This article is written by Mr Naman Tarun Khulbe, 2nd year BALLB student and Miss Sehaj Kohli, 3rd year BALLB student both are from Dr. B. R. Ambedkar National Law University
INTRODUCTION
Reservation is a policy enshrined in the Indian constitution to uplift the socially and educationally backward citizens. At the time of independence, India was envisioned to be a socialist democratic society that had to fend off the evils of the caste system which had been plaguing Indian society for thousands of years. Our first minister of law and justice, Dr. B.R Ambedkar who is also known as the architect of the Indian constitution introduced the reservation system while heading the drafting committee of the Indian constitution. He wanted this system to be put to use in pursuit of uplifting scheduled castes, scheduled tribes, and other backward classes as they were poorly represented across all fields and sectors of the society.
The reservation policy, however, since its inception has been subject to various changes, debates, and demands put forward by various groups in Indian society. It has become an integral part of Indian politics. In order to appease a certain group, the reservation policy comes into the limelight where a certain party or politician promises to enact a reservation for that certain group. These practices can be defined as vote bank politics where the politicians ignore the provisions and ideals envisaged in the constitution and misuse the reservation policy to appease their vote bank.
The Haryana Government recently had introduced The Haryana State Employment of Local Candidates Act, 2020 to secure 75% reservation of the total employees for the local candidates based on domicile in private sector jobs for the posts which have a monthly salary less than ₹50,000. The Act has been challenged in the court of law and is subject to ongoing court proceedings. Does a question arise whether this Act is a step in the right direction for the benefit of Haryana's people and economy or is it a clear-cut display of vote bank politics? This article talks about the various features of the act, its constitutional validity, and the impacts that it may have on society.
BACKGROUND
The state of Haryana is currently in the news regarding the Haryana State Employment of Local Candidates Act, 2020 (HSLC Act). The act aims at providing more employment opportunities to the local people of the state and has reserved up to 75% of the jobs for the people with Haryana Domicile as per Section 4 of the act. However, Employers are required by law to keep this reserve for employees earning up to Rs 30,000 in gross monthly wage. The bill was passed by the Haryana State Assembly in November 2020 and it came into existence on 15 January 2022.
The act had been challenged by the Faridabad Industrial Association in Punjab & Haryana High Court on certain Constitutional grounds. The bench of Justice Ajay Tiwari and Justice Pankaj Jain presiding over this case issued a notice to the state of Haryana on the aspect of Interim stay on the Implementation of this Act. The Supreme Court Of India however later set aside the stay order issued by the P&H high court for not providing sufficient reasons to do the same.(2)
The bench comprising Justice L Nageswara Rao and PS Narasimha directed the P&H HC to decide the case within four weeks keeping in mind that no coercive steps shall be taken against employers under the Haryana Law providing 75% job quota for locals. The act can also be seen as a political move to attract the public to vote in its favor as providing reservation in Private Sector Jobs was one of the key poll promises made by the Jannayak Janata Party Founder and current Deputy Chief Minister of Haryana, Dushyant Chautala.(3)
CONSTITUTIONAL VALIDITY OF THE ACT
India was envisaged as a Union of States with single citizenship, which necessarily implied that States were not entitled to either bestow citizenship individually or any resembling privilege. Moreover, Part III of the Indian Constitution outlines citizens' and other people's fundamental rights, as well as the government's responsibilities. Under Article 15(5) and Article 16, the criterion for reservation is the upliftment of historically underprivileged populations as well as socially and educationally backward classes. It is to be noted that even these clauses are in the nature of 'Non-obstante clauses', which are legal because they are explicitly mentioned. Nowhere does the Constitution empower the 'State' to provide reservations based on domicile.(4)
All people are guaranteed equality before the law and equal protection under the law under Article 14. Articles 15(1) and 15(2), meanwhile, prevent the state from discriminating against any person on the basis of religion, race, caste, sex, or place of birth. In order to achieve substantive equality, clauses (3) to (5) of Article 15 authorise the state to provide for positive discrimination in favour of the severely underrepresented and neglected parts of society.
