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This is an argumentative piece looking at the concept of domicile reservations in Indian States from the specific perspective of National Law Schools. The purpose is to look at the state of legal education and the negative social engineering being achieved by these domicile reservations. Through this I will also try to underscore the question of conflict of interest and argue that that is a far bigger challenge than nepotism in judiciary.
The background of my interest in these questions arise not only from my personal political positions, but also my on-going political and legal struggle against NLSIU and State of Karnataka that has wrongfully denied me admission since 2023 and has refused to implement reservations for transgender persons despite the Karnataka High Court order dated 16.12.2024 in my petition. In recent times the discussion on domicile reservations were re-ignited by the much farcical legal struggle between NLSIU and the Karnataka State over implementing domicile reservations from around 2020. It ended, in contempt of the Karnataka High Court judgment, with NLSIU introducing horizontal domicile reservations of 25% from 2021. In 2024 the Karnataka State entered into a deal where, in return for land, the University will set aside an additional 10 seats for domicile students.
What is domicile reservation?
Domicile is a concept that defines a person’s place of residence in a particular constituent State of India. A lot of public discussions on ‘domicile’ wrongly defines this as a regional identity or confuses it as ‘place of origin’ or even extends it to the more romantic notion of ‘sons of soil’. This gives people a sense that they are acquiring some sort of birthright. What doesn’t help is that due to the nature of established domicile criteria often there are overlaps across all such definitions. But just like citizenship, domicile is merely a status that one can acquire by birth or naturalization. It is thus a lesser form of asserting State boundaries and ‘State-level citizenship’ (which is a concept alien to the Indian Constitution) in the country. It may be noted that I am not making a comment on States where there are established questions of original inhabitants, particularly indigenous tribes, being systematically excluded from their lands and rights. To an extent, this is covered under the Constitution’s Sixth Schedule (Scheduled Areas). But the truth is that in light of the question of original or indigenous inhabitants, the existence of a category such as ‘domicile’ becomes even more problematic in its definition and use by the State.
There is no uniform criteria of acquiring a domicile certificate. Each State has its own eligibility criteria[1]. In Rajasthan you can gain a domicile certificate by staying there for 10 years, Maharashtra for 15 years (or if parents are permanent residents living there for more than 6 years), Karnataka for 6 years and so on. One uniform criteria for cis-women is that if they marry permanent residents of the State they can gain domicile certificates. And, of course, if you can establish that you were born in a particular State then you can gain domicile status in that State, provided you haven’t acquired a domicile certificate from any other State. It is safe to say, therefore, that in the presence of such a mish-mash of criteria, domicile status on its own very rarely, if at all, establishes one’s place of birth, place in birth, the nature of one’s origin or degree of discrimination.
In other words, the domicile criteria, as it exists, only seeks to establish whether one is a land- or other asset-holding, contributing, legitimately reproducing, tax-paying, adequately documented, productive (or potentially productive) member of the State. This is – in no uncertain terms – tied to the original use of domicile in Indian law emerging from the colonial-era Indian Succession Act 1925, whereby domicile was defined purely for the intent of regulating the inheritance of properties.
We can very well introduce all the sociological concerns that we hold with the notion of citizenship to the notion of domicile. That is, the questions of undocumented, partially documented, displaced, migrant, refugee, asylum-seeking populations. While that will be woven into my position, it might be more useful to approach this from the perspective always peddled by the States i.e. State resource use and resource distribution, and see if it holds.
The fundamental argument put forward by States in implementing domicile reservation has been that since the State is spending resources, ‘people of the State’ must gain first right and access to such resources. And the ‘people of the State’ are verified by their ‘domicile certificates’ or any adjacent condition that the State or State institution may put forward to establish ‘domicile’. For instance, in NLSIU admissions, a ‘student of Karnataka’ for the purpose of enjoying domicile reservation is defined as follows: a student who has studied in any one of the recognized educational institutions in the State for a period of not less than ten years preceding the qualifying examination. That is, uninterrupted education in a single place or region.
The enduring Constitutional test for establishing a classification for reservation has always been to ask whether it is a reasonable classification. A reasonable classification would be one that establishes a common axis of discrimination, backwardness and/or historical loss of identity and collective fundamental rights. Further, any ‘special’ classification for reservation would have to be on the basis that without such classification that particular group would not enjoy their right to equal opportunity with all other competing groups being considered. And, finally, certain classifications are also made for those who have provided their services or put their life at peril for ‘protecting the interests’ of the State (e.g. freedom fighters or ex-servicemen).
