By Prateek Som
On February 26, 2021 the Governor of Haryana Mr. Satyadeo Narayan Arya gave his assent to the Haryana State Employment of Local Candidates Act, 2021.This bill accomplished one of the key promises made by the ruling alliance partner Jannayak Janta Party during the Assembly elections of 2019. The bill provides for 75% quota in private jobs for Haryana-domiciled job seekers.The Act will remain in force across the state for a period of at least 10 years.
PROVISIONS OF THE LAW
Which Companies will be covered under this law?
The Act will apply to all the companies, societies, trusts, limited liability partnership firms, partnership firms and any person employing 10 or more persons and an entity as may be notified by the government from time to time. It shall not include the central government or state government or any organization owned by the central or state government.
Who will be considered as ‘local candidates’?
According to the law of the state, a candidate who is domiciled in Haryana is called a local candidate and will be able to avail the benefit of this reservation while seeking employment in the private sector. For the domicile status, a person should be born in Haryana or have lived there for at least 5 years.
What are the mandatory registration requirements under this Act?
No local candidate shall be eligible to avail the benefits under this Act unless he registers himself on the designated portal.
Every employer have to register the employees receiving gross monthly salary or wages not more than fifty thousand rupees or as notified by the Government, from time to time, on the designated portal, within three months of coming into force of this Act.
Every employer shall furnish a quarterly report of the local candidates employed and appointed during that quarter on the designated portal.
Under the Act, notified “administrative officers” will have the power to enter the premises of any private enterprise, check their records, look for anomalies and impose penalties. A notice will be given one day prior to the date of inspection by the government officer. The inspection system will keep a check on information filled on the portal and whether the practice follows the same.
Can the employers be given an exemption?
The employer may claim exemption from the employment of local candidates when adequate number of local candidates of the desired skill, qualification or proficiency are not available by applying to the Designated Officer in such form and manner, as may be prescribed.
The Designated Officer may accept or reject the claim or may direct the employer to train local candidates to achieve desired skillset within a stipulated time, thus avoiding red tapism.
What is the penalty for not following the provisions of the law?
Private companies can be fined with a minimum Rs 10,000 to a maximum Rs 2 lakh once it is established that the employer has committed a violation of provisions of the Act. However, if the employer continues to commit the violation even after conviction, a penalty of Rs 1,000 per day till the violation continues shall be imposed. Moreover, a penalty of Rs 50,000 shall be levied on the employer who produces false records or counterfeits or knowingly makes/ produces a false statement.
LOCALS FIRST POLICY IN OTHER STATES
Unemployment and underemployment are major issues that a state has to face, especially in a post-corona economy. The JJP promised to bring such a legislation and they made it happen by keeping their word as they were voted to power. When the scrutiny of law will arise, the Act already mentions provisions for exemption, which will offer a free hand to the industries intending to do so. It’s not an arbitrary regulation and hence there is a hope that it will thrive in the court of law.
In August 2020, Madhya Pradesh’s BJP Chief Minister announced prioritisation of jobs to the youth of the State and legitimised it by saying that they had the first right over MP’s resources. Other States have taken similar steps with respect to job reservation for locals (JRFL). The reservations promised range from 30 per cent to the more common range of 70-80 per cent. The move is applicable to both the government and/or the private sector. It has been mooted by several parties (ruling or opposition leaders) in States such as Maharashtra (1968 onwards and 2008), Karnataka (2014, 2016, 2019), Andhra Pradesh (AP, 2019), MP (2019), Himachal Pradesh (2004) and Odisha (2008). Given the extent of disguised unemployment in agriculture and the limited scope for non-farm job generation in rural areas, “urban non-agrarian sectors” such as government, IT sector, and industrial zones are targeted for local employment.
In some states where such acts are in place, the industries like coal, cement, fertilizers which are fairly developed in that state are out of the purview of the respective acts. In 2008, the Congress-NCP government in Maharashtra had issued a government resolution for job quotas for local residents. It had mentioned that all industries that take concessions and incentives from the state should employ at least 50 percent of locals in supervisory roles and 80 percent in non-supervisory roles. However, the implementation of the orders has been deemed lax. The MVA government is in the process of enacting a law for 80% reservation in local industries, which will also cover jobs on contract. Since it will be a law, the companies will be bound to implement it. In Karnataka, a law was brought up which exempted IT and biotech which are important industries there but as such the law is not enforced as regard subsequently.
In Himachal Pradesh, as a poll promise, BJP mulls 70% quota in jobs for natives as the state has an unemployment rate of 13.5% and the government is faced with pressures from 9.80 lakh educated unemployed youths. Most jobs in the state are in the tourism and agriculture/horticulture sectors, and hence, the priority should be given to local youth. Himachal Pradesh witnessed a major boost in industrial investments after 2003 due to the central industrial package offering three-tier benefits to new industrial units set up in the state. The pharmaceutical industry, particularly, found Himachal’s key industrial belt of Baddi-Barotiwala and Nalagarh located next to Chandigarh, as its new hub. By 2010, the BBN was meeting 35 percent of Asia’s pharmaceutical demand. There were new job openings apart from economic benefits to the state. The central industrial package gave Himachal Pradesh the biggest advantage as huge investments came to the state. The mandatory clause of 70 percent jobs proved to be a good facilitating factor to open up new employment opportunities for the locals, mainly unskilled and semi-skilled youths from far-flung and interior areas.
