Tags:
Journalism of Courage
Jharkhand Governor Ramesh Bais Sunday returned the domicile Bill — which defines a local in the state based on 1932 land records — to the state government , asking it to “seriously review” its legality.
The move comes over two months after the Jharkhand Assembly unanimously passed the Bill at a special session — with the provision that it would come into force only after the Centre carries out amendments to include it in the Ninth Schedule, putting it beyond judicial scrutiny.
The Ninth Schedule of the Constitution contains a list of central and state laws that cannot be challenged in courts. However, courts in the past have said that it can be reviewed if it violates the fundamental rights or the basic structure of the Constitution.
Returning the Bill, Bais said that the state government should review its legality so that it is in accordance with the Constitution as well as the directions of the Supreme Court.
According to Bill, a local is defined as a person whose name or whose ancestors’ name is recorded in the survey/khatiyan of 1932 or before. In case of people who are landless, local persons shall be identified by the Gram Sabhas based on culture, local customs and tradition, among other factors.
“It (the Bill) mentions that only local persons identified under this Act will be eligible for appointment against class 3 and 4 of the state. During the review of the said Bill, it was found that Article 16 of the Constitution states that all citizens have equal rights in the matter of employment. According to Article 16(3) of the Constitution, only the parliament has been empowered to impose any kind of conditions in the case of employment under Section 35 (A) under special provision. The State Legislature does not have this power,” said a press release issued by the Governor’s House, quoting Bais.
The Bill, ‘Jharkhand Definition of Local Persons and for Extending the Consequential, Social, Cultural and Other Benefits to Such Local Persons Bill, 2022’, states that the definition of local persons, on the basis of the ‘1932 khatiyan’, is based on “living conditions, customs and the traditions and social development” of the “Moolvasis and people from tribal community” which have been affected owing to pre- and post-1932 migration of people from other states to Jharkhand (erstwhile Bihar).
The passed Bill stated that it is aimed at granting local residents “certain rights, benefits, and preferential treatment” over their land; in their stake in local development of rivers, lakes, fisheries; in local traditional and cultural and commercial enterprises; in rights over agricultural indebtedness or availing agricultural loans; in maintenance and protection of land records; for their social security; in employment in private and public sector; and, for trade and commerce in the state.
However, Bais said that the Bill is against apex court orders, citing the case of AVS Narasimha Rao and others vs Andhra Pradesh. The Governor said that various areas of Jharkhand are covered under the fifth schedule. “In the case of Satyajit Kumar vs. State of Jharkhand, the Supreme Court again declared 100 percent reservation given by the state in scheduled areas as unconstitutional… such a provision clearly appears to be inconsistent, having adverse effect on the fundamental rights,” the Governor said. “Therefore… when the State Legislature is not vested with the power to pass a bill in such cases, a serious question arises on the legality of this bill.”
