Article 16 of the Indian Constitution

Article 16 of the Indian Constitution

Author-Naman Jain, Galgotias University

INTRODUCTION

All Indian citizens are guaranteed fundamental human rights under Part III of the Indian Constitution, and certain non-citizens are also entitled to these rights. These rights are referred to be “fundamental rights” because they are justified in nature and because anyone who feels that their rights have been violated may file a lawsuit. The United States Bill of Rights served as a major source of inspiration for those who drafted our Constitution, which established India’s fundamental rights.

This Article gives the outline for the appointment of employee in public office and the equality of opportunity for them. through this article the employment for general public is given to everyone without any kind of dispute as well as certain exception was also provided which was necessary for the public. The goal of Article 16 of the Indian Constitution is to give all people of the country equal opportunities for employment and official posts. The Article’s first two sentences make it clear that there will be no discrimination against Indian citizens in the workplace. These clauses establish equitable job opportunities by outlawing discrimination on the basis of religion, race, caste, gender, place of birth, or any other criteria.

Keywords (Minimum 5): Public Employment, Reservation, Promotion, SCs and STs,           

Reservation for EWS

Context of this Articles

(1) “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”[1]

(2) “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”

 (3)” Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office[2] [under the Government of, or any local or other authority within a state or Union Territory, any requirement as to residence within that state or Union Territory] prior to such employment or appointment”

(4) “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.  “[3][(4A) Nothing in this article shall prevent the State from making any provision for reservation [4][in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]”

“[5][(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.]”

(5) “Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”

[6](6) Nothing in this article shall prevent the State from making any provision for the reservation of appointment or post in favour of any economically weaker section of citizen other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of Ten Percent of the post in each Category.

Explanation of Articles

Article 16 (1) The right to equality of opportunity in matters pertaining to public employment is covered by Article 16 of the Indian Constitution. Only citizens of India are officially guaranteed this right. Equality of opportunity is guaranteed in situations pertaining to “appointment” or “employment” to any office under the State by Article 16 (1). It only applies to positions held by or associated with the State or Government.

Article 16(2) No citizen shall face discrimination in any employment or office under the State on the grounds of race, caste, gender, place of birth, residence, or descent,

Article 16 (3), the Parliament may pass any laws mandating residency in a state or union territory in order to be considered for a specific job or appointment within that state or union territory, as well as in local government or other authorities within it.

Article 16 (4) gives the State the authority to pass laws reserving positions in the public sector or jobs for people from underrepresented backgrounds, if the State determines that these groups have not been sufficiently represented in state services. The national government decided that the reservation in the advancement of SCs and STs should not be impacted and should continue, as the Indra Sawhney case exclusively pertains to the backward classes. But in order to allow the Parliament to reserve seats for SCs and STs in promotion positions, the 77th Amendment Act, 1995 was passed, adding clause 4-A to Article 16 of the Constitution.

By the 81st Amendment, 2000, Clause (4-B) was inserted to the Indian Constitution under Article 16 in place of Clause (4-A). It was added to the Constitution with the intention that the backlog of open positions that could not be filled in a previous year because there were no eligible candidates from the SEBC category would not be combined with the 50% reservation for SCs, STs, and Other Backward Classes on the total number of openings in the following year.

Article 16(5) law is excluded from the application of clauses (1) and (2), which stipulate that the occupant of any position must be qualified for appointment based on religion, under this clause

Article 16(6) The 103rd Amendment, 2019, which went into effect on January 14, 2019, added clause (6) to Article 16 and gave the State the authority to reserve some positions for members of the Economically Weaker Sections (EWS) of society when they are appointed to government positions. But these clauses, in addition to the current reservations, have to stay below the 10% cap.

Important Committees for this Article

  • Kalelkar Committee

Affirmative action for the “Depressed Classes,” or the Scheduled Castes and Tribes, was implemented after India obtained its independence. This program helped the most marginalized and backward sections of Indian society. Nevertheless, no benefits were provided, nor was there a list of the other backward classes in the nation, which, while not as politically and socially backward as the ST/SCs, were nevertheless marginalized in society and lagged behind forwarding castes in the areas of economic development, employment, and education. In 1953, the nation’s first Backward Classes Commission was established under the leadership of Kaka Kalelkar to solve this issue. The Kalelkar Commission was another name for this. [7] “When the commission submitted its findings in 1955, it said that there were 2399 backward groups in India, of whom 837 were considered to be “most backward,” and that caste was the main indicator of backwardness”. But the Union Government disregarded them because it wanted to eventually establish a casteless society. But this was Rejected by the Government due to some problems.

