Reservation Based on State Domicile

Introduction

On 25th of August 2020, the Madhya Pradesh Chief Minister, had made an announcement that
it would reserve all the government jobs for the residents of Madhya Pradesh alone1. This
sparked up a huge controversy over reservation based on state of domicile. State based
reservation is not a new idea. Most colleges during admissions give preference to candidates
who belong to the same state, the same can be said in terms of public employment also.

Reservation based on State domicile is not a new concept in India. Almost every state has
programs and policies that benefit the people living in that particular state. Reservation based
on state finds its roots in regionalism and a doctrine popularly referred to as the ‘Son of the
Soil’ doctrine. Domicile is the legal relationship between an individual and a territory with a
distinctive legal system which invokes that system as his personal law.2

Regionalism in India

Regionalism is not a new concept in India. The North-South divide, linguistic barriers have
all inadvertently aided in creating a regional classification of the country. Despite existing
historical, cultural and geographical differences among different regions, India has managed
to stand together as a country embracing all its diversities. This does not mean that there have
been challenges; the Dravida Movement, the movement led by the Telugu Desam Party
which ultimately led to the formation of the State Reorganisation Committee and the State
Reorganisation Act is a clear example of how regionalism tends to take a front step over
nationalism in most scenarios.

States in India are divided based on languages. This aids in effective governance and better
addressing of local problems. Other factors that contributed to the spread of regionalism in
India, is the loop sided development, i.e., how some states were better developed and had
better access to resources compared to others. One major incident that showcased the
increasing regionalism was the movements surrounding the imposition of Hindi as the
national language of the countries. The Southern part of the country saw wide spread protests

1
Iram Siddique; “First right theirs, all govt jobs in MP only for children of state: Chouhan”; Indian Express; (28
August 2020); https://indianexpress.com/article/india/first-right-theirs-all-govt-jobs-in-mp-only-for-children-of-
state-chouhan-6560455/
2
Halsbury’s Laws of England (Fourth edn.), Vol. 8, para 421.
and opposition towards this. Protecting one’s identity, culture, language are all underlying
reasons behind regionalism.

‘Sons of the Soil’ theory

‘Sons of the soil’ theory can be described in political terms as a conservative theory aimed at
promoting the welfare of the people forming the major ethnic group ion a given area. ‘Sons
of soil’ Doctrine underlies the view that a state specifically belongs to the main linguistic
group inhabiting it or that the state constitutes the exclusive 'homeland' of its main language
speakers who are the 'sons of the soil' or the 'local residents'.3 The idea behind this particular
doctrine is to protect the interests and the rights of the people belonging to that particular
area.

The main idea behind the ‘sons of soil’ theory is to promote the welfare of the people
belonging to a particular state. However, this does not extend to people who have settled in a
particular state, or who do not speak the major language of the state as their mother tongue,
are not considered sons of soil, they are rather regarded as outsiders. ‘Sons of soil’ draws its
base from the concept of regionalism. In a way this concepts divides people when trying to
protect the rights and interests of the local community. This furthers any existing discord.

One of the classic example of the problems that arise due to Son of Soil theory is that of Sri
Lanka. The existing tensions between the Sinhalese and the Tamil Sri Lankans find their
roots in the concept of ‘sons of soil.’ ‘The Tamils were better educated and better qualified
than the majority Singhalese. Resentment was brewing there within the Singhalese ranks.
There are ironies galore within this situation. Despite positive action as well as positive
discrimination, the Singhalese were not able to rise up economically as compared to the
Tamils. This led to rise of Civil War.’4 This shows that the application of doctrines like the
‘sons of the soil’ though done in good faith, can have major drawbacks as they can lead to
regional discord.

Constitutional Provisions

Article 16 of the Indian Constitution deals with Equality in terms of opportunity in matters of
public employment. Article 16(1) of the Indian Constitution states that “There shall be
equality of opportunity for all the citizens in matters relating to employment or appointment

3
Sons of Soil;IAS Score; https://iasscore.in/topical-analysis/sons-of-soil-concept
4
Id
to any office under the State.”5Article 16(2) states that “No citizen shall, on grounds only of
religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under the State”6.The practice
of state domicile reservation is in clear contravention to the provisions of Article 16(2).
However, Article 16(3) states that “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 office4[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.”7It is the provisions of Article 16(3) that is used by the State
governments in order to practice state domicile reservation. Also, under Article 371of the
Indian Constitution some states have been extended the special protections. The states of
Telangana and Andhra Pradesh have the right for the “direct recruitment of local cadre” 8 in
certain sectors.

It is using these Constitutional provisions that the State governments put forth guidelines for
state domicile-based reservation.

Supreme Court Rulings

The Supreme Court has put forth various guidelines in the matter of reservation based on
state domicile, both in favour of it and against it. These are based mainly in terms of
domicile-based reservation in cases of educational institutions.