Now, as I discussed in the critical review of the SC sub-classification verdict, the predominant nature of accessing reservation is already domicile reservation. That is, unless one is participating in central government entrances or recruitments, the only sure way to access one’s reservation rights is by being able to establish both SC, ST, OBC, PwD, cis-woman identities and domicile status. A condition that doesn’t exist for cisgender general category students. There is a reason why Ambedkar was clearly against limiting reservations by domicile. And if we understand the unfair weightage of domicile criteria as laid out above, I would submit that we get closer to understanding the roots of inequitable distribution among existing reserved categories and why State-level sub-classification will never adequately address the matter.
Domicile reservation in national law schools[2]
As with all reservations, there have been two groups on the matter of domicile reservation in national law schools. Those who are against it are sometimes just meritocrats against all forms of reservations or they use some or other form of ‘loss of diversity’ argument, eventually confusing domicile with place of birth/origin[3]. Those who are for it, build on the fact that NLUs are established through State government acts and therefore promote the ‘State land’ and ‘State local investment’ angle as well as the ‘promotion of diversity’ argument. Most of these arguments are not particularly interesting to pursue as they combine desires to ‘protect NLU merits’, champion DEI narratives, with liberal guilt that comes at the very mention of reservations.
But for my purpose here, I must put forth two positions around the State ‘land’ and ‘resources’ argument, insofar as domicile as defined in law is tied to ‘land or property’.
The first position – unlike in the United States, Australia, New Zealand and other colonized countries where there is a clear record and history of appropriation of indigenous peoples’ lands such that it has become possible to acknowledge which indigenous community’s land one is occupying, in India we are facing a continuing situation where the identity, history and struggles of indigenous people is itself being rewritten by forces such as the RSS[4]. However, it is safe to say that large portions of land that are taken up for construction of ‘premier’ educational institutions have been appropriated from the original inhabitants of such land. And that such original inhabitants are not the twice-born caste Hindus.
While I was unable to trace any references to the original inhabitants of the land upon which all the various NLUs now stand, inferences can be drawn for at least two.
The first NLU to institute domicile reservation in 2019 – NUJS, West Bengal – exists in a place called Bidhannagar or Salt Lake. Salt Lake was a planned township created in West Bengal only about 60 years back by reclaiming and filling up marshland. It is recorded that fisherfolk, who were the original inhabitants of these marshes, were ‘evicted overnight’ to create this township[5]. Only NUJS records can show how many descendants of those displaced ‘domicile’ members of Salt Lake went on to enjoy the 30% vertical reservation in NUJS.
NLSIU, Bengaluru, stands in Nagarabhavi along with multiple other technical educational institutes and university complexes. According to various internet sources, Nagarabhavi was a conglomerate of hillocks that created a “well of snakes” (Naga – snakes; bhavi – well). It is easy to take the literal meaning and suggest only that there were ‘many snakes’ in the region. However, here we can refer to Ambedkar’s theory that ‘nagas’ (with a culture that included worshipping snakes) were the likely original inhabitants of North and South India alike. In ‘Untouchables: Who were they and why they became untouchables’ he writes:
Who were the Nagas? Undoubtedly they were non-Aryans. A careful study of the Vedic literature reveals a spirit of conflict, of a dualism, and a race for superiority between two distinct types of culture and thought. In the Rig Veda, we are first introduced to the Snake-god in the form of Ahi Vitra, the enemy of the Aryan god Indra. Naga, the name under which the Snake-god was to become so famous in later days, does not appear in early Vedic literature. Even when it does for the first time in the Satapatha Brahmana (X1.2,7,12), it is not clear whether a great snake or a great elephant is meant. But this does not conceal the nature of Ahi Vitra, since he is described always in Rig Veda as the serpant who lay around or hidden in waters, and as holding a full control over the waters of heaven and earth alike. It is also evident from the hymns that refer to Ahi Vitra, that he received no worship from the Aryan tribes and was only regarded as an evil spirit of considerable power who must be fought down.
The origins of the place name, the nature of Nagarabhavi’s geography before it was flattened for developing the current urban academic, research and government employee colonies, and the overarching history of Nagas as original inhabitants, taken together, allows us to generously infer something about the original inhabitants of land on which NLSIU now exists. Again, only NLSIU records can show how many such original ‘domicile’ members may have benefitted from its domicile reservation.
