Local job laws that raise constitutional questions

The Supreme Court of India will soon hear a petition by local candidates to lift the stay on the Haryana State Employment Act, or the Haryana Act, which reserves 75% of jobs in the private sector in the state for local residents. The Act applies to jobs that pay up to Rs 30,000 per month, and employers are required to register all such employees on a specified portal. The government may also exempt certain industries by notification, and so far exempted new start-ups and new Information Technology Enabled Services (ITES) companies as well as short-term employment, agricultural labour, domestic work, and promotions and transfers. Is. State. The Act was enacted in February 2021, and came into force in January 2022. Last week, the Punjab and Haryana High Court accepted a petition challenging the constitutionality of the Act, and stayed the implementation till the matter is heard. The Haryana government has filed a petition in the Supreme Court to remove the stay.

at the core of the issue

Other states like Andhra Pradesh and Jharkhand have also passed similar bills. The Andhra Pradesh law has been challenged in the Andhra Pradesh High Court. These Acts raise several constitutional questions. The Supreme Court must first decide whether it will wait for the high courts to decide related matters (and then hear any appeals), or whether it will take matters into its own hands because of similarly important constitutional issues in the high courts. are pending in

The Act raises at least three important constitutional questions. First, Article 19(1)(g) of the Constitution guarantees the freedom to practice any profession, trade or profession. There may be reasonable restrictions “in the interest of the general public” and specifically relating to designating any professional or technical qualification or reserving an area for a government monopoly. The Act encroaches upon their right to carry on any business, by requiring private businesses to reserve 75% of lower level jobs for local people.

In 2002, in the TMA Pai Foundation case, the Supreme Court held that private educational institutions have autonomy in their administration and management. In 2005, in the PA Inamdar case, it held that reservation cannot be made mandatory on educational institutions that do not receive financial aid from the state, as it would affect the freedom of business. In 2005, the constitution was amended to allow reservation in private educational institutions for socially and educationally backward classes and for scheduled castes and scheduled tribes. Note that this amendment applies to admissions in private educational institutions and not jobs in the private sector.

Second, the provision of reservation on the basis of domicile or residence may be unconstitutional. Article 16 of the Constitution specifically provides for equality of opportunity for all citizens in public employment. It prohibits discrimination on several grounds including place of birth and residence. However, it allows Parliament to make laws that require residency within a state for appointment to a public office. Note two points here. This enabling provision is for public employment and not for private sector jobs. And laws need to be made by the Parliament and not by the state legislature.

Point of a ‘special case’

There have been many cases related to government jobs. For example, in 2002, the Supreme Court ruled that the preference given to applicants from a particular region of Rajasthan for appointment as government teachers was unconstitutional. It said that reservation can be made for the backward classes of citizens but it cannot be done by reason of residence or domicile only. In 1995, the rules giving preference to candidates studying in Telugu medium in Andhra Pradesh were repealed on the grounds that it discriminated against more meritorious candidates.

The third question is whether 75% reservation is allowed. In the 1992 Indra Sawhney case, the Supreme Court capped the reservation in public services at 50%. However, it said that there may be exceptional circumstances which may require relaxation of this rule. It gave examples of remote and remote areas where populations may need to be treated differently. It also specified that “in doing so, extreme caution should be exercised and a special case should be made”. That is, the onus is on the State to make a special case of exceptional circumstances, to relax the 50% upper limit of reservation.

This question has subsequently arisen in many cases. Telangana (2017), Rajasthan (2019) and Maharashtra (2018) have passed acts that violate the 50% limit. The Maharashtra Act providing for reservation for Marathas was struck down by the Supreme Court in May 2021 on the grounds of violation of the 50% limit. It states that the 50% limit is “to serve the purpose of equality”, and that to violate the limit is to “build a society that is not based on equality but on caste rule”.

affects equality

The Haryana Act does not carry forward the “caste rule” as it is for all residents of the state irrespective of caste, but it violates the notion of equality of all citizens of India. Again, note that all these matters are related to either public employment or admission in educational institutions, whereas the Haryana Act is about private sector employment. However, one can argue that any reservation requirement imposed on the private sector should not exceed the limit of the public sector.

Over the past three years, three states have enacted laws that limit employment for out-of-state citizens. These laws question the concept of India as a nation. The Constitution regards India as a nation in which all citizens have equal rights to live, travel and work anywhere in the country. These state laws go against this vision by restricting the right of out-of-state citizens to find employment in the state. This restriction may also indirectly affect the right to reside across India as it becomes difficult to find employment. If more states follow similar policies, it will be difficult for citizens to migrate from their state to other states to find work.

one more result

Such policies will have adverse economic effects. In addition to potentially increasing costs for companies, income inequality across states could also increase as citizens of poorer states who have fewer job opportunities are trapped in their states. The idea of ​​India as a nation can also have dire consequences. Can people in states imagine themselves as citizens of a nation if they cannot find work independently and settle across the country? Courts, in view of the narrow question of whether these laws violate fundamental rights, must also examine whether they violate the basic structure of the Constitution which sees India as a nation which is a union of states, not a union of states. that as a group of independent states. ,

MR Madhavan is the Chairman, PRS Legislative Research, New Delhi.