Discriminates Against Other Indians, Creates 'Wall' Around State : Why P&H High Court Struck Down Haryana Domicile Quota

The Punjab & Haryana High Court today, has struck down the the Haryana State Employment of Local Candidates Act, 2020 which provides 75% reservation for domicile of Haryana in private sector jobs having a monthly salary of less than Rs 30,000, stating that it is violative of the Part-III of the constitution.While declaring the law as unconstitutional, a division bench of Justice G.S. Sandhawalia and Justice Harpreet Kaur Jeewan said, "...freedom given under Article 19 of the Constitution of India could not be taken away and the impugned provisions are falling foul and are liable to be declared unconstitutional as a wall could not be built around by the State and the spirit and sole of the oneness of the Constitution of India could not be curtailed by the parochial limited vision of the State.""The term fraternity connoting a sense of common brotherhood is to embrace all Indians and a blind eye could not be turned to other citizens of the country irrespective of the State they belong to. Therefore, a legislative mandamus could not be imposed as was being sought to be done through this Statute against the foundational promises of the Constitution of India while turning a blind eye to the non-residents of Haryana who could not be treated as secondary citizens", the Court said.Following are the broad grounds on which the Court has declared the law as "unconstitutional":Article 35 Bars State From Legislating On Requirement Of Domicile In EmploymentPerusing Article 35 of the Constitution, the Court observed that, "A perusal of the above would go on to show that there is a specific bar to the legislature of the State not to make any laws in respect of the matters which are under Article 16(3). The same further provides that there has to be equality of opportunity in matters of public employment."According to Article 16 (3), "Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment."The power given as such under sub-clause (3) is only to the Parliament for making any law prescribing in regard to the class or classes of employment or appointment to an office under the Government or any local or other authority within a State or Union Territory subject to the requirement as to residence within that State or Union Territory prior to such employment or appointment, the Court added.Referring to State of Tamil Nadu and others vs. K. Shyam Sunder and others, [(2011) 8 SCC 737], the bench opined that, "it is beyond the purview of the State to legislate on the issue and restrict the private employer from recruiting from the open market for the category of employees who were receiving less than Rs.30,000/- per month." Discrimination Against Individual Not Belonging To StateStating that the 75% reservation for the locals was discriminatory, the bench said, "It(State) cannot as such discriminate against the individuals on account of the fact that they do not belong to a certain State and have a negative discrimination against other citizens of the country."The Court remarked that the policy is "manifestation of the discriminatory policy that you are not one of us and, therefore, not eligible for employment."The Court gave the example that a private employer involved in building work cannot be asked to employ a person who is skilled in the work of installation of wood work who might come from a particular area of the country."It is not for the State as such to direct the private employer who it has to employee keeping in view the principles of laissez faire that “the lesser it governs, the better itself”. Once there is a bar under the Constitution of India, we do not see any reason how the State can force a private employer to employ a local candidate as it would lead to a large scale similar state enactments providing similar protection for their residents and putting up artificial walls throughout the country, which the framers of the Constitution had never envisaged."It also said that the State cannot direct the private employers to do what has been forbidden to do under the Constitution. It cannot as such discriminate against the individuals on account of the fact that they do not belong to a certain State and have a negative discrimination against other citizens of the country.Violation Of Equality Guaranteed Under Article 14Stating that the legislation is violative of right to equality, the Court referred to Navtej Singh Johar and others vs. Union of India,[ (2018) 10 SCC 1], in which the Apex Court held that, "...the miniscule minority having equal rights were being brushed under the carpet and have a right to participate as a citizen and an equal right of enjoyment of living regardless of what majority may believe and then...

Discriminates Against Other Indians, Creates 'Wall' Around State : Why P&H High Court Struck Down Haryana Domicile Quota

Aiman J. Chishti

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