Now, the specialty of NLSIU’s domicile reservation is that it is a horizontal reservation. This gives it a sense of ‘equitableness’ among the public making it difficult to immediately criticize. However, if the domicile criteria as it exists in reservation laws are inherently unreasonable and unfair, and if the reality is of scarce seats, then we must ask the question of equality of opportunity towards all those competing within each category. And it will stand that domicile weightage offered horizontally continues to remain unfair. For, an SC, ST, or OBC candidate living in Karnataka and holding domicile status has access to both the seats of the National Law School as well as other ‘premier’ law schools in the city and the State. Whereas, for all the same categories, students who do not have domicile status or adequate documentation anywhere across the country the said seats, being as they are of a national character, are the only available option with a certain degree of certainty. Hence, the question of equality of opportunity, amidst State-enforced scarcity at the national and regional scale, to those differentiated within each category must also be taken into account.
NLSIU’s horizontal domicile reservation effectively creates an unconstitutional sub-categorization among SCs, STs and OBCs that doesn’t exist in the Constitutional list or other G.O.s, whereby the additional horizontal axis doesn’t safeguard against but rather deepens internal inequities. This is what happens when you hear about ‘horizontal’ reservation and start implementing it without much thought as to the objects and reasons.
With regard to the domicile reservation in NLSIU, specifically, one position put forth is by Jehosh Paul. This concerns the inclusion of reservation in the University for Kalyana Karnataka (or North Karnataka or Hyderabad-Karnataka) under the Constitutional provision of Article 371J. That there is regional backwardness and that the proportion of SC/ST population is higher in Kalyana Karnataka than the state average is established. Therefore, if the horizontal axis for reservation in NLSIU had changed from ‘domicile’ to ‘students from the region of Kalyana Karnataka’ it would have been in line with constitutional mandate, and met the tests of reasonable classifications.
In sum, if at all ‘domicile’ (tied to moveable or immoveable property) is a valid weightage, the States’ position that domicile criteria is necessary to safeguard states’ ‘premier’ resources (NLUs) would be maintainable only if States simultaneously suspend domicile criteria for all their ‘local’ admissions and standardize legal education.
The second position pertains to the relationship between the States and the Union, which at present is one of battle and belittlement. However, as per the Constitution that is both unitary and federal, there is supposed to be a relationship of democracy and alliance between the Union and the States such that the Union supports the growth of the States with resources and also intervenes where there is a failure of the Constitution. Meanwhile, maintaining a degree of sovereignty, a portion of the States’ resources are directed towards securing what may – for the lack of a better word – be termed ‘national public good’. That is, insofar as the State is an integral part of the Union it both receives from the Union and contributes to the Union. It is not to be taken lightly that the successful implementation of domicile quotas in national law schools, even though they may have been envisaged at various points in time, has happened only after 2019, i.e. after the current ruling party took complete control of the Union government, successfully failed to secure the Constitution at every level of its own government and in its relationship with the States, and after the COVID plague fueled regional scarcities, increased inter-State conflicts, and worsened xenophobia.
The social engineering being secured by domicile reservation
The significant impetus behind reservation policies is that it is meant to undo the adverse social engineering propagated by caste and its associated hierarchical social order. The reasoning for introducing domicile in national law schools, as per the arguments put forward by State of Karnataka in Master Balachandar Krishnan v State of Karnataka & Ors (2020), is that they want NLS-educated legal professionals to stay and work in Karnataka (as a form of return on investment). In order to back this reasoning, first they should have been able to establish that a significant portion of high-earning, corporate or established legal professionals in the State, including State law officers, are not already from NLS. Second, they should have been able to establish that NLS is not directly or indirectly investing in private, government and non-government organizations or individuals engaged in the practice or teaching or research of law in the city or State, as that too is a significant element of the intended ‘return on investment’.
However, the State and the University will be hard put to prove this claim. For instance, the current Advocate General for Karnataka is an NLSIU alumnus (from 1998), the firm providing legal representation to NLSIU is headed by NLSIU alumni, many key NGOs functioning in the city are founded and run by NLSIU alumni, emerging corporate law firms in the State are either founded by or employ a portion of NLSIU graduates, even legal aid cell professionals have ties to the University. And yet, Advocates Associations in the State placed further pressure on the State to include vertical domicile reservation under ‘all India quota’ to ‘protect Kannadiga interests’.
Extracting similar information for each NLU is likely to provide similar outcomes. If NLUs are seen as ‘autonomous’ bodies established for public good and functioning in the State jurisdiction, then checks and balances are required to ensure that they function in line with the Constitutional mandate. However, when these Universities are tied to their State jurisdiction and every corner of power in the State is populated by those who claim a certain loyalty to the University (a loyalty of choice or force), effective checks and balances are eroded and every form of oversight and grievance redressal becomes ineffective.
