Introduction
The 2020 Orissa High Court judgment in Ishika Patnaik v. National Law University of Odisha criticises the prevalence of the Non-Resident Indian quota (henceforth “NRI quota”) category in NLUs. The Court states, “the NRI category is an affront to the meritorious candidates who toiled day and night to secure seats in NLUs through Common Law Admission Test (CLAT)”.1 Rightly terming it as the “reservation” for the elite class, the Orissa High Court finds the “dubious category” to be unconstitutional, with the eligibility and selection criteria under the quota to be “unregulated, illegal and arbitrary”.2 The Court calls upon the CLAT Consortium, the Bar Council of India (BCI), and all the people having a stake in the process to have a relook at the NRI quota. The Orissa High Court recognises how the hardworking “meritorious candidate” has had to suffer because of such quota, asking the BCI to restrict the “elitist approach” that focuses on a specific group to be cramped.3
The article will focus on how the NRI quota strikes at the heart of constitutional Articles 144 and 15(4). The author will limit his scope of argument to the country’s premier law schools. i.e. the NLUs, to discuss the unconstitutionality of the NRI quota. Part II of the paper talks about the need for Article 15(4) for the purpose of reservation. Part III talks about the rampant existence of the “NRI quota” in the country’s premier law schools. Part IV of the paper brings into the ambit the clear conflict between the existence of the NRI quota with the principles of equality and the reasoning for reservation. Part V deals with relevant judgments to satisfy that NRIs as a separate class created for the purpose of reservation in education, fail the Article 145 twin test. Part VI of the paper informs the reader of the purported objectives for the existence of the “NRI quota” and explains how it has completely failed to fulfil those objectives. Part VII of the paper informs the reader about how the purported objectives have led to the violation of fundamental rights of the class of students concerned. Part VIII is the conclusion.
The need for Article 15(4)
Article 15(4) of the Indian Constitution states, ”Nothing in this article … shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes (SCs) and the Scheduled Tribes (STs).”6
Article 15 sub-clause (4) was inserted into the Constitution of India by the First Amendment Act of 19517. It upholds the need for affirmative action or reservation as envisaged by the Constitution-makers, which was passionately argued for during the Constituent Assembly Debates. The law seeks to aid the students belonging to “Scheduled Castes”, “Scheduled Tribes”, and “Socially” and “Educationally” backward individuals by giving them preferential treatment in higher education institutions managed by the Central, State, and government-aided sectors. Article 15(4) intended to provide opportunities in education to the classes mentioned and thus raise the social, educational, and economic levels of the individuals or classes who have lagged behind due to generations of historical oppression and are not adequately represented in the social sphere. According to the UGC Guidelines, universities with 100% Central funding are required to provide a total of 49.5% reservation out of total seats to the SCs, STs, and Other Backward Castes (OBCs) (15%, 7.5%, and 27%, respectively).
Antithetical to the concept of affirmative action is the presence of Non-Resident Indian quota (henceforth “NRI quota”). NRI quota is a reservation but for the “socially” and “economically” affluent classes. It devises a way for the rich who fail to make it to their desired higher education institutions through merit, pay higher fees, and take admission into the prestigious universities of the country. NRI implies a person who lives in a foreign country but with Indian citizenship; however, under the quota, a candidate who has lived his entire life in India can also take admission, terming himself as NRI (sponsored).
NRI quota in NLUs
The top-tier National Law Universities (henceforth “NLU”) of the country for e.g., the West Bengal National University of Juridical Sciences, Kolkata (WBNUJS), National Law University, Jodhpur (NLUJ), National Law University, Delhi (NLUD) and Gujarat National Law University (GNLU), to name a few,8 have NRI quotas [both NRI and NRI (sponsored)] in their admission brochure. NUJS, a “Tier 1” NLU, has 30 seats reserved for NRIs/NRI (sponsored) in total. 20 for its BA LLB (Hons.) course and 10 for BSc LLB (Hons.) course.9 NLUJ and GNLU have 16 NRI seats reserved each for their respective five-year integrated law courses.10 The students taking admission under such quota are to pay substantially higher fees than others. The fees are expected to be paid in US dollars, e.g., USD 6000,11 and not Rupees 5,00,000 approx. (ensuring the generation of foreign exchange). However, that is generally not the case.
