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Domicile-Based Reservations: How Far Tenable?

Reservation has always been a matter of debate, whether educational institutions, jobs, promotions etc. Reservation is not only Limited to the caste-based reservation, but it also includes domicile reservation. Our constitution-makers put in reservation in the Constitution for the upliftment of the backward sections of our society.

These affirmative actions were necessary to remedy the discrimination and subjugation of the past faced by the minorities and ensure them for a better position in the future. Indian courts have also upheld that affirmative action based on the logic of unequal cannot be treated equally[1]. However, with time people have formed different opinions and condemned the idea of reservation, mostly argue on the point of merit that the process of selection in an educational institution should be based on a student's capabilities and skills alone.

Background to affirmative action was necessary for discussing domicile based reservations as domicile reservation means favouring someone based on that person's residence. Initially, the reservation was used to meet narrow political ends where you can judge the system but not the beneficiaries. This current system possesses a significant threat and could have profound implications rather than it looks like.

With the Constitution's formation, India turned into one Nation from different geographical units, each with its principles. Indian citizen can move freely in any part of the country contradicting the idea of residence or place of birth as a qualification for reservation.[2]

Initially, domicile reservation was first bought in a medical examination but later on adopted by several other educational institutions, giving rise to certain issues regarding the reasonableness of domicile reservation and how far it could be applied. We will try to resolve the disparity regarding the word domicile and also talk about the legal validity of domicile reservation. Discussing all the significant issues this topic has throughout the paper with the help of certain cases and different research papers. Finally, try to come up with a solution to this problem: to which extent domicile reservation should be applied or whether it should not be applied at all.

Meaning Of The Word 'Domicile'

The basic meaning of domicile is 'the place of living' or permanent residence. It is a legal relationship between a person and a territory with a particular legal system which invokes that system as his personal law. But what is generally understood by domicile is a permanent residence or a permanent home. Even if a person doesn't have a permanent home, he still has his domicile as a primary legal concept for determining his personal laws.[3]

It is often argued that domicile means place of birth or place of residence, especially there is a confusion regarding the word domicile under clause 1 of article 15 of the Indian Constitution. But if contrast is made between Article 15(1) and Article 16 2 of the Constitution of India, It would seem that the constitution-makers have deliberately made a distinction between the two, to where article 15(1) resembles the expression place of birth and Article 16 resembles the expression domicile or residence.

This clearly shows that both represent different concepts. But this is not the main issue here because if some meritorious students are deprived Of their seats at these national level Educational Institutes only because they are a resident of a different state which is unjustified according to article 14 which has a much broader ambit than article 15(1).[4]

It is also very clearly and explicitly mentioned in Article 5 of the Indian Constitution that there is only one domicile, domicile in India's territory, Meaning there could not be different domiciles for a separate state[5]. The Court in Dr Pradeep Jain v Union Of India [6]has also mentioned that it is quite dangerous to use these legal concepts which are conveying a different concept rather than the ordinary associated legal use over the years; therefore it is expected from the state government not to exercise the use of expression 'domicile' as an eligible condition for admission in an educational institution and particularly medical colleges.

Similarly in case of KP Joshi applicant v.State of Madhya Pradesh opposite party[7], where 'domicile' or residence was a requirement within a state as eligibility criteria for the qualification of the examination held by the University of the state where some students were excluded despite their merit, only based on their non-residence of the state.

It was held that Reservation based on domicile is allowed provided that it is not a wholesale reservation that is strictly condemned by the Supreme Court, in other words, it should not offend Article 14, 15(1), 16 of the Constitution.

Constitutional Validity Of Domicile Reservation

The constitutionality of the domicile reservation has been challenged time to time. However, the first case that comes in mind when we talk about constitutionality of the validity of domicile reservation is D P Joshi vs State of Madhya Bharat [8]where the government was promoting education by providing some concession in the fee for the residents of that state alone.

