by Sarika Mourya and Kshitij Gautam 5 September 2021
- Introduction
Recently the state of Haryana has introduced the Haryana State Employment of Local Candidates Bill 2020, which will reserve 75% of seats which to state domicile, for a job up to a salary of 50,000/- per month. The said act, on the one hand, may improve the economic situation of local people but on another hand will deplete the economy of the state, due to various reasons which we will discuss later in the article. The various state government has chosen to bring such law in the middle of post-pandemic to recover the economic loss or to provide employment for their domicile so that they can go back to their earlier economic situation rather improve, but this is only one side story, this act is a double-edged sword, this may be beneficial for the people seeking the reservation but not for the economy of the state.
It seems like all these states that are bringing the law to reserve state’s job for their state people are working on the footstep of the Maharashtra whose aim was Maharashtra for Marathis, however, we must differ this form Punjab for Punjabi, Andhra for Telugu, and Tamil for Tamilian. In these states, they wanted all Telugu people in one state, Punjabi speaking people in one, and Tamil speaking in one state, but in Maharashtra, they wanted to get rid of Tamil people who were Occupying most of the local jobs in the late ’60s and north Indian in late ’90s. Though the first state in India to bring reservations in the private sector was Andhra Pradesh in 2019.
Domicile-based reservation is not a new phenomenon in India earlier in the state of Hyderabad (before Independent) and after independence also there was a reservation called Mulki reservation where all civil service post from lower-class belongs to local people. And contention of the state government was that these jobs required local knowledge. However, two things which should be clear here only that civil service posts are the government job and Constitution also gives power to Andhra Pradesh under Article 371 D to do so.
Reservation is a very lethal policy although it is positive discrimination if not used wisely; which has its pros and cons, If used to appease one section of society then it will become a hurdle in the socio-economic development of the country. And one drawback of this reservation policy is that ultimately it won’t be helpful for the people for whom it is made if used arbitrarily.
Though India is a free nation and the constitution guarantees everyone to work anywhere in the territory, but in recent times some states have come up with the bill for reservation in the private sector, as the Andhra Pradesh high court said that “this act may be unconstitutional in nature” but the matter is still pending in the court for final hearing. The whole rationale behind this proposal is unemployment or for stopping the local people to migrate. But reservation is not the only way to curb unemployment or migration.
- Will this law stand Scrutiny of court?
In the education system also, there is a domicile reservation to some percentage. But up to 70% of is the private sector is not only unconstitutional in all sense but also bogus, ill-willed, ill-timed and ill-logical. India as a nation doesn’t enjoy so much liberty in an economy that her state can restrict the freedom of movement or trade by putting reservation in the private sector also. It’s time for the country to come together as a single entity and enjoy the brain drain in at least the states. Andhra Pradesh high court said in one of the proceedings for the reservation in the private sector in the state, it may be unconstitutional and the same is said by Supreme Court in the case of Pradeep Jain v. Union of India. However, the Andhra’s matter is sub-judice; we restrict ourselves to write more about it.
Such legislation will fail the constitutional scrutiny one by one from article 14 to article 19(1) (g). This act will curb the protection given to a person by Article 14; violation of article 15(1) and 15(3) based on place of birth, will violate 16(2) based on place of birth, and by violating 16(3) will interfere in the power of parliament to make legislation in the matter of public employment in this respect. And it is also violating article 19 (e) where the freedom is provided to citizens to move and reside in any part of the country and 19(g) to practice any profession, or to carry on any occupation, trade or business. We can understand the application of this article in a sense that no one will leave the place unintentionally to any other state, and reside there, unless they have to work there, their relatives’ lives there, and even if one goes from one state to another, they have to do the job in order to fulfil their socio-economic needs. This act will also violate the SC ruling in the case of M. Nagraj v. Union of India and Indira Sawhney v. Union of India and which set the maximum limit for reservation up to 50%.
