- The domicile-based reservations have been implemented in education.
- However, courts have been reluctant to expand this to employment.
- Hence, reservation solely based on place of birth would raise constitutional questions relating to the fundamental right to equality.
Other states which followed a similar path :
- Jammu and kashmir : Before the abrogation of the special status of J&K in August last year, state government jobs were reserved exclusively for state subjects as per Article 370 of the Constitution.
- Recently, the Centre issued a notification reserving jobs for J&K domiciles expanding the definition to central government employees who had served in the erstwhile state for over 10 years.
- The case of Assam :A committee has submitted its report for implementation of a key provision of the 1985 Assam Accord, recommending reservation in jobs for those who can trace their ancestry in the state before 1951.
Arguments against the move :
- When the Constitution came into force, the idea of the universality of Indian citizenship was adopted.
- The Constitution of India gives citizens the liberty to move around freely in any part of the country.
- Thus, the requirement of a place of birth or residence cannot be qualifications for granting public employment in any state.
Supreme court’s stance :
- Dr Pradeep Jain v Union of India (1984): The court expressed an opinion that the policy of “sons of the soil”, prescribing reservation or preference based on domicile, would seem to be constitutionally impermissible and violative of Article 16(2).
- Sunanda Reddy v State of Andhra Pradesh (1995): The Supreme Court affirmed the observation in Pradeep Jain to strike down a state government policy that gave 5% extra weightage to candidates who had studied with Telugu as the medium of instruction.
- In 2002: The Supreme Court invalidated appointment of government teachers (preference to applicants belonging to the district or the rural areas of the district concerned) in Rajasthan, as it was liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3).
- In 2019: The Allahabad High Court struck down a recruitment notification by the UP Subordinate Service Selection Commission which prescribed preference for women who are “original residents” of the UP alone.
Arguments of the private sector :
- Private employers do not go on an annual recruitment drive to fill vacancies identified in advance but hire as and when required.
- Difficult to implement: For example, the Karnataka government in 2017 mulled similar legislation but it was dropped after the state’s Advocate General raised questions on its legality. Hence, such a law will be difficult to implement even if allowed.
Legal stance on local reservation:
- The Public Employment (Requirement as to Residence) Act: The Parliament of India exercising its powers under Article 16(3), enacted the law aimed at abolishing all existing residence requirements in the states.
- Note : The law provides exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh.
- Special protections: Under Article 371: For example, Andhra Pradesh under Section 371(d) has powers to have “direct recruitment of local cadre” in specified areas.
- Manipulating Article 16(2): States that conduct official business in their regional languages prescribe knowledge of the language as a criterion.
- This ensures that local citizens are preferred for jobs. For example, states including Maharashtra, West Bengal and Tamil Nadu require a language test.