Courts may block MP govt plan to reserve govt jobs for locals: Experts

While courts have generally upheld domicile-based reservation in education, none has upheld reservation of public or private jobs based on domicile

Madhya Pradesh Chief Minister Shivraj Singh Chouhan’s promise of bringing in a law that would reserve government jobs for locals from the state would be unconstitutional and is almost certain to be struck down in court, lawyers say. Public policy experts say such a policy will deter the creation of a unified labour market in India.

“If he (Chouhan) brings job reservation via an executive order, he can shrug off political responsibility if it goes to court, saying it was a bureaucratic lapse. But prima facie, such a law will violate Article 15 of the constitution, which prohibits discrimination by the state against any citizen on grounds 'only' of caste, religion, sex, race, and place of birth,” says senior advocate in the Supreme Court, Sanjay Hegde.

Hegde says reservation for locals can be only on the basis of two criteria: place of birth; or place of residence. “If jobs are reserved on the basis of place of birth, the move flies in the face of Article 15. And if it is on the basis of place of residence, it could still be challenged in court on the grounds that it is discriminatory – although it might not be unconstitutional”.

He explained that courts have upheld reservation in education when state governments have imposed conditions that in order to secure a seat in government-run institutions, an individual must have residential requirements; or should have passed examinations from a specified state-based board. “If the (new) law on jobs says government jobs will be given only to graduates from ‘x’ or ‘y’ university, then possibly it might hold water. But even so, legal challenges cannot be ruled out’.

Chouhan had announced on Wednesday that the reservation will be enforced via a changed law that would be announced ‘very soon’. Before that, in his address on Independence Day, he said: "We will put in place a mechanism to ensure employment to local youths on the basis of their mark-sheets of Class X and XII."

Most political analyst see this as a move just ahead of crucial by elections. Tweny-two MLAs had resigned on March 10, making September 10 the last date for completing the election process to these seats. Two seats are vacant due to the death of the incumbent MLAs. Fourteen ministers in the state cabinet are not MLAs.

Of the 24 vacancies, 16 are located in Gwalior, Morena, Bhind and Guna regions, which are the areas of influence of Jyotiraditya Scindia, who had walked out of the Congress with his supporters, causing the Kamal Nath-led Congress state government to fall.

Chouhan would be pleased if the Election Commission of India were to rule that these elections will be deferred: Section 151 A of the Representation of People’s Act, 1951, states that vacancies in Parliament and assemblies must be filled up within six months. The Election Commission of India (ECI) has already deferred by elections in eight assembly segments across the country after consultation with the law ministry citing the Covid-19 crisis, creating a precedent. However, ECI has said nothing about MP elections yet, only announcing new protocols for holding elections, which suggests these by elections will held as scheduled.

It is imperative for Chouhan to win these elections. Madhya Pradesh has 230 assembly seats of which the BJP has 107 in its kitty. It is mandatory to have 116 MLAs for an absolute majority. Therefore, it becomes necessary for the BJP to win nine seats to enjoy an absolute majority in the assembly.

However, public policy experts say that as policies go, reservation of jobs for locals only is a bad idea, and is out of sync with ideas of ‘aatmanirbhar Bharat’ as it is an obstruction to the creation of an all-India labour market.

Former Rural Development Secretary K P Krishnan says a political economy develops to oppose migration of labour when it puts downward pressure on wages in richer states with the increase in the supply of workers. He says more migration creates an incentive for regional and local leaders to generate anti-migrant sentiments, and to promote policies that favour local workers. “This dynamic is not very different from the one seen in international migration — after a point, a political economy develops to oppose migration.”

Krishnan says policies that favour reservations for locals do not jib with recent decisions to remove hurdles in inter-state agricultural trade. “For agricultural and industrial products, as well as capital, India is increasingly becoming a single market. The creation of a barrier-free domestic market is also an intent reflected in Article 301 of the Constitution.”

He adds that there is one market where frictions are being added instead of being reduced. This is the labour market. “For different reasons, leaders from out-migration and in-migration states have made statements suggesting that there may be more impediments to the inter-state migration of workers. Some states have announced preferential treatment for workers from within the state. Others have spoken of instituting an approval system before allowing their workers to move to other states, in the backdrop of how they were treated,” he says, adding all these deter the creation of a unified labour market for India.

While Chouhan has not talked about reserving jobs in the private sector for locals, unlike his predecessor Kamal Nath, it is clear that his announcement is largely geared towards the upcoming elections.

Job reservation initiatives in other states

While courts have generally upheld domicile-based reservation in education, none has upheld reservation of jobs - public or private - based on domicile.

That said, job-based reservations do exist in some states, while some others are hoping to get there. Nagaland, Arunachal Pradesh, Mizoram, Sikkim, Assam and Manipur enjoy special constitutional provisions under Article 371, clauses A-H, relating to the social and religious practices of the local people. These encompass administration of civil or criminal justice according to customary law and ownership and transfer of land and its resources, and therefore stretch to reservation of jobs in state government employment.

Articles 371D and E apply specifically to Andhra Pradesh and provide equitable opportunities and facilities for the people of the state and safeguards their rights in matters of employment and education. “The state government may organise civil posts or direct recruitment to posts in local cadre as required,” the Constitution says.

Accordingly, in 2019, Andhra Pradesh announced a policy of 75 per cent job reservation for locals in sync with constitutional provisions. However, Karnataka, while announcing its intention of reserving jobs for locals, has not done so yet, holding back possibly because it can foresee legal problems. In 2018, the Vijay Rupani government in Gujarat announced it would pass a law to ensure 80 per cent of all jobs was local hires. The law has not been enacted yet. The BJP and its ally, the Jananayak Janata Party (JJP) Haryana both had, in their manifesto, a promise that locals would be given priority in hiring. This promise is yet to become a law.