New Delhi: The approval granted by Haryana governor Satyadev Narayan Arya to a job reservation Bill that provides 75% reservation in the private sector to those holding the domicile of the state militates against the idea of an integrated India which the Bharatiya Janata Party (BJP) often espouses, say experts.
According to legal commenters, the law is also not constitutional or legal as it violates both Article 14 that speak of equality of all citizens and Article 19 that grants every citizen the right to reside and work in any part of the country.
Is this BJP’s attempt to please ally JJP?
Earlier this week, Haryana chief minister Manohar Lal Khattar had announced that the governor has given his “assent to the Haryana State Employment of Local Candidates Bill, 2020, providing quota for local people in private sector jobs that offer a salary of less than Rs 50,000 a month.”
The Haryana assembly had in November 2020 passed the Bill. The BJP-led coalition government had moved the Bill as it was a poll promise of its alliance partner, the Jannayak Janata Party. It was also tabled in the state assembly by JJP leader and Haryana deputy chief minister Dushyant Chautala.
It was stated that the legislation would cover all private companies, societies, trusts and partnership firms in the state. However, many had felt that it would run into legal hurdles and could even face resistance from the Centre. But in the light of the farmers’ agitation, in which a lot of pressure was mounted on JJP to withdraw from the coalition, the assent to the legislation by the governor is being seen as a move to keep the alliance intact.
Here, it is pertinent to recall that a near-similar ordinance approved by the cabinet in July 2020 was reserved by the governor for the consideration of the president. The ordinance was subsequently withdrawn by the cabinet in October after the Union labour and employment ministry, which examined it, advised the state government against enacting such a law. But the Khattar government went ahead with the new Bill, got it passed in the assembly and now it has been granted the governor’s assent.
Incidentally, the statement of objects and reasons of the Bill lays down that “giving preference to local candidates in low-paid jobs is socially, economically and environmentally desirable and any such preference would be in the interests of the general public.” It adds that 10% of the recruitment by a company would have to be from the district in which it was located while the rest may cover other districts.
It also states that “the bill will provide tremendous benefits to the private employers directly or indirectly through qualified and trained local workforce. Availability of suitable workforce locally would enhance the efficiency of industry as the workforce is one of the major components for the development of any industrial organisation.’’
However, legal experts insist that the reservation provision is excessive and intends to exclude. Senior advocate of Supreme Court, Colin Gonsalves said: “I don’t think is it at all constitutional or legal. You can have a certain domicile requirement but it can’t be so overwhelming – that 75% of the employees would be from those domiciled in the state of Haryana.”
He charged that the new law was “basically an exclusion policy, to exclude the other people of the country.”
‘Fear of similar laws in other states’
Gonsalves asked what would happen if every state began enacting similar laws. “If every state does this then what happens to our constitution under Article 19 which gives us the right to travel and reside in any part of the country. It is a constitutional right but how will you exercise it if you can’t get a job or education anywhere else other than the state you were born in.”
The senior advocate said the law also violates Article 14 of the constitution due to its arbitrariness. “It violates the equality that the constitution grants. “When all citizens are equal, how can you exclude people in this way? You can give them a little benefit here or there, but you can’t exclude some others like this.”
He said restricting the law to only jobs of up to Rs 50,000 does not improve the legality of the law as “you are excluding a certain class of people, and you are doing it in a pretty brutal manner”.
The new law has also been opposed by several political leaders in the state. Senior JJP MLA and former national vice-president of the party, Ram Kumar Gautam, had stated that the law would set a wrong precedent and may prompt other states too to stop hiring youth from Haryana. “If other states say they will not take Haryana youths, where will they go? Can you stop any person hailing from another state from working here? This is wrong,” he argued.
Another senior Supreme Court advocate, Ashok Arora, concurred with the view that the Bill would adversely impact the employment of meritorious students in the state. “You will lose the sense of competition with this law and it would impact the youth. Jobs should be available on the basis of merit. You will, therefore, also be demotivating the meritorious students in the state itself as they will find it difficult to get jobs outside if every other state too started having a similar 75% reservation for people holding their domicile.”
Stating that “reservation is okay up to a certain extent but it should not amount to exclusion of people from the rest of India,” Arora said “the intention should be to include and not exclude.”
Noting that the Bill would have an adverse impact on the functioning of companies and the business in the state, he said, a golden rule was devised in Indira Sawhney vs Union of India on capping reservation at 50% and that should not be breached. “I don’t think it would stand the scrutiny of law because this percentage is unreasonable,” he said.
Other states have also enacted similar laws
Some other states have also enacted laws to provide reservation for their local citizens in the private sector. These states include Maharashtra (up to 80% quota), Karnataka (75%), Andhra Pradesh (75%) and Madhya Pradesh (70%). However, many of these state laws have been challenged in court. In Andhra Pradesh, the argument furnished in the high court was that the law, brought in 2020, violated Article 16(2) and (3) of the constitution which prohibits discrimination in employment on the grounds of place of residence.
Telangana too had last year allowed tax concessions to industries that reserved jobs for locals in the state. Similarly, in Madhya Pradesh, the government declared that it would reserve all government jobs in the state for students of the state who have cleared Class 10 and 12 examinations from a school in the state. Prior to that, the Kamal Nath-led Congress government in MP had announced 70% reservation for locals in industries in the state.
However, in most states, these have not been implemented because the industry has been reluctant to lower their hiring standards and also due to the absence of any enforcement mechanisms.