Karnataka Govt Moves Supreme Court Challenging Karnataka HC Order Striking Down 25% Domicile Reservation At NLSIU

The High Court has on September 29, invalidated the National Law School of India (Amendment) Act, 2020 (Karnataka Act No. 13/2020) in so far as it inserts sub-section (3) of Section 4 into the National Law School of India Act, 1986 (hereinafter referred to as "the Act," "the NLS Act," or "the 1986 Act"). It was held that the impugned amendment, which provides horizontal reservation to an extent of 25% to students of Karnataka, is contrary to the spirit of the NLS Act and that it violates Article 14 of the Constitution.

The SLP filed by the government states that the judgment passed by the high court is erroneous and is liable to be set aside firstly because the Public Interest Litigation filed by two alumni of the National Law School, ought not to have been entertained by the high court in view of the judgment of the apex court in the case of Guruvayur Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546.

Secondly on merits, it is said that the high court has erred in holding the Amendment Act to be invalid on the ground that the said amendment is contrary to the intent and spirit of the Act. The SLP says that a legislation can be invalidated by a writ court only on the grounds of: (a) lack of legislative incompetence; (b) violation of Part III of the Constitution or any other constitutional provision; and (c) manifest arbitrariness.

It is submitted "Simply put, there is no fourth ground available to a writ court to strike down legislation in exercise of its powers of judicial review. In the impugned judgment, the High Court has expressly held that the Karnataka State Legislature has the necessary legislative competence to pass the Amendment Act. Having held so, the high court could not have invalidated the Amendment merely because it found that the Amendment alters the scheme of reservation envisaged under Act, as originally enacted in 1986."

On the finding of the high court that the impugned amendment Act usurps the powers of the Executive Council of the Law School and is, consequently, contrary to the scheme of the Act and invalid. It said in the plea that "The said finding is fallacious on two counts. Firstly, assuming this finding to be correct, the same is not one of the recognized grounds on which a writ court can strike down a piece of legislation. Secondly, the Executive Council is a creation of the State Legislature under the 1986 Act, and it is respectfully submitted that the high court's findings in this regard tantamount to holding that a decision of an authority created by the State Legislature would supersede and prevail over the very Constitutional authority that created it, namely, the State Legislature."

It is added "Once legislative competence is established, the State Legislature is the supreme authority, and it would always be open to the competent Legislature to do as it pleases vis-à-vis an authority created under the statute (provided the action does not offend any Constitutional provision), including curtailing the powers of the or altering the manner in which the authority is to function or exercise its powers."

On the finding of the high court that the impugned amendment Act violates Article 14. The court had held that the reservation sought to be introduced for students of Karnataka does not have a nexus to the object sought to be achieved by the Act.

To which the state government has said it is the position of the State as was mentioned in the statement of objections filed before the high court that the reservation provided by way of the impugned amendment has a direct nexus to the object sought to be achieved by the Act, which is to ensure that the best legal talent, including in the State of Karnataka, is provided with the fullest opportunity to gain an education of the highest standards and pursue career in law, be it in the profession or academia.

It is stated "The High Court has failed to consider the true purport of the reservation and has not only disregarded the explanations offered by the State but also the binding judgments of this Hon'ble Court recognizing reservation on the basis of institutional preference/residence as being Constitutionally valid."

It is added that the State explained in detail that one of the interests of the State in providing for 25% horizontal reservation to students who have studied in the State is to ensure that a portion of the talent that is produced by the National Law School is retained within the State, in the larger interests of the State's development. Therefore, the impugned Amendment advances the State's interests, a ground on which this Hon'ble Court (Apex court) has recognized, in Pradeep Jain, as one of the permissible bases for providing reservation on the basis of institutional preference/residence.

Further, the high court has erred in disregarding the aforesaid judgments solely on the fallacious ground that the said judgments are rendered in the context of Medical Institutions and not Legal Education.

The high court in its order also held that the National Law School of India University is not an aided institution. In this regard, the state has submitted that the State had filed extensive material before the Hon'ble High Court to show that the National Law School has been provided with annual aid, as well as 23 acres of land on lease at a concessional rate by the State. It is submitted that the Hon'ble High Court has, however, ignored the indisputable facts in this regard and has instead relied on entirely irrelevant considerations, such as aid having been received from other States, to hold that the Law School is not an aided institution.

It is also submitted that "Irrespective of the history behind the establishment of the institution and the role played by the Bar Council, the fact of the matter is that the institution owes its very existence to an enactment of the Karnataka State legislature. The Hon'ble High Court has failed to consider this obvious and crucial aspect of the matter but has instead been misguided by the role of the Bar Council and other irrelevant considerations. Therefore, the observations of the Hon'ble High Court in this regard are liable to be set aside by this Hon'ble Court."

On the finding of the high court that the State has not placed any data on record to show that the students of Karnataka are not represented in the National Law School or that that they are backward. The state government has submitted that "It was never the case of the State that students of Karnataka are underrepresented or backward and that, therefore, they need to be represented by way of the State's affirmative action. On the other hand, the State's justification for the impugned reservation was, as explained earlier, based on the legitimate expectation that students of Karnataka would gain admission, settle in the State, and serve the State's interest, as well as further the cause of the legal profession/academia."

By way of interim relief the state government has sought the following direction.

*Stay the operation of the Order dated 29.09.2020 passed by the learned Division Bench of the Hon'ble High Court of Karnataka at Bengaluru in Writ Petition Nos. 8788/2020, C/w Writ Petition Nos.8951/2020 and 9145/2020.

LIST OF DATES

13.05.1986: The Karnataka State Legislature passed the National Law School of India, Act 1986, establishing the National Law School of India University.

27.4.2020: The Karnataka State Legislature passed the National Law School (Amendment) Act 2020, providing for 25% horizontal reservation to students of Karnataka in respect of admission to the National Law School.

26.06.2020: Petitioner MASTER BALACHANDAR KRISHNAN filed Writ Petition No.8788 of 2020 challenging the reservation.

09.07.2020: Petitioners SATYAJIT SARNA and NIKHIL SINGHVI filed Writ Petition No.8951 of 2020 before the high court challenging the reservation.

07.08.2020: BAR COUNCIL OF INDIA, filed Writ Petition No.9145 of 2020, challenging the reservation and seeking a declaration that the National Law School of India (Amendment) Act, 2020 as ultra vires the Constitution of India and hence the same is unconstitutional, illegal and untenable.

29.09.2020: Division bench of Justice B V Nagarathna and Justice N S Sanjay Gowda passed the impugned judgment striking down the validity of the impugned Amendment Act.