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 Employment

Perusing 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 State

Stating 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 14

Stating 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 only foundational promises of the Constitution could be fulfilled."

"The said principles are apparently not being kept in mind by the State while framing the current legislation which is under attack while terming the rest of the citizens of India as migrants," stated the bench.

It further said that a legislative mandamus could not be imposed as was being sought to be done through this Statute against the foundational promises of the Constitution "while turning a blind eye to the non-residents of Haryana who could not be treated as secondary citizens."

Violation Of Freedom Guaranteed Under Article 19

The Court said that freedom given under Article 19 of the Constitution  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 could not be curtailed by the parochial limited vision of the State.

The Court particularly referred to the freedoms guaranteed by Article 19(1)(d) and 19(1)(g).

"The fact that the nation would crack down under rigour if the text and spirit of the Constitution of India is not imbibed by the citizens and it has to be cultivated by the people so that they are able to protect the same and the attitude of respect and reverence has to be maintained towards their fellowmen", added the bench.

Act Imposed Unreasonable Restriction On Right To Move Under Article 19

The Court held that the the structure of the Act as such would be violative of Article 19 of the Constitution of India and Article 19(5) is subject to regarding reasonable restrictions to the extent of right conferred for the interest of the general public which could permit the State to make any law or for the protection of interest of any Scheduled Tribe. Therefore, the Act is imposing unreasonable restrictions regarding the right to move freely throughout the territory of India or to reside and settle in any part or the territory of India.

As per Article 19(6), the right of the State is to impose restrictions regarding professional or technical qualifications and not domicile requirements.

It can, thus, be said that the Act as such cannot be said to be reasonable in any manner and it was directing the employers to violate the constitutional provisions, the Court concluded.

Violation Of Constitutional Morality

The bench said that the concept of constitutional morality has been openly violated by introducing a secondary status to a set of citizens not belonging to the State of Haryana and curtailing their fundamental rights to earn their livelihood.

"The exploitation of the prohibition to private employment by way of a legislative command while keeping States out of the said restrictions and putting the employer under the domain of criminalization on account of the violation of the same can be termed as unconstitutional as a private individual could not be asked to do what the State has been forbidden for itself," added the Court.

Inspector Raj Of State

Examining the Act, the Court held that the requirement to register any employee on the designated portal within three months who was being paid less than Rs.30,000/- per month upto 75%, thus, is violative of the fundamental rights protected under the Constitution of India.

"The control of the State by a designated officer having a right to consider the cases of exemption to reject them are onerous. The requirement of submitting quarterly reports and the power of the Authorized Officer to call for records and to inspect premises for purposes of examining the records, registers and documents by just giving one day prior notice as such are conditions which can be termed as the “Inspector Raj” of the State," added the Court.

The Court highlighted that the bar under Section 20 of not being able to challenge the legal proceedings in any Court against any Authorized Officer or designated officer further ties the hands of the employer. "Therefore, the State continues to exercise absolute control over a private employer and as noticed, directing it to do which itself is forbidden for public employment," it further said.

Speaking for the bench Justice Sandhawalia said, "we are of the considered opinion that the restrictions imposed in the Statute as such have far reaching effect and cannot be held to be reasonable in any manner which would warrant no interference. Resultantly, we are of the considered view that they cannot be protected under Articles 19(5) and 19(6) of the Constitution of India, as contended by counsel for the State."

Conclusion

In the Light Of the above the Court concluded that writ petitions are liable to be allowed and the Haryana State Employment of Local Candidates Act, 2020 is "held to be unconstitutional and violative of Part III of the Constitution of India and is accordingly held ultravires the same and is ineffective from the date it came into force."

Senior Advocate Akshay Bhan, with Advocates Rohit Nagpal, Hiresh Choudhary, Surbhi Sharma, Ivan Singh Khosa, Shivam Grover, Akhilesh Barak appeared for the petitioner in CWP-24967-2021. Advocate Jeetender Gupta appeared for the petitioner in CWP No. 3860 of 2022. Sr. Advocate Anupam Gupta, with Advocates Tushar Sharma, Gautam Pathania, Sukhpal Singh, Shekhran Singh Virk appeared for the petitioner in CWP-26573-2021 & CWP-1698-2022. Advocate G. S. Bhanda appeared for the petitioner in (CWP-584-2022). Advocate Reena Choudhary and Advocate Vishal Sharma appeared for the petitioner in CWP-25037-2021 & 25539-2021. Addl. AG Jagbir Malik appeared for the state of Haryana

Case Title: IMT Industrial Association and another v. State of Haryana and another

Citation: 2023 LiveLaw (PH) 236

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