Updated: August 23, 2020 10:17:52 am
The Madhya Pradesh government’s recent decision to reserve all government jobs for “children of the state” raises questions relating to the fundamental right to equality.
While domicile-based reservations have been implemented in education, courts have been reluctant to expand this to employment. Although Chief Minister Shivraj Singh Chouhan has not outlined details of the proposal, reservation solely based on place of birth would raise constitutional questions.
What does the Constitution say?
Article 16 of the Constitution, which guarantees equal treatment under law in matters of public employment, prohibits the state from discriminating on grounds of place of birth or residence.
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Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”. The provision is supplemented by the other clauses in the Constitution that guarantee equality.
However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state. This power vests solely in the Parliament, not state legislatures.
Why does the Constitution prohibit reservation based on domicile?
When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root. As India has common citizenship, which gives citizens the liberty to move around freely in any part of the country, the requirement of a place of birth or residence cannot be qualifications for granting public employment in any state.
But are reservations not granted on other grounds such as caste?
Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction. To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law — non-discrimination among equals, and affirmative action to equalise the unequals.
What has the Supreme Court said on reserving jobs for locals?
The Supreme Court has ruled against reservation based on place of birth or residence. In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed. The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
Despite Article 16(2), “some of the States are adopting ‘sons of the soil’ policies prescribing reservation or preference based on domicile or residence requirement for employment or appointment… Prima facie this would seem to be constitutionally impermissible though we do not wish to express any definite opinion upon it, since it does not directly arise for consideration..,” the court said.
In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in Pradeep Jain to strike down a state government policy that gave 5% extra weightage to candidates who had studied with Telugu as the medium of instruction.
In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
“We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the face of peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation,” the court said.
In 2019, the Allahabad High Court struck down a recruitment notification by the UP Subordinate Service Selection Commission which prescribed preference for women who are “original residents” of the UP alone.
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What about securing jobs for locals in the private sector?
Such a law will be difficult to implement even if allowed. Private employers do not go on an annual recruitment drive to fill vacancies identified in advance but hire as and when required. The state can recommend a preference to locals but ensuring that it is followed would be difficult. In 2017, Karnataka mulled similar legislation but it was dropped after the state’s Advocate General raised questions on its legality. In 2019, the state government once again issued a notification asking private employers to “prefer” Kannadigas for blue-collar jobs.
How do some states then have laws that reserve jobs for locals?
Exercising the powers it has under Article 16(3), Parliament enacted the Public Employment (Requirement as to Residence) Act, aimed at abolishing all existing residence requirements in the states and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh.
Constitutionally, some states also have special protections under Article 371. Andhra Pradesh under Section 371(d) has powers to have “direct recruitment of local cadre” in specified areas.
In Uttarakhand, class III and class IV jobs are reserved for locals.
Some states have gone around the mandate of Article 16(2) by using language. States that conduct official business in their regional languages prescribe knowledge of the language as a criterion. This ensures that local citizens are preferred for jobs. For example, states including Maharashtra, West Bengal and Tamil Nadu require a language test.
Beyond MP, have there been other recent moves on domicile-based job reservation?
In April, the Centre issued a notification reserving jobs for J&K domiciles expanding the definition to central government employees who had served in the erstwhile state for over 10 years. Before the abrogation of the special status of J&K in August last year, state government jobs were reserved exclusively for state subjects as per Article 370 of the Constitution.
In Assam, a committee has submitted its report for implementation of a key provision of the 1985 Assam Accord, recommending reservation in jobs for those who can trace their ancestry in the state before 1951.
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