SUMAN K SHRIVASTAVA
Ranchi, December 30: Jharkhand came into being with a powerful sense of self. The movement for a separate State drew its moral force from the idea of moolvasi—the original inhabitants whose land, forests, language, and dignity had long been marginalised. Statehood in November 2000 was meant to correct that historical imbalance. Yet almost immediately, the newborn State found itself entangled in a dilemma that would come to haunt both its politics and its constitutional imagination: who truly belongs to Jharkhand?
This question did not surface decades later, after institutions had matured. It arose at the very threshold of statehood, even before governance had found its rhythm. Few episodes capture this early constitutional unease more vividly than the controversy surrounding the appointment of Jharkhand’s first Lokayukta—an episode that unfolded not merely as an administrative impasse, but as a searching judicial inquiry into the meaning and limits of domicile.
An Institution Without a Watchdog
Soon after its formation, Jharkhand adopted the Bihar Lokayukta Act, 1973, rechristening it as the Jharkhand Lokayukta Act, 2001. The Lokayukta was envisioned as the moral sentinel of the new State—an independent authority empowered to investigate allegations against ministers and senior officials. Yet months turned into years without an appointment.
What initially appeared to be a bureaucratic delay gradually revealed deeper currents. Files shuttled between the Secretariat, Raj Bhavan, and the offices of constitutional authorities. Assurances were given to the High Court that “the process was underway.” Deadlines were sought and missed. Beneath this procedural drift lay a growing insistence within the political executive: the Lokayukta of Jharkhand must be a domicile of the State.
In a State born out of demands for self-rule and historical redress, the claim carried emotional resonance. But emotion, as the Court would soon remind, is not a constitutional category.
Consultation or Control?
The Lokayukta Act required the Governor to appoint the Lokayukta after consultation with the Chief Justice of the High Court and the Leader of the Opposition. Under the constitutional scheme, the Chief Minister, as head of the Council of Ministers, inevitably figured into the process through the doctrine of aid and advice.
The problem arose when consultation began to resemble control.
Initially, the Chief Minister proposed the names of two retired judges. The Leader of the Opposition objected—less on merit than on the ground that they were “outsiders.” The process stalled without even engaging the Chief Justice. Later, a collegium comprising the Chief Minister, the Chief Justice, and the Leader of the Opposition unanimously agreed upon Justice A.K. Srivastava, a retired judge of the Allahabad and Delhi High Courts.
Ordinarily, such unanimity among constitutional functionaries would have concluded the matter. Instead, it reopened it.
The Council of Ministers intervened, deferred the appointment, and passed a resolution that the Lokayukta must be a domicile of Jharkhand. The file was returned for reconsideration. Another name—Justice Loknath Prasad—was then proposed, this time through correspondence rather than collective deliberation. The Chief Justice disagreed. Consultation became fragmented, procedural, and hollow.
What emerged was not merely administrative irregularity, but a deeper constitutional misstep: an attempt to insert a qualification—domicile—that the statute itself did not recognise.
The Court Steps In
Public interest litigation brought the impasse before the Jharkhand High Court. Justice M.Y. Eqbal, with Justice S.J. Mukhopadhaya concurring, approached the dispute not as a narrow procedural failure, but as a constitutional lesson for a fledgling State.
The Court reaffirmed a foundational principle of parliamentary democracy: the Governor acts on the aid and advice of the Council of Ministers, except where the Constitution expressly provides otherwise. The power to appoint the Lokayukta, though vested in the Governor by statute, remained an executive function bound by constitutional discipline.
At the same time, the Court made it clear that consultation is neither concurrence nor a ritual. It cannot be reduced to circulating a single name, nor manipulated to sideline one constitutional authority while empowering another.
The heart of the judgment lay in its firm rejection of the domicile condition.
The Court held that neither the Bihar Lokayukta Act nor its Jharkhand adaptation imposed any requirement of State domicile. More fundamentally, it drew upon settled Supreme Court jurisprudence to reiterate a constitutional truth: India recognises only one domicile—domicile in India. States may administer within their territories, but they cannot invent sub-national domiciles to regulate eligibility for constitutional or statutory offices.
The insistence that only a Jharkhand domicile could be appointed Lokayukta was declared wholly unconstitutional.
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Justice Mukhopadhaya added a cautionary note that went beyond doctrine into democratic ethics. The Lokayukta, he observed, was meant to scrutinise the very Council of Ministers attempting to shape his eligibility. Any effort to mould the institution for political convenience struck at its very purpose.
A Reset, Not a Resolution
The Court did not appoint a Lokayukta itself. Instead, it ordered the State to begin afresh—to follow the Constitution and the statute in both letter and spirit—and to complete the process within a fixed timeframe.
It was a judicial reset, not a final closure. Statehood, the Court implied, did not permit constitutional reinvention.
And indeed, the deeper anxiety did not dissipate. The idea of domicile, once invoked, refused to recede.
The Same Question, Repeated
Soon thereafter, Jharkhand’s judiciary confronted the domicile issue more directly. A Full Bench examined whether the State could grant residence-based preferences in public employment through executive notifications or State legislation.
The answer was categorical.
The Court held that only Parliament, under Article 16(3) of the Constitution, has the authority to prescribe residence-based conditions for public employment. In the absence of such Parliamentary enactment, any attempt by a State to privilege “locals” or “residents” exceeded constitutional limits. Equality of opportunity under Article 16 could not be diluted by executive or legislative assertions of domicile.
The principle was clear and enduring: identity cannot substitute constitutional authority.
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An Echo in the Present
More than two decades later, the same fault line resurfaced—this time on the floor of the Jharkhand Assembly. In December 2023, the Assembly passed a domicile policy bill reaffirming the 1932 khatian as the basis for identifying “locals” for Class III and Class IV government jobs. The stated aim was to protect the rights of Moolvasis. The Governor had earlier returned the Bill for reconsideration, citing constitutional concerns. The State government chose not to amend it and passed it again.
The language had evolved. The anxiety had not.
Once again, Jharkhand sought to address historical injustice through the instrument of domicile—and once again, it raised profound constitutional questions about equality, State power, and the meaning of citizenship in a Union that recognises only one domicile.
Lokayukta as a Constitutional Mirror
The Lokayukta controversy was never merely about appointing an ombudsman. It marked Jharkhand’s first constitutional encounter with the temptation to convert identity into legal entitlement. From the earliest days of statehood, domicile emerged as both a political promise and a constitutional problem.
Jharkhand’s courts, from the Lokayukta judgment to later Full Bench rulings, consistently drew the same red line: belonging cannot be constitutionalised by executive will alone.
In that sense, the Lokayukta became a mirror—reflecting Jharkhand’s deepest anxieties about identity, autonomy, and justice, while reminding the State that even the most compelling historical claims must ultimately answer to the Constitution.