In the case of DP Joshi v State of Madhya Pradesh9, two major contentions were raised; How
exactly is one to prove domicile and is the practice of domicile reservation violative of right
to equality10 and right against discrimination.11 The Court said in order to claim domicile, one
should have lived in said state for at least 5 years and should not have domicile anywhere
else. With respect to the second issue, the Court held that Article 15(1) prevents the State
from discriminating on place of birth. According to the reasoning of the Court, the practice of
reservation based on state of domicile was based on place of residence and not place of birth.
The same reasoning was used in the case of N. Vasundara v. State of Mysore12
5
Constitution of India, 1950; Article 16, Clause 1
6
Constitution of India, 1950; Article 16, Clause 2
7
Constitution of India, 1950; Article 16, Clause 3
8
Constitution of India, 1950; Article 371-D
9
DP Joshi v State of Madhya Padesh; 1955 AIR 334
10
Constitution of India, 1950; Article 14
11
Constitution of India, 1950; Article 15
12
N. Vasundara v. State of Mysore; (1971) 2 SCC 22
The case of Dr. Pradeep Jain v Union of India13, was a landmark judgement in terms of
domicile reservation in educational institutions. It was held that “It is dangerous to use a legal
concept for conveying a sense different that which is ordinarily associated with it as a result
of legal usage over the years. Therefore, it is strongly urged upon the State Government to
exercise this wrong use of the expression “domicile” from the rules regulating admissions to
their educational institutions and particularly medical colleges and to desist from introducing
and maintaining domiciliary requirement as a condition of eligibility for such admissions.” 14

In the Sunanda Reddy v State of Andhra Pradesh15, the Supreme Court upheld the decision of
the Dr. Pradeep Jain case16 and struck down the reservation that was provided to students who
took up Telugu as the main language.17

The Supreme Court had differing views in terms of the domicile-based reservation for
educational institutions, however took a very strong stand against domicile-based reservation
in terms of public employment.

In 2019, the Allahabad High Court struck down a notice that gave preference to ‘original
residents of the state.’18 The decision of the Division Bench at the Karnataka High Court to
“strike down the National Law School of Indian University (Amendment) Act, 2020 that
reserved 25% of seats in NLS for “students of Karnataka” only”19 are all examples of Courts
deciding against the practice of domicile-based reservation

Conclusion

In a time when reservation by itself is seen as an infringement on the right to equality20, state
domicile reservation seems unfair to majority of the people. It is definitely the responsibility
of the State government to protect the interests of the people belonging to that state, however
denying others a chance based on their place of birth of their place of residence even is
wrong. ‘The State subsequently has deprived the meritorious class through an unreasonable
and perverse domicile reservation. This marks the departure from the field of justness,
13
Dr Pradeep Jain v Union of India;(1984) IILLJ 481 SC
14
Id
15
Sunanda Reddy v State of Andhra Pradesh; 1995 AIR 914
16
Dr Pradeep Jain; Supra 13
17
Abdul; Domicile-based job quota: the law,SC Rulings, and special cases; FactlyFormulas(August 20, 2020);
https://factly.forumias.com/domicile-based-job-quota-the-law-sc-rulings-and-special-cases/
18
Reservations based on Place of Birth; Drishti IAS; https://www.drishtiias.com/daily-updates/daily-news-
analysis/reservations-based-on-place-of-birth
19
Aman Garg; What are the Flaws in the Justifications of Domicile Reservation; The Leaflet; (October 8, 2020);
https://www.theleaflet.in/what-are-the-flaws-in-the-justifications-of-domicile-reservation/#
20
Supra 7
fairness and reasonableness guaranteed by the rule of law that is supposed to be supreme in
our constitutional set-up.’21 State domicile reservation which first extended only in the field
of education has now been extended to employment opportunities. In a time and era where
equality is said to be upheld and unity is said to be celebrated, state domicile reservation
successfully creates a fracture between people on terms of their region. This does not been
one’s region should not be celebrated; it is understood that every culture, ethnicity, should be
respected, celebrated and protected but not at the cost of equality.

It is understood that while ‘some reservations may still be necessary for the socio-political
condition in India, reservation on the basis of domicile or residence within a State for
admissions to universities of national importance would be highly discriminatory and utterly
perverse.’22 Merit should be given more importance, it is extremely unfair for a less
meritorious student to be offered the chance to study in a prestigious university or institution
and a meritorious student to be denied the same admission citing the place of residence. Merit
must be allowed to reach its full extend.23

21
Sankalp Udgata; “Reservation on basis of State Domicile: A Practice Unfair to People and Unexpected of
Governments”; SCC Online; (July 15, 2020); https://www.scconline.com/blog/post/2020/07/15/reservation-on-
the-basis-of-state-domicile-a-practice-unfair-to-people-and-unexpected-of-governments/
22
Id
23
Saurabh Chaudri v. Union of India, (2003) 11 SCC 146