Regionalism, and India as One Unit

Note who holds the exception. A STATE cannot prescribe its own domicile requirement for its own services; only Parliament can, and it has done so sparingly under the Public Employment (Requirement as to Residence) Act 1957, which has largely lapsed. This is the single most examinable point in the chapter, and it is the answer to every sons-of-the-soil employment scheme.

Four: freedom of movement and residence. Article 19(1)(d), to move freely throughout the territory of India, and article 19(1)(e), to reside and settle in any part of it, subject to reasonable restrictions in the interests of the general public or for the protection of the interests of any Scheduled Tribe under article 19(5).

Five: freedom of trade. Article 301: trade, commerce and intercourse throughout the territory of India shall be free, subject to the other provisions of Part XIII.

And article 371D as the counter-example. Special provisions for Andhra Pradesh and Telangana permit the President to provide for equitable opportunities in public employment and education for people of different parts of the State, including local cadres. It is an express constitutional exception, made because the Constitution's general rule would otherwise have forbidden it, and its existence proves the general rule.

The "India as one unit" argument

Territorially. Article 1: India, that is Bharat, shall be a Union of States. The word Union was chosen deliberately over Federation: the States derive their existence from the Constitution and, under article 3, Parliament may alter their boundaries without their consent.

In citizenship. One citizenship, so no State can define its own people.

In rights. The fundamental rights are the same everywhere, and articles 19(1)(d) and (e) make the whole territory one space for living and working.

In the economy. Article 301 makes it one market.

In the judiciary. One Supreme Court whose declared law binds every court under article 141, and one hierarchy under it.

And in emergency. Articles 352 to 360 let the Union act as one unit when it must, which is the same idea in its strongest form.

Where the unity has limits, and a good answer says so

Article 16(3)'s exception exists, and so do article 371D and the various special provisions in articles 371 to 371J.

The Fifth and Sixth Schedules restrict entry, residence and land transfer in Scheduled Areas, which is a deliberate exception protecting tribal communities and is dealt with in [Tribal India: The Fifth and Sixth Schedules].

Domicile requirements survive in education, where a State may reserve seats in its own institutions for those educated or resident in it, on grounds of an intelligible differentia rather than by an exception to article 16.

And article 371A and article 371G protect Naga and Mizo customary law from Parliament. Unity in Indian law is a rule with named exceptions, not an absolute.

A worked example

A State enacts that eighty per cent of jobs in private factories in the State, and all posts in its own services, shall be filled by persons domiciled in the State for fifteen years.

The State services. Article 16(2) forbids discrimination on residence in employment under the State, and article 16(3) reserves the power to prescribe a residence requirement to PARLIAMENT. A State's own law doing it is bad.

The private factories. Article 16 does not reach private employment. The challenge is under article 19(1)(g), the right to practise any profession or to carry on any occupation, trade or business, at the suit of the employer, and under article 14 for the arbitrariness of a fifteen-year classification. Several such statutes have been struck down or stayed on those grounds.

The fifteen years. Even where a residence requirement is permissible, its length has to be justified, and a period long enough to exclude a person who has genuinely settled looks like a proxy for place of birth, which article 15(1) forbids.

And the political point behind the example. The measure is popular precisely because it is regionalism, and the Constitution's answer is not that the demand is unreasonable but that the Union is one labour market and a State may not close it.

What this does NOT mean

It does not mean States have no distinct identity. They have their own languages under article 345, their own legislatures and their own police, and articles 371 to 371J protect particular arrangements.

It does not mean regional demands are illegitimate. A demand for a new State, for a share of river water or for central investment is a demand within the constitutional system, and article 3 exists to answer the first of them.

And it does not mean the Union is unitary. It means the Union is a federation of a particular, centralised kind, in which the unit of citizenship and of rights is the individual Indian rather than the State.

Quick revision

Regionalism: a regional identity converted into a claim on employment, resources or power against people from elsewhere in the country. Four forms: separate-State demands, sons-of-the-soil claims, river and boundary disputes, and claims of neglect. Constitutional answers: article 1, a Union of States; article 5, single citizenship; article 15(1), no discrimination on place of birth; article 16(2), none on residence or place of birth in public employment, with article 16(3) reserving the residence power to PARLIAMENT alone; article 19(1)(d) and (e), movement and residence; article 301, freedom of trade. Limits: article 16(3), article 371D and articles 371 to 371J, and the Fifth and Sixth Schedules.

Test yourself

1. Define regionalism and distinguish it from federalism. Regionalism is the assertion of a regional identity as a claim on employment, resources or political power against people from other parts of the country. Federalism is a constitutional division of governmental power between two levels. One is a political claim, the other an arrangement of authority, and regionalism can exist in a unitary State.

2. Which provisions make India one unit for a citizen? Article 1, a Union of States; article 5 and Part II, a single citizenship; article 15(1), no discrimination on place of birth; article 16(2), none on residence in public employment; articles 19(1)(d) and (e), movement and residence throughout the territory; and article 301, freedom of trade, commerce and intercourse.

3. Who may prescribe a residence requirement for public employment, and why does it matter? Only Parliament, under article 16(3). It matters because it means a State cannot lawfully prescribe its own domicile requirement for its own services, which is the answer to every sons-of-the-soil employment scheme.

4. Give two constitutional exceptions to the general rule of unity. Article 371D, permitting the President to provide for local cadres and equitable opportunities in public employment and education in Andhra Pradesh and Telangana; and the Fifth and Sixth Schedules, which restrict entry, residence and the transfer of land in Scheduled Areas in order to protect tribal communities.

5. How would you challenge a State law reserving private-sector jobs for local residents? Not under article 16, which reaches only employment under the State. Under article 19(1)(g) at the suit of the employer, whose right to carry on business is restricted, and under article 14 for the arbitrariness of the classification, particularly where the residence period is long enough to operate as a proxy for place of birth, which article 15(1) forbids.