The Andhra Pradesh government has made it mandatory for existing and upcoming industries in the state to reserve 75 per cent jobs for locals. This had been done through the passage of a new law called the Andhra Pradesh Employment of Local candidates in the Industries/Factories Bill, 2019. It asks existing industries to ensure 75 per cent employment to the local candidates within three years from the date of commencement of this Act.With the growth in industries and the ongoing development of Amaravati as a state capital, the demand for land for industrial use has been increasing. Since most of the requirement is met by acquiring private agricultural lands, the owners are being displaced and deprived of their livelihood. Therefore, there is a demand from land losers, apart from the local population, to provide employment. Though there were promises by the industrial managements to meet these demands at the initial phases of setting up of their industries, more often than not, the objectives are not met. In some instances, even though the local people are employed as per the initial commitments, they are generally employed as gardeners, house-keeping personnel and other low-income jobs. This caused dissatisfaction in the local community and led to industrial unrest.
Maruti Suzuki plant at Manesar is one such example of what can happen if a company does not mend well in the environment in which it is working. Maruti witnessed one of the biggest HR unrest in its plant where local labour thrashed company Sr. Executives which even led to a death. It initiated the need of change in strategy adopted by the MNCs as well as government regulations to protect the interests of the labour. The Haryana State Employment of Local Candidates Act, 2020 follows the same rationale. This Act tries to address the issue with a proviso which states “Employers may restrict 10% cap on employing the workers from a single district”. This will restrict the local pressures and dominance.
LOCAL PROTECTIONISM: POSITIVE OR NEGATIVE
The industries producing goods for domestic markets and for export can be regulated well in order to achieve a job for at least one family member. Now the Northern and Eastern part of the country are heavily populated and some states are suffering lack of labour opportunities, which is actually causing mass burden in slightly more developed states. Cross-states migration in search of blue-collar jobs is justified for the sake of livelihood but it is also leading to urban hitches like slums and law and order related complications for instance cities like Delhi & Mumbai. This problem was witnessed in mass labour migration in nationwide lockdown period. Therefore, densely populated states like Uttar Pradesh and Bihar should have labour-oriented procurements to contain the domicile labour within the state and utilise the available human resources for maximum economic growth.
The native unemployment issue assumes relevance as joblessness has intensified in the context of shrinking government employment in the neoliberal period. Further, local employment will not only retain talent but also incomes which otherwise will go to “other regions”. While restricting labour mobility, local employment is a form of affirmative action that adds to Constitutionally promised job reservations. The “native ownership” articulation is that children of the soil should benefit from “their” resources. In fact, Karnataka government has argued that owing to the “language barrier” non-Kannadiga workers suffered and hence a job preference should be given to those with 15-years of domicile and Kannadiga-literacy.
There is also an angst in able but unemployed youth as the common feeling is that their jobs are being taken away. The dominant castes of Ahirs and Jats have now become a minority in the Haryana due to the ingress of people from other parts of the country and even other countries like Nepal, Bangladesh and returnees from the Middle East. A local Haryanvi worker now is a wary, caste sensitive, politically aware, physically fit, communally active person who is unhappy because of the waning dominance of local people in the area. The representatives in the government have to address and work for the local voters first as it is their primary duty. Now this local protectionism cannot be perceived as a vote-bank politics and the expectations of the voters to get employment opportunities are thoroughly legitimate and are a matter of fundamental right under Art 21 of the Constitution. The state government can go for necessary enactments for the welfare of its citizens as the directive principles of state policy suggest so. In the case of local employment, the goal of employment assurance is a welfare goal of the state for the greater good.
Art 39 denotes certain principles of policy to be followed by the State. Art 39 (a), (b) and (c) describe the economic goals to be pursued by the state and gives it power to make laws to procure the same. The constitutional provisions under Art 39 are as follows:
The State shall, in particular, direct its policy towards securing
(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
Thus, the state has to balance the livelihood opportunities with the means of production to fulfil the aspirations of its electorate.
Along with migration and shelter related complications, the wages received are also minimal and most of the labour is underemployed. Having a labour surplus gives the industries a profit-making opportunity to produce at a cheaper cost. It’s an exploitation of human resources in disguise by capitalism. If an industry is located in one state, the state already has enough labour to be employed in that industry which is able to convert the inputs into final products. If there is a shortage in a particular district, it can be fulfilled from surrounding districts, keeping the migration flow within the state. If the state does not have adequate skilled labour (which is a possibility in less developed and remote regions), then only there will be a need of labour from outside.
The states in India already have a domicile clause for government jobs and for seats in higher education institutions which are run by the states. As states have grown to satisfy the need of creating medical and engineering colleges to provide the opportunity to the youth to pursue higher and professional education, they should focus on creating industry and service clusters in every constituency in order to support the livelihood of the labour class which will not need to migrate outside the state. In light of public private partnership, corporate social responsibility and foreign direct investments, it is the fundamental duty of each state to look for the opportunities to make itself self-sufficient to take care of its residents for the greater good, instead of leaving their fate in the hands of more developed states.
State Governments have played a major role in creating a conducive environment for MNCs in the states of Himachal Pradesh, Madhya Pradesh, Gujarat, Karnataka, Maharashtra, Andhra Pradesh, Rajasthan and Goa in addition to several union territories.It is an irony that states like UP & Bihar do not have such laws but still they are less industrialized.There is an urgent need to introspect and bring about a change in a theory-oriented profit-making strategy which the companies are prone to follow. Though the labour laws in India are in the favour of the workers, they do not ensure the employment in the first place. Therefore, it is the responsibility of the state government to take a suo motu action which is its constitutional right and a moral duty as well.
The act in Haryana is not talking about long term quota provision. In India, we know how to start a reservation quota but then it goes on and on, without being reviewed. The provision in the Act clearly states that the Act is applicable for ten years after its commencement and it would not be of a permanent nature. The intention of the act is to get the Haryana youth of working age and ability into the production and service sector of the economy and the actions of the government will surely follow its intention.
The Author is an Advocate Supreme court of India & National spokesperson of Jannayak Janta Party