No State Or Provincial Domicile Reservation In India

All Indians Have Only One Domicile- 'Domicile Of India'; No State Or Provincial Domicile In Our Legal System : Supreme Court

The Supreme Court observed that the concept of regional or provincial domicile is alien to the Indian legal system. All citizens of the country carry a single domicile, which is the "domicile of India", the Court added. The Court made these significant observations while declaring that residence-based eservations in PG medical admissions are impermissible as they are unconstitutional. It observed that the concept of domicile acquires importance only when within a country there are different laws or more precisely different systems of law operating. However, this is not the situation in India.

Each citizen of this country carries with him or her, one single domicile which is the 'Domicile of India'. The concept of regional or provincial domicile is alien to the Indian legal system," observed the bench comprising Justice Hrishikesh Roy, Justice Sudhanshu Dhulia and Justice SVN Bhatti. Reference was made to the Pradeep Jain vs Union of India (1984) judgment which held that the term 'domicile' is often used wrongly by State Governments to denote 'permanent residence'. 'Domicile' is primarily a legal concept for the purposes of determining what is the 'personal law' applicable to an individual.

The judgment authored by Justice Dhulia, after discussing Pradeep Jain and also the judgment of the Bombay High Court authored by Justice MC Chagla in The State v. Narayandas Mangilal Dayame reported in AIR 1958 Bombay 68, observed : "In short, the very concept of a provincial or state domicile in India is a misconception. There is only one domicile in India, which we refer to as domicile in the territory of India as given under Article 5. All Indians have only one domicile, which is the Domicile of India."

The judgment explained that permanent residence or residence has a meaning which is different from that of 'domicile'. Article 15 of the Constitution prohibits State from discriminating citizens based on the place of residence. State cannot grant reservation in public employment on the basis of residence in that State. The exception carved out under Clause 3 of Article 16, enables only the Parliament to make a law prescribing a requirement of residence for State employment.
The judgment referred to Constituent Assembly Debates on whether residence in a State should be a criterion for appointment in government service of that State. The overwhelming opinion was it should not be. Since there is one citizenship, a citizen should have a right to reside anywhere in the country and similarly seek a job anywhere in the country, this was the dominant feeling.

The judgment noted that it was ultimately decided by the Constitution-makers that residence cannot be a ground for discrimination in matters relating to employment, but in situations which necessarily demand prescription of residence within any State or UT as an essential qualification, it should be the Parliament (and not State legislatures) which should be empowered to make a law for that purpose, so that there is a uniformity throughout India on this.
In this backdrop, the Court stated :

"We are all domiciled in the territory of India. We are all residents of India. Our common bond as citizens and residents of one country gives us the right not only to choose our residence anywhere in India, but also gives us the right to carry on trade & business or a profession anywhere in India. It also gives us the right to seek admission in educational institutions across India."

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