Sunday, February 17, 2008

Is nativism unconstitutional?

The spate of comments in the media describing the protests of Maharashtra Navnirman Sena against North Indians in Mumbai as unconstitutional made me wonder whether the authors of these comments are really well-informed. The critics of MNS who subscribe to the perception that its platform is unconstitutional include the Leader of the Opposition, L.K.Advani, and almost all editorial writers of major newspapers. The critics point out that MNS’ demands are inconsistent with Articles 19 (1) (d) and (e), the former dealing with the citizens’ right to move freely throughout the territory of India and the latter with the right to reside and settle in any part of the territory of India.

What are MNS’ demands? It seeks, among other things, 80 per cent reservations for Maharashtrians in the BPO industry. Is this unconstitutional? While deploring the use of force by the MNS activists against the migrants, (the violence against migrants is certainly unpardonable, and the MNS activists/leaders should face punitive action under the laws) we should not forget that Article 19 (1) (d) and (e) are not absolute rights, and are qualified by Article 19(5). Article 19(5) has to be read with Article 16(3), which is an exception to Article 16(2).

Article 16(3), which provides for an exception to the ban on discrimination based on residence, gives Parliament alone the right to enact such an exception and only with respect to positions within the employ of a State (as distinct from the Central) government. The only action which Parliament has taken under Article 16(3) was to legislate the Public Employment (Requirement as to Residence) Act of 1957 as well as several other subsequent measures that were related specifically to the state of Andhra Pradesh. The Act aimed to abolish all existing residence requirements in the states and to enact exceptions only in the case of special instances of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh. For these four States, the 1957 Act gve the central Government the power to issue directives setting residence requirements in the subordinate services.

Despite the Constitutional stipulation that only Parliament can set residential requirements, States had managed to circumvent this by issuing resolutions and directives (as against enactments) setting their own preferential policies for state residents. (with the sole exception of perhaps Meghalaya which sought to protect its residents through legislative action as well, apart from executive fiat. The legislature in 1974 passed a residence permit bill which required that those who seek to stay in Meghalaya longer than 4 months secure a special permit, and that only those who had lived continuously in Meghalaya for 12 years or more and who had made the State their fixed and permanent home would be considered true locals – it can, however, be argued that the state law did not violate Article 16(3), as it did not seek to lay down any residence requirement for employment within the State). States did so, primarily to satisfy the aspirations of local groups like the MNS, which sought to articulate such concerns in different degrees. There is a view that even if the States legislate on this - in the absence of a Central law - it cannot be violative of A.16(3.

Thus Maharashtra, West Bengal and Tamil Nadu managed to achieve the objects of Article 16(3) through circulars, and directives, rather than through legislative action, as Parliament alone has the power to enact a law under the Constitution. The object of permitting Parliament alone to legislate residential requirements was to achieve uniformity on the highly disparate policies of the various States, even though such uniformity remained elusive because Parliament did not take this article seriously, as it should have, apart from enacting just one law in 1957 to address the concerns in a few States.

It is curious to know that even Ambedkar has paid lip service to nativism during the Constituent Assembly Debates. Although he conceded that residential qualifications detracted from the value of a common citizenship, he urged the assembly to recognize that : “At the same time…you cannot allow people who are flying from one province to another, from one State to another as mere birds of passage without any roots…just to come, apply for posts and so to say take the plums and walk away.”

As Prime Minister, Indira Gandhi too acknowledged that nativism had its rationale. She said: “It is true that if a large number of people came from outside to seek employment … that is bound to create tension in that area. Therefore, while I do not like the idea of having any such rule, one has to have some balance and see that the local people are not deprived of employment.” She was of the view that a balance must be sought – a balance that would protect the mobility of citizens and guard against the political disruption which such mobility engenders.

If nativism per se is not unconstitutional, the peculiar articulation of demands by MNS, cannot also be called unconstitutional simply because it is accompanied by an undesirable degree of aggression.

(Myron Weiner and M.F.Katzenstein’s book, India’s Preferential Policies: Migrants, Middle Classes and Ethnic Equality, published in 1981 offers an excellent account of this issue in Bombay, Andhra Pradesh and Assam, and India’s preferential policies in general in comparative perspective)
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