This was challenged in the Court, and the Supreme Court stated that it is a legitimate objective which is fulfilling the requirement of article 14 of the Constitution and this classification based on 'domicile' provides a rational Nexus with such objective. In this case, only Supreme Court ruled the distinction between the 'place of birth' and 'residence' regarding the term 'domicile' and observed that 'residence' does not exist in article 15, but it is found in article 16(2) of the Constitution[9].

Thus a state action that benefits its people would not violate Article 14 or 15[10] of the Constitution; therefore, this classification based on domicile was constitutionally upheld by the Supreme Court.

Secondly, it was challenged in Dr Pradeep Jain v Union of India [11]where it is challenged that domestic reservation in medical colleges violates Article 14, 15 and 16[12] of the Indian Constitution. But the Court argued it on a similar line to DP Joshi that it is for the benefit of the local people and therefore it falls under the domain of reasonable classification under article 14[13]. The Court also said that it is similar to when people pay taxes and in return, the government provides benefit to its people.

Similarly, it is investing in their local colleges by providing domestic reservations for the people's welfare; most probably, these students will be serving the state in the future. Therefore the Supreme Court upheld its constitutionality.

Domicile reservation was again challenged in the 2003 case of Saurabh Chaudhary and ors. v/s Union of India [14] was a challenge against the constitutional validity of reservation in a postgraduate course in government Medical College. Here again, the Court argued on a similar line as D.P. Joshi and upheld the constitutional validity of domicile reservation.

From the above cases, we can see that from time to time Supreme Court has paid much attention towards the interest of people of a particular state at the cost of national interest as permitting domicile reservation in a particular state hinders the chances of other students throughout the Nation to apply for that seat. It is also not true that most students will stay back and serve their state in the future. The Supreme Court has upheld the constitutionality of domicile-based reservation but overlooked many problems that we will be discussing in the next part of the paper.

Issues With Domicile Reservation

  1. Intra-State Problems
    From the above cases of DP Joshi and Pradeep Jain, the Supreme Court has mainly relied on two arguments to depart from the merit-based selection principle. First is the 'doctrine of sons of soil' where the state provides services to the state's people by giving domestic reservation to the students who are likely to settle down and serve the people of the state in the future. And second is the region's claim of backwardness. [15]

    There are some significant problems with the argument given by the Supreme Court, First of all, not all the states are homogenous in terms of backwardness and domicile reservation cannot address the intra-state problems or help the weaker section of the society instead it would put the strong and elite section of the society to a more favourable position.
    As you know, India is a diverse country, and each state is entirely different from the other in many aspects. Similarly, all states do not have adequate educational institutions, or the quality of education is not the same, whereas some States might have better educational institutions than others.

    Thus, students might prefer to go to other states to pursue their higher education, but if such a state with good educational institutions would have a domicile reservation, it would be challenging for other states' students to pursue their education in those States. Therefore a domicile reservation in a single state would affect the interest of the entire Nation. [16]

    The similar line of thought could be found in 2014 of Vijay Goyal and others v State of Karnataka and others, where the state government had applied domicile reservation to postgraduate courses in medical and dental colleges in Karnataka. Subsequently, it was challenged in the Supreme Court.

    The Court declared that this requirement of domicile reservation in higher-level education Institutions would be Ultra vires of article 14 of the Constitution and the Court relied on the opinion of Pradeep Jain v Union of India [17]where it said that when we talk about higher-level institutions, then the eligibility criteria other than excellence or skills like the residential status of a student would violate article 14 of the Constitution and would also compromise the quality of education and hamper the interest of the Nation. [18]

    The justification given by the Court in cases like D.P. Joshi is fallacious as even a small amount of reservation based on domicile would be discriminatory as that amount of meritorious candidates would be deprived of their fundamental rights. On the point of the doctrine of sons of the soil, there seems no reasonable guarantee that an individual residing in that particular state would practice a profession in his state after graduating from the institution[19].

