Reservation is a necessary evil of our democratic society
The right to equality is one of our most important fundamental rights enshrined under Part III of our Constitution. This Right ranges from Article 14 to 18 and it aims to provide a level playing field to all individuals while eliminating all forms of discriminations and biases. For securing a real sense of justice, it is essential that each and every person shall be treated equally in the manner of employment and the weaker ones shall get an opportunity to develop and grow in the public employment arena. This is ensured through Article 16 of our Constitution.
In this article, we will explore the meaning and various ingredients of Article 16. Further, we will also look into the scheme of reservation in admission and promotions in the wake of some landmark supreme court judgements.
Meaning of Article 16
This article talks about the equality of opportunities in the area of public employment. The term “equal opportunities” is very subjective in nature and various jurists have given different interpretations to it. However, in all the definitions, it is clear that this term not only talks about removing discrimination but also put an obligation on the state to create opportunities for the weaker or the backward section of the society.
The state is empowered to generate opportunities through some affirmative actions. Affirmative action is an instrument to achieve social justice. Under this action, the state provides some quota or some benefits to a particular backward or minority group to improve their status. It is also popularly called positive discrimination.
It is important to note that Article 16 only guarantees equality in the matter of state services. As per this Article, if a person possesses the prescribed qualification for a post, then he should get it without any discrimination.
Ingredients of Articles 16
There are various elements of Articles 16 which are as follows –
This clause of Article 16 states that there shall be equality of opportunities for all the citizens of the country in the matter of public employment or public services. It is important to note that this provision only talks about the services falling under the domain of “state”. In other words, it will only apply to the offices of the state. This Provision also empowers the state to lay down qualification criteria for recruitment in order to ensure that the best and suitable candidate shall be appointed for the government posts. Further, the state can also bring out any suitable condition of employment with an objective to ensure discipline.
The qualifications criteria may entail minimum educational qualification, physical fitness, mental stability, moral integrity and sense of loyalty toward the state, etc. The term “matters relating to employment” involves all the matters before and after the period of employment. It basically allows the state to bring out such terms and conditions that may be applicable even after the period of employment.
This clause is applicable to the initial employment, promotion and even to the termination of the period of employment. Further, all the matters in relation to salary, leave, provident fund, gratuity, etc are also governed under this section.
Equal Pay for Equal Work
The principle of equal pay for equal work is enshrined under Article 16(1) as it puts an obligation on the state to ensure equality in all matters in relation to employment. The concept got first recognition in Mackinnon Mackenzie’s case of 1987. In that case, there was a difference in remuneration for the male and the female stenographer. The court held that this practise is against the right to equality and it violates Article 16(1) of the constitution.
- Randhir Singh v. Union of India
This is one of the landmark cases in which the court explicitly laid down the doctrine of “Equal pay for equal work”. The court held that the spirit of Article 16 ensures that there shall no discrimination in the quantum of the remuneration if the work is the same.
- Markandeya v. State of Andhra Pradesh
In this case, there was a difference in the pay scale for a graduate and a non-graduate supervisor. However, the work performed by both people was the same. It was challenged before the court on grounds of violating the right to equality. The court held that Article 16(1) is not absolute and the state is empowered to make reasonable classification on the ground of some rational or valid difference between two persons. In this case, the difference was based on the qualification between both the persons, thus, the court held that it is valid.
This clause of Article 16 put an obligation on the state to ensure that there shall be no discrimination between two individual or class on the basis of their caste, religion, sex, birth, colour, etc. in the matter of public employment. This section is also applicable only to the offices falling under the ambit of state offices.
For Illustration – If State X issued a notification of 10,000 government jobs in the railway sector with a condition that only the male candidates are eligible to apply as the work involves great physical work. This condition will be violative of Article 16(2) of the constitution and this notification will be struck off.
Article 16 (3)
This Article empowers the union parliament and the state legislature to make any law in the matter of public employment for a Particular class in their respective jurisdictions. In other words, they can make any law for an office falling under the state, local or in the union territory.
However, while making laws, the states need to abide by the provision of the Constitution and particularly Article 16. The state needs to ensure that there shall be no discrimination and if it wants to give reservation then it shall be based on some reasonable differentia. Further, the quantum of the reservation shall not exceed 50% in any case.
Article 16 (4)
This clause is the heart of the entire Article. This provision states that the state can make a provision of reservation for backward castes if they are not adequately represented in the public services. The main criteria behind granting the reservation are the backwardness of a particular class or a caste. It can be determined through social, educational and economic factors.
A plain reading of Article 16(4) gives an image that this is an exception to the entire Article. However, the court in the case of State of Kerala v. N.M. Thomas opined that this Article is not an exception of Article 16(1) and 16(2) but it gives them true spirit and positive support. It also secures the same objective of achieving equality in society.
The scope of Article 16 (4) was first discussed by the Hon’ble Supreme Court in Devadasan v. Union of India. In this case, the Carry forward rule was in question. This carry forward rule states that if any year if some reserved vacancy remains unfilled, then they can carry forward to the next year. The Supreme Court declared this rule as unconstitutional on the ground that this rule will violate the principle of equality of opportunities for the unreserved sections of society. The court stated that the reservation shall not be used as a tool to make a monopoly of a particular section of society in the public services.
