Reservations Based on Place of Birth

• 19 Aug 2020

Why in News

Recently, the Chief Minister of Madhya Pradesh has announced that the government jobs will be reserved for the “children” of the state and legal provisions will be made for the same.

Key Points

• Arguments Against Providing Reservation Based on Place of Birth:
  
  • Article 16 in the Constitution of India refers to equality of opportunity in government jobs.
    
    • Article 16(1) provides for equality of opportunity for all citizens in matters relating to 'employment or appointment' to any office under the State.
    • Article 16(2) provides that there cannot be any discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
  • Reservation on the basis of domicile and residence would mean discrimination as even a minimal departure creates an irrational class depriving a meritorious candidate of his fundamental rights.
  • This kind of parochialism encourages regionalism and threatens the unity of the nation.
• Arguments in Favour of Providing Reservation Based on Place of Birth:
  
  • Article 16(3), allows for making provisions in government appointments with respect to residence (not place of birth).
    
    • The Parliament (and not the legislature of a state) can prescribe residence within a state or union territory as a condition for certain employments or appointments in that state or union territory, or local authority or other authority within that state or union territory.
  • Some states have been using the loopholes in the laws to reserve government jobs for locals. They have used other criteria like language tests or proof of having resided/studied in the state for a certain period of time.
    
    • In Maharashtra, only those living in the state for over 15 years with fluency in Marathi are eligible.
    • In Jammu and Kashmir, government jobs are reserved for “domiciles”
    • In West Bengal, reading and writing skills in Bengali is a criterion in recruitment to some posts.
    • Last year, the Govt of Karnataka issued a notification mandating private employers to give “priority” to Kannadigas for clerical and factory jobs in the state.
  • It is argued that giving preferential treatment to the residents of a state will help in rightful allocation of the resources of the state and would encourage people to work within the boundaries of their state.
  • This is also seen as a way to stop migration of people from backward states to metropolitans, thereby reducing the burden on such cities.

Distinction between domicile status and place of birth

• According to the SC ruling in DP Joshi vs Madhya Bharat case,1955, Domicile or status of residence is a fluid concept that can change from time to time, unlike place of birth, which is fixed.
• Domicile of a person means his permanent home.
• The place of birth is one of several grounds on which domicile status is conferred.

• SC Judgments:
  
  • In 2019, the Allahabad High Court struck down a recruitment notification issued by the Uttar Pradesh Subordinate Service Selection Commission, which prescribed preference for women who were “original residents” of the state.
  • In the Kailash Chand Sharma vs State Of Rajasthan case, 2002, the Supreme Court ruled that residence, be it within a state, district or any other area, cannot be a basis for preferential reservation or treatment.
  • While the Constitution specifically prohibits discrimination based on place of birth, the Supreme Court, in DP Joshi vs Madhya Bharat case, 1955 has held domicile reservation, especially in educational institutions, as constitutional.

Way Forward

• The move to give reservation to the candidates born in the state itself runs against the spirit of constitutional equality and fraternity. It is more likely that such politically motivated steps would be overturned by the judiciary as has been done several times in the past.
• Also, the government is not an employment guaranteeing agency rather an authority which should create an environment through its policies which minimizes inequalities in income, status, facilities and opportunities.

Source: IE