Are domicile reservations by states in public employment Constitutionally valid?

Assam CM Himanta Biswa Sarma on domicile reservation

Assam Chief Minister Himanta Biswa Sarma announced on August 4 that the state will soon implement a new domicile policy, restricting government job eligibility to individuals born in Assam.

Sarma stressed that these measures are designed to address the state's shifting demographics, which he described as a "huge concern" and a "matter of life and death," as reported by TOI. The new domicile policy aims to prioritise local residents for state employment, reflecting the government's focus on managing population growth and protecting the interests of Assam's indigenous communities.

Domicile policy would mean that the state’s government mandates that only residents living/born in the states are eligible for its jobs. It’s a form of reservation. State governments usually do this to ensure that its residents get reservation in the jobs it provides.

While the state government has not come out with a scheme for domicile reservation in government jobs, it must necessarily pass muster legally to be final. The primary challenge that such a policy could face is that it is unconstitutional as it discriminates between classes of citizens. However, some other states have passed such policies in the past, these policies are in operation till date.

Moneycontrol explains what the Constitution says about such policies and which other states have domicile reservation for government jobs.

What does the constitution say about such policies?

The Constitution of India gives every citizen the right to reside and settle in any part of the territory of India. Besides, as citizens of the Union of India, Indians cannot be discriminated against on the basis of their place of birth while being recruited for any public office in any state.

Article 16(1) of the Constitution of India guarantees equal opportunities for all citizens in all the employment it provides. The same provision of law also makes it clear that no citizen of the country is discriminated from being employed by the state on grounds of religion, race, caste, sex, descent, place of birth or residence.

However, according to Article 16(3), Parliament is empowered to make any laws prescribing a requirement for any particular place of residence within the state or union territory which provides employment. This makes it amply clear that a decision on providing reservations in public employment on the basis of place of birth can be made only by Parliament and not any state legislature.

States have the power to make reservations for a community or class in employment and public offices to uplift them from backwardness, however their powers are restricted to providing reservation for classes and not for others.

However, Article 371 of the Constitution empowers states to have “direct recruitment of local cadre” in specified areas. Similarly, in Uttarakhand, Class III and Class IV jobs are reserved for locals.

States such as Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa, and Karnataka are granted special powers to make certain laws. The intention of this power is to uplift the backward communities in these states.

This too, is restricted to ‘certain areas’ in the states and not the state as a whole. So how do states still get to sustain such laws?

How do states make such laws?

Since state governments can lay down eligibility criteria for employment, they mandate certain criteria that only those domiciled in the state can comply. For instance, in Maharashtra only local residents fluent in Marathi are eligible for government jobs. A local resident is defined as one who is domiciled in the state and has lived there for over 15 years.

In Uttarakhand, Vacancies in Class-III and Class-IV are filled only by local residents, who should have lived there at least for 15 years.

Prior to abrogation of Article 370, all government in Jammu and Kashmir were reserved for state subjects. However, at present, Government jobs are reserved for domiciles. A person who has resided in the state for 15 years are domiciles. Those who have studied in J&K for seven years and appeared for Class 10 and 12 exams from there are domiciles.

In Meghalaya 80 percent of state government jobs are occupied by Khasis, Jaintias and Garos by state law. There is an 80 percent reservation for Arunachal Pradesh's Scheduled Tribes in state government jobs.

Supreme Court’s opinion on domicile reservation:

In a 1984 judgement called Pradeep Jain Vs Union of India, the Supreme Court opined that reserving jobs based on a person’s domicile is violative of the Constitution. The judgement said, “The result is that ‘sons of the soil’ claims, though not altogether illegitimate if confined within reasonable bounds, are breaking asunder the unity and integrity of the nation by fostering and strengthening narrow parochial loyalties based on language and residence within a state.” Furthermore, the court noted that such reservations are capable of breaking the social fabric of the nation.

Striking down undivided Andhra’s notification allowing weightage for Telugu medium students in certain government jobs, the court said “This would weed out best available candidates from the open market and would give undue advantage to less meritorious candidates. That would seriously impair the efficiency of administration. It deserves to be pointed out that even while making reservation for members of the Scheduled Castes and the Scheduled Tribes as permitted by Article 16(4) of the Constitution, efficiency in administration is required to be borne in mind.”