Article 16 of Indian
Constitution
Article 16 of
the Indian Constitution covers the right to equality of opportunity in matters
relating to public employment. This right is specifically guaranteed to Indian
citizens only. Article 16 (1) guarantees equality of opportunity in matters
relating to ‘appointment’ or ’employment’ to any post under the State. It is
applicable only to offices or employment relating to or held by the
Government/State.
Article
16(2) states that no citizen shall be discriminated against in any employment
or office under the State on the basis of race, caste, gender, place of birth,
residence, or descent. Article 16 clause (1) provides for the general rule
which entails that there shall be equality in appointment in public sector jobs
and there shall be no discrimination for such employment under the State, only
on the grounds of religion, caste, race, sex, place of birth, descent or
residence. Furthermore, Article 16 (1) and (2) are only applicable to State
appointments or employment. Clauses (3), (4), (4-A), (4-B) and (5) of Article
16 of the Indian Constitution provide for exceptions to the general rule of
equality of opportunity.
Clause
(3) of Article 16 states that the Parliament can enact any legislation
requiring residence in a state or union territory as a pre-condition for particular
employment or appointments in the respective state or union territory or in
local authorities or other authorities within that state or union territory.
Clause
(4) of Article 16 provides that the State can enact legislation for the
reservation of posts in the government sector or jobs in favour of the backward
classes of citizens, which the State considers to have not been adequately
represented in the services of the State. The central government took the view
that since the Indra Sawhney case relates to the backward classes only, the
reservation in the promotion of SCs and STs should not be affected and shall
continue. However, the Parliament enacted the 77th Amendment Act, 1995 and
added clause 4-A to Article 16 of the Constitution, thereby enabling the
Parliament to make provisions for reservation for SCs and STs in promotion
posts. This simply meant that even after the judgement of mandal case, the
reservation in promotion in government jobs, shall continue.
Clause
(4-B) was added after Clause (4-A) to the Indian Constitution under Article 16
by way of 81st Amendment, 2000. It
was added to the Constitution with the intent that the backlog vacancies which
could not be filled due to unavailability of eligible candidates of the SEBC
category in a previous or preceding year, shall not be clubbed with the 50
percent reservation for the SCs and STs and Other Backward Classes on the total
number of vacancies in the next year.
Clause
(5) exempts a law from the application of clauses (1) and (2), which require
the incumbent of any office to be religiously qualified for appointment.
Clause
(6) was added to Article 16 by the 103rd Amendment, 2019, which came into effect
on January 14, 2019,
and empowers the State to make various provisions for reservation in
appointments of members of the Economically Weaker Sections (EWS) of society to
government posts. However, these provisions must be within the 10% ceiling, in
addition to the existing reservations.
Important aspects of
Article 16 of Indian Constitution
One
Hundred and Third Amendment Act, 2019
By
way of the 103rd constitutional amendment, Clause (6) was inserted in Article
15 and Article 16, which came into effect on January 14, 2019.
Article 15(6) of
the Indian Constitution empowers the State to make special provisions for the
advancement of economically weaker citizens of India. These special provisions
would help the economically weaker sections of the society in obtaining
admissions in educational institutions including private institutes, either
aided or non-aided by the State. Whereas, the amendment to Article 16(6) of
the Constitution empowers the State to make provisions for reservation of the
economically weaker citizens of the society, except the classes already
reserved, in appointment in State jobs or Govt. posts. It must be noted that
the reservation under both the newly added clauses, under Article 15(6) and
Article 16(6), shall be subject to a maximum of 10% in addition to the existing
reservations for SCs, STs, and non-creamy layer OBCs. Furthermore, the term
‘economically weaker sections’ mentioned under Articles 15(6) and 16(6) shall
be the citizens who shall be culled out based on the income of the family and
various other indicators of economic disadvantage by the State on a regular
basis.
The
103rd Amendment was challenged on the ground of being violative of the basic
structure of the Indian Constitution in Janhit Abhiyan v. Union of India, (2022).
However, by a majority of 3:2, the amendment was held to be constitutionally
valid. Justice Maheshwari explained that reservation is not only affirmative
actions or measures to counter social and educational backwardness; instead,
they help in fighting different kinds of disadvantages. The majority also held
that a 10% EWS reservation above the existing 50% reservation limit, as
established in Indra Sawhney Case,
is constitutional. Furthermore, all three judges agreed that the 50% limit is
flexible and may be exceeded, but only in exceptional circumstances. They
further discovered that the 50% limit would be applicable only to reservations
for socially and educationally backward classes and not to the rest.