    Many surveys have shown that a great majority of students getting admissions under the domicile reservation would prefer to pursue their careers in other states due to good job opportunities and owe to globalisation in different countries.[20]

    On the significant point to curve backwardness of the people due to domicile reservation does not make any sense because a person having reservation in a particular state has nothing to do with backwardness, even more, it would give an upper hand to the elite section of the society over the weaker section of the people of that particular state and widen the gap, so it does not address the issue of backwardness. It seems there is an error in identifying the Crux of the problem.

    So from the above discussion, it is evident that state domiciled is nothing but state using its power for the Welfare of its people which would be fair if it was in the case of state universities but in case of universities of national importance where seats are being allotted based on all India entrance examination, then giving reservation based on residence in that particular state would be discriminatory. It clearly shows that it is for the local people's Appeasement and not a step towards national good or benefit.[21]

    In the case of A. Peeriakaruppan vs State of Tamil Nadu, [22]it was held that allowing reservation based on residence in a particular state would be discriminatory as an intra-state domiciliary classification has been held to be discriminatory.

    On domicile, reservation courts are mainly concerned about the intra-state impacts rather than the inter-state consequences. However, they need to also focus on, if most of the states with the Institutions of national importance started adopting these domicile reservation policies then it would result in a national effect of ghettoization, thus restricting students from other states to seek better education quality in Metropolitan areas and nationwide segregation could be observed. Hence, under domicile reservation, national importance should be considered the utmost priority and even above the dual test's formal requirements under article 14. [23]
     
  2. Homogenization
    1. On Geographical Grounds:
      Supreme Court has very clearly upheld the constitutional validity of domicile based reservation in both the cases DP Joshi and N. Vasundhara v State of Mysore [24]case. But the reasoning behind this judgement seems a bit flawed as the Court takes into account that in case of an all India entrance examination individuals would have equal opportunities for the admissions if you would not take into consideration of the diverse level of social, economic and educational differences of different regions, where students from underdeveloped/backward or too remote regions would experience difficulties to compete with the students of highly developed / elite cities.

      This reasoning given by the Supreme Court seems reasonable but this would not change things as by implementation of domicile based reservation would creat same level of disparity within a state where some regions would be much better than others and eventually lead to discrimination within a state.

      It could also be seen in case of The State of Uttar Pradesh v Pradeep Tandon [25]where it was held that there is a significant degree of differences between The villages in a particular state so you cannot homogenize the villages. Therefore no student should be denied of his educational share solely based on geographical grounds.
       
    2. On Backwardness:
      As we discussed above, we cannot homogenize a particular state as backward because there are different regions within a state with different levels of backwardness and there might be a significant amount of Urban and rural divide within the state, this could be very true in case of a state with a larger population so we cannot put an umbrella policy providing reservation to all its residents to overcome the backwardness of the weaker section because it does not tend to help the weaker section instead put the advanced section of the society in an advantageous position.

      The Court struck down this type of homogenization of a state based on backwardness in Nidamarti MaheshKumar vs the State of Maharashtra[26], Where this region-wise classification was defended because a region called Vidharbha was more backwards as compared to Pune and Bombay backward regions. But the Court did not find any material facts to show that an entire region within the jurisdiction of Vidharbha was backwards or an entire region within the jurisdiction of Pune was advanced. Thus, the Court declined to categorise region-wise universities based on backwardness. [27]
       
    3. Intolerable Classification:
      This classification according to the domicile is not reasonable only on the basis that you should pass the duel test of article 14 which is rational Nexus and intelligible differentia because it neglects the other parties who will be facing the consequences of these reservations, and this 'unreasonable comparison' Is highly formalistic and limits the classical doctrine as it is visible that in order to avoid unjust outcomes the Court does not accept these classifications by placing certain interest above these requirements of the test.[28]

      As Justice Indu Malhotra in the Navtej Johar case interpreted intelligible differentia as reasonable differentiate, this classification is reasonable only if the legislation does not discriminate based on the intrinsic and core values of an individual. Thus differentiating an individual based on his core characteristics is unacceptable.

