State Government of Haryana has prepared draft of the Haryana State Employment of Local Candidates Ordinance, 2020. The ordinance aims to provide “75% of the new employment to local candidates for jobs having salary of less than Rs 50,000 per month in various privately managed companies, societies, trusts, limited liability partnership firms, partnership firms, etc., situated in the state of Haryana. However, the employers will have the option to recruit local candidates from one district to only 10 percent. Exemption clause shall also be provided if suitable local candidates are not available for a particular category of industry.
As on date, several states have enacted laws to provide reservation for their local residents in the private sector. These states include Maharashtra (up to 80% quota), Karnataka (75%), Andhra Pradesh (75%) and Madhya Pradesh (70%). But validity of most of these laws are pending challenged before the Supreme Court and high courts and an authoritative ruling is awaited.
- The Ordinance of Haryana can be constitutionally challenged to violate Article 19(1)(g) which states that all citizens have right to practise any profession, or to carry on any occupation, trade or business
Private sector firms can claim that the law effectively interferes with their constitutional rights to carry on their trade freely.
- The Ordinance can be challenged to violate Article 14of the constitution which ensures equality before the law or the equal protection of the laws within the territory of India.
- Similarly, Articles 15(1) and 15(2) also prohibit the state from discriminating against any citizen on grounds of religion, race, caste, sex, place of birth.
- But clauses (3) to (5) of Article 15 empower the state to provide for positive discrimination in favour of the grossly underrepresented and neglected sections of the society in order to promote substantive equality. Article 15(3) empowers the state to make special provisions for women and children while Article 15(4) authorises the state to make special provisions for the advancement of socially and educationally backwards or SC/STs. Article 15(5) goes one step further and says the state can reserve admission into education institutions, including private schools or colleges, whether or not aided by the government.
- Similarly, Article 16(1) lays down that the state cannot discriminate against any citizen in the matters of employment. Likewise, Article 16(2) too makes it clear 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”.
- However, clause 3 of Article 16 allows Parliament to make any law with residence qualifications necessary for government jobs, thus introducing the domicile-based preferential treatment. Article 16(4) also allows the state to reserve employment for any backward class of citizens, which in the opinion of the state, is not adequately represented in services. This opens the door for the reservations of Other Backward Classes (OBCs). Article 16(4A) was incorporated, permitting reservation in promotions but restricting the same to Scheduled Caste (SC) and Scheduled Tribes (ST).
- At the same time, the Supreme Court, in Triloki Nath Tiku & Anr Vs State of Jammu & Kashmir, 1966, made it clear that the issue of determination by the state as to whether a particular class of citizens is backward or not is a justiciable one. It said that the state is not the final word on identifying a backward class for providing reservation and that a court can overturn any such determination if it is based on irrelevant consideration or manifests an abuse of power.
- A law can be framed for reservation on the basis of domicile, but only by the Parliament. Article 16(3) in the Constitution empowers Parliament to provide domicile-based reservation in public employment and jobs with local or any other authority under a state or a Union Territory.
- SC in 2018 rules that states were not required to “collect quantifiable data” reflecting the backwardness among these communities.
These are the relevant provisions in the Constitution that seek to balance the right to equality for all citizens with the right of the state to legislate for reservation in favour of backward classes.
SUPREME COURT JUDGEMENTS THAT GOES AGAINST SUCH RESERVATION POLICIES
In Govind A Mane Vs State of Maharashtra, 2000, the top court quashed the state government’s decision to distribute seats district-wise for admission to B.Ed course, saying that such allocation based on residence would be violative of Article 14 (equality) of the Constitution when it fails to put forth any material to show the nexus between such distribution and the object sought to be achieved.
In Nidamarti Maheshkumar Vs State of Maharashtra, 1986, when region-wise classification for admissions to medical colleges was sought to be defended on the ground that Vidharbha and Marathwada regions are backward as compared to Pune and Bombay regions, the apex court declined to accept such contention, saying it is not possible to categorise the regions within the jurisdiction of the various universities as backward or advanced as if they were exclusive categories.
When the reservations of certain percentage of seats in medical colleges in favour of candidates from rural areas was sought to be justified on economic considerations, a three-judge bench of the Supreme Court, in state of Uttar Pradesh Vs Pradip Tandon, emphatically rejected the plea.
SC held: “The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made for majority population of the State. Eighty per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. The incident of birth in rural areas is made the basic qualification. No reservation can be made on the basis of place of birth as that would offend Art. 15”.
In Dr Pradeep Jain Vs Union of India, 1984, the top court dealt specifically with the issue of domicile-based reservation, noting that to regard an individual from one state as an outsider in another state “would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent States.”
In Sunanda Reddy Vs 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.
Similarly, in Kailash Chand Sharma Vs State of Rajasthan, 2002, the court held that “measures taken by the State on considerations of localism are not sanctioned by the constitutional mandate of equality”.
A state law that prima facie exercises a power exclusively within the domain of the Parliament under Article 16(3), breaches 50% ceiling on reservation, and also interferes with the constitutional right of citizens to conduct business or trade has be tested on the anvils on the constitutional and legal principles. The Supreme Court must pronounce a commanding judgment to settle the issue once and for all.
ECONOMIC IMPLICATIONS: The Economic Survey 2016-17 had highlighted that annual work-related migration has increased to around 9 million and thus benefits the Indian Economy.
Draft national policy on migrant workers says that ‘Migration should be acknowledged as an integral part of development’ and government policies should not hinder but seek to facilitate internal migration.
Report of the Working Group on Migration, released in January 2017 by the then Ministry of Housing and Urban Poverty Alleviation. The report argued that the movement from agriculture to manufacturing and services was inherently linked to the success of migration in the country.
Such policies would prevent us from optimally harnessing the demographic dividend and thus end up promoting Regional Inequality.
- It may not be viable for the private organisations as they work on profit driven motive and accordingly hire the best talent available in any salary bracket.
- Many corporates and MNCs are situated in Gurugram and nearby areas adjacent to Delhi. In order to avoid state wrath and ensure productivity and business, the employers of the NCR Region and may either relocate to nearby state of UP in the National Capital Region of Delhi or shift the residence of their employees at least on paper to either Delhi or UP.
Political Implications: Rise of strong Sons-of-soil movement even in other states and thus end up affecting the spirit of Cooperative Federalism.
Social Implications: In a multilinguistic society such as India, the unrestricted work-related migration has potential to emerge as unifying/centripetal force. It enables the healthy interaction of different languages and cultures and thus promoted national integration by transcending regionalism.
- Dr Pradeep Jain Vs Union of India, 1984: ‘sons of the soil’ claims, though not altogether illegitimate if confined within reasonable bounds, are breaking asunder the unity and integrity of the nation by fostering and strengthening narrow parochial loyalties based on language and residence within a state.”