Issues and challenges pertaining to the federal structure
Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.
Domicile-based job quota
Context: The Madhya Pradesh government’s recent decision to reserve all government jobs for “children of the state”.
Why such type of reservation is advocated?
It is argued that giving preferential treatment to the residents of a state will help in rightful allocation of the resources of the state and would encourage people to work within the boundaries of their state.
This is also seen as a way to stop migration of people from backward states to metropolitans, thereby reducing the burden on such cities.
Distinction between domicile status and place of birth
According to the SC ruling in DP Joshi vs Madhya Bharat case,1955, Domicile or status of residence is a fluid concept that can change from time to time, unlike place of birth, which is fixed.
Domicile of a person means his permanent home.
The place of birth is one of several grounds on which domicile status is conferred.
Instances where local based reservations are made:
Jammu and Kashmir
Before abrogation of the special status, the jobs were reserved for state subjects.
Presently, Government jobs are reserved for domiciles.
Any person who has resided in J&K for 15 years and their children are domiciles.
Those who have studied in J&K for seven years and appeared for Class 10 and 12 exams from there are domiciles.
Central government employees, who have served in J&K for 10 years, and their children are also eligible to apply for government jobs.
Maharashtra
Only local residents fluent in Marathi are eligible for government jobs.
A local is defined as one who is domiciled in the state and has lived there for over 15 years.
The only exception is for residents of Belgaum, Karnataka. Maharashtra has repeatedly staked claim over Belgaum as a large population there comprises Marathi speakers.
Assam
In Assam, there is no reservation for residents of the state.
But the MHA-appointed committee for implementation of Clause 6 of Assam Accord has recommended job reservations upto 80-100 per cent in different levels in government and private sectors for “Assamese People”.
This is to be determined on the basis of a 1951 cut-off — persons or their descendants residing in Assam prior to 1951.
West Bengal
No such reservation in Bengal. But, in certain posts in state government, reading and writing skills in Bengali is a criterion.
Meghalaya
In state government jobs, Khasis, Jaintias and Garos have a combined reservation of 80 per cent. Other STs and SCs have a reservation of 5 per cent.
Arunachal Pradesh
There is 80 per cent reservation for Arunachal Pradesh Scheduled Tribes in state government jobs.
What does the Constitution say about domicile based reservation?
Article 16(2) 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
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.
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.
Why does the Constitution prohibit reservation based on domicile?
When the Constitution came into force,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.
What has the Supreme Court said on reserving jobs for locals?
While domicile-based reservations have been upheld in education, courts have been reluctant to expand this to employment.
In Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was SC said that Prima facie this would seem to be constitutionally impermissible but did not expressly rule on it as the case was on different aspects of the right to equality.
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 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.”
How do some states then have laws that reserve jobs for locals?
Exercising the power it has under Article 16(3), Parliament enacted the Public Employment (Requirement as to Residence) Act,
The 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.
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
What about securing jobs for locals in the private sector?
Such a law will be difficult to implement even if allowed.
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.
However, in 2019, the Karnataka government once again issued a notification asking private employers to “prefer” Kannadigas for blue-collar jobs.
Conclusion
The move to give domicile based reservation runs against the spirit of constitutional equality and runs the danger of being struck down by government.
