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Stand down, stand by (for the SC): Cal HC effectively stays 30% NUJS reservation (pending writ) [UPDATE-3] • Bgl HC strikes down NLS’ 25% [READ JUDGMENT]

Judicial halts to NLS, NUJS, NLU-D state reservations are very likely to end in the apex court
Judicial halts to NLS, NUJS, NLU-D state reservations are very likely to end in the apex court

The Calcutta high court has today issued an interim stay in the writ petition challenging the state government's 30% domicile reservation at NUJS Kolkata.

It is understood that the two-judge division bench headed by Justice IP Mukherjee said today that the admissions at NUJS Kolkata should remain subject to the writ petition.

The judges also directed the single-judge bench hearing the case to rule on the petition in several weeks (we were not able to confirm the exact timeline ordered by the court, as the written order is awaited; we will update the article with more details when this becomes available).

Update 19:32: The Calcutta HC order is now out and available here. No strict timeline was mentioned in the written order, but the judges said: “We request the learned Single Judge to hear out the writ application as expeditiously as possible after exchange of affidavits.”

Clarification 23:21: The text of the full order is short of an outright stay, though in effect it appears to have the result of staying admissions depending on the outcome of the case. The judges noted: “... we are not minded to keep this appeal pending and delay adjudication of the main lis. In those circumstances, we dispose of this appeal by observing that the subject admission will abide by the result of the writ application.”

Update 1 October, 11:58: The Times of India Calcutta edition carried a quote from NUJS Kolkata vice chancellor (VC) Prof Nirmal Kanti Chakraborty, saying: “We will start our admissions on October 9 as we have been directed.” While the VC does not mention reservations in his quote, the article itself stated that the division bench order “allowed NUJS to start its admissions process keeping the 30% domicile quota”.

The petition has been filed by two Common Law Admission Test (CLAT) aspirants from Uttar Pradesh, who are represented by advocate Fauzia Shakil and was argued by advocate Rohit Das (both are NUJS LLB graduates).

The single-judge bench of Justice Debangsu Basak, which was hearing the case had declined to pass any interim orders, according to LiveLaw on 16 September, after which the petitioners approached the division bench.

NLSIU reservation struck down yesterday: What does this mean for NLUs?

The Karnataka high court had yesterday struck down NLSIU Bangalore’s 25% domicile reservation.

The judgment in that case could be a landmark, however, it has not yet been uploaded on the high court’s website.

Update 17:37: Read the judgment here or the embed below.

Whenever the judgment is available for eading, the devil will lie in the details.

Furthermore, it was exceedingly likely that the Karnataka government would appeal the high court’s decision to the Supreme Court, according to four sources we spoke to, who are familiar with the case and subject matter.

If so, and depending on what happens in the Calcutta high court with NUJS, we could be seeing a landmark case in the apex court that might decide once and for all how and whether the states hosting national law universities (NLUs) can impose domicile reservations.

NLU Delhi’s 50% reservation, for instance, had been stayed for this year in late June, as it had become a trend for state governments to reserve seats for their respective electorates.

Is NLSIU more special than other NLUs?

According to several lawyers with knowledge of the cases, the law in this area is not entirely settled.

According to LiveLaw, the Bangalore-based bench had said yesterday:

The amendment is ultra vires to the act. The State government has no State and has no direct say in the functioning of the law school. It is an autonomous institute and not aided by the state government...

If we allow this thing (state reservation) to be done virtually there will be two centers of control, one with executive council and other by state which will be an unhealthy trend... By the impugned amendment what is sought to be created is a state quota which is not permissible.

NLSIU is on par with AIIMS, IIT and IIM, where there is no reservation quota... This law school is not on par with other law schools. Other schools are giving reservations thus it is not necessary that Karnataka must also do it.

Other law schools came up with reservations as students were not getting in Karnataka school under the 80 seats quota.

NLSIU, of course, is a somewhat special case as being the first national law school established in India via a superhuman effort of the late Prof Madhava Menon, sometimes known as the godfather of modern Indian legal education, and the late senior counsel Ram Jethmalani, who was at that time chairman of the Bar Council of India (BCI).

(Jethmalani also incidentally held the record as the longest-serving BCI chairman, which has in the last few months probably been eclipsed by BCI chairman Manan Kumar Mishra, subject to how you count a gap in his tenure).

The case in Karnataka was filed on behalf of NLS alumni and lawyers Satyajit Sarna and Nikhil Singhvi, argued by fellow alumnus and advocate CK Nandakumar.

We understand that one of the arguments made against the NLS quota had relied on the fact that the BCI had been more closely involved in its founding, as well as in its establishing National Law School of India Act 1986, resulting in the formation of a society and trust. The statement of objects and reasons of the Act records:

To carry out that object the Bar Council of India created a charitable trust called the Bar Council of India Trust which in turn registered a Society known as the National Law School of India Society, in Karnataka. The Society framed necessary rules to manage the National Law School of India with powers to confer degrees,

diplomas, etc., and requested the State Government to assist it, by establishing the School as a University by a statue so that it could carry out its objects effectively. The State Government considers it desirable to encourage the establishment of such a national level institution in the State

That said, the BCI’s relevance in the functioning of NLS nowadays is probably no greater or more important than it is at most other NLUs.

How special are other NLUs

By way of example, NUJS Kolkata - also founded by Madhava Menon - in its 1999 establishing Act makes explicit references to NLSIU:

WHEREAS the Committee appointed by the Chief Justices’ Conference on Legal Education and Training (1993) has recommended the establishment in each State of an institution on the model of the National Law School of India University at Bangalore;

AND WHEREAS the All India Law Ministers’ Conference (1995) has resolved to set up in each State a Law School modeled on the lines of the National Law School of India University at Bangalore for improving the quality of professional legal education.

The argument advanced by the petitioners in the Calcutta high court is therefore quite similar, at least in part, namely that NUJS too was fundamentally at its founding intended to be modelled on NLS.

We understand that the arguments in the Calcutta high court (as well as partly in Bangalore) also included the following contentions:

  • both NLSIU and NUJS were not in fact mostly dependent on state funds but most of their costs were actually funded by student tuition fees,
  • under Article 14, it would be discriminatory to distinguish between applicants to the NLUs on the basis of their residence (and in the NUJS case, in particular, domicile was defined very vaguely), and
  • that the West Bengal state government did not advance any reasons or apparently do any research about whether the reservation would meet certain aims compatible with Article 14.

Only medical case law so far

The main case law from the Supreme Court in college and state domicile reservations are Dr Pradeep Jain Etc vs UOI (1984) and the older DP Joshi

vs the State of Madhya Pradesh from 1955.

However, both of those are about medical colleges and though both have some things in common, doctoring is a somewhat different profession than lawyering.

Furthermore, institutions such as the All India Insitutes of Medical Sciences (AIIMS) were established by a central government act.

IITs are more similar to NLUs from that perspective.

The most likely destination in all the NLU petitions seems to be the Supreme Court, as state governments are unlikely to take adverse judgments such as the Bangalore one lying down.

If the Calcutta high court decides similarly, or even if it doesn’t, the Supreme Court might then very well decide that this is not just an NLS issue but one that concerns all the NLUs.

If that happens, we might end up with all dozens of state governments as parties, alongside the law schools themselves, and the CLAT consortium.

If so, that case could take a long time to finish (and the current NLS judgment could become the status quo at Bangalore, without domicile reservations for now).

NLS Domicile Reservations Judgment (PDF)

Many thanks for all interest and tips regarding this story from readers. We will update this story when the NUJS order and NLS judgment are out.

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