Imbibing the Constitutional vision on inclusivity into the NLSIU Inclusion and Expansion Plan

Existing but often neglected Constitutional provisions and rules/legislations already provide sufficient scope for rallying in real affirmative action.

The 25% domicile reservation policy introduced at National Law School of India University (NLSIU) Bangalore, which failed to see the light of day under two Karnataka governments, was finally was brought forth by the University's Inclusion and Expansion Plan 2021-2025.

The revised admissions notification dated June 22, 2021 stated that the “university hereby introduces a 25% horizontal compartmentalized reservation for Karnataka Students.”

It is pertinent to note that less than a year ago, in the case of Master Balachandrar Krishnan v. The State of Karnataka, the Karnataka High Court Division Bench of Justices BV Nagarathna and Ravi Hosmani had stayed the National Law School of India University (NLSIU) Amendment Act, 2020. The Bench in that case made two powerful observations.

Paragraph 164 of the 275-page order made an observation that,

“If any reservation has to be made for students in the respondent/law school, it should be on a more concrete, focused and realistic basis so that the benefit of reservation would reach those students who are really in need of it such as under clauses (3) or (6) of Article 15 of the Constitution for women or economically weaker sections of society.”

Further, in paragraph 178, it was observed,

“Reservation is a means to an end i.e., for upliftment of the beneficiaries of reservation, so that there could be relaxation in the admission process for those who are in need of reservation. But we find that the impugned reservation does not achieve such a purpose, rather, it is discriminatory and does not seek to achieve any object or purpose in the instant case. Hence, we find that the impugned reservation does not satisfy the twin test under Article 14 of the Constitution.”

When the new NLSIU policy is analysed in light of the aforesaid observations, it fails to satisfy the test of achieving the Constitutional objective of uplifting those who are in need of upliftment through the affirmative action route.

This article aims to address the domicile reservation policy's deficit in adhering to the Constitutional objectives by deliberating upon how the existing but often neglected Constitutional provisions and rules/legislations already provide sufficient scope for rallying in real affirmative action.

Article 371J: A ‘Special’, yet forgotten provision of the Constitution

Article 371J was inserted by the Constitution (118th Amendment) Act, 2012. The Statement of Objects and Reasons of the legislation states:

"The article in the form of a special provision seeks to provide for....

(d) reservation in education and vocational training institutions for domiciles of the region (consisting of Kalburgi, Bidar, Raichur, Koppal, Yadgir and Bellary districts of Karnataka, all of which the Act recognizes as the most backward regions in the State)."

Sub-clause (c) of Clause (1) of Article 371J provides that "the President may by order made with respect of the State of Karnataka, provide for any special responsibility of the Governor for equitable opportunities and facilities for the people belonging to the said region, in matters of public employment, education and vocational training, subject to the requirements of the State as a whole.”

Thus, in exercising the powers conferred by clause 1 of the Karnataka (Special Responsibility of Governor for Hyderabad-Karnataka Region) Order, 2013, the Governor of Karnataka passed the The Karnataka Educational Institutions (Regulations of Admission in the Hyderabad-Karnataka Region) Order, 2013.

Sub-paragraph 1 of paragraph 7 of the Order provides that 8% of the available seats in every course of study provided in a State-wide university or a State-wide educational institution referred to in the Second Schedule of the Order must be allocated among the local candidates of the Hyderabad-Karnataka Region.

Further, the Part-II of the Second Schedule, which lists the state-wide educational institutions, reads that,

“Institutions Private (seats given to Government for allocation) or Public providing the following courses and affiliated either to the Statewide universities referred to in Part I of this Schedule or non-statewide Universities referred to in First schedule...”

Now, when First Schedule is perused, it does not per se list any “non-state-wide universities,” but rather it is left open-ended/inclusive with paragraph A)(3) under it including “any other university, including deemed universities, which may be created subsequently in Government sector, PPP, any other model.”

Lastly, even the list under the Second Schedule of state-wide educational institutions is non-exhaustive, with Entry (9) including “Any other subject recognised by University Grants Commission OR All India Council for Technical Education OR Medical Council of India being taught by a college or institute or deemed university in state capital region of Bangalore."

Addressing the ambiguities

Undoubtedly, the language of the drafting provides sufficient ambiguity to ponder whether the Order is applicable to the entire State, and across all disciplines of studies. There exists a two-pronged answer to the aforesaid question.

Firstly, the Order under consideration is a welfare legislation and principles of beneficial construction would accrue. In the landmark case of Lolappa Lingappa v. LV Textiles Mills, the Supreme Court held that “if a provision is capable of two constructions, that constructions should be preferred which fulfils the policy of the Act and is more beneficial to the persons in whose interest the Act has been passed.”

Further, in the case of Surendra Kumar Verma v. The Central Government Industrial Tribunal, the Supreme Court held that “Welfare statutes of necessity, receive a broad interpretation.” Therefore, the Order encompasses all the educational institutes in the State of Karnataka.

Secondly, the Karnataka High Court in the case of AS Vimalakshi v. State of Karnataka, upheld the Karnataka Public Employment (Reservation in Appointment for Hyderabad-Karnataka Region) Order, 2013 - passed in pursuance to Article 371J of the Constitution - which provided 8% reservations across the territory of Karnataka for persons domiciled in the Hyderabad-Karnataka region. The Court noted in this judgment,

Similarly, in the matter of education, by virtue sub-clause (c), the Hon'ble Governor can provide for giving equitable opportunities to the students born in Hyderabad-Karnataka region... considering the backward condition of the region, there may not be educational institutions established in that region for imparting education in certain fields...If the power of Hon'ble Governor conferred by virtue of special responsibilities entrusted by the Hon'ble President, by passing an Order under clause (1) of Article 371J, was to be circumscribed by providing for equitable opportunities for public employment by imposing reservation only on the posts available in that region, the very purpose of conferring power under Article 371J will be completely defeated. The reason is that in the statement of objects and reasons itself it is stated that the said region is a backward region and therefore, there may not be enough opportunities available in that region in the public employment or in the education to the people belonging to that region”.

Therefore, upon applying the aforesaid reasoning, it is only logical that the Order providing 8% reservation for Hyderabad-Karnataka region domiciled students is applicable across the territory of Karnataka.

Institutions as repositories of Constitutional trust

Chief Justice of India NV Ramana, in his discourse on Rule of Law v. Rule by Law, remarked that “a law cannot really be classified as a ‘law’ unless it imbibes within itself the ideals of justice and equity. An ‘unjust law’ might not have the same moral legitimacy as a ‘just law’, but it might still command the obedience of some sections of the society to the detriment of others.”

Further, his lordship emphasised that the organs of the State are “equal repositories of constitutional trust.”

In light of the same, it is equally legitimate and reasonable to expect that even public institutions would act as repositories of Constitutional trust and not be blinded to the fact that the responsibility of safeguarding constitutionalism lies not just with the courts.

Therefore, in the interest of true social justice that is within the realm of the Constitutional objective of uplifting the backward masses, NLSIU’s Inclusion and Expansion Plan must also provide reservation for people domiciled in the Hyderabad-Karnataka region. In a broader context, this is a also wake-up call to even other educational institutions who are unaware of the Article 371J and the Orders passed thereunder.

The author is a Hyderabad-Karnataka Region based advocate.

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