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New Haryana Quota Reserving 75% Of Private Sector Jobs For Locals Cannot Be Justified Somehow Or Anyhow

                  It is a matter of utmost serious concern that more and more states are now making laws for reserving jobs for locals. We saw earlier how in Madhya Pradesh ruled by BJP this happened. Now again in BJP ruled Haryana we see this happening that 75% of jobs in private sectors have been reserved for locals. This certainly cannot be justified somehow or anyhow! What is the point of spending thousands of crores and crores of rupees on statue of Sardar Vallabhbhai Patel if what we do on ground is just the opposite of what Sardar Patel stood for? Sardar Patel always stood for “united India” with “no discrimination of citizens on basis of place of residence, religion, caste, sex, community or any other ground”! He always attached supreme importance to merit and merit alone. But see what is happening on ground!

                                  It must be stated right at the outset that “The Haryana State Employment of Local Candidates Bill, 2020” makes it mandatory for all the private companies, societies, trusts, limited liability partnerships firms and establishments in Haryana employing 10 or more people in Haryana to set aside for domiciles 75% of all jobs up to a monthly salary of Rs. 50,000 or as may be notified by the government from time to time. It will be in force for a period of 10 years but we all know how reservation system also was brought in by Dr BR Ambedkar for just 10 years only but it is continuing till now as politicians for their own vested political vested interest find it convenient to keep extending it time and again! But it does not apply to the Central or State Government or any organization owned by them. But for them there are other ways in which reservation is brought about!

                              For my esteemed readers exclusive benefit, it must be stated here that Haryana’s job reservation law which allows 75% quota in the private sector for local residents will come into force from May 1, 2021. This was revealed by Deputy Chief Minister Dushyant Chautala. He said that, “The job reservation act will come into force from May 1 and with this, every three out of four new jobs created from next month will go to the local youth of the state. The law has been made after holding detailed discussions with industries.” Here too the quota will apply for 10 years. But we all know that how reservation are initially made for 10 years and then the period keeps on getting extended from time to time.

                              To put things in perspective, the Bill mandates compulsory registration. It is also stipulated that within three months of the Bill coming into effect, the employers in the applicable establishments must register employees with a monthly salary below Rs. 50,000 on a designated portal. An employer cannot employ a new person till such registration is complete. How can such discriminatory, regressive and reprehensible law be thrust forcefully on all the employers in the private establishment?

                    Needless to say: How can such discriminatory acts fulfill what Sardar Patel always dreamt of – no discrimination against any citizen on any ground whatsoever? How can State Government force private companies to adopt its reservation policy in jobs? At a time when countries like even Bangladesh are abolishing reservation system altogether we see that on the contrary we are getting sunk into more and more reservation system! Will this benefit our nation in any manner? Certainly not.

                                Truth be told, this alone explains that why in 1957, the Public Employment (Requirement as to Residence) Act 1957 was passed to repeal all existing laws prescribing any requirement of residence within a state for public employment. Further, we ought not to be oblivious of the glaring fact that Article 16(2) of the Constitution in particular specifically prohibits any discrimination based on place of birth or residence in matters of public employment. But some states have violated this with impunity and taken measures to provide for reservation based on domicile. In these cases, the Supreme Court has held convincingly that reservation in employment based solely on domicile is violative of Article 14 (equality before law) and Article 16(2) of the Constitution. The Apex Court had rightly held that domicile in itself does not provide any valid or reasonable classification for providing reservation.

                                    As for instance, we saw how in Kailash Chand Sharma vs. State of Rajasthan (2002), AIR 2002 SC 2877, the Supreme Court declared the appointment of government teachers in Rajasthan where the state gave preference to applicants belonging to a particular region, as unconstitutional.  It held that geographical classification can be used for categorisation of socio-economic backwardness.  However, residence by itself in a state cannot be a ground for reservation, except as provided in Article 16(3).  Note that the power under Article 16(3) to make a law providing for residence as a ground for reservation (in public employment) is vested only with the Parliament.

                                  Similarly, in 1995, the Supreme Court in  Sunanda Reddy vs State of Andhra Pradesh (1995), AIR 1995 SC 914 struck down rules by the Andhra Pradesh government providing preference for candidates with Telugu medium in public services. It is being widely anticipated that this new law of Haryana too will likely be struck down whenever it is challenged in the court! But on this we have to keep our fingers crossed until and unless it happens actually as we cannot second guess what the Court rules on it!

                              Over the last few years, many other states have also announced or taken measures to provide reservation in employment for local residents. Just recently, we saw how DMK in its manifesto has promised to provide 75% jobs for locals in Tamil Nadu. Similarly Jharkhand Cabinet too has approved recently an employment policy ensuring 75 percent of the private sector jobs up to a salary of Rs 30,000 for local candidates only.  Table 1 provides a summary of measures taken by states in the last few years to provide for reservation in (public or private) employment.

Table 1: Measures taken by states for providing reservation in employment (last five years)

State

Year

Reservation

Sector

Haryana

2020

75% reservation for locals in private industry

In private sector

Andhra Pradesh

2019

75% reservation for locals in industry/factories (including PPP mode)

In private sector

Karnataka

2016

100% reservation for locals in blue-collar jobs (draft)

In private sector

Rajasthan

2019

5% reservation to certain communities

In public employment

Maharashtra

2018

13% reservation to certain communities

In public employment

Telangana

2017

Reservation for backward classes, SC and ST increased to 62%

In public employment

Sources: Various state laws and regulations; PRS.

