Reservation of 75% in Private Sector Jobs in Haryana: Facts, Constitutionality and Politics
Haryana is a progressive
state and it is also home to one of the top five Information Technology Hubs.
It has the fifth highest per capita income among Indian States and Territories.
It becomes necessary to quote this fact here because the implications of the
passing of the “Haryana State Employment
of Local Candidates Bill, 2020” by the Haryana Government could have far
reaching implications on many aspects of the state and also on the country.
Before beginning with the key features of the Bill, it is best to mention
herein that there already exists a law for reservations in public sector jobs
and it has been agreed since the time the constitution was being made and
debated, that it was constitutional to provide for reservations in the public
sector, while the same was opposed in the private sector for various reasons,
which still stand as strong pillars against this move by the Government. The
matter is now sub-judice same as the reservation bill passed by the Government
of Andhra Pradesh in 2019.
Key Features
of the Bill
Now, it is best to delve
into the key features of the bill to ascertain what could be wrong-
1. According to the Bill, the scope of reservations shall extend to even the private sector and therefore it shall now be applicable on all Companies, Limited Liability Partnership Firms, Partnership Firms, Trusts and Societies wherein there are ten more than ten people employed and the salary offered for the post is less than or equal to 50,000/- Rs.
2. The bill provides for 75% reservation to Haryana domiciled people and also levies punishment for not deviating from the law, making it compulsory for the private sector to comply with the law.
3. All private sector entities wherein the employees earn salary or wages less than or equal to 50,000/- Rs. need to be registered in a designated portal by the employer of that establishment, wherein necessary disclosure has to be made. An employer cannot employ a new person till such registration is complete.
4. Exemptions have been allowed wherein an employer feels that there is a lack of skilled people, however, in order to obtain the exemption, the employer has to make a claim in that regard and thus after the making the claim it shall be evaluated by an officer of the rank of Deputy Commissioner or higher.
i. The officer evaluating the claim has the power to-
a.
Either accept the claim and allow the exemption or to reject it with
recorded reasons,
b. direct the employer to train local candidates to achieve the desired skill or proficiency.
5.
Failure to provide 75% of new employment to local candidates will
attract a fine which would range from Rs 50,000/- to 2,00,000/- rupees, with an
additional penalty of Rs 1,000 for each day till the contraventions are
removed.
Constitutionality
of the Bill-
It has been argued that the
bill is not constitutional, if it is read in the light of various Articles of
the Constitution of India. Article 19 (1) (d) of the Constitution discusses
about our freedom to move freely in the territory of India, Article 19 (1) (e)
provides for our freedom to reside and settle anywhere in the country and
Article 19 (1) (g) provides for the practice of any profession, or to carry on
any occupation, trade or business. The bill passed clearly goes against the
essence of this very article since it abridges the freedom of an individual in
all of the aforementioned clauses of Article 19.
The Supreme Court has held
time and again that reservation in employment based solely on domicile is
violative of Article 14 which discusses about equality before law and also of
Article 16 (2) of the Constitution which discusses about the grounds on which a citizen cannot be
discriminated. The Court held that domicile in itself does not
provide any valid or reasonable classification for providing reservation.
The reservation limit of 75
% is also beyond the limit which the Supreme Court found to be reasonable in
one of its earlier cases of Indra Sawhney
and Others v. Union of India and Ors[1],
wherein 50 % was found to be a reasonable ceiling limit which could be relaxed
in case of exceptional circumstances, albeit the parliament in its 81st
Amendment Act, via the introduction of Article 16 (4 B) ended the ceiling limit
set by the Supreme Court. But while reflecting on the fact that the whole
matter is sub-judice and the fact that the Supreme Court has had a record of
determining a reasonable ceiling limit, it is reasonable to state that the
court could find the 75 % limit unreasonable and therefore require a change to
that effect by the Haryana Legislative Assembly.
