A landmark verdict

Print edition : January 03, 2003

The Jharkhand High Court rejects the State government's notification on its domicile policy, foiling Chief Minister Babulal Marandi's bid to play the communal card.

THE High Court's rejection of the notifications on the controversial domicile policy has come as a blow to the Bharatiya Janata Party-led coalition government in Jharkhand, headed by Babulal Marandi, which has been making determined efforts to give "locals" preference over "outside settlers" in the matter of jobs. The verdict, reserved since September, was delivered on November 27, a fortnight before the byelection to the Godda Lok Sabha seat on December 12.

Deputy Prime Minister L.K. Advani receiving a sculpture of tribal leader Birsha Munda from Jharkhand Chief Minister Babulal Marandi at a public meeting in Ranchi on the second foundation day of the State on November 15.-

Terming the policy a case of "hostile discrimination of the public at large", a Bench headed by Chief Justice V.K. Gupta set aside government notifications regarding "essential criteria" for appointment to Class III and IV posts and admissions to technical institutions in Jharkhand, which was formed on November 15, 2000 by bifurcating Bihar. Justices Gurusharan Sharma, S.J. Mukhopadhaya, M.Y. Iqbal and Lakshman Uraon were the other members of the Bench.

The notifications were issued on August 8 and 19 (Frontline, August 16 and September 13, 2002). The government's policy stipulates that persons whose names, or those of their forefathers, figure in the 1932 survey settlement of land records would be deemed "domicile" of Jharkhand, and such persons would be eligible to apply for government jobs (Class III and IV) and for admission to technical institutions.

The policy was challenged through two public interest petitions, which described it as an attempt to deprive of its rights a major chunk of the State's population, which had settled after the 1932 survey settlement of land records.

In its verdict, the court observed: "How would concerned authorities determine local persons merely on the basis of identification by five local khatiyanis (land surveyors), whose ancestors' names appearing in the records of rights are stated to have been prepared more than 70 years ago?"

A demonstration against the Jharkhand High Court verdict on the government's domicile policy in Ranchi on November 30.-AFP

The Bench observed: "A person who is non-resident or an outsider is not prevented from applying for consideration of his or her case for appointment against any Class III or Class lV post in the State of Jharkhand, if otherwise eligible... This is a hostile discrimination of the public at large." "In our opinion," it added, "the two impugned notifications, insofar as... the subject of defining `local resident' to the procedure prescribed therefore are unconstitutional and on this ground and to this limited extent deserve to be struck down."

While setting aside the "definition" and the "guidelines", the court however allowed the government to redefine "local persons" in accordance with the judgment and the observations. It has also allowed the State to "represcribe the guidelines for determination of local persons taking into account the relevant history of the State, such as reorganisation as taken from time to time, emigration of persons as has taken place during the last 50 years and settlement of refugees".

The government had filed an affidavit modifying its definition of local residents, which stated that even those who knew the local language and customs would be entitled for preferential treatment. However, the government kept the land survey settlement as one of the most important factors in defining local residentship. The court made further suggestions modifications to the State government on redefining local residents. However, it upheld the decision to extend preferential treatment to those "who have knowledge of the local language, tradition, custom, etc".

The Jharkhand government's policy was adopted from the Bihar government's March 15, 1982 notification. While Bihar did not pursue the policy, the Jharkhand government seemed to be determined to implement it. The policy was proposed and announced by Chief Minister Marandi in July this year. It immediately ignited protests across the State. Pro- and anti-domicile policy groups clashed, leaving six people dead and several injured, besides causing a huge loss to public property. For about a month, clashes continued in cities such as Dhanbad, Ranchi, Bokaro and Jamshedpur between the anti-domicile policy group, called the Jharkhand Upekshit Yuva Manch (JUYM), and the pro-domicile policy groups, comprising mostly Adivasis and Moolvasis (original inhabitants) under the Ranchi-based umbrella organisation, the Jharkhand Moolvasi Janadhikar Manch (JMJM). The JMJM demanded the resignation of six State Ministers Baccha Singh, P.N. Singh, M.P. Singh, R.L. Sarda, Raghuwar Das and Ramchandra Kesri who opposed the domicile policy.

Sources in the BJP said that the party was divided over the issue. "The foundation of the party in this region was laid by people who are now described as outsiders. Creating divisions on the basis of place of residence will jeopardise the party's prospects in the State beyond repair," a source said.