It is a one-sided approach because the government of the state is fully aware of the fact that if this matter goes to the Supreme Court or even high court then it will become void-ab initio in the violation of the fundamental rights and basic structure of the constitution. This act is just political cynicism. Various media report shows that Haryana government is losing the confidence of the general public because they are mishandling the farmer issues so they come up with this ill-willed act and the there is a coalition of the government in the state and one of the parties is regional so that pressure also.
It is a premature act because, in this time where all other countries in the world come together to fight the virus, some state are thinking for their citizen only, there is no doubt that the government is free to do that but restricting the private company also for the same is not, because our country is suffering from the recession at this time so, investment from the world can help to achieve the desired goal but if we put a restriction for them also then it will be a disastrous move. MNCs will think many times before setting any companies, factories in the state with reservation because it may be chance, they can’t get most of the talented people. In the Haryana state act for reservation, there is the clause that if a company is unable to find the right candidate for their job then they have to give training to the existing candidate to do their job but act goes silent on who bears the cost of training, either state or private companies have to bear the cost.
In the case of Kailash Chandra v. State of Rajasthan Supreme Court said that this law is bad and only increase parochialism.
- The plight of the private sector
Such legislation had earlier been introduced by many states but none of them had been fully implemented, in Gujarat, it was said to be given to 80% reservation for Gujaratis people, and 25% preference should be given to local people where these industries have been set up. In Chhattisgarh private sector was asked to give preference to local, which is only advisory, and no law has been passed to date. The same law has been passed in Andhra Pradesh, though its constitutional validity has been questioned in a court of law. Madhya Pradesh government has also made similar schemes for locals. Maharashtra has stated to provide reservations to 80% of its people. But the announcement made by these states has become a dead letter.
- The repercussions of this law on the private sector
We must not forget that this private companies are goal-oriented and their aim is profit-making unlike the public sector where the aim is to provide service to the people, that’s where this reservation differs from the public sector. Any company who is going to face hurdles in hiring employees, that too not of its choice, will look for any other places, they may have a hearing that in near future this government can bring any other law to maintain their power over us, due to which they may don’t enter into the market in that state.
It can’t be denied that while implementing this law companies face many problems, from taking legal certificates, to maintaining their employees, and they will have to compromise on the skills of the employee, that’s the reason why they prefer more outside people than of that state.
If this entire hurdle is passed, they are not able to find a suitable person for the job, they may lose their precious time also applying to getting permission to recruit outside employees. Fear of getting penalty by states which are there in the provision of some states legislation like Jharkhand.
Also, if there is such a law in force people may do not go to that concerned state knowing the fact that this state will not allow jobs for the outsider candidate, provided there is only a 15% chance of getting such jobs. Thus, the question that from where these companies will recruit left positions. They will choose any other state which doesn’t provide such reservation, their chances of getting a job there are defiantly high.
- Will this law bring communal problems?
Ever since Shiv Sena has emerged in Bombay, their aim has always been to keep away the outsider working in Maharashtra, which has seen much communal violence in the late ’60s because of ‘Madrasis’ and later on due to north India, mainly Bihari and people from UP. So, if we keep the citizen of Haryana only in Haryana, and Maharashtra’s only in Maharashtra, then not only this will violate freedom to move in any part of the country, but also create communal problems, whenever any outsider will try to come to that state to get any job or for any purpose. The people of the state may think that these people from outside will take our positions, thus leading to hatred among each other, and violate the basic structure of the Constitution which provides for a feeling of brotherhood among its citizen. This type of event only leads to violence which any sane government should not want in their term.
- Conclusion
As we are seeing one by one states are coming with such laws, starting from Maharashtra to Madhya Pradesh, initially, it looks good on paper to gain a political advantage but in a long run, it is going to ruin the state economy. Such an act will not be able to pass the scrutiny of the court, and stand in agreement with the constitutional provisions, but also debar the interstate migration within the country, which will be inconsistent with the unity of India. This kind of incentive is good for a short period, but for a long-term investment, it is going to be a loss for the economy, seeing the ongoing state of unemployment we can’t afford such measures.
This legislation can’t exist simultaneously with, one nation one market, one nation one GST, unity of the country, freedom to move in any part of the country as provided in article 19.