Functioning as quiet ‘noble’ feudal communities, these Universities, their extended ‘domicile’ alumni (that will grow in numbers due to domicile reservations) and the State (that is funding domicile reservations) will successfully silence all challenges. By strategically investing, directly or through individuals or funders associated with the Universities, in the legal rights or research of a few marginalized community interests to the extent that such investments add to their portfolio of ‘good karma’, these Universities also ensure that such local communities develop a sense of conflict of interest in speaking against these Universities.
There might be a reason why, for instance, in Bengaluru and Mumbai the caste discrimination in IIM and IIT (respectively) have been publicly documented over time and resisted, whereas even though such is happening in the NLUs of these cities, it will be spoken of only through backdoor whispers. So deep is the sense of loyalties, professional futures, networks and associated misdirection that comes for the combination of alumni fraternity, professional fraternity, regionalism and State control. What results is the effective protection of silence around discrimination, high-handedness and a very technical legal education served on a platter of fear.
Here, one may recall Ambedkar’s views on any form or sense of unbridled loyalty – created by force, choice or relationships of blood, birth, marriage, camaraderie, identity or contract, which, in the practise of a public profession such as the law, is nothing but unaddressed conflict of interest. Writing to one of his close colleagues Bhaurao Gaikwad, in a letter dated 29, July 1954[6], Ambedkar’s advice about one’s conduct in public life was as follows –
There is a limit to family feeling. One cannot carry it to the extent you carry – certainly no man who wants to play his part in public life can keep on distrusting the public and trust only his brother. You should copy a bit from me. You probably might be knowing how I turned out my eldest brother from my home on the mere allegation by a mill hand woman that he insulted her.
And here we must interpret ‘trust only his brother’ most liberally in the context of the tight knit cliques of caste and gender operating at every level of the legal profession, and the State’s attempts to impose the false notion of ‘brotherhood’ of ‘domicile’ – tied to land and property – as a valuable ‘category’ to protect the public resources of the State.
Conflicts of interest of the judiciary
From ‘brotherhood’ one automatically lands at the door of the judiciary. At present there is a great interest and debate around ‘nepotism’ in the judiciary, as the decisions of the collegium, role and independence of judiciary are all under scrutiny. Nepotism, as long as we are a society of living beings that organize around primary ties of blood, family and social networks, is realistically unavoidable. The first guard against it is, of course, robust and reasonable reservations, including in the judicial services. But then again, how can we rid ourselves of ‘nepotism’ without also ridding ourselves of ‘domicile’?
In public discourse, nepotism is over-shadowing the deeper concern of visible and invisible conflicts of interest. During the winter session of the Parliament there were vocal concerns around the failing independence of judiciary. One of the suggestions put forward – directly addressing the recently retired CJI DY Chandrachud – was that there must be significant gap of time between a judge’s retirement and any government post offered to that retired judge. While a worthwhile suggestion, the reality is that these are mere words.
Setting aside inherent conflicts of interests of caste, gender and religion that can only be removed through proper judicial training, multiple sitting judges of Supreme Court and various High Courts are actively in breach of the sacred Constitutional principle of complete separation of judiciary from the executive. They are members of executive councils – the central decision-making and governing body – of various NLUs. The executive council decides or overlooks all administrative policies including appointments, reservations, financial aid, fund utilization and so on for each NLU. It is unclear what business sitting judges of Constitutional Courts have with executive decisions of a State educational institution. What principles are they practicing to reconcile their conflicts of interest, what declarations will they give the public, the stakeholder students, except to recuse willy-nilly from matters of legal challenges against such Universities?
Much focus was placed on public statements, appearances, and judicial actions of the recently retired CJI DY Chandrachud. These were mostly speculative. It is quite clear that he was not a man of great courage as a guardian of the Constitution. But if public reports are to be believed, the CM of Karnataka met with CJI DY Chandrachud and Justice BR Gavai – both sitting judges of the Supreme Court and members of the Executive Council of NLSIU, to finalize the deal between Karnataka government and NLSIU to allot 10 additional seats to the domicile category students from the year 2025-26. One must agree that this is an actual proof of the breach and moral failure of the separation between the judiciary and executive. The situation becomes indeed more tragic when one places on record that Justice BV Nagarathna, current sitting Supreme Court judge, is both a member of the Executive Council of NLSIU and the co-author of the 2020 Karnataka High Court judgment striking down domicile reservation in NLSIU as unconstitutional. What interpretations of the Constitution can the public read in order to be able to resolve these dire conflicts of interest that a simplistic notion of nepotism will not even begin to address?