Tribal members of the Marandi Ministry are united against the non-tribal people, thereby alienating the latter from important decision-making. The non-tribal block in the Cabinet strongly believes that the domicile policy is not as much about job reservation as it is about power politics. The tribal people have received little by way of social support since the State came into being. They effectively expressed their disappointment in the Dumka parliamentary byelection (the seat vacated by the Chief Minister himself) in August by electing Jharkhand Mukti Morcha (JMM) chief Shibu Soren on a negative swing. Marandi got the message and decided that something had to be done. What he did was to dig out a 1982 notification by the Labour Department of undivided Bihar, which put tribal and indigenous people in reserved categories in recruitments to factories and workshops. Marandi hoped to give some extra benefits to the tribal people by reviving the notification. But in the process he opened the floodgates of social unrest, when he suggested that the ambit of the notification could be extended to government offices and educational institutions.

The government's failure to evolve a mechanism to identify the "original residents" of Jharkhand added to the confusion. A demand was made for a commission for such identification, but Marandi ignored it. "A substantial percentage of tribal and other original inhabitants are landless. The government does not know how to identify them and where to place them on the domicile spectrum. The policy will only end up creating an insider-outsider divide, which will spell doom for the State," said a senior government official.

Apart from the present animosity between pro- and anti-domicile policy groups, Jharkhand has witnessed trouble, ever since its inception, from various tribal organisations. The Scheduled Castes and Other Backward Classes (OBCs) are also fighting for enhanced reservation for their respective communities in government and in panchayati raj institutions. All these groups are on the warpath and have separate programmes of action.

THE State has become a hotbed of communal politics. The S.Cs and the S.Ts, who once fought unitedly for the realisation of the Jharkhand State, are now divided on the issue of quotas. Their claims and counter-claims have made it difficult for the government to reach a decision. The six-member Cabinet subcommittee constituted to study the legal aspects of the reservation policy has remained inconclusive. At a meeting of the subcommittee, Ministers belonging to the S.C. and the S.T. communities and representatives of Opposition parties traded charges and finally abandoned the attempt to find a solution. At one stage, two Ministers, one belonging to an S.T. and the other to an S.C., threatened to quit the Cabinet should their views be ignored. Informed sources said that the subcommittee wanted the quota to be around 29 per cent for the S.Ts, 12 per cent for S.Cs, and 27 per cent for OBCs. The offer was not acceptable to OBC leaders.

The prominent pro-tribal players in the State are the Adivasi Jharkhand Janadhikar Manch (AJJM) and the Adivasi Chatra Sangha (ACS). They are supported by several tribal organisations. While the AJJM, led by Salkhan Murmu, a BJP Member of Parliament, demands 100 per cent reservation (in State government services, educational institutions and even the Assembly), 60 per cent for the tribal people and 40 per cent for the original inhabitants, other groups have shown more prudence.

While Shibu Soren has said that reservation should be in proportion to the percentage of the S.Cs and tribal groups in the population, Leader of the Opposition Simon Marandi of the Congress(I) does not want anything less than 40 per cent for the S.Ts. Salkhan Murmu says that since the movement for a separate State was initiated by the tribal people, they must be empowered to govern the State with a 60 per cent reservation in the Assembly and in government jobs. The AJJM has demanded an increase in the number of Assembly seats from 81 to 150 in order to ensure the reservation of 90 seats for the tribal people.

Murmu's demand has been strongly opposed by the JMM and communities such as Mahatos and Kurmis. Shibu Soren lashed out at the government "for hatching a conspiracy to create social tension between the tribal and non-tribal people of Jharkhand in the name of reservation". Soren wants reservation fixed on the basis of population. "The tribal population has been understated in all Censuses. This was done to deny the indigenous people their due. Even Census 2001 was carried out with the motive of suppressing the tribal people of the country in general and of Jharkhand in particular, and the records have been tampered with. The huge influx of settlers from outside has reduced the tribal people to a minority," he said.

The JMM is elated over the High Court order. "The judgment has exposed the Marandi government. The domicile policy was a conspiracy to misguide the Moolwasis. Had it not been so, the government would have got the policy cleared in the Assembly and Parliament. The Marandi government has shattered the dreams of the people of Jharkhand," it said. The JMM had boycotted a government-sponsored all-party meeting on the domicile issue on September 22. The Congress(I) and the Communist Party of India (Marxist-Leninist) had also boycotted the meeting.

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