  • Indra Sawhney[8] Case known as Mandal Commission

In the well-known “Mandal Commission case,” Indra Sawhney v. Union of India, AIR 1993 SC 447, the Hon’ble Supreme Court carefully considered the parameters of Article 16(4) in this landmark decision.

The case’s facts were as follows:

  • Under Article 340, the government appointed the second backward classes commission on January 1, 1979, with Sri B.P. Mandal serving as its chair. This Commission was tasked with looking into the socially and educationally disadvantaged groups living on Indian territory and recommending to the government ways to help them progress, including the need to set aside funds for them to be given preference for positions in state employment.
  • In December 1980, the Commission published its report, which classified 3743 castes as socially and educationally inferior groups. Additionally, the Commission suggested that the government give these classes a 27% reservation.
  • In the meantime, the Congress Party took control of the Centre when internal disputes caused the collapse of the Janta Dal Government. It wasn’t until 1989 that the Congress Party carried out the Mandal Commission’s recommendations. After defeating the Congress Party in the legislative elections in 1989, Janta Dal reestablished its hold on power and decided to carry out the Commission’s report’s recommendations as promised to the voters.
  • Based on the Mandal commission report, the Indian government subsequently issued the Office Memoranda (OM) on August 13, 1990, reserving 27% of seats for members of the underprivileged classes in the State and Government services.
    Following the nation’s approval of the Mandal Commission Report, there was a violent anti-reservation movement that lasted for about three months and claimed a great deal of lives and property. The Supreme Court Bar Association simultaneously filed a writ petition, arguing that the OM was invalid and requesting a stay of execution. The Five-Judge Bench of the Court halted the OM’s operations until the case’s resolution, which was rendered on October 1, 1990.

Judgement for this Case

  • In rulings of 6:3 Justice B.P. Jeevan Reddy, C.J.I. M.H. Kania, M.N. Venkatachalam, A.M. Ahmadi, SR Pandian, and SB Sawant, along with the other members of the Supreme Court’s Constitution Bench, held that the Union Government’s decision to reserve 27% of government jobs for members of the lower classes was constitutionally valid as long as the socially advanced individuals—the creamy layer among them—were removed.
  • The Supreme Court clarified its position by ruling that seat reservations should be restricted to initial appointments only, not promotions, and that the overall reservation amount should not be more than 50%. The Congress Government’s OM, which reserved 10% of government posts for upper classes that were economically disadvantaged, was overruled by the Court. The majority also concurred that no more than 50% of the reservation should be made.
  • The scope and extent of Article 16(4) of the Indian Constitution were carefully scrutinized by the Court. It made clear the different points on which earlier courts had disagreed. The majority ruling of the Supreme Court can be summed up as follows:
  1. Caste is not the only factor to be taken into account when identifying a backward class of individuals, as stated in Article 16 Clause 4; nonetheless, caste cannot be the exclusive foundation for consideration.
  2. According to the majority, Article 16(4) of the Constitution is an independent clause rather than an exception to Article 16(1). Instead, similar to the Doctrine of Equality stated under Article 14, reservations may be made under clause (1) of Article 16 on the basis of reasonable classification.
  3. It is necessary to remove the creamy layer from the lower grades.
  4. It was found that the backward classes may be categorized as “backward and more backward” under Article 16(4) of the Constitution. The argument went on to say that classifying citizens as backward only on the basis of their economic status would undermine the very goal of Article 16(4), which is to give underrepresented groups adequate representation in state services to alleviate or elevate them as well as to give those who have been excluded from state power due to social, educational, and economic backwardness their rightful share.
  5. Backward class reservations cannot be made for more than 50% of the total.
  6. A provision enacted pursuant to Article 16(4) may only be implemented by executive order, subject to parliamentary approval.
  7. Not to be reserved for promotions.
  8. The Union government, State governments, and Union territories have appointed a permanent statutory committee to look into complaints regarding the inclusion or exclusion of certain groups, sectors, and classes from the list of other backward classes.
  9. About the Mandal Commission Report, no viewpoint was voiced.
  10. Rule laid down in this Article
  11. Carry forward Rule

In [9]“T. Devadasan v. Union of India” the Supreme Court examined the application of Article 16(4) (1964). In this instance, the question was whether the government’s “carry forward rule,” which governed the appointment of members of the underprivileged classes to positions involving state services, was constitutionally valid. According to this rule, any unfilled positions would be considered unreserved and would be filled by newly available candidates if a sufficient number of candidates from the SC and ST classes were not available for appointment to the reserved quota.

