assembly, i.e. the constitution.
Similarly, considering NLUs as an idea of independent institutions that was conceptualised by Mr. N. R. Madhava Menon, the founding vice chancellor of NLSIU, Bengaluru, once said, “I am not in favour of reservation for the simple reason that it would dilute the very spirit of the national institution, which was set up in 1986 when late Ramakrishna Hegde was chief minister. NLSIU, being a model institution for the rest of the country, should remain a national institution and students should earn admission on merit rather than the place of domicile or birth.”[viii]
This statement clearly shows the ideology behind the creation of NLUs as national institutions and hence, state domicile reservation goes against the theory of Hans Kelsen.
Jeremy Bentham’s utilitarianism
According to his theory of justice[ix], there are two sovereign masters, viz. Pain and pleasure. Every human being functions in his life to increase pleasure and decrease pain. If providing state domicile reservation results in increasing the overall happiness of people, then it is desirable. Here, we have to be careful because there is a majoritarian view in his theory. He propounded that if a majority of population is happy then we can ignore the happiness of minority.
Hence, in case of state domicile reservation, we can see that a majority of population which is getting affected is unhappy (pain) as these are those who are non-resident of the state granting domicile reservation. For example, if NLUJ is granting state domicile reservation, then the beneficiary will be the residents of Rajasthan only whereas non-beneficiary would include students from all other states and union territories of India. Hence, his theory would not support the reservation.
John Stuart Mills’s Utilitarianism
John Stuart Mills’s theory[x] encompasses essential qualitative differences between different pleasures. According to him, there are two categories of pleasures, viz. higher pleasures and lower pleasures. The lower pleasures are those which can be enjoyed by everyone and are animalistic. However, the higher pleasures are those which cannot be enjoyed by animals. To enjoy higher pleasures, there need to be the presence of capacity in people to enjoy them and government should try to cultivate this capacity. Similarly, granting state domicile reservation is a type of lower pleasure whereas merit based admission is higher pleasure. Hence, state should promote merit based admission by not introducing state domicile reservation. His theory also includes an element of “Decided preference”[xi] which means that there is a decided preference of higher pleasures over lower pleasures by the one who have enjoyed both. Likewise, there are many examples of students, for example, one got admission in MNLU Mumbai through domicile reservation and then, he again fought “CLAT”[xii] and secured AIR 299 and is studying in NLUJ, he would definitely enjoy his success more in the latter case more. “It is better to be Socrates dissatisfied than a fool satisfied.”[xiii]
Robert Nozick’s Libertarian theory
Nozick, mainly, did his work unjustifying the taxation regime by governments where he explained that when taxes are being charged from people as per their earnings, the one with more income will be taxed more and the one with lesser income will be taxed lesser. The money taxed from the rich will be utilised in the welfare of the poor. According to Nozick’s theory[xiv], this will amount to taking a part of efforts and time of rich in welfare of poor. He compared this to forced labour. Hence taxation is inherently unjustified.
Similarly, when we are reserving seats for domiciled students from the general seats of meritorious students. What we are doing is taking a part of efforts and time put by meritorious students in cracking CLAT[xv] and therefore, it is not just.
He also supported meritocracy, which means that even if we reserve seats and provide admission to those who are not that meritorious, the chance of they, being left behind to meritorious students is significant.
John Rawls’s Theory of Justice
John Rawls while propounding his theory encompasses several principles and concepts. In his theory[xvi], he put forward three types of inequalities, viz. (a) legal inequalities, (b) birth status based inequality, (c) Talent and efforts based inequality.
According to his theory, if inequality is of third type i.e. talent and efforts based, then it is justified. The basic premise of his theory is that if we can justify an inequality, it is just. If there are two individuals, A and B, in whose cases there is no any legal inequality e.g. any law preventing one or favouring other in securing better rank in entrance exam and birth status based inequality is absent too. Now, just based on one’s efforts and talents, secures AIR 1 and other, being lazy and not that talented, secured AIR 1503. So if it is the case, then it’s all fine and granting state domicile reservation would be unjust as the birth status based differences is almost negligible among the students getting admission through domicile and merit based students. Legal inequalities, too, is not seen in present scenario.
Claim regarding backwardness
After jurisprudential analysis, now coming to the argument which is generally put forward while granting domicile reservation, i.e., by granting state domicile reservation, an opportunity is being provided to the backward and weaker students. However, when reservation is granted, it doesn’t include any provision to ensure that the benefit actually reaches the unfortunates. Rather it has been witnessed that the most students who are benefitted from state domicile reservation are from well to do urban background. Hence, the nexus between the object sought to achieve and intelligible differentia fades away under Article 14.[xvii]
Impact on non- Beneficiaries
Trace that state domicile reservation leaves on the non- beneficiary of the policy is also needed to be considered. The number of the non- beneficiaries in case of state domicile reservation is more than the beneficiaries. Considering particularly the students of those states in which there is either no NLU or NLUs are not that excelled, e.g. Haryana, Goa, Andhra Pradesh don’t have NLUs, so state domicile reservation would affect students of those states severely.
Conclusion
On the basis of the jurisprudential analysis, it is quite clear that even on the basis of several noted jurists’ theories, state domicile reservation doesn’t stand a chance to be justified.
Furthermore, taking into account the nature of country like India which has diverse cultures, if we promote state domicile reservation, it would led to regionalisation of legal education in those universities which are of national importance.
Hence, state domicile reservation in NLUs is unjust in the ends of jurisprudence.
[i] Meera Emmanuel, “Domicile reservation proposal for NUJS reignites demand to “nationalise” NLUs”, Bar and Bench, Nov. 28, 2018, available at <https://www.barandbench.com/news/domicile-reservation-nujs-nationalise-nlus> (March 22, 2020).
[ii] “NLU Delhi starts 50% Delhi state domicile reservations, following wider NLU balkanisation trend”, Legally India, January 15, 2020, available at <https://www.legallyindia.com/lawschools/nlu-delhi-starts-50-delhi-state-domicile-reservations-following-wider-nlu-balkanisation-trend-20200115-11148> (March 26, 2020).
[iii] Amit Thakkar, “Domicile reservations in National Law Universities”, Livelaw, February 8, 2020, available at < https://www.livelaw.in/columns/domicile-reservations-in-national-law-universities-152475?infinitescroll=1> (March 29, 2020).
[iv] Id.
[v] Hans Kelsen, What is the Pure Theory of Law 34 Tul. L. Rev. 269 (1959-1960).
[vi] Id.
[vii] Id.
[viii] Manu Aiyappa Kanathanda, “Move to reserve 50% seats for Karnataka students in NLSIU hits hurdle”, Times of India, July 25, 2017, available at <https://timesofindia.indiatimes.com/city/bengaluru/move-to-reserve-50-seats-for-ktaka-students-in-nlsiu-hits-hurdle/articleshow/59745110.cms> (March 29, 2020).
[ix] Jeremey Bentham, An Introduction to the Principles of Morals and Legislation 1(Reprint ed. 1948).
[x] John Stuart Mills, Utilitarianism 14 (7th ed.1879).
[xi] Id.
[xii]“Common Law Admission Test”, Wikipedia, (March 9, 2020), available at <https://en.wikipedia.org/wiki/Common_Law_Admission_Test> (April 1, 2020)
[xiii] Supra x.
[xiv] Robert Nozick, Anarchy, State, and Utopia 26 (Reprint ed. 2013).
[xv] Supra xii.
[xvi] John Rawls, A Theory of Justice 86 (1971).
[xvii] The constitution of India, art. 14.
This article is written by Vishwas Agarwal of NLU, Jodhpur.
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