Domicile Based Reservation- A Violation of Equality?

This article is written by Mansi Vyas from UFYLC, UOR, Jaipur and curated by Rajrishi Raamswamy from Symbiosis Law School, Hyderabad.

Reservation is a hotly debated topic. Whenever it is brought up, opinions of different kinds are raised. Some believe in caste-based reservation, some in economic reservations and the rest don’t believe in reservations at all. But, the one kind of reservation which is not talked about or say, which is the least questioned is domicile-based reservation. Advocates of the first two kinds have come up with a few reasonable arguments on their validity but domicile-based reservations are yet to be validated.

Here are a few cases where the constitutional validity of domicile-based reservation was questioned:

Firstly in 1955, in D.P. Joshi vs Union of India, though the main matter was about the capitation fee imposed on students who were non-residents, the petitioner questioned the validity of domicile-based classification. The petitioner argued that the rule violates Article 15 of the Indian constitution. The court held that the rule does not violate the Article as there’s a difference between place of residence and place of birth and that the rule was made on the basis of place of residence and not on the place of birth and thus was said to be constitutionally valid.

Then in 1984, in Pradeep Jain vs Union of India, Pradeep Jain challenged the domicile-based reservation in medical colleges. He argued that it violates Article 14, 15 and 16 of equality; restricts freedom under Article 19 and also violates Article 301 of Indian constitution. The respondents argued that the reservation was for upliftment and betterment of the local people and their education and hence it comes under “reasonable classification” under Article 14. Thus, the court held that it is not unconstitutional.

Again in 2003, in Saurabh Chaudhary vs Union of India, the petitioners challenged practices of educational institutions reserving seats on the basis of domicile and institutional preference. The petitioner argued that Article 15(1) is violated by such practices. The court held that unlike Article 16(2), Article 15(1) prevents discrimination only on the basis of place of birth and not domicile for residence. Reservation on the basis of domicile was said to be permissible in educational institutions.

The arguments of the respondents in the above cases can be summed up in the following points:

• The given reservation is on the basis of domicile and nowhere in the constitution is domicile-based reservation barred or restricted.
• The discrimination in the present case is based on reasonable point, i.e. for upliftment of the local people.
• The reservation is fair as the benefited people would in future serve their indigenous states.

The above arguments can be held invalid as:

• In general domicile means a place of residence, where a person lives permanently, or at least for the foreseeable future. Except for avery small percentage of people, people rarely choose their domicile due to cultural, social and economic conditions. Therefore, if seen reasonably, place of birth and domicile should not be treated any differently.
• India as a nation should be seen as one, if the government is intended to see to the upliftment of the people at all, it should see the neediest first which means it should not restrict to a state or an area level.
• In many surveys it is found out that there are hardly any people who stay in the same city or state after their higher education, a majority of those people move out to different states.

Way forward:

• The definition of “domicile” should not be limited to the concept of “states”.
• Domicile based reservation should be made reasonable by adding several provisions of economic criteria in it.
• People who are unnecessarily benefited from it should be restricted through said provisions.
• Certain criteria should be followed to limit the benefit to the same family for generations.

Conclusion:

Domicile-based reservation is not a new concept; it has been prevailing since the very beginning. Earlier, people rarely questioned its validity due to mobility and economic barriers but now when the majority of people are capable of intra-state movement, it has become a major issue for everyone. Students who seek admissions in higher and decent institutes suffer the most. It is thus suggested that certain provisions should be added to the practice of domicile-based reservation to make it make it unbiased and nationally universal.

Coming up:

On 18^th August, 2020 the Supreme Court will be listening to the appeals related to constitutional validity of domicile-based reservation within the State Quota for admissions in PG Medical Courses.