Descent and Residence under Clause (2) of Article 16
Under
clause (2) of Article
16 of the Indian Constitution, the words – “descent” and
“residence” were added, thereby guaranteeing that no discrimination can be made
on these grounds. ‘Descent’ is another reason for individual discrimination. In
the case of Gazula Dasaratha Rama Rao v. State (1961),
the Hon’ble Supreme Court held that the office of the village Munsif was an
office under the State and that Section 6(1) of
the Madras Act, which required the Collector to select persons from among the
last holders of the office, discriminated on the grounds of descent only and
was hence void for contravening Article 16(2).
Residence
can be a ground for reservation
Clause
(3) of Article 16 is an exception to Clause (2) of this Article, which
prohibits discrimination based on residence. However, there may be compelling
reasons for reserving certain posts in the office of the State for residents
only. This Article empowers the Parliament to legislate the extent to which a
State may deviate from the preceding principle. In the exercise of powers
conferred by Article 16(3), the Parliament has enacted the Public
Employment (Requirement as to Residence) Act 1957. It states that no
one can be disqualified because they are not a resident of a particular state,
though the Act makes an exception for employment in Tripura, Himachal Pradesh,
Manipur, and Telangana. This exception is for a period of five years due to the
backwardness of these areas.
Reservation for backward classes
Clause
(4) of Article 16 is another exception to the general rule established in
Article 16 clauses (1) and (2). It empowers the State to make special
provisions for the reservation of appointments for posts in favour of the
backward class of people who, in the opinion of the State, are underrepresented
in the State’s services. Thus, Article 16(4) is applicable only if the
following two conditions are met:
1.
The class of citizens is backward, and the said class is
underrepresented in State services;
2.
The class of citizens is underrepresented in State services.
Catch-up rule and consequential
seniority
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: Union of India v. Virpal Singh (1995) and 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.
Consequential
seniority allows reserved category candidates to maintain seniority over
general category peers. In other words, it is open to the State to provide that
the candidate promoted earlier by way of the reservation rule shall not be
entitled to seniority over his senior in the general category and that as and
when a general candidate who was senior to him is promoted, he will regain his
seniority over the reserved candidate notwithstanding that he is promoted
subsequently to the reserved candidate.
The
concepts of catch-up rule and consequential seniority are not constitutional
requirements; neither are they implied in Article 16 clauses (1) and (4), nor
are they constitutional limitations. Obliteration of these rules does not
change the equality code indicated by Articles 14, 15, and 16 of the
Constitution. Clause (1) of Article 16 cannot prevent the state from taking
cognizance of the compelling interests of backward classes in society. Clause
(4) of Article 16 refers to affirmative actions by way of reservation, under
which the government is free to provide reservation if it is satisfied on the
basis of quantifiable data that backward classes are inadequately represented
in the service. Therefore, in every case where the States decide to provide
reservation, there must be two circumstances, namely, “backwardness” and
“inadequacy of representation.” These limitations have not been removed by the
impugned amendments. If the States fail to apply these tests, the reservation
would be invalid. These amendments do not alter the structure of Articles 14,
15 and 16 (Equality Code). The parameters mentioned in Article 16 (4) are
retained. These amendments do not change the identity of the Constitution.
Carry forward rule
The
Supreme Court considered the scope of Article 16(4) in T. Devadasan v. Union
of India (1964). In this
case, the constitutional validity of the “carry forward rule” which was framed
by the government to regulate the appointment of people from the backward
classes where state services were involved, was at issue. This rule states that
in case a sufficient number of candidates belonging to the SCs and STs classes
were not available for appointment to the reserved quota, then the vacancies
that remained unfilled would be treated as unreserved and would be filled by
the fresh available candidates; however, a corresponding number of posts would
be reserved in the next year for SCs and STs in addition to their reserved
quota for the next year. The result was to carry forward the unutilised balance
and unfilled vacancies in the second and third years at one time. In actuality,
68 percent of the vacancies were reserved for SCs and STs. The Hon’ble Supreme
Court, by a 4:1 majority, had struck down the carry forward rule, declaring it
unconstitutional on the ground that the power vested in government under
Article 16(4) cannot be exercised in order to deny reasonable equality of
opportunity pertaining to matters of public employment for members of classes
other than backward classes. The Court said that recruitment must be considered
each year, and the reservation for backward communities each year should not be
excessive enough to create a monopoly or interfere unduly with other
communities’ legitimate claims. Accordingly, the Court held that the
reservation ought to be less than 50 percent, but how much less than half would
depend upon the prevailing circumstances in each case.