      This idea could be seen in domicile reservation. Except a few people, mostly residence is selected based on Cultural, Social and Economical conditions of an individual and children don't usually have a right to say in this matter since they are completely dependent upon their parents. Therefore, it is reasonable to say that place of birth and domicile cannot be seen any different in case of a student, and this classification of dual test completely fails in the current situation because it affects the core value of that individual. [29]

       
Conclusion
From the above discussion, we have seen that domicile reservation has benefits, but it also has some negative consequences. It might help a state resident according to the Court's point of view, but at the same time, if you look from a national perspective, it impacts and deprives individuals opportunities which belong from the backward states of the country, affecting the diversity of students within an institute of national level. We see that reservation for SC and ST's is based on a Pan India basis but the other hand reservation based on domicile or residence is within a state, which is completely unfair.

Our country has an abundance of talent, skill and knowledge; it is not like that we have a particular state with a Monopoly of talent, but it has been equally distributed within the country so what we need is even distribution of proper opportunity and employment for all the meritorious students so that they can reach to their fullest potential. Therefore this equality of opportunity cannot be dependent upon a citizen's residence instead on his skills, merit and excellence.

Throughout time regional political parties have always try to gain advantage through reservation based on domicile, and this position is a significant threat to the unity and integrity of our Nation. The courts have mentioned that the doctrine of 'sons of soils' is not a populist demand, then such demand should not be appealed, which are contrary to the Constitution.

Also, a resident of a particular state should not have a feeling to have a preferential claim in a particular state against the person who is not a resident of that state, irrespective of the merit, this type of feeling should not be there; as reservation is not a right of an individual, instead it is an affirmative action for the upliftment of the weaker section of the society and this feeling of preference over others without any claim over merit, threatens to break up the country into fragments.

Thus, a proper discussion is needed by the policymakers of our country to consider the demerits and merits of domicile-based reservations and provide some workable solution in the current system.

Bibliography
Primary Sources:
  1. The Constitution of India, 1950
Case Laws:
  1. Dr Pradeep Jain v Union Of India, (1984) 3 SCC 654
  2. KP Joshi applicant v.State of Madhya Pradesh opposite party, AIR 1955 SC 334.
  3. D. P. Joshi vs State of Madhya Bharat, (1955) 1 SCR 1215
  4. Saurabh Chaudhary and ors. V Union of India, (2004) 5 SCC 618
  5. A. Peeriakaruppan vs State of Tamil Nadu, (1971) 1 SCC 38.
  6. N. Vasundara v State of Mysore , (1971) 2 SCC 22
  7. The State of Uttar Pradesh v Pradeep Tandon, (1975) AIR 563.
  8. Nidamarti MaheshKumar vs State of Maharashtra, AIR 1986 SC 1362
  9. Navtej Singh Johar & Ors. V Union of India, W. P. (Crl.) No. 76 of 2016
Secondary Sources:
  1. Journal Articles:
    1. Tania Sebastian, Government Imprudence and Judicial Decisions in Domicile Reservations: A Comparative Analysis between India and the United States, 22 CHAP. L. REV. 119 (2019).
    2. J. A. Wade, Domicile: A Re-Examination of Certain Rule,The International and Comparative Law Quarterly,Vol. 32 pp. 1-20(Jan, 1983)
    3. Nirmal Sengupta, Through the Looking Glass: The Domicile Debate of Jharkhand, Economic and Political Weekly, Vol. 49, No. 45 , pp. 23-26 (November 8, 2014)
    4. Hema Banerjee, Reservation Policy: A controversial affair in Island's society,The Indian Journal of Political Science, Vol. 70, No. 3, pp. 813-824 (JULY - SEPT., 2009)
       