Challenges to NRI quota: Insights from judicial pronouncements
The Supreme Court, in AIIMS Students’ Union v. AIIMS12, has observed that “Reservation unless protected by the Constitution itself, as given to us by the founding fathers and as adopted by the people of India, is subversion of fraternity, unity and integrity and dignity of the individual.”13 The Court also held that “Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped the reservation geared up to getting over the handicap.”14
It is hard to fathom that an NRI, living in a foreign country, fluent in a foreign language, and earning sufficient to pay hefty NRI quota fees would be “educationally handicapped” and would need State assistance in the form of reservation. The framers of the Indian Constitution gave the country a socialist Constitution, intending that the groups that had lagged behind due to historical wrongs be allowed to climb the social ladder. The NRI quota in no way aligns with the intention of the makers of the Constitution.
Further, in the 2004 Calcutta High Court case of Chayan Kr. Roy v. Central Selection Committee (M)15, the Court had held foreign/NRI/NRI-sponsored and management quota reservations as blatantly unconstitutional, which are “neither sanctioned by the Constitution nor enacted by any statute”.16
The Court stated, “Equality is the rule, reservation an exception. Reservation is guided by the necessity of ensuring a privilege or quota on a defined class or category of limited persons, dispensing with the need of competition with another defined class or category of persons.”17 When we apply this ruling to the NRI quota, NRIs are definitely a “defined class or category of limited persons”, however, there does not seem to be any necessity to ensure a privilege or quota on this class. Further, classification in itself is not sufficient. A classification must be reasonable, and for it to be permissible, it must be based on intelligible differentia that set those who belong to a group apart from those who do not, and it must have a rational nexus with the object that the classification is intended to accomplish. The next section deals with this test of reasonable classification i.e. the Article 14 twin test.
Applying the Article 14 test
The Supreme Court, in Budhan Choudhry v. State of Bihar18, states that,
5. … It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question.19
This meant that for a classification to be reasonable, the distinct class created for the purpose of some separate facilities, or, in our case, reservation, must actually be distinguishable. Further, the reservation so granted must have an object to serve, which could be to uplift the said class.
The Supreme Court’s observation in AIIMS case20 needs to be recalled here. The Court stated, “Mediocracy over meritocracy cuts at the root of justice and hurts the right to equality. Protective push or prop, by way of reservation or classification, must withstand the test of Article 14.”21 The Court observed that an overgenerous approach that benefits a section of people can hamper another’s right to education. It was not the aspiration of our founding fathers that the mediocre be chosen over the meritorious except by aid of the Constitution, such as when deprivation of the right to meritorious itself achieves equality. However, such deprivation should satisfy “the tests of reason, reasonability and rational nexus with the object underlying deprivation”.22
In Municipal Corpn., Greater Bombay v. Thukral Anjali Deokumar23, it was observed by the Supreme Court that “So far as educational institutions are concerned, unless there are strong reasons for exclusion of meritorious candidates, any preference other than in order of merit, will not stand the test of Article 14 of the Constitution.”24 The Court in the present case held the rules to be discriminatory and unsatisfactory of the reasonable classification test. The onus to satisfy the Article 14 test in the case of educational institutions is a herculean task.
