SUMAN K SHRIVASTAVA
Ranchi, Dec. 22: The other day, Saryu Roy, the erudite and eloquent MLA in Jharkhand, tweeted that Chief Minister Hemant Soren’s search for legal armour for the 1932 Khatiyan-based domicile will prove to be a mirage.
“Thirst is not quenched running after a mirage of antilope. The ones who run away get battered. Decisions related to the recruitment policy of Jharkhand are victims of this irony. So, the best way would be to find a way out in the provisions of the Constitution and frame such a policy when youth do not get cheated,” he said.
And Roy was right. Various order of the Jharkhand High Court on the domicile and reservation policies of the State government, right from 2002 to 2022, will vindicate his view.
The latest being the December 16 order which scrapped the Hemant Soren government’s policy under which it was mandatory for an aspirant for grade III and IV jobs to have passed class X and XII exams from Jharkhand schools. This provision was applied to general category students and not meant for the tribals and so called Moolwasis (natives).
The Chief Minister reacted politically, saying a gang was active in Jharkhand to thwart a policy meant for Jharkhandis and that the students from Bihar and UP were behind the petitions filed in the high court little realising that the high court struck down the policy as it violated the Constitution.
The two bills passed by the Assembly-the first one related to defining a local on the basis of 1932-based khatiyan (land records) and the second bill reserving the jobs for the locals and making 77 percent jobs reserved for the underprivileged-run into the teeth of Constitutional provisions. The chief minister has maintained that both the laws will get ‘kanuni kawach’ if the Centre placed them in the Ninth Schedule of the Constitution making them immune from judicial review.
But the chief minister should also know that the two bills will never get the Centre’s nod as they violated the Constitution. In case there is a friendly government in Centre in times to come and placed them in the Ninth Schedule, this will again be open to judicial review as the Supreme Court made it clear in a 2007 judgement. So, is he going to block the jobs for Jharkhandis till the Centre placed them in the Ninth Schedule?
Former Advocate General Ajit Kumar says that the government has adequate number of legal documents and court orders to guide it to frame a constitutionally valid job and domicile policy. He refers to the 2001 domicile policy, Jharkhand High Court’s order in Prashant Vidyarthi case, Domicile policy framed by the Raghubar Das government in 2016, Jharkhand HC order in Soni Kumari’s case and the latest judgment of the HC in Ramesh Hansda case.
So, the Govt run by the Constitution and law, and not by jidd(stubbornness). These documents are enough to guide the government to frame a constitutionally valid policy, he adds.
In fact, Hemant Soren did not learn lessons from mistakes committed by his predecessors in order to consolidate his vote bank among the tribals and Moolwasis. No wonder, none of the job policy, framed right from 2000 to 2021, in order to appease a particular section of people have stood to the touch\stone of the judicial scrutiny.
Mistakes by ex-CMs
Babulal Marandi, the first chief minister, framed reservation policy reserving 73 percent of government jobs for the SCs, STs and OBCs and framed a domicile policy on the basis of 1932 land records.
The Jharkhand High Court declared the 1932 domicile policy as unconstitutional. asked it to redefine the ‘local persons’ and to re-prescribe the guidelines for determination of ‘local persons’ taking into account the relevant history of the State, such as, reorganization as taken from time to time; emigration of persons; as taken place during the last fifty years, settlement of refugees etc.
The court, however, approved a stop gap domicile and job policy framed by the Marandi government which guided it till 2016 as neither Arjun Munda nor Madhu Koda touched the controversial policy. Arjun Munda again came back into power with the support of the JMM in which Hemant Soren was the deputy chief minister in 2010.
Incidentally, Hemant withdrew the support on the grounds that the government was not framing the domicile policy on the basis of the 1932 khatiyan (land records). He ran the state for the next 14 months after a brief spell of the presidential rule with the support of the Congress but did not rake up the issue.
The BJP came back to power in 2014 and Raghubar Das became the first non-trtibal chief minister. He mustered courage to frame a job policy, making 1985 a cut-off date to define a Jharkhandi, based primarily in the 2002 high court order. Das, however, tried to please the tribal lobby and brought a policy under which jobs in 13 scheduled (tribal) districts were reserved for the locals. But one Soni Kumari challenged it in the Jharkhand High Court, which declared the policy as unconstitutional, saying the State cannot reserve 100 percent jobs for the locals of a district. Later, the Supreme Court also put a seal on the Jharkhand high court order.
The BJP lost the elections in 2019 and Hemant Soren led the JMM to get 30 seats in the 81-member assembly, the highest ever tally for the JMM.
Hemant Soren apparently believed that it was a pay-back time for him to consolidate its tribal vote bank. He first framed a job policy under which he made it mandatory for a job aspirant for grade III and IV jobs to have passed class X exams from Jharkhand schools. This provision was applied to general category students and not meant for the tribals and moolwasis.
He also dropped Hindi and English languages from the compulsory regional language list.
Getting embroiled in corruption and office of profit cases, he went ahead legislating a domicile policy based on 1932 khatiyan (land records) and reserving the jobs for the locals defined under the policy. He also got passed another bill d\reserving 77 percent jobs for the STs/SCs and OBCs and economically backward upper castes.
Contempt of court
Ironically, the Domicile policy based on the 1932-based Khatiyan is also contempt of the Jharkhand High Court order delivered in 2002 in Prashant Vidyarthy case as the Soren government got the same policy, which had been declared unconstitutional, passed by the Assembly. The government did not undertake any survey to redefine the locals in pursuance of the high court order.
The high court’s 2002 constitution bench judgement is still in force in Jharkhand as it was neither set aside nor challenged in the Supreme Court.
The government went ahead defining the locals on the 1932-based khatiyan without undertaking any survey to comply with the court’s directive.
The way out
The 2016 policy has stood to the judicial scrutiny except the one under which the jobs were reserved for the locals in 13 Scheduled districts. If you stick to 1932 khatiyan, what will happen to the those who settled here during reorganization of states having taken from time to time; emigration of persons; as taken place during the last fifty years, settlement of refugees.
It is not to say that the government is not allowed to make special laws to protect the marginalised classes of society under Articles 14, 15 and 16 of the constitution. However, the same needs to be backed by quantifiable data on the socio-educational status of the class or community concerned. So, the government should keep in mind the following issues while framing a new policy:
- The State government cant reserve 100 percent jobs for a particular section of population.
- The state assembly is not competent to pass a bill for job policy linked to residence of the aspirant. Only Parliament is competent to do so.
- The State government cant frame a domicile policy based on 1932 Khatiyan under which a sizeable section of people, who settled here after 1950 are deprived of the domicile status. It can define locals keeping in view the demographic history of the State.
- It cant reserve 100 percent jobs of locals in a scheduled district.
- It cant exceed the 50 percent reservation cap as prescribed by the Supreme Court. It can do so only after it has quantifiable data to say that a particular section of people requires this much reservation.