In addition to their reserved quota for the following year, a corresponding number of posts would be reserved for SCs and STs in the following year. As a result, the unused balance and open positions from the second and third years were carried over all at once. In reality, SCs and STs were allocated 68% of the available positions. The carry forward rule was declared unconstitutional by the Honourable Supreme Court, which ruled 4:1 that the government could not use its authority under Article 16(4) to deny members of classes other than the backward classes a reasonable opportunity in matters of public employment.

“The Hon’ble Supreme Court, in Indra Sawhney v. Union of India, overruled Devadasan v. Union of India on the point and held the “carry forward rule” valid as long as it did not, in a particular year, exceed 50 percent of vacancies.”

  • Catch Up Rule

[10]Following the constitutional recognition of reservation in promotion, the reserved category candidates who were promoted ahead of their general class counterparts became their seniors due to their earlier promotion. The Hon’ble Supreme Court addressed this anomaly by introducing the concept of a catch-up rule in two cases: [11]Union of India v. Virpal Singh (1995) and [12]Ajit Singh v. State of Punjab (1996). According to this rule, the senior general category candidates who were promoted after SC/ST candidates would regain their seniority over general category candidates who were promoted earlier.

Candidates in the reserved category can keep their seniority over their counterparts in the general category through consequential seniority. To put it another way, the State may stipulate that a candidate who was promoted ahead of time due to the reservation rule will not be entitled to seniority over his senior in the general category and that a general candidate who was promoted ahead of him will regain his seniority over the reserved candidate even if he is promoted later to the reserved candidate.

The ideas of consequential seniority and the catch-up rule are neither implicit in Article 16 clauses (1) and (4), nor are they constitutional constraints. Neither are they constitutional requirements. Articles 14, 15, and 16 of the Constitution establish an equality law that remains unchanged even if these regulations are eliminated. Article 16’s clause (1) cannot stop the state from considering the compelling interests of the socially excluded. Article 16’s clause (4) relates to affirmative action through reservation, which allows the government to grant reserve if it determines that there is insufficient representation of underrepresented classes in the service based on verifiable statistics.

CONCLUSION & COMMENTS

The most significant fundamental right guaranteed to every person by the Indian Constitution is the right to equality. By elevating particular societal segments or classes, it seeks to accomplish social and economic fairness. Equal opportunity is guaranteed by Article 16 when it comes to hiring or appointment to positions in the government. The drafting committee did, however, substitute several measures for a reservation of government posts for members of the socially and educationally backward classes (SEBC) of society.

By bringing them forward and offering them the chance to represent in state jobs, the same aimed to give opportunities to those who have always been in the dark (i.e., the vulnerable sections of society), who had previously been outside the state administration. The Indian Constitution was drafted with consideration for the inequality that existed at the time, which peaked in the 1990s. They saw that the nation was separated into two classes: the rich and the backward, and that these provisions were necessary to bring the two classes together and promote the nation’s general development.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. “The Constitution of India”
  2. Online Articles / Sources Referred
    1. https://legislative.gov.in/constitution-of-india/
    2. https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
    3. https://byjus.com/free-ias-prep/right-to-equality/
    4. https://blog.ipleaders.in/article-16-of-indian-constitution/
    5. https://lawbhoomi.com/equality-of-opportunity-in-matters-of-public-employment-under-article-16/
  3. Cases Referred
    1. Indra Sawhney v. Union of India, AIR 1993 SC 447
    2. Devadasan v. Union of India, (1964) 4 SCR 680
    3. Union of India vs Virpal Singh 1996 AIR 448
    4. Ajeet Singh vs State of Punjab SLP (Crl.) no.147 of 2017)

[1]https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf

[2] Substituted by the Constitution 7th Amendment

[3] Inserted by the constitution through 77th Amendment

[4] Substituted By the Constitution through 85th Amendment

[5] Inserted By the Constitution through 81st Amendment

[6] Inserted By the Constitution through 103rd Amendment

[7] https://www.ncbc.nic.in/Writereaddata/AR%202012-13%20Pandey635705824205955927.pdf

[8] Indra Sawhney v. Union of India, AIR 1993 SC 447

[9] Devadasan v. Union of India, (1964) 4 SCR 680

[10] https://blog.ipleaders.in/article-16-of-indian-constitution/

[11]Union of India vs Virpal Singh 1996 AIR 448

[12] Ajeet Singh vs State of Punjab SLP (Crl.) no.147 of 2017)

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