The two-pronged Article 14 test was done in Chitra Ghosh v. Union of India25. Herein, the Court found that reservation which was made for, “sons and daughters of residents of Union Territories other than Delhi” who were from areas that were “comparatively backward”; “the sons and daughters of Central Government servants posted in Indian Missions abroad” who because of their exigencies were “faced with lot of difficulties in the matter of education”; “the Jammu and Kashmir Scholars” who faced problems of a peculiar nature as “there do not exist adequate arrangement for medical education in the State itself for its residents”.26 According to the Court, the classification of all these cases was based on intelligible differentia with the rational nexus of imparting medical education to these classes.27
The Court applied the twin test of Article 14 in Suneel Jatley v. State of Haryana28, wherein the Court dealt with whether “the classification of candidates coming from rural areas against urban areas in the matter of admission to medical college would satisfy the twin test”. The Court relied on Article 15(4) to determine whether there was intelligible differentia. To classify whether a reservation for a certain section of candidates is to be made, emphasis was put on whether or not the impugned section was “socially” and “educationally” backward (SEBC).29 A reservation was created in favour of students who had studied in rural schools from Classes I to VIII. Here also, reservation to these institutions was made on Article 15(4) basis; the Court had not found any intelligible differentia that supported the distinction made for reservation. Similarly, in State of A.P. v. U.S.V. Balram30, the Article 14 twin test revolved around the discussion of Article 15(4). In Deepak Sibal v. Punjab University31, it was held by the Supreme Court that “… Apart from the provision of Article 15, the reservation may be made on the basis of the doctrine of source only with a view to giving equal opportunity to some disadvantaged classes for their education …”32 the NRIs clearly are not a part of the “disadvantaged classes”.
On analysing the cases that have dealt with the twin test of Article 14, we can clearly see a pattern where the Court relies on Article 15(4) to check whether there is intelligible differentia (the first test), the rational nexus (the second test) being imparting education to the “socially” and “educationally” backward classes. However, the judgment in P.A. Inamdar v. State of Maharashtra33 deviates from the precedent set up by the previous cases on reservations in educational institutions and finds no conflict in approving the NRI quota reservation.
Applying the Article 14 twin test based on the cases discussed, we can clearly see that NRIs do not necessarily form a separate class leading to intelligible differentia. NRIs as a class are not “socially” and “educationally backward”. However, for the sake of argument, even if we consider that NRIs are candidates who live abroad, distinct from the candidates who live in India, the differentia fails the reasonable nexus test, which is to uplift the backward classes. However, P.A. Inamdar judgment34 finds a rational nexus; it says that the object is to allow the NRI admitted candidates to “get reunited with the Indian cultural ethos by virtue of being here”.35 The Court further justified its stance by stating that “the amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee”.36 (The Court’s EWS welfare argument will be dealt with in the next section.) It is to be noted that NRI (sponsored), a reservation rampant in NLUs, fails the intelligible differentia test as there is no difference between an NRI (sponsored) candidate and a general candidate (both reside in India with an Indian citizenship.)
It is the author’s argument that the rational nexus (according to the Article 14 argument) provided by the Court in the judgment is contrary to the precedent set-up by multiple Supreme Court judgments (such as those analysed above). Very categorically, in Chayan Kr. Roy case37, the Calcutta High Court has stated that “there can be no justification in making an exception in favour of NRI/NRI sponsored/foreign/management quota candidates”.38 The Court found there to be no intelligible differentia or rational nexus for the preferential treatment of such candidates and held the classification to be “ultra vires” and “violative of Article 14 of the Constitution of India (COI)”.39 A preference for less meritorious but more influential candidates by treating the meritorious candidates unfairly,40 goes against the tenets of reservation. P.A. Inamdar judgment41 neglects all of these considerations and goes on to reserve 15% of the seats for the NRI candidates. The next section would deal with the purported benefit that the judgment envisaged to be there.
The purported benefits of NRI quota
The purpose behind the allocation of seats for NRIs is multifaceted. First, it would allow the students living abroad to come to India for education and to get an idea of India’s “cultural ethos” and values. Second, the NRI money, instead of being spent somewhere else on education, would reach India, their motherland. Third, the higher amount of fees that is collected from NRIs will be utilised to help aid students from economically weaker section (EWS), who are not capable of paying their fees by themselves. Thus, the money could be utilised to provide education to the students belonging to EWS at a subsidised rate.42 However, none of these facets are being fulfilled.