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. The 50% limit can only be
exceeded in extraordinary situations prevailing in a State, i.e., far-flung
states such as Nagaland, etc.
Evolution
of Article 16 of the Indian Constitution
The Mandal Commission Case
In Indra Sawhney v. Union
of India, AIR 1993 SC 447, popularly known as the “Mandal
Commission case” the Hon’ble Supreme Court thoroughly examined the scope and
extent of Article 16(4) in this historic case.
Facts
The
following were the facts of the case:
·On
January 1, 1979, the government appointed the second backward classes
commission under Article
340, chaired by Sri B.P. Mandal. This Commission was charged with
investigating the socially and educationally backward classes within Indian territory
and making recommendations to the government for their advancement, including
the necessity of making provisions for the reservation of seats in State jobs
for them.
·The
Commission issued its report in December 1980, identifying 3743 castes as socially
and educationally backward classes. The Commission also recommended that the
government grant these castes 27 percent reservation.
·Meanwhile,
the Janta Dal Government collapsed due to internal dissension, and the Congress
Party came into power in the Centre. The Congress Party did not implement the
recommendations given in the report of the Mandal Commission until 1989. In
1989, Janta Dal again came into power after defeating the Congress Party in the
parliamentary elections and, thereby, decided to implement the recommendations
of the Commissions report as promised to the electorate.
·The
Government of India accordingly issued the Office Memoranda (also called OM) on
August 13, 1990, thereby reserving 27 percent of seats for backward classes in
the State/Government services, based on the Mandal commission report.
·The
acceptance of the Mandal Commission Report resulted in a violent anti-reservation
movement in the nation which went on for nearly three months, causing a huge
loss of persons and property. Simultaneously, the Supreme Court Bar Association
filed a writ petition challenging the validity of the OM and seeking a stay of
execution. The Court’s Five-Judge Bench stayed the operation of the OM till the
finality of the case, a judgment of which came on October 1, 1990.
·Subsequently,
on September 25, 1991, the Government issued another Office Memorandum and made
two changes to the OM issued on August 13, 1990:
(i)
by incorporating an economic criterion for granting reservation by giving
preference to the poorer sections of Socially & Economically Backward
Classes in the 27% quota, and
(ii)
reserving an additional 10% of vacancies for other Socially and Educationally
Backward Classes ( or SEBCs) economically backward sections of higher castes.
Separately, the economic criterion was to be specified.
·The
matter was referred to a special Constitution Bench of 9 Judges due to the
importance of finally settling the legal position relating to reservations as
in several previous judgments, the Supreme Court did not speak in the same
voice on this issue. Despite various adjournments, the Union Government failed
to submit the economic criteria outlined in the September 25, 1991, Official
Memorandum.
Judgment
·A 6:3
majority of the Supreme Court’s Constitution Bench (Justice B.P. Jeevan Reddy,
C.J.I. M.H. Kania, M.N. Venkatachaliah, and A.M. Ahmadi, with SR Pandian and SB
Sawant) held in separate judgments that the Union Government’s decision to
reserve 27% government jobs for backward classes was constitutionally valid
provided socially advanced persons— the creamy layer among them— were
eliminated.
·While
clarifying its stance, the Supreme Court stated that reservations of seats
should be limited to initial appointments rather than promotions, and the total
reservation should not exceed 50%. The Court overturned the Congress
Government’s OM reserving 10% of government jobs for economically backward classes
among higher classes. The majority also agreed that the reservation should not
exceed 50%. While 50% shall be the rule, certain extraordinary situations
inherent in this country’s and its people’s great diversity must not be
overlooked. In such a case, some relaxation of this rule may be required.
·The
Court thoroughly examined the scope and extent of Article 16(4) of the Indian
Constitution. It clarified the various issues on which there had been
disagreements in previous decisions. The Supreme Court’s majority opinion can
be summarised as follows:
1.
In Article 16 Clause (4), a backward class of citizens can be
identified based on caste rather than on an economic basis, but caste cannot be
the sole basis for consideration.
2.
The majority held that Article 16(4) is no exception to article
16(1) of the Constitution but an independent clause. Instead, reservation can
be made under clause (1) of article 16 on the basis of reasonable
classification, just like the Doctrine of Equality enshrined under Article 14.
3.
