Topics Covered: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Domicile-based job quota:
Context:
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.
What’s the issue now?
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.
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.
Enabling provisions:
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.
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.
- 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”.
- 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.
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.
Sources: Indian Express.