The students living in India are admitted to these institutions through the “NRI (sponsored) category”. Since the criteria for admission as an NRI (sponsored) is an acknowledgment in writing from an NRI and nothing more,43 there is no guarantee that the NRI will be paying the fees for the candidate. In most cases, the parents of the candidate residing in India are the ones paying the fees, thereby not contributing to the rise in the country’s foreign exchange. This was observed in Abhinav Verma v. State of H.P.44 The Court criticised the NRI-sponsored category, holding that it entails selling the seats on a “commercial basis”. The Court held the category to be in violation of Article 14 as “… seats have been sold on a commercial basis to such students who were, pure and simple, ordinary, resident Indians residing in India and who had no link or connection with NRIs except perhaps that their relations were residing abroad who also might have financed their admissions in India”.45 Some NLUs, therefore, provide the final fee amount of NRI students in both US dollars and Indian rupees to ensure easy payment by the “NRIs” residing in “India”. Further, the amount provided through scholarship schemes fails to remove the “EWS” students’ fee burden. Candidates taking admission through the EWS category often have to take loans to pay their fees.
Failing its objectives, the author contends that the NRI quota has led to the commercialisation of education. Education in India has always been a mission and not a trade, with its commercialisation always being looked down upon. Even the UGC Act446, enacted in 1956, makes it clear that education shall not be commercialised, as the same is against public policy.47
The next section deals with the most recent observation made by the Court with regard to NRI quota and takes the analysis further.
Violating a constitutional right with unsubtle boldness
Finally, after the above analysis, using the example of the Seat Matrix of NUJS, Kolkata,48 I would like to take the Orissa High Court judgment’s49 point a step further. While the Court recognised that the NRI quota eats up the seats of “meritorious candidates” who have to work day and night to fulfil their aspirations, the quota is also eating into the seats of the reserved classes. Out of the total 132 seats as per BA LLB (Hons.) Batch, there are 91 all- India seats. 20 of these seats are taken up by the NRIs, leaving only 71 for the “General” and “Reserved Categories”. Since, NUJS is a State-aided university and does not follow the University Grants Commission (henceforth “UGC”) mandate of reservation (as only central universities are required to follow UGC Seat Matrix Guidelines), a correct figure of allocation of these 20 seats will be complicated to arrive at. However, roughly 10 seats for General and 10 for the Reserved Categories can be allocated, which is more in consonance with Articles 14 and 15(4) of the Indian Constitution. Even if we exclude the General Category, denial of those seats to the class of students defined under Article 15(4) is a bold violation of their fundamental right which has to be remedied as soon as possible.
This issue becomes further complicated when we look at the percentage of reservation that P.A. Inamdar judgment50 allows. Though the judgment allows 15% reservation for the NRIs,51 it does not clarify whether it is 15% for All India or 15% of the total seats. This becomes imperative if the NLUs have a separate domicile quota, leaving fewer seats for the All-India students. However, reservation for NRIs e.g., in the case of NUJS, is calculated out of the total seats available and is placed into the All-India students’ seats, encroaching upon the seats of the All-India category students. The same trend can be noticed with the seat matrix of other NLUs. These points make the 2020 Orissa High Court judgment52 a crucial observation, being the voice of the candidates who have been unjust against.
Conclusion
Reservation in the education sector has been a subject of intense scrutiny since its inception; however, a similar level of antagonisation seems to be missing when it comes to reservation for the elite. Nevertheless, comprehensive scrutiny done in this paper has revealed how the NRI quota reservation remains in stark contrast to the concept of equality and equity. The NRI quota reservation fails to derive legitimacy from the Constitution of India53; neither Article 14 nor Article 15(4) provide any ambit for the possibility of an NRI quota. The reservation fails the Article 14 twin test and is proven to be unconstitutional, serving no constitutional purpose whatsoever.