Backward classes under Article 16(4) are not similar to the
socially and educationally backwardness prescribed under Article 15(4) of the
Constitution. The majority in this regard has held that the backward classes of
citizens contemplated under Article 16(4) are not the same as those referred to
under Article 15(4) as socially and educationally backward classes. It is much
wider. Clause (4) under Article 16 of the Constitution does not contain the
qualifying words “socially and educationally”, as is Clause (4) of Article 15.
The “backward class of citizens” under Clause (4) of Article 16 takes in SCs
and STs and all other backward classes (OBCs) of citizens, including the
socially and educationally backward classes. As a result, while certain classes
may not qualify under Article 15(4), they may qualify under Article 16(4).
Accordingly, the Court overruled the Balaji v. State of
Mysore (1963) case, which held that the backward class of
citizens mentioned in Clause (4) of Article 16 is similar to the socially and
educationally backward classes, SCs and STs mentioned in Article 15(4). The
Court ruled that it is not necessary for a class to be labelled as backward if it
is geographically located similarly to the SCs and STs.
4.
The exclusion of the creamy layer from the backward classes must
be done.
5.
It was determined that Article 16(4) of the Constitution allows
for the classification of backward classes as “backward and more backward.”
6.
It was further held that identifying backward classes of
citizens solely on the basis of economic criteria would defeat the very purpose
of Article 16(4), which is to provide adequate representation of backward
classes in State services in order to not only alleviate or uplift them but
also to give that due share in state power to those who have remained out of it
primarily due to their social, and thus educational and economic backwardness.
7.
The reservation of backward classes shall not exceed 50 percent.
8.
A provision under Article 16(4) can only be made by executive
order and must be approved by Parliament.
9.
No reservation in promotions.
10. Appointment
of a permanent statutory body by the Union government, State Governments, and
Union Territories to investigate complaints about the incorrect inclusion or
exclusion of various groups, sections, and classes from the list of other
backward classes.
11. No
opinion was expressed with respect to the Mandal Commission Report.
12. The
Court further clarified that all the objections with respect to the criteria
evolved by the Central and State Governments for exclusion of socially advanced
persons, creamy layer, from the other backward classes would be preferred
before the Supreme Court only and not before any High Court or tribunal.
The 77th Amendment Act, 1995
The
Parliament enacted the Constitution 77th
Amendment Act, 1995, in order to bypass the Court’s ruling on the
point of no reservation in promotions in government service.
This
Amendment added a new Clause (4-A) to Article 16 of the Constitution, which
states that the State has the authority to make provisions for reservations in
matters of promotion in favour of SCs and STs if the State believes they are
underrepresented in State services.
Therefore,
with the intent of reservation in matters concerning the promotion of SCs and
STs, Clause (4) was inserted in Article 16 of the Constitution by the 77th
Amendment. Clause (4) states that “nothing in Article 16 of the Indian
Constitution shall prevent the State from enacting any provision for
reservation in matters concerning promotion in favour of the Scheduled Castes
and Scheduled Tribes in any state or Government related job”. Thus, the
reservation in promotion in government jobs will continue in favour of SCs
& STs even after the verdict of the Indra Sawhney case if the government
wants to do so.
The 81st Amendment Act, 2000
The
Supreme Court ruled in Indra Sawhney v. Union
of India that the 50% limit would apply to both current
and backlog vacancies. The eighty-first amendment added a new clause (4-B) in
Article 16 after Clause (4-A), removing the 50% ceiling on reservation for
SCs/STs and OBCs in backlog vacancies that could not be filled in previous
years due to a lack of qualified candidates. According to Art. 16, clause
(4-B), vacancies that could not be filled in previous years are treated as a
separate class of vacancies and will be filled in any succeeding years and are
not considered together with the vacancies of the year or years, even if they
exceed the 50% limit.
The 85th Amendment Act, 2001
The
Amendment changed the words “in matters of promotion to any class” in Clause
4-A to “in matters of promotion, with consequential seniority, to any class.”
This Amendment aimed to extend the benefit of reservation in favour of the
SC/ST in matters of promotion with consequential seniority, effective from
April 1995, when the 77th Amendment to the Constitution was enacted.
The
Hon’ble Supreme Court unanimously held in M. Nagaraj v. Union of
India AIR 2007 SC 71 that the provisions under Article
16(4A) and 16(4B) flow from Article 16(4), which do not alter the basic
structure of Article 16(4) and are valid. It also stated that the insertion of
Clauses (4A) and (4B) into Article 16 does not change Article 16(4) of the
Constitution. It was stated that the aforementioned amendments to the Indian
Constitution providing for reservations are enabling provisions that do not
change the structure of Article 16. (4). They aid in the retention of the
controlling factors, namely backwardness and inadequacy of representation,
allowing the State to provide for reservation while keeping the overall
efficiency of the State administration in mind under Article 335. These
amendments apply only to SCs and STs and do not repeal constitutional
requirements such as the 50% ceiling limit (quantitative limitation),
sub-classification of OBCs, SCs, and STs, and the concept of creamy layer
(qualitative exclusion).