  2. Online Resources:
    1. The Indian Express, Domicile-based job Kota : the law, SC rulings, and special cases, August 23, 2020,available at https://indianexpress.com/article/explained/domicile-based-job-quota-the-law-sc-rulings-and-special-cases-6561814/
    2. Ipleaders, Domicile Reservations National Law Universities, November 30, 2020, available at https://blog.ipleaders.in/domicile-reservations-national-law-universities/
    3. SCC Online, Reservation On The Basis Of State Domicile: A Practice Unfair To People And Unexpected Of Governments, July 15, 2020, available at https://www.scconline.com/blog/post/2020/07/15/reservation-on-the-basis-of-state-domicile-a-practice-unfair-to-people-and-unexpected-of-governments/
    4. LegalServiceIndia, Residence Reservation System In The Field Of Education, available at http://www.legalservicesindia.com/article/2299/The-Great-Indian-Reservation-System.html
    5. LawAndOtherThings, Domicile reservation in India: denial of opportunities and compromise with diversity, June 25, 2018, available at https://lawandotherthings.com/2018/06/domicile-reservation-in-india-denial-of-opportunities-and-compromise-with-diversity/
    6. TheLeaflet, What are the Flaws in the Justification of Domicile Reservation?, October 8, 2020, available at https://www.theleaflet.in/what-are-the-flaws-in-the-justifications-of-domicile-reservation/#
End-Notes:
  1. Tania Sebastian, Government Imprudence and Judicial Decisions in Domicile Reservations: A Comparative Analysis between India and the United States, 22 CHAP. L. REV. 119 (2019).
  2. The Indian Express, Domicile-based job Kota : the law, SC rulings, and special cases, August 23, 2020,available at https://indianexpress.com/article/explained/domicile-based-job-quota-the-law-sc-rulings-and-special-cases-6561814/
  3. SCC Online, Reservation On The Basis Of State Domicile: A Practice Unfair To People And Unexpected Of Governments, July 15, 2020, available at https://www.scconline.com/blog/post/2020/07/15/reservation-on-the-basis-of-state-domicile-a-practice-unfair-to-people-and-unexpected-of-governments/
  4. Id.
  5. The Constitution of India, 1950, Art. 5.
  6. Dr Pradeep Jain v Union Of India, (1984) 3 SCC 654.
  7. KP Joshi applicant v.State of Madhya Pradesh opposite party, AIR 1955 SC 334.
  8. D. P. Joshi vs State of Madhya Bharat, (1955) 1 SCR 1215
  9. Ipleaders, Domicile Reservations National Law Universities, November 30, 2020, available at https://blog.ipleaders.in/domicile-reservations-national-law-universities/
  10. The Constitution of India, 1950, Art. 15.
  11. Dr Pradeep Jain v Union of India, (1984) 3 SCC 654
  12. The Constitution of India, 1950, Art. 16.
  13. The Constitution of India, 1950, Art. 14.
  14. Saurabh Chaudhary and ors. V Union of India, (2004) 5 SCC 618
  15. Supra note 8.
  16. Supra note 9.
  17. Supra note 11.
  18. LegalServiceIndia, Residence Reservation System In The Field Of Education, available at http://www.legalservicesindia.com/article/2299/The-Great-Indian-Reservation-System.html
  19. Government of India, Ministry of Human Resource Development Department of Higher Education 2013, All India Survey on Higher Education.
  20. Supra note 4.
  21. Id.
  22. A. Peeriakaruppan vs State of Tamil Nadu, (1971) 1 SCC 38.
  23. LawAndOtherThings, Domicile reservation in India: denial of opportunities and compromise with diversity, June 25, 2018, available at https://lawandotherthings.com/2018/06/domicile-reservation-in-india-denial-of-opportunities-and-compromise-with-diversity/
  24. N. Vasundara v State of Mysore , (1971) 2 SCC 22
  25. The State of Uttar Pradesh v Pradeep Tandon, (1975) AIR 563.
  26. Nidamarti MaheshKumar vs State of Maharashtra, AIR 1986 SC 1362
  27. Supra note 18.
  28. Supra note 23.
  29. TheLeaflet, What are the Flaws in the Justification of Domicile Reservation?, October 8, 2020, available at https://www.theleaflet.in/what-are-the-flaws-in-the-justifications-of-domicile-reservation/#

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