The financial support provided to the NLUs through the NRI fees cannot be made a reason to limit the representation of the Socially and Educationally Backward Communities (SEBC) classes. Though only an obiter, the Court’s observation in Ishika Patnaik v. National Law University of Odisha54 gives hope for rectifying the unwarranted NRI quota and ending this form of commercialisation of education. Such seats will be better utilised by the “General” and “Reserved Category” students, especially the “Reserved Category” students who are in dire need of a stepping stone to improve their social and educational status.
*Student, West Bengal National University of Juridical Sciences, Kolkata. Author can be reached at: dev222018@nujs.edu.
1. 2020 SCC OnLine Ori 762, para 11.
5. Constitution of India, Art. 14.
6. Constitution of India, Art. 15(4).
7. Constitution (1st Amendment) Act, 1951.
8. The list goes on with the likes of National Academy of Legal Studies and Research, Hyderabad (NALSAR) National University of Study and Research in Law, Ranchi (NUSRL), Ram Manohar Lohiya National Law University (RMLNLU), National Law University, Odisha (NLU).
9. The West Bengal National University of Juridical Sciences, Admission Notice, available at <https://www.nujs.edu/wp-content/uploads/2023/12/Admission-Notice-For-J-K-Residents-NRI-NRISponsored-Category-2024.pdf> (Last visited on 28-2-2024).
10. National Law University, Jodhpur, available at <https://consortiumofnlus.ac.in/clat-2024/nlus/brochure/NLU.pdf>; Gujarat National Law University, Gandhinagar, available at <https://consortiumofnlus.ac.in/clat-2024/nlus/brochure/GNLU.pdf>.
11. National Law University, Jodhpur, available at <https://consortiumofnlus.ac.in/clat-2024/nlus/brochure/NLU.pdf>; Gujarat National Law University, Gandhinagar, available at <https://consortiumofnlus.ac.in/clat-2024/nlus/brochure/GNLU.pdf>.
13. (2002) 1 SCC 428, 458, para 58.
14. (2002) 1 SCC 428, 453, para 44.
16. 2004 SCC OnLine Cal 584, para 81.
17. 2004 SCC OnLine Cal 584, para 72.
19. (1954) 2 SCC 791, 795-796.
21. (2002) 1 SCC 428, 461, para 59.
24. (1989) 2 SCC 249, 262, para 19.
25. Chitra Ghosh v. Union of India, (1969) 2 SCC 228.
26. (1969) 2 SCC 228, 232, para 8.
27. (1969) 2 SCC 228, para 10.
29. (1984) 4 SCC 296, paras 7,10.
32. (1989) 2 SCC 145, 159, para 25.
35. (2005) 6 SCC 537, para 131.
38. 2004 SCC OnLine Cal 584, para 110.
40. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, para 58.
43. Gujarat National Law University, Inviting Expression of Interest for Seeking Admission under the Non-Resident Indian (NRI)/NRI Sponsored for UG (LLB)/PG (LLM) Programme(s) for the Academic Year 2024-25, Notification No. SS/01/NRI/NRI Sponsored/UG-PG/11012024 (Notified on 11-1-2024) available at <https://gnlu.ac.in//Content/gnlu/pdf/admission%202023-24/01-GNLU-SS-NRI.pdf>; NLU Odisha, Persons Eligible for Admission to Seats in the NRI/NRl-Sponsored Category, available at <https://nluo.ac.in/wp-content/uploads/2024/01/7.-Persons-eligible-for-admission-to-Seats-in-the-NRI-NRl-Sponsored-Category.pdf> (Last visited on 28-2-2024).
44. CWP No. 1104 of 2007, decided on 20-8-2007 (HP).
45. CWP No. 1104 of 2007, decided on 20-8-2007 (HP).
46. University Grants Commission Act, 1956.
47. Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645, para 196.
48. The West Bengal National University of Juridical Sciences Kolkata, Information Brochure 2024, available at <https://consortiumofnlus.ac.in/clat-2024/nlus/brochure/WBNUJS.pdf> (Last visited on 28-2-2024).
49. Ishika Patnaik case, 2020 SCC OnLine Ori 762.
52. Ishika Patnaik case, 2020 SCC OnLine Ori 762.