Several legal experts have raised questions over the validity of the Haryana reservation law for the private sector -- that 75% of all jobs paying up to ₹30,000 a month be given only to “local candidates” -- since it prima facie exercises a power exclusively within the domain of Parliament under Article 16(3), breaches the 50% ceiling on reservation, and also interferes with the constitutional right of citizens to conduct business or trade.
While Article 16(3) allows Parliament to make any law with residence qualifications necessary for government jobs, introducing domicile-based preferential treatment, there is no such provision in the Constitution empowering states to pass laws on domicile-based reservation.
On the other hand, the Supreme Court has in a body of judgments berated such endeavours by state governments.
In Uttar Pradesh vs Pradip Tandon (1974), the top court held that “no reservation can be made on the basis of place of birth as that would offend Article 15”, which prohibits the state from discriminating against any citizen on grounds of religion, race, caste, sex, or place of birth.
In Dr Pradeep Jain vs Union of India, 1984, the top court dealt specifically with the issue of domicile-based reservation, underscoring that to regard an individual from one state as an outsider in another state “would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country...”
The court, in this judgment, also discussed the “sons of the soil” concept, holding that such claims are “breaking the unity and integrity of the nation by fostering and strengthening narrow parochial loyalties based on language and residence”.
{{/usCountry}}The court, in this judgment, also discussed the “sons of the soil” concept, holding that such claims are “breaking the unity and integrity of the nation by fostering and strengthening narrow parochial loyalties based on language and residence”.
{{/usCountry}}Adopting the same principle in educational matters, the Supreme Court, in Govind A Mane vs State of Maharashtra (2000), quashed the state government’s decision to distribute seats district-wise for admission to BEd courses. It held that such allocation based on residence would be violative of Article 14 (equality) of the Constitution when it fails to put forth any material to show the nexus between such distribution and the object sought to be achieved.
Similarly, in Kailash Chand Sharma vs State of Rajasthan, 2002, the court held that “measures taken by the State on considerations of localism are not sanctioned by the constitutional mandate of equality”.
Another set of exceptions to the domicile-based reservation is also envisaged under the Constitution. Article 371 lays down “special provisions” for 11 states, including six states of the Northeast, providing for a wide range of specific safeguards that are deemed important for these states. Other clauses in Article 371 talk about reserving seats in the Hills area in the Manipur assembly and Sikkim assembly; protection of customs and practices of local inhabitants of Nagaland and Mizoram.
Some states have however circumvented the prohibition under Article 16(2) by providing for institutional reservations in technical and medical education by reserving a certain number of seats for candidates of the same university or clearing the qualifying examination from the school system of the same state.
In addition to this, some states have bypassed requirements for Articles 16(2) and 14 by including knowledge of the local language as a chief criterion, given the fact that some states conduct official business in regional languages. Prescription of local language indirectly ensures that local citizens are preferred for jobs. States such as Maharashtra, West Bengal and Tamil Nadu require a language test.