                           It cannot be easily brushed aside that the decision by Haryana BJP-led coalition government led by Chief Minister Manoharlal Khattar to bring in law to reserve 75% of private sector jobs with a salary cap of Rs. 50,000 monthly for locals contradicts the “one nation, one people” stance of the Rashtriya Swayamsevak Sangh (RSS), the ideological fount of the ruling BJP! So how can RSS be happy to see all this? This was disclosed by an RSS functionary who is familiar with the organisation’s thinking on the matter as reported in media widely! The RSS functionary also did not mince any words in stating it upfront while referring to the 1996 prohibition that was rolled back two years later under public pressure that, “You cannot stop the migration of people for jobs. Such decisions have a fallout. Take the example of Bihar, where the ban on consumption of alcohol has not been effective on the ground. A similar experiment was done in Haryana by Bansi Lal when he banned alcohol [consumption] but the results on the ground showed that illegal liquor stores had sprung up all across the state.” The RSS functionary also pointed out explicitly that Haryana would end up losing revenue if the decision is not revoked and companies will find a way around the law, but it is the state that will lose revenue.

                                    As it turned out, BJP leaders refused to comment on the RSS functionary’s view. But a BJP leader cited similar moves in other states and added that they can be viewed as affirmative steps. On the condition of anonymity, the BJP leader said that, “There are provisions in the law that give the state powers to take steps for positive discrimination in favour of those who are deprived or neglected. In several states, reservation for local residents in the private sector has been announced.” He was ostensibly referring to the laws in Maharashtra, Andhra Pradesh and Madhya Pradesh. But what he conveniently overlooks is that they have been challenged also in court.

                             To be sure, it cannot be lightly dismissed that even legal experts believe that the law will find it hard to meet the constitutional test of equality and non-discrimination. It cannot be denied that Haryana is seen as an industrial production destination. How can the government ensure good output if the talented workforce needed from outside the state will not be available?

                        Frankly speaking, one cannot but applaud, admire and agree hundred percent with what Suman K Jha who is a political analyst and who so very elegantly, effectively and eloquently points out in his enlightening editorial titled “Killing The Indian Dream” dated March 9, 2021 that, “For a party whose DNA is avowedly India-first, BJP must come down heavily on state units, state governments, leaders and CMs who promote such short-sighted politics, weakening India’s national integrity and resolve in the process. This tendency can only embolden those who would like to see India Balkanised.”

                                 It merits no reiteration that we also need to keep in mind that the Supreme Court decision in 2014 delivered on 10 November in the Charu Khurana v. Union of India case (2015 1 SCC 192) “clearly renders restrictions based on residence for the purposes of employment unconstitutional.” Pratap Bhanu Mehta who is contributing editor of ‘The Indian Express’ in his extremely enlightening editorial titled “The Zero Sum Bill” very rightly sums up saying that, “These bills will open up a new form of competitive ethnic politics. It is odd that a state like Haryana which has benefitted from being part of a cosmopolitan zone like NCR should unilaterally impose reservations. Would NOIDA or Delhi be in its rights to bar Gurgaon residents from working there? Then, there is patent class discrimination. If you are rich, privileged or highly skilled, there are no entry barriers in accessing any labour market. But we shall put entry barriers on lower skilled migrants; our own internal versions of an H-1B visa. It looks like Mr Khattar does not have faith in Mr Modi.” We all know how much PM Modi keeps reiterating “One India One Election”, “Sabka Saath Sabka Vikas” and how much he adores Sardar Patel who believed always in a united and strong India where no one faces discrimination of any kind on any ground whatsoever!

                                        We also cannot gloss over that Ravi Srivastava who is Director Centre for Employment Studies at the Institute of Human Development says most concerningly that, “This would lead to balkanization of India’s labour market. The fact is there is no constitutional basis for such reservations. That is why even though several states and leaders such as former UP Chief Minister Mayawati have contemplated it but never went through with it.” He also said that, “Often such laws and provisions are followed more in the breach. The obvious flip side is the rise in licence permit raj and associated corruption, thanks to massive discretion available with government officials.”

                            Even legal experts are not too happy with this new Bill passed by Haryana. Senior and a very prominent advocate of Supreme Court – Colin Gonsalves very rightly said that, “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 also charged that the new law was “basically an exclusion policy, to exclude the other people of the country.” He has certainly a valid point and his expert opinion cannot be brushed aside lightly by anyone!

                    It is high time and Centre must enact a law whereby all such laws barring employment of deserving candidates from other states is permanently banned. This was what Sardar Patel stood for while advocating for “One India” and it is most unfortunate that what we are witnessing not just in some Opposition ruled States but also in BJP ruled States which always glorifies Sardar Patel is a sad commentary on the existing state of affairs in our country! No point absolutely in spending crores and crores of rupees on Sardar Patel if we can’t adhere to what he always stood for!

                                   Of course, there can be no gainsaying that such discriminatory nativist laws will certainly not make Haryana prosperous or great under any circumstances and will only serve in sending a very negative signal to competent people from outside the state that , “You are just not welcome and there is no place for you”! Most of us had criticized former US President Donald Trump for similar such moves when he sought to bar Indians and through his immigration policies sought to restrict H1B visas. With what face do we criticize him if we too similarly allow our states to make similar such discriminatory laws that cannot be justified under any circumstances?

               What is worst is that this Bill even specifies penalties for various offences.   For example, failure to provide 75% of new employment to local candidates in Haryana will attract a fine between Rs 50,000 and two lakh rupees, with an additional penalty of Rs 1,000 for each day till the contravention continues. This most despicable, discriminatory and division encouraging law must be scrapped forthwith! Centre must prevail upon all states to scrap such reprehensible laws at the earliest and if they don’t comply must take strong steps to ensure strict compliance! One hopes that good sense prevails over them!

Sanjeev Sirohi

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