The recent decision by the Madhya Pradesh government to reserve all government posts for “children of the state” raises questions about the fundamental right to equality. While home-based reservations have been implemented in education, the courts have been reluctant to extend them to employment. Although Chief Minister Shivraj Singh Chouhan has not detailed the details of the proposal, the reservation based solely on place of birth would raise constitutional problems.
What does the Constitution say?
Article 16 of the Constitution, which guarantees equal treatment before the law in matters of public employment, prohibits the State from discriminating on the basis of place of birth or residence.
- Article 16 (2) establishes that “no citizen, solely for reasons of religion, race, caste, sex, ancestry, place of birth, residence or any of them, may not be eligible or be discriminated against with respect to a job or function under the state.
- This provision is complemented by the other clauses of the Constitution that guarantee equality.
- However, Article 16 (3) of the Constitution establishes an exception by saying that Parliament can enact a law that “prescribes” a residency requirement for jobs in a particular state.
- This power rests only with Parliament and not with state legislatures.
Why does the Constitution prohibit reservations from home?
- When the Constitution came into force, India became a nation resulting from the geographical unity of the individual principalities and the idea of the universality of Indian citizenship took root.
- As India has a common citizenship, which gives citizens the freedom to move freely in any part of the country, the requirement of a place of birth or residence cannot be a requirement for the granting of ‘public employment in any state.
But aren't reservations given for other reasons, like caste?
- The equality enshrined in the Constitution is not mathematical equality and does not mean that all citizens will be treated equally without distinction.
- For this, the Constitution emphasizes two different aspects that together form the essence of the Equality Law; non-discrimination between equals and affirmative action to equalize inequalities.
What did the Supreme Court say about reserving jobs for locals?
- The Supreme Court ruled against the reservation based on place of birth or residence. In 1984, in the case of Dr. Pradeep Jain v. Indian Union, the question of legislation relating to “children of the earth” was examined.
- The court ruled that such policies would be unconstitutional, but did not expressly rule on the matter, as the case concerned different aspects of the right to equality.
- Despite Article 16 (2), “some states adopt ‘children of the earth' policies that prescribe reservations or preferences based on domicile or residence for employment or appointment … At first In light of this, this seems constitutionally inadmissible, although we do not wish to express a specific opinion in this regard, as it does not arise directly for your consideration … ”, said the court.
- In a subsequent ruling in Sunanda Reddy against the state of Andhra Pradesh (1995), the Supreme Court upheld the observation in Pradeep Jain to repeal a state government policy that gave candidates 5% more weight, who had studied with Telugu as a medium of instruction. .
- In 2002, the Supreme Court annulled the appointment of teachers to the government of Rajasthan, in which the state selection board gave preference to “candidates from the district or rural areas of the district in question”.
“We have no doubt that an argument as broad as it has parochial connotations can be rejected in the clear terms of Article 16 (2) and in light of Article 16 (3). An argument of this nature goes against the mandatory wording of Article 16 (2) and goes against our constitutional spirit based on the unity and integrity of the nation,”said the Court.
- In 2019, the Allahabad High Court struck down a recruitment notice from the UP Subordinate Services Selection Commission that prescribed preference for women who are “original residents” of the UP only.
What about securing jobs for private sector residents?
Such a law will be difficult to implement even if it is authorized. Private employers do not organize an annual recruitment drive to fill the vacancies identified in advance, but hire when necessary. The state may recommend a preference to residents, but it would be difficult to determine
What about securing jobs for private sector residents?
- Such a law will be difficult to implement even if it is authorized. Private employers do not organize an annual recruitment drive to fill the vacancies identified in advance, but hire when necessary.
- The state may recommend a preference to residents, but it would be difficult to ensure that it is followed.
- In 2017, Karnataka considered similar legislation, but it was dropped after the state attorney general raised questions about its legality.
- In 2019, the state government reissued an advisory asking private employers to “prefer” Kannadigas for manual work.
How is it possible that some states have laws that reserve jobs for locals?
- In the exercise of the powers conferred on it by Article 16, paragraph 3, Parliament approved the Public Employment Law (Residency Obligation), aimed at abolishing all existing residence conditions in the States and promulgating exceptions only in the case of Andhra Pradesh special offers. Manipur, Tripura and Himachal Pradesh.
- Constitutionally, some states also enjoy special protections under section 371. Andhra Pradesh, under section 371 (d), has the power to “directly recruit local officials” in specific areas.
- In Uttarakhand, Class III and Class IV jobs are reserved for locals.
- Some States have circumvented the mandate of article 16, paragraph 2, by using this language.
- States that conduct official activities in their regional languages prescribe knowledge of the language as a criterion. This ensures that local citizens are preferred for the jobs. For example, states like Maharashtra, West Bengal, and Tamil Nadu require a language test.
Beyond MPs, have there been other recent moves in the home work group?
- In April, the Center published a J&K Household Job Reservation Notice expanding the definition to central government employees who had worked in the previous state for more than 10 years.
- Before the repeal of J & K's special status in August last year, state government jobs were reserved exclusively for state subjects under article 370 of the Constitution.
- In Assam, a committee presented its report for the implementation of a key provision of the Assam Accord of 1985, recommending the reservation of jobs for those who can trace their ancestry to the state before 1951.