At a time when various State and local universities attempt to introduce Manusmriti into legal education under various titles[7],[8]; when regulatory bodies like UGC are derecognizing multiple colleges and declaring university degrees invalid leaving those students without any property; when the states are amending and replacing laws at the speed of light; when the avenues for securing fundamental legal education – especially for marginalized – are shrinking due to increasing amendments and interference by regulatory bodies like the BCI to frustrate candidates, these ‘autonomous’ National Law Schools stand as the epitome of the reality that the Constitution in this country is merely an object.
Transgender reservations
As such, it is highly unlikely that horizontal reservation for transgender persons – a community with no State protections and no real domicile – will be secured in national law schools very quickly. To this day, many IITs/IIMs do not even offer the category of ‘transgender’ at the time of applications. If national/central schools are brought to comply, automatically the Central government will also have to introduce such reservations, opening up real and sustainable opportunities for transgender persons. And the centre has been steadfast in its position of not introducing reservations for transgender persons.
While the demand for horizontal reservations is the natural and well-founded starting point, it doesn’t adequately cover all transgender persons. In the face of the reality of abandonment, all transgender persons who are left with only the certification of their gender identity are forced to participate in the general category. In this context, it would be worthwhile for the transgender community to take note of the proposal for including ‘abandoned’ children within the reservations for ‘orphaned’ children that is being discussed in the Bombay High Court[9].
These real aspects pertaining to the implementation of reservations have to be taken into account by the transgender community in the way we organize our demands for reservation. We cannot merely be an add-on to on-going reservation debates. Our intervention in the public space has to be (and will be) in the nature of undoing the existing structures. In a way that will ultimately be advantageous to all the oppressed majorities.
The transgender community may also take into account that there might be a real crisis of clarity about how to organize future reservation demands at a national level among cisgender communities. Take two examples. One: In light of the Supreme Court’s sub-classification verdict, when State leaders were caught between State interests and national political alliances, many found it difficult to come to a strong position about the verdict. Two: Now that caste census has gained adequate political mileage, the demand is being pushed by everyone. However, this demand is so far not being placed with a simultaneous demand for prohibition on governments listing any new communities under SC, ST or OBC classification until the completion of caste census. As such, the caste census demand will likely extend into future while the states toy with the existing lists.
Insofar as reservations have always been tied to ‘domicile’ in one way or another, and insofar as transgender people are all abandoned by our ‘birth communities’ in one way or another, if we have to prevent poorly designed reservation schemes or demands from making our communities more inequitable than it already is, we have to apply our energies to democratic discussions from within. We already see that only a portion of transwomen who are able to form communities and gain government identities (including eventually ‘domicile’) are better positioned to access State-level reservations (where they exist). Such an option does not exist for a majority of transgender persons outside such communities. In fact, as per the Election Commission’s Form 6, in order to gain a voter ID (a partially accepted document towards securing ‘domicile’) an adult transgender person must be able to provide the information of a ‘guru’ as a legal guardian. Thereby rendering most of us without a vote.
As such, it might be essential for transgender communities to also rid themselves of narrow-minded views of domicility and other forms of ‘regionalism’, and reconsider with renewed vigour the demands and strategies coming from within the community, rather than short-term strategies being proposed by a few cisgender legal ‘scholars’, who are not only ignorant of our realities but also unlikely to recognize their questionable ethics and unconstitutionality even if it were drawn as a children’s picture book and placed before them with a glass of milk on the side.
[1] https://cleartax.in/s/domicile-certificate
[2] In Dec 2023 NLU Jodhpur introduced 29% domicile reservation; for a list of NLU domicile reservations and percentages as of 2020 see: https://blog.ipleaders.in/domicile-reservations-national-law-universities/
[3] https://lawandotherthings.com/domicile-reservation-in-national-law-universities-a-response-to-alok-prasanna-kumar/
[4] https://www.newindianexpress.com/nation/2024/Aug/07/world-indigenous-peoples-day-has-no-relevance-for-india-says-rss-affiliate
[5] https://www.telegraphindia.com/culture/the-lost-lakes-the-city-found-a-recount-of-stories-of-salt-lakes-birth-62-years-ago/cid/2013212
[6] Excerpted from Dr Babasaheb Ambedkar Writings and Speeches, Vol.21 (Correspondence), Ed. by Hari Narke, p. 406-8
[7] https://www.thehindu.com/news/cities/Delhi/after-manusmriti-row-other-amendments-to-law-syllabus-get-clearance-from-dus-academic-council/article68398111.ece
[8] https://www.scconline.com/blog/post/2020/02/04/bhu-workshop-on-vedic-jurisprudence/
[9] https://www.thelawadvice.com/news/landmark-legal-battle-bombay-high-court-contemplates-reservation-for-abandoned-children-alongside-orphans