Article 15(3) authorizes the state to make special arrangements for women and children, whereas Article 15(4) empowers the state to make special provisions for socially and educationally backwards or SC/STs. Article 15(5) goes even farther, stating that the state has the authority to restrict entrance to educational institutions, including private schools and colleges, whether or not they are funded by the government. In reality, Art. 15(1) and Art. 16(2) expressly ban discrimination by the 'State' based on 'Place of Birth.' Even though the Supreme Court has drawn a difference between place of birth and domicile on several occasions, the Constitution itself makes the distinction plain through the differing wordings of Art. 15(1) and Art. 16(2).
Art. 16(3) goes so far as to enable the Parliament to adopt such legislation to provide domicile reservation, but that's where the legislative authority on domicile reservation ends; only the Parliament has the authority to establish such reservation, and only for appointments to State posts. Similarly, Article 16(1) states that in issues of employment, the state cannot discriminate against any person. Similarly, Article 16(2) states that "no citizen shall be disqualified for, or discriminated against in respect of, any occupation or position under the State solely on the basis of religion, race, caste, sex, descent, place of birth, domicile, or any of them."
It is clearly visible that the constitution does not favor domicile reservation in private sectors and instead aims to provide reservation to the oppressed minorities that have been denied equal opportunities for centuries in Indian society.
SOCIO-ECONOMIC IMPACT
Haryana has the thirteenth largest gross domestic product among all states and union territories in India. It has one of the fastest growing economies as well across all the states which in the past four years has surpassed the growth estimates of the entire country.(6) The main sectors contributing to the GDP are agriculture forming up 16% followed by industry at 33% and services at 51%.
Haryana used to primarily rely on agriculture for its economy. However in recent decades, with the advent of the national capital region (NCR) being identified and planned out under the national capital region board, many of its districts neighboring New Delhi have attracted industrial growth and manufacturing investments to take advantage of their strategic locations near the national capital territory (NCT). These districts include Gurgaon, Faridabad and Sonipat. With a booming economy and the creation of manufacturing hubs such as the cities of Gurgaon and Faridabad, mass migrations of labourers from neighbouring states of Uttar Pradesh, Rajasthan and even Delhi has taken place. Gurgaon city which has emerged as one of India's leading Information technology and manufacturing hubs with a thriving startup ecosystem, alongside Faridabad has attracted lakhs of migrant workers across India as well as expats to work for it's startups and established corporations.
The implementation of the Haryana state employment of local candidates act, 2020 can prove to be disastrous for the thriving startup ecosystems these cities provide as the need to have 75% of total employees earning less than ₹50000 a month to be domicile residents of Haryana creates an obstacle in hiring only the best talents available based on merit. These cities are not only home to companies in India but also serve as regional headquarters to some of the largest multinational companies in the world. 250 of the Fortune 500 companies have offices in Gurgaon alone.(8) Haryana had attracted 73$ billion of FDI in 2019-2020 most of which went into the fields of trade and business, auto manufacturing, skill development, IT and ITES.(9) It's the state government's responsibility to honor such investments which are crucial for growth of the economy by providing ease of business and by not creating hindrances in hiring processes. The act can result in many multinational corporations moving out of Haryana to neighbouring states such as Uttar Pradesh and providing difficulties to local businesses as pleaded by various industrial associations in the court against the government's decision.
Reservation being implemented in pursuit of vote bank politics can also have a detrimental impact on society as it can create a sense of divisiveness in the work environment and can also encourage anti-immigrant sentiment. The Act may also create a domino effect which can result in other states taking similar steps in reserving jobs for their "sons of the soil". It is already being visible in other states with the Punjab CM Charanjit Singh Channi expressing his desire to implement 100% reservation for locals in the private sector.(10) This goes against the spirit of the Indian constitution which promotes equal opportunities to all citizens and not be discriminated against at the place of birth.
SIMILAR LEGISLATIONS
Haryana isn't the only state that has implemented such a law in order to safeguard jobs for locals. The Andhra Pradesh government in 2019 had implemented a similar law known as the A.P. Employment of Local Candidates in Industries/Factories Act, 2019.
This act, similar to the one enacted by the Haryana government, mandated the reservation of 75% of jobs in the government and private sectors. The Act does not mention any salary limit as to which it should be implemented unlike the one enacted by Haryana. This legislation is yet to be implemented in full, as the state government has chosen to go slow in enforcing the law.(11)
Jharkhand had also passed a bill in 2021 reserving 75% of private sector posts for local applicants under the law titled “The Jharkhand State Employment of Local Candidates in Private Sector Act, 2021,” for posts that have a gross monthly salary of Rs 40,000 or less.(12) The Act hasn't been implemented fully yet as a few modalities are yet to be worked out.
