DISCRIMINATES AGAINST OTHER INDIANS, CREATES ‘WALL’ AROUND STATE: WHY P&H HIGH COURT STRUCK DOWN HARYANA DOMICILE QUOTA

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RELEVANCE TO UPSC SYLLABUS: GS 2: POLITY AND GOVERNANCE: LOCAL RESERVATION IN JOBS, ARTICLE 14,16,19.

THE CONTEXT: The Punjab & Haryana High Court has struck down the Haryana State Employment of Local Candidates Act, 2020 stating that it is violative of the Part-III of the constitution.

LOCAL RESERVATIONS ATTEMPT IN STATES:

• Haryana State Employment of Local Candidates Act, 2020 requires firms with 10 or more employees to reserve 75% of all jobsoffering a salary of less than Rs. 30,000 a month for eligible candidates of State domicile.
• Job reservation Bills or laws for domiciles have also been announced in other States including Andhra Pradesh, Madhya Pradesh and Jharkhand.
• The job quota Bill passed in the Andhra Pradesh Legislative Assembly in 2019, also reservingthree-fourths of private jobs for locals.

WHY  THE COURT HAS DECLARED THE LAW AS “UNCONSTITUTIONAL”?

• The term fraternity connoting a sense of common brotherhood is to embrace all Indians. In this respect, a blind eye could not be turned to other citizens of the country irrespective of the State they belong to.
• The court stated that the legislation is violative of right to equality under Article 14. The Court referred to Navtej Singh Johar and others vs. Union of India, where it states ‘miniscule minority have a right to participate as a citizen and an equal right of enjoyment of living regardless of what majority may believe’.
• The Court said that freedom given under Article 19 of the Constitution could not be taken away. The Court particularly referred to the freedoms guaranteed by Article 19(1)(d) and 19(1)(g).

1. The Act is imposing unreasonable restrictions regarding the right to move freely throughout the territory of India or to reside and settle in any part or the territory of India.
2. As per Article 19(6), the right of the State is to impose restrictions regarding professional or technical qualifications and not domicile requirements. It can, thus, be said that the Act as such cannot be said to be reasonable in any manner and it was directing the employers to violate the constitution provisions, the Court concluded.

• Article 35 of the Constitution bars state from legislating on requirement of domicile in employment under Article 16(3). The same further provides that there has to be equality of opportunity in matters of public employment.
• The power under Article 16(3) gives power only to the Parliament for making any law prescribing in regard to the class or classes of employment or appointment to an office under the Government or any local or other authority.
• The bench said that the concept of constitutional morality has been openly violated by introducing a secondary status to a set of citizens not belonging to the State of Haryana and curtailing their fundamental rights to earn their livelihood.

ISSUES WITH LOCAL RESERVATION:

Violation of fundamental rights of Constitution: The Act was a violative of fundamental rights as Article 14, Article 16 and Article 19.

Treated as secondary citizen: 75% reservation for the locals was discriminatory as it discriminates against the individuals on account of the fact that they do not belong to a certain State. It has a negative discrimination against other citizens of the country as treating them as secondary citizens.

Fuels Sons-of-the-Soil Theory: The ‘Son of the soil’ theory puts forward the idea of reservation based on regionalism. Reservation law based on domicile law will fuel such theories across States and in the long run destabilise the foundations of Indian democracy i.e., ‘Unity in diversity’.

Affects industrialisation: Raising the son of the soil issue and preventing free movement of manpower resources in the State from other regions can have an adverse effect on the existing industries in the State.  It could trigger an exodus of large domestic and multinational investors across sectors such as auto, IT that rely on highly skilled manpower.

THE WAY FORWARD

Implementation of reservation: The reservation policy could be implemented in a way that does not hamper the free movement of manpower resources in the Country. The reservation policy could be revisited periodically to assess its impact on the economy and industries in the state.

Protect fundamental rights: It is important to ensure that any policy decision taken is in compliance with the Constitution of India and does not violate the fundamental rights of citizens.

Skill impartation: To ensure job creation state governments should provide youths with skill training and proper education as key focus areas, enabling the masses to compete in the free market.

Engagement with industries: Government should involve industry’s engagement in the State because reservation affects productivity and industry competitiveness. The State governments can come up with certain incentives to companies which are investing a certain amount of money for training the local youths.

THE CONLCUSION: Enactment of local reservation in state is a violation of fundamental right of the citizens. Thus, High Court concluded that Haryana State Employment of Local Candidates Act, 2020 is ” unconstitutional and violative of Part III of the Constitution of India. In this respect, state governments should enable the reservation system in such a way that it serves its original purpose of making India a more just society.
PREVIOUS YEAR QUESTIONS

1. Whether the National Commission for Scheduled Castes (NCSC) can enforce the implementation of constitutional reservation for the Scheduled Castes in the religious minority institutions? Examine. (2018)
2. “The reservation of seats for women in the institution of local self-government has had a limited impact on the patriarchal character of the Indian political process”. Comment. (2019)

MAINS PRACTICE QUESTIONS

1. What are the challenges associated with the reservations for locals in the private sector? Suggest measures to generate enough job opportunities in the Indian economy.
2. Local reservation in private sector fuels the concept of sons of soils theory”. Critically examine the statement and give your views.

SOURCE: https://www.livelaw.in/high-court/punjab-and-haryana-high-court/punjab-haryana-high-court-struck-down-75-reservation-for-haryana-domicile-in-private-sector-unconstitutional-242457#:~:text=The%20Court%20said%20that%20freedom,Constitution%20could%20not%20be%20curtailed

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