Journalism of Courage
THE MADHYA Pradesh government’s decision to give government jobs only to “children” of the state is likely to trigger a fresh debate on the fundamental right to equality of citizens.
While the Constitution specifically prohibits discrimination based on place of birth, the Supreme Court has held domicile reservation — especially in educational institutions – as constitutional.
The courts, however, have been averse to extending such reservation to public employment, as it violates constitutional guarantees made to citizens against discrimination.
Article 16(2) of the Constitution 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 of any employment or office under the State.”
While Chief Minister Shivraj Singh Chouhan has not given details of the proposal, reservation based solely on place of birth would not pass constitutional muster.
In 2019, the Allahabad High Court struck down a recruitment notification issued by the Uttar Pradesh Subordinate Service Selection Commission, which prescribed preference for women who were “original residents” of the state.
In 2002, the Supreme Court invalidated the appointment of government teachers in Rajasthan, where the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned.”
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“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,” a two-judge bench of the Supreme Court had said.
The Supreme Court has, in its rulings since 1955, underlined the distinction between domicile status and place of birth. Domicile or status of residence is a fluid concept that can change from time to time, unlike place of birth. The place of birth is one of several grounds on which domicile status is conferred.
In the context of reservation in education, the court had upheld a law providing domicile reservation in Madhya Pradesh in 1955.
Some states have been mulling laws to reserve government jobs for locals. Some have routed the laws through other criteria — from language tests to proof of having resided/ studied in the state for a certain period of time.
In Maharashtra, only those living in the state for over 15 years with fluency in Marathi are eligible. In Jammu and Kashmir, government jobs are reserved for “domiciles”; Uttarakhand too only recruits residents of the state in some posts. In West Bengal, reading and writing skills in Bengali is a criterion in recruitment to some posts.
While Karnataka had announced reservation in both private and blue-collar government jobs in 2017, the State Advocate General had raised questions about the legality of the proposed law. Last year, Chief Minister B S Yediyurappa issued a notification mandating private employers to give “priority” to Kannadigas for clerical and factory jobs in the state.
