March 31, 2021 8:16:47 pm
Written By Shubhankar Tiwari and Shubh Mittal
An argument of “meritocracy” has often been made to question the rationale behind caste-based reservation. However, when it comes to conferring the fruits of reservation to a particular category — like NRI, NRI-sponsored or foreign nationals — the so-called “champions of meritocracy” adopt the proverbial ostrich’s attitude. For the uninitiated, many educational institutions reserve seats on the basis of the students’ foreign nationality or NRI status. However, this story has many twists and turns. In the case of an NRI-sponsored category, seats are offered to those candidates who have their permanent residence in India simply because an NRI relative is paying their fee, which is considerably higher than the fee paid by candidates entering the same college through the common merit list.
While the scope of this discussion has been limited to the National Law Universities (NLUs), the authors do accept that “Foreign National/NRI/NRI Sponsored Reservation”, over the passage of time, has continued to shatter the dreams of several young, dynamic and promising Indian minds, irrespective of the disciplinary path they choose to tread.
At the outset, it is essential to note that different NLUs offer seats through the aforementioned reservation differently in terms of the number of seats and the parameters required to become eligible for such a reservation. For instance, NLU Delhi reserves five seats for the foreign national category and five seats for overseas citizen of India (OCI)/ person of indian origin (PIO) out of the total 120 seats it offers. While WBNUJS reserves 18 seats for the NRI Category and two seats for foreign nationals, NLIU reserves 18 seats for the NRI/NRI sponsored category and five seats for the foreign nationals. NALSAR reserves 24 seats for the foreign nationals out of which four are for candidates from SAARC countries, 10 for candidates from non-SAARC countries and 10 for ICCR/government of India nominees. While a common observation up till now is that foreign national category and NRI/NRI sponsored category are allocated separate seats, RMLNLU deviates from the trend and reserves 16 seats for foreign nationals/NRI/NRI sponsored candidates as a whole. NUSRL Ranchi also reserves 18 seats for foreign nationals/NRI but there is no mention of NRI sponsored candidates have been made in its latest brochure. Conversely, there are NLUs such as NLUJA Assam and NLSIU that do not offer any reservation to foreign nationals/NRI/NRI-sponsored candidates.
This variation does not stop at the number/distribution of seats, but also extends to the eligibility criteria. For instance, at NLIU, for a candidate to become eligible for applying under the NRI category they must be “an NRI/OCI Card Holder/PIO Card Holder”. For applying under the NRI-sponsored category, they must be sponsored by a “first degree blood relation or second degree blood relation who is an NRI/OCI Card Holder/PIO Card Holder”. They must also appear for the Common Law Admission Test (CLAT). However, the foreign national candidates are not required to appear for CLAT. Similarly at WBNUJS, the foreign nationals aren’t required to take the CLAT, which is in stark contrast to the case of NRI candidates, who are required to appear in it.
At NLU Delhi, the applicants who have a citizenship of a country other than India only have to produce a foreign passport in order to become eligible to apply for a seat under the foreign national category. Things like proof of residence or proof of having completed schooling from outside India are not required. These candidates have also been exempted by NLU Delhi from taking its entrance test – the All India Law Entrance Test (AILET). However, NLU Delhi gives the POI/OCI candidates the privilege of either seeking admission under the foreign national category or under the category of Indian students.
In the A.I.I.M.S. Students Union v A.I.I.M.S., the Supreme Court had unequivocally 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.”
Then interestingly in 2004, the Calcutta High Court in Chayan Kr. Roy v Chairman/Chairperson, Central Selection Committee (M) had declared that the reservation of foreign/NRI/NRI sponsored and management quota for candidates, offered by the IPGMER and Midnapore Medical College, was patently unconstitutional.
While doing so, the court had observed: “Unlike exceptions in the case of Scheduled Castes, Scheduled Tribes, Physically Handicapped candidates and the like, the exception made in respect of the class of the Foreign/NRI/NRI sponsored and management quota candidates in the matter of admission is neither sanctioned by the Constitution nor by any enacted statute.”
Reading these two observations in conjunction, gives us a prima facie idea of the dubiousness of such categories of reservation. However, the apex court’s decision in PA Inamdar v State of Maharashtra has often been cited as a defence for such reservation. But the NLUs have even disregarded the observations of the court in Inamdar.
First of all, the apex court in Inamdar minced no words in observing that: “It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term ‘NRI’ in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, who can afford to bring more money, get admission.”
However, with specific regard to the use of money brought through such quota for strengthening the level of education the court held that “a limited reservation of such seats, not exceeding 15 per cent, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilised bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by.”
While the court had explicitly laid down a 15 per cent cap on such reservations, MNLU Mumbai has been blatantly violating it, by exceeding such a cap while offering 20 supernumerary seats for NRI/NRI sponsored category and 10 seats for the foreign national category. Furthermore, reservations for foreign nationals given by several NLUs, as shown before, flagrantly violate the first condition imposed by Inamdar as it talked about making such reservations exclusive to NRIs only. Alternatively, the second condition regarding merit has only existed as a show.
Recently, on October 20, 2020, in Ishika Patnaik v NLU Odisha, the Odisha High Court observed:
“NRI category is an affront to the meritorious candidates who toiled day night to secure seats in NLUs through CLAT. The candidates belonging to the category of NRI/NRIS, who are very low ranked in the merit list often gets seat in the NLUs whereas the general candidates having secured better marks also lag behind the NRIS students and get disappointed. This is like the reservation for the elite class and this dubious category of quota is unconstitutional. The eligibility and selection under this category are unregulated, illegal and arbitrary.”
It is worth mentioning that the Odisha High Court did not delve into the intricacies of the subject matter – as to what precisely are the arbitrary and unconstitutional elements of such reservations, as that wasn’t the question placed before it. But one thing that has been made crystal clear is that the existing non-uniformity, as pointed out before and the non-compliance of the directions laid down in Inamdar, shows us how such arbitrary reservations have opened the floodgates for the influx of the elites into premier law schools. It is quite ironical to note, that in a country that has recently introduced the reservation for the EWS category, seats are also being offered on a candidate’s ability to pay a higher fee.
Tiwari is a third-year student pursuing B.A. LL.B.(Hons.) at National Law University, Delhi. Mittal is a second-year student pursuing B.A. LL.B.(Hons.) at National Law School of India University, Bangalore
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