In Jarnail Singh v. Lachhmi Narain Gupta (2018),
the Hon’ble Supreme Court, by a larger bench of 7 judges, struck down its
backwardness criterion, held in the Nagaraj case, however,
introduced the principle of creamy layer exclusion. It was held that the creamy
layer exclusion shall extend to SCs/STs, however, the state cannot grant
reservations in the promotion to SC/ST individuals who are members of their
community’s creamy layer.
Expert Report on
‘Creamy Layer’
The
expert committee, known as the Justice Ram Nandan Committee, was appointed by
the Union government in lieu of the Supreme Court’s direction in the case of Indra Sawhney v. Union
of India. This Committee was responsible for identifying the
“creamy layer” among the socially and educationally backward classes (or the
“SEBC”). The report was
submitted by the Committee on March 16, 1993, and was then accepted by the
Union Government. The report helps in differentiating the “creamy layer” among
the SEBC and excluding it from the list of Mandal beneficiaries. Furthermore,
the Commission had also developed a mechanism to determine the criteria that
would be applicable to distinguish the creamy layer from other backward
classes.
The
report suggests that certain constitutional posts qualify for the rule of
exclusion, including the posts of President, Vice President, Judges of High
Courts and the Supreme Court, Chairman and members of UPSC and State PSC,
Comptroller and Auditor General of India, Chief Election Commissioners,
Governors, Ministers, and Members of Legislatures. This exclusion rule includes
class I officers of the Union and State services, the armed forces, public
sector undertakings, paramilitary forces, etc. This reservation does not apply
to children whose parents work in trades, industries, or professions such as
medical professionals, law, income tax consultancy, sports professionals,
chartered accountancy, engineering, financial or management consultancy, or are
film artists or are involved in any other film profession, or are playwrights,
media professionals, authors, media, or any other vocations of similar status,
etc.
Disabled Candidates
In
the case of Rajeev Kumar v. Union of India (2016), it
was held by the Hon’ble Supreme Court that the no reservation rule in
promotions, as laid down in the Indra Sawhney case, has
no applicability to citizens with disabilities.
The
Indian Constitution provides for the right to equality under Article 14, which has two sub-categories,
namely, equality before the law and equal protection of the law. As the name
suggests, equality before the law means “everyone is equal before the eyes of
the law and shall thus be treated equally.” However, equal
protection of the law means “likes be treated alike but unlike
shall not be treated alike“. For instance, in an examination, the
time duration is two hours for students with no disability, but it is four
hours for blind students. This is “reasonable discrimination,” which is
to bring the unequal to the same pedestal as the equals and then treat them
equally.
Furthermore,
the Constitution provides for the reservation of disabled citizens in State
services under Clauses (1) and (2) of Article 15. Also, Article
29 (2) of the Constitution provides for similar rights for
disabled citizens in matters concerning education. It states under the Article
that no citizen shall be denied admission to any educational institution that
is either maintained by the State or receives any aid from the State, only on
the ground of disability.
Relationship between
Article 15(4) and Article 16(4) of Indian Constitution
It
should be noted that the guarantee against discrimination under Article 16 is
limited to employment and appointment under the State. However, Article 15 is
more general and addresses all cases of discrimination that do not fall under
Article 16. Article 16 embodies the specific application of the general rule of
equality established in Article 14 with regard to appointment and employment under
the State.
According
to a cursory reading of Articles 15 and 16, clause (4) of Article 15 appears to
be an exception to the rest of the provisions of that article, as well as
clause (2) of Article 29 and clause (4) of Article 16.
Article
29(2) of the Constitution falls within the ambit of ‘Cultural and Educational
Rights, which prohibits denial of admission to any citizen ‘into any
educational institution which is either owned by the State or is maintained by
the State or receives aid from the State funds, on grounds only of religion,
caste, race, language, or any of them.”