This provision also further causes a deeper separation between people of different states and could easily threaten the integrity of the country, with the threat of a domino effect, whereby all other states follow suit and there is coagulation of domiciled people staying in their own states, which not only reduces the development of the state and thereby the country but also promotes enmity between the states and thus deeper separations and divides between the various states in the country, all of which is against the spirit of the preamble and also the Constitution.
Politics
behind the Bill
Haryana Jats are a key
figure in this current matter. By and large with the ongoing farmers protest in
the background, it must be noted that the Haryana Jats are sympathetic towards
the idea of Farmers Protest and are against the Bharatiya Janta Party (BJP)
Government for their reluctance in doing anything favorable with regard to the
ongoing protests.
In 2019, after the
elections, the BJP failed to gain majority and as a result, it had to ally with
the Jannayak Janta Party (JJP) which was formed based on the ideology of the Jat
solidarity and Socialism. JJP is naturally the party which the Jat community
supports. With the support of the Jat going towards the cause of farmers
protest, the pressure now mounted on the leader of the JJP party as it became
clear that the supporters wanted that the JJP party ends its alliance with the
BJP.
This is also in the backdrop
that the Jat Community had wanted reservations in the state so that more jobs
are made available to the domiciled people of the state. There were protests in
this regard and the matter was of great concern in Haryana.
Based on these facts, it
seems only reasonable to conclude that the move made by the Haryana Legislative
Assembly was a rushed attempt at saving the Government from an eventual failure,
if the JJP party leaves the coalition. The reason behind passing this law is
quite simple to understand if these facts are understood. The attempt here is
to make the Jat community happy about the reservations and therefore garner
support back to the JJP so that the coalition Government with the BJP survives.
Even if it is thought strategically, it becomes obvious to understand that the state of Haryana is a very crucial state for the BJP because of its very location in terms of the boundaries that it shares with the neighboring states and the Union Territory. The pressure is of losing a strategic point over the dissatisfaction of the Jat Community, and the passing of this bill is nothing but a means to ensure the survival of the coalition Government and nothing more.
Other
Implications
Efflux of employees not
domiciled in Haryana may be a reasonable implication of passing of this bill,
since the term ‘domicile’ comes into the picture only if the person is either
born in Haryana or if he/she has stayed in Haryana for a period of at least 15
years. This makes everyone who wish to apply for a new job which offers a
salary less than 50,000/- and who is not a person domiciled in Haryana, to lose
the advantage which the domiciled Haryana candidates now attain, making the
competition for the non domiciled candidates even rigorous.
With the creation of a
designated portal and a person who would be in charge of granting exemptions to
an employer, there is a high risk of possible corruption especially when there
is a lack of transparency in the issue. This same matter can give unfair
advantage to the rich companies who can then work more efficiently due to
acquisition of better workforce as compared to its weaker competitors who would
be compelled to resort to a workforce who are acquired not on the basis of
their caliber but on the basis of what was available to them within the state.
The power available with the
evaluating officer to train the workforce according to their discretion can
cause a private sector entity to compulsorily spend its earnings on training
and development of the workforce against the will of the private entity thereby
impacting the economy of the private sector entities in the state.
There are very many reasons
to state that the law passed by the Haryana Legislation for reservation of 75% of
private sector jobs in favor of the domiciled people of Haryana is not a good
legislation, mostly because of its contravention with the constitution of the
country and also because of its implication both within the state and outside
of it, along with the fact that it could be a portal for corruption along with
unnecessary and forced expense on the part of the private sector to impart
training causing a loss of revenue, thereby impacting its development, and also
that of the state.
Instead of taking the food
from the hand of one citizen and giving it to another citizen, in order to win
the favor of that state, the Government of Haryana should focus on the real
issue of lack of job opportunity and try to materialize institutions which
could alleviate that problem.
Written by : Danny Louis David
[1]
Indra Sawhney and Others v. Union of India and Ors., (1992), AIR 1993 SC
477.
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