However, this judgement was overruled in the case of Indira Sawhney vs Union of India, wherein it held that the carry forward rule is permissible if the aggregate reservation doesn’t exceed the mark of 50%. Further, this carries forward rule was codified after incorporating Article 16(4B) of the constitution.
This Article allows the state to make reservations in the matter of promotion.
In simple words, this article states that if the state feels that the scheduled Classes or the scheduled tribes are not adequately represented, then it can make provision of reservation in their promotion on the basis of seniority. Prior to some decades, there was a minimal representation of the people hailing from the SC and ST category in the public employment. Further, if they get appointed then they hardly get promoted. So, in order to remove that backlog, the centre promulgated the 77th and 81st Constitutional amendment.
However, In the judgement of Indira Sawhney vs Union of India, the Supreme court held that Reservation is restricted only to initial appointments and not in the matter of promotion. So, in order to nullify the effect of the judgement, this section 16(4A) was incorporated through the 85th Constitutional amendment in 1995 that provides reservation in promotion.
The constitutional legality of Article 16(4A) was challenged in the case of M Nagaraj Vs Union of India. The court upheld its legality by stating this provision is in line with Article 16(4) and it ensures adequate representation and growth of these people who suffered exploitation for a very long period. However, to protect the misuse of this Article, the court evolved the doctrine of “proof of compelling reason”. This doctrine states that every time the state wants to make a reservation in the matter of promotion, it must demonstrate that the SCs and STs are not adequately represented and there is a strong need for a reservation.
The legislature further clarified the scope of Article 16(4A) through the 117th Constitutional amendment which states that all SCs and STs will be considered backward for the purpose of this Article. The 117th Constitution Amendment Bill was passed to clarify that all SCs/STs are deemed to be backward.
This article was incorporated through the 81st constitutional amendment. Through this amendment, the legislature put a step ahead in the legality of the carry-forward rule. This section states that the unfilled vacancy can be carried forward to the next year. The important point to notify is that these carried forward vacancies will be treated as a different class of vacancy and they will have no bearing on the reservation ceiling of 50 per cent. In other words, these vacancies will not be taken into consideration while computing the totality of the 50% reservation limit. The validity of this clause was upheld in the landmark case of M Nagaraj Vs Union of India.
This clause is the non-obstante provision that overrides all other provisions enshrined under Article 16 of the constitution. This provision states that no law will affect the appointment in an office that is connected with some religious or denominational institution. It is empowered to appoint any person which is professing that particular religion or related to that religious denomination.
In the case of T.M.A. Pai Foundation v. State of Karnataka, the Hon’ble Supreme Court ruled that the provision of Article 16 cannot be enforced on Private Unaided educational institutions and in other religious minority institutions.
Article 16(6) of the Indian Constitution
The union parliament through the 103rd constitutional amendment incorporated Article 16(6) into the constitution. This section allows a reservation of a maximum of 10% for the economically backward class or economically weaker section in public employment.
An NGO named Youth for Equality challenged this provision on the grounds of violating the 50% reservation rule as given in the Indira Sawhney case. The court refused to put a stay on this reservation and held that this reservation will be in addition to the existing quantum of 50% reservation and the additional post will be created for it. Thus, it doesn’t violate the same.
27% Reservation to the Other backward caste (OBC)
The reservation to the OBC has also been a top topic since the emergence of the concept of reservation. Other Backward Class (OBC) is a term used by the Government to classify such castes that are educationally and socially backward. They are in addition to the Scheduled Castes and Scheduled Tribes (SCs and STs).
In Achill Bharatiya Soshit Karamchari Sangh case, it has been emphasized that apart from the SC and ST categories there are various other castes or classes which are significantly backward and there shall be a provision of their representation in the matter of public employment. The government constituted Mandal commission for looking into the reservation of Other Backward Castes (OBC)
On the recommendation of the Mandal Commission, the government of India made legislation providing for 27% reservation for the Other Backward Castes (OBC) in India. The criteria used by the commission to determine the backward castes were social, educational and economic. The social criteria were given 3 points, educational criteria were allotted 2 points and Economic criteria was given 1 point. Each and every caste was assessed on the aforesaid basis and out of which some significantly deprived castes or classes were selected to give the reservation.
The announcement of this reservation led to widespread protest in the country and it was challenged before the hon’ble court of law on grounds of violating the principle of equality. The Supreme Court in a landmark judgement of Indira Sawhney & Ors. v. The Union of India upholds the validity of this reservation given to OBC. However, the court excluded creamy layer people to enjoy the benefit of this reservation. Further, it restricted the aggregate reservation below the mark of 50% in every case.
Article 16 of the constitution guarantees every citizen the right to equality in public employment. This states that there shall be no discrimination on the basis of caste, sex, gender etc. However, it also empowered the state to take affirmative actions in the form of the reservation to ensure the adequate representation of backward categories of society.
Further, Article 16(4) empowered the government to make reservations with a maximum limit of 50%. The legislature has also made provision for the reservation in promotion and reservation for the economically backward class of the society.