In
other words, clause (4) of Article 15 allows what the rest of the article or
clause (2) of Article 29 prohibits, i.e., to say that, Article 15(4) empowers
the State to make provisions for the advancement of socially and educationally
backward classes or the SCs and STs, however, Article 29(2) prohibits denial of
admission in any educational institution on the grounds of religion, caste,
race, language, etc. Furthermore, clause (4) of Article 16 of the Constitution
states that the State shall not be prevented from making special provisions for
reservation in the appointments in state-related services to any backward class
of citizens, who the State thinks is not adequately represented in the State
services. This impression persisted until some of the judges in State of Kerala
v. N.M. Thomas (1976), decided that Article 16’s clause (4) did not constitute
an exception to Article 16’s clauses (1) or (2). Chinnappa Reddy, J.,
reiterated this point of view much more emphatically in his concurring opinion
in, and it was eventually
accepted by the Court in the Mandal Commission case.
Therefore, Article 16, clause 4, is not an exception to the rest of the
article; rather, it is a component of the equality of opportunity guaranteed in
clause (1) of that article, as well as an effective method of realising and
implementing it. Clause (4) does not contradict anything in Article 16 clauses
(1) and (2), but rather provides positive support and content to them. It
serves the same purpose as clauses (1) and (2), namely to ensure equality of
opportunity (2). As a result, it is clearly a fundamental right, just like
clauses (1) and (2) or any other provision of that article.
Equal
pay equal work
In
the case of Randhir Singh v. Union of India (1982),
the Hon’ble Supreme Court held that equal pay for equal work, while not
expressly declared to be a fundamental right, is unquestionably a
constitutional goal under Articles 14, 16, and 39(d) of the Constitution of
India and can thus be enforced by courts in cases of unequal pay scales based
on irrational classification. This principle has been applied in several cases,
including D.S.Nakara v. Union of India (1983); P.K. Ram Chander Iyer
v. Union of India (1984), and has, thus, become a fundamental
right. Furthermore, the doctrine of equal pay for equal work is applicable
equally to both temporary and casual employees performing the same set of
duties and functions.
This
principle of “equal pay for equal work” does not apply mechanically in every
case of similar work. In the same cadre of people performing the same or
similar type of work or duties, there may be two pay scales. More often than
not, the functions of two positions may appear to be similar or identical, but
there may be a difference in the degrees of performance.
The
expression mentioned under Article 16, which states that the “matters relating
to employment” are not just confined to the initial matters, but instead would
apply to matters that are subsequent to the appointment as well, for example,
termination of employment as held in Union of India v. P.R.
More (1962), or promotions to the selection posts, and the
matters concerning the salaries, leave, gratuity, periodical increments,
pension, age of superannuation, etc. as held in General Manager,
Southern Railway v. Rangachari (1962).
The
Supreme Court overruled the judgment passed in the Rangachari case in Indra Sawhney v. Union
of India on the point that there cannot be any reservation in
promotion to the selection posts. However, the Parliament, by way of the 77th
Amendment, added a new clause (4-A) to the Constitution under Article 16
thereby enabling the Parliament to make any provisions with respect to the
reservation of Scheduled Castes and Scheduled Tribes in the promotion posts.
This meant that the reservation in promotion would continue even after the
decision in the Mandal Commission Case.
Conclusion
Right
to equality is considered the most important fundamental right provided to all
individuals by the Indian Constitution. It aims to achieve social and economic
justice by uplifting certain sections or classes of society. Article 16
provides for equality of opportunity in the case of employment or appointment
in government jobs. However, the drafting committee made certain provisions in
lieu of reservation for socially and educationally Backward Classes (SEBC) of
the society for appointment in government jobs. The intent behind the same was
to provide opportunities to those, who have always been in the darkness (i.e.
the vulnerable sections of society) by bringing them forward and giving them
the opportunity to represent in the state jobs, who had always been far outside
the State administration in the past. The drafter of the Indian Constitution
had been mindful of the existing inequality, which was at its peak during the
1990s. They understood that the country is divided into a backward class and
the rich class, so in order to unite the two sections, such provisions were
essential for the overall growth of the country.
Frequently Asked Questions
What are the exceptions to the right to equal opportunity
in the public sector?
In
order to protect the backward and vulnerable sections of society, Article 16
provides for such expectations as the right of equality of opportunity in
matters concerning public employment. The Parliament draws its power from
Clause (4-A) and Clause (4-B) of Article 16 to enact any law or make any
provision to make reservations for the weaker sections of society in matters of
employment as well as promotion in public sector jobs.
What is the limit for reservation in public employment?
In
the Mandal Commission case, the Hon’ble Supreme Court put a cap of 50% on
matters relating to reservation for the SCs, STs, and Other Backward Classes in
public employment.
