Many higher-education institutions, state and private, provide for reservation for NRIs. Some also extend reservations to ‘NRI-Sponsored’ candidates. Others, like my alma mater (NLS-Bangalore), provide reservation for another dubious category, ie, ‘Foreign Nationals’.

But these quotas hardly get the same backlash that caste-based quotas do, despite the fact that – unlike caste-based reservation – the NRI quotas are, in most cases, unconstitutional. The eligibility and selection criteria, and the fee structure for these seats are unregulated, illegal and arbitrary.

The question regarding the validity of these quotas was discussed before the Supreme Court in the case of PA Inamdar v. State of Maharashtra (2005). The seven-judge bench noted that, by and large, neither the students admitted under this NRI quota, nor their parents, are NRIs. It noted that admissions were being granted to less meritorious students just because they could afford to pay the higher fees sought. And yet, despite calling the ‘NRI quota’ a misnomer, it accepted the submission that this quota was essential, “since it brought in money required for these institutions to strengthen and enlarge their educational activities”.

The Supreme Court also found strength in the argument that “the emigrated NRIs had a desire to bring their children back to their country, not just for education but also so that their children could get reunited with Indian cultural ethos,” and thus unfortunately upheld the validity of the NRI quota. (Foreign National and NRI Sponsored quotas, are premised on same principle, though neither were particularly discussed in the PA Inamdar case. The idea behind having ‘Foreign National’ quota is to increase the outreach of Indian higher education institutions, especially amongst SAARC and developing nations. Arguably, NRI-Sponsored quota is not, as it actually sanctions admission of those candidates who are not NRIs nor whose parents are NRIs.)

Non-implementation of guidelines

The Supreme Court however did lay down a few basic guidelines for the institutions implementing this quota: First, the seats reserved for NRIs should not exceed 15% of total seats; secondly, merit within this quota should not be given a complete go-by; and three, the additional funds generated ought to be utilised for subsiding education for students from economically weaker sections.

Yet, it is evident from the case of National Law Universities (NLUs) – that I have studied in my paper for the Economic & Political Weekly – that even these bare minimum guidelines are not being followed. Only five out of sixteen National Law Universities, which reserve seats for NRI/NRI-Sponsored/Foreign Nationals, subsidise fees for students (usually from SC/ST/PWD backgrounds). The amount used for subsidy is barely 5% of the additional revenue generated through NRI seats.

NLS-Bangalore charges Rs 1.87 lakh per year from general category candidates, and charges a ‘subsidised’ fee of Rs. 1.85 lakh from SC/ST category students. NALSAR-Hyderabad charges a fee of Rs 2.57 lakh per year from general category students, and charges ‘subsidised’ fee of Rs 2.51 lakh from SC/ST category students. As a result, these so-called ‘subsidised fees for SC/ST candidates’ is a cruel joke.

Table 1: Number and percentage of seats allotted for foreign nationals and NRI/NRI-sponsored categories

Table 2: Additional revenues generated by NLUs from these seats in FY 2016-17

A perusal of CLAT ranks of those admitted through NRI quota to NLUs demonstrates that merely walking into the examination centre would guarantee such NRI candidates a seat in top NLUs. Take for instance WBNUJS-Kolkata, a highly ranked NLU, that admits students for NRI seats on the basis of their CLAT performance. While its all-India general seats got exhausted at all-India rank 221 (in 2016), but through the NRI/NRI-Sponsored quota, a 5,829 AIR-holder is also able to get into WBNUJS – in the first list itself. An AIR-holder with a rank as low as 23,892 is still 63rd amongst NRI candidates, thus eligible for admission to NLUs.

In the admission notification of NLS-Bangalore for Foreign National quota, there is a list of candidates shortlisted in the “order of merit”. Yet, there is no explanation regarding how such "order of merit" has been determined. There is a need for greater transparency in the admission process under these categories.

Death of ‘Merit’ or death of exclusivity?

It is always the SC/ST and other socio-economic reservations that are blamed for ‘causing death of meritocracy.’ It is a noted fact by many studies that SC/ST/OBC students, owing to their weaker socio-economic backgrounds, are not able to perform at par with the students from general category. They not only have to compete in environments where they are often seen as ‘encroachers’, but also have to make up for their weaker backgrounds and poor schooling.

But what do the NRIs have to make up for?

A 2016 study conducted at NLS-Bangalore demonstrated that, academically, it is the Foreign National students who are the worst performers. This affirms the findings of the Chief Justice of India RC Lahoti in the PA Inamdar case, “that admissions were being granted to less meritorious students just because they could afford to pay the higher fees sought.”

Yet, these students are more readily accepted into student-run societies than SC/ST category students.

Despite being academically less meritorious, these students find more ready acceptance into peer groups, as demonstrated through their participation levels in student-run societies. It is their relative affluent backgrounds and the quality of schooling that they have received which works in their favour.

Their average annual income was noted to be Rs 26.9 lakh, compared to Rs 16.3 lakh for SC/ST category students. Sixteen out of twenty-one Foreign National students identified as Hindus; amongst them, none belonged to SC/ST/OBC castes.

Need to revisit constitutional validity

The Supreme Court in PA Inamdar v. State of Maharashtra, I contend, did not appreciate the issue in a wholesome manner. By valuing the efficiency of running an institution over equal access to education and knowledge resources, the judges failed to administer the constitutionality test upon the NRI quota.

The Calcutta High Court had in fact, in 2004, examined the NRI quota through the constitutional test. It administered the test of right to equality enshrined in Article 14, on the validity of Foreign/NRI/NRI-sponsored quotas in medical colleges in West Bengal. It found the argument of generating additional revenue weaker than the lack of coherence and arbitrariness which these quotas, and the manner in which they are implemented, signify. It declared this quota as unconstitutional and illegal. Supreme Court, a year later, did not take cognizance of this judgment.

The lack of transparency in the admission process under this quota also should not go amiss. At the very least, there is a need for proper regulations and system of checks upon the law institutions implementing this quota. While there exist guidelines for engineering institutions by AICTE and for medical colleges by MCI, it is entirely unregulated in the case of law colleges.

There is a need to utilise the additional revenues generated to subsidise the seats for SC/ST/OBC category students, so that these caste-based reservations could also be democratised further and put in a place where it could be reached by many.

Finally, there is a need to revisit the constitutional validity of these quotas.

Views expressed are the author's own.