Karnataka also has a history of providing quotas for locals in the private sector as well. In 2016, under the then chief minister of Karnataka, Siddaramaiah, the labor department of Karnataka introduced amendments in order to ensure 100% reservation for locals in the private sector except for the IT-BT sector. This had set a dangerous precedent as these amendments would have proven to be disastrous for the economy as well as millions of immigrants working in the state. The law department however had vetoed the law department for being violative of article 14 and 16 of the Indian constitution. Then in 2019, the BS Yediyurappa government drafted legislation aiming to provide 75% reservation for Kannadigas in the private sector. The enactment of this legislation hasn't happened yet because of the challenges that lie ahead of it.(13)
CONCLUSION
India is a quasi-federal country where the states have been given certain powers to exert control over their territories. These states were formed because of the sheer diversity India possessed. People are divided by languages, cultures, geographical locations but are unified by the idea that is India. Citizens of India have been given the right to travel anywhere within its territory, practice any occupation and not be discriminated against in their place of birth. These migrant workers which many politicians allege to have stolen opportunities from locals are Indians themselves. Such sentiments ooze hatred and discrimination against immigrants and encourage divisiveness among the people. Since politicians have little to gain from migrants who form a small fraction of voters in the state, it's easy for them to leverage domicile voters of the states against them.
In the case of the Haryana Employment Of Local Candidates Act, 2020, it is very clear that the motive behind implementing such an act was to appease the voter base. No real benefit arises out of this act socially or economically. Employers in Haryana will now have limited options while hiring talents for their businesses.
It can be understandable for the state governments to enact reservations for domiciles in the government sector. Provisions for that have also been provided in the Indian constitution as well. Mandating reservation in the private sector however is prima facie ultra vires of the Indian constitution. Such acts are violative of freedoms and rights provided to both the employers and the employees. Such acts also set a perilous trend for other states to follow to appease their voters. It can hence be concluded that acts such as the Haryana Employment Of Local Candidates Act, 2020 which mandates reservation for domiciles in the private sector must be struck down by the court of law as they lie under practices of vote bank politics and majoritarianism.
REFERENCES :
- https://www.livelaw.in/news-updates/punjab-haryana-high-court-notice-plea-challenging-haryana-law-75job-quota-locals-pvt-sector-187384?infinitescroll=1
- https://www.barandbench.com/news/litigation/supreme-court-sets-aside-punjab-haryana-hc-order-staying-haryana-law-on-75-domicile-reservation-in-private-sector-jobs
- https://www.ndtv.com/india-news/haryana-assembly-elections-2019-dushyant-chautala-party-promises-reservation-in-jobs-for-haryana-loc-2118633
- https://www.livelaw.in/columns/haryana-state-employment-of-local-candidates-bill-2020-haryana-governor-sh-sn-arya-haryana-171159?infinitescroll=1
- Constitution of India
- https://www.bloombergquint.com/economy-finance/the-best-and-worst-performing-states-of-india
- https://www.prsindia.org/parliamenttrack/budgets/haryana-budget-analysis-2020-21
- https://m.timesofindia.com/city/gurgaon/what-makes-gurgaon-the-countrys-start-up-capital/articleshow/48685975.cms
- https://m.tribuneindia.com/news/haryana/haryana-attracted-73-billion-fdi-chief-secy-164617
- https://scroll.in/latest/1010668/after-haryana-punjab-to-reserve-government-and-private-jobs-for-locals
- https://www.hindustantimes.com/cities/others/andhra-pradesh-s-local-job-quota-law-cleared-20-months-ago-yet-to-pick-up-pace-101615641920960.html
- https://www.theweek.in/news/biz-tech/2022/01/17/with-haryana-reserving-jobs-for-locals-which-other-states-have-done-it.html#:~:text=Andhra%20Pradesh%20was%20the%20first,sector%20jobs%20for%20its%20youth
- https://www.deccanherald.com/state/top-karnataka-stories/karnataka-keeps-law-on-job-quota-for-locals-at-bay-915607.html
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