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Article 16 of the Indian Constitution

October 7, 2024

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This article is written by Ms. Rayman Kaur and Upasana Sarkar. This article deals with Article 16 of the Indian Constitution. It gives a detailed and comprehensive understanding of the concept, history, object, features of Article 16 along with various Amendments. It elaborately discusses the evolution of Article 16 of the Indian Constitution, along with its important aspects and judicial pronouncements.

Table of Contents

Introduction

Fundamental rights, as enshrined under Part III of the Indian Constitution, guarantee basic human rights to all the citizens of India, and a few of these rights are also enjoyed by non-citizens. These rights are known as ‘fundamental rights,’ as they are justifiable in nature, and any individual whose fundamental rights have been infringed or violated can move to court. The makers of our Indian Constitution took great inspiration from the Bill of Rights of the United States while formulating the fundamental rights for India.

The Indian Constitution bestows six fundamental rights, which are enumerated below, along with the constitutional articles related to them:

Right to Equality (Article 14–18)
Right to Freedom (Article 19–22)
Right against Exploitation (Article 23–24)
Right to Freedom of Religion (Article 25–28)
Cultural and Educational Rights (Article 29–30)
Right to Constitutional Remedies (Article 32)

However, this is subject to Article 14 and Article 16. Article 16 of the Indian Constitution is about equality of opportunity in public employment, that is, under the office of the State, for its citizens. If Article 14 is the genus, it would not be wrong to call Article 16 its species. Article 16 is merely an extension of Article 14, in which both the rules against arbitrariness and the doctrine of reasonable classification apply as held in the case of Delhi Transportation Corporation vs. DTC Mazdoor Congress (1991).

Article 16 of the Constitution of India aims at providing equal opportunity to its citizens in terms of public appointments and employment. The first two clauses of the Article state unequivocally that no Indian citizen shall face employment discrimination. By prohibiting discrimination based on religion, race, caste, sex, descent, place of birth, residence, or any of them, these clauses lay the groundwork for equal employment opportunities.

Background of Article 16 of the Indian Constitution

This Article was drafted as Article 10 at first, and then it was debated on 30th November 1948, and implemented as present-day Article 16. This Article was added in the Constitution for ensuring equality of opportunity in government employment, and prohibiting any kind of unnecessary discrimination on the grounds of religion, race, caste, sex, place of birth, descent, or residence. It aimed to secure a Sovereign Democratic Republic State, where all citizens would be treated equally and fairly. This Article of the Constitution allows the State to make reservations in public employment for those citizens who belong to the backward classes of the society. This reservation system is not about giving advantage to anybody or unnecessarily discriminating against any person of the society. This reservation system is considered as a positive discrimination that will help the people of backward and marginalised sections to uplift themselves who have been continuously ill treated and discriminated against in the past.

In India, these people had faced a lot of injustices and negligence. So, Dr. B.R. Ambedkar, while framing the Constitution, decided to enact a provision for the welfare of the people of the backward classes and sections of society. Three main perspectives were formed at the time of debate. One was complete equality without reservations, another advocated for equality with reservations for marginalized communities, and the third one was recognizing the need for reservations to integrate historically excluded communities into public administration, which was presided by Dr. B. R. Ambedkar. The expression ‘backward class’ was also debated, with some favouring its broad inclusiveness and others considering it too vague in comparison to more precise phrases such as ‘Scheduled Castes and Scheduled Tribes’. The draft Article was adopted with amendments on the same day, confirming the idea of equality in public employment in the Indian Constitution. In short, it can be stated that the provision for reservation was included in the Constitution as the Drafting Committee was well aware of the historical prejudice and social injustices that had pervaded Indian culture for decades. It is one of the important Articles of the Indian Constitution as it has contributed to the advancement of social justice, diversity, and meritocracy in areas related to public employment. Though it sometimes seems to be unfair, in reality it plays an important role for building a just and equal society in India.

Scope and objectives of Article 16

Article 16 was inserted in the Indian Constitution in order to ensure equality of opportunities in public employment. Clauses (1) and (2) of this Article states that none of the Indian citizens shall face any kind of discrimination relating to employment services. These are the two main Clauses of this Article as they lay down provisions for equality of employment opportunities and prohibits or eliminates unnecessary compartmentalization in the name of religion, race, caste, sex, place of birth, or certain others. This Article was introduced for uplifting the backward and marginalised sections of society. Therefore, it allows the State to make any laws prescribing the requirements “for a class or classes of employment or appointment to an office under the Central Government or any local authority.” Article 16(4) is an important Clause which acts as an important provision for the Government for the formation of any provision for the reservation of appointments in favour of these backward class of citizens who are “not adequately represented in the services under the State”. Thus, this Article is beneficial for the welfare of the backward classes of citizens of India.

Interpretation of Article 16 of the Indian Constitution

Clause (1) of Article 16: General Principle of Equality

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. This serves as a cornerstone of the merit-based selection systems or hiring practices for various government jobs and appointments. It is important to understand that this Article is applicable to State offices only, that is, the services covered under the concept of “State” under Article 12 of the Indian Constitution.

The provisions that come under this Clause are as follows-

Appointments
Promotions
Termination of employment
Equal pay for equal work
Issues pertaining to the wage, periodic increments, leave, gratuity, pension, age of superannuation, and others.

Clause (2) of Article 16 : prohibition of discrimination

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, or place of birth or any of them. Article 16(1) provides for the general rule which entails that there shall be equality in appointment in public sector jobs, and Article 16(2) states that no discrimination shall be permitted while employing in public sectors only on the grounds of religion, caste, race, sex, place of birth, descent or residence. Furthermore, Articles 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 : requirements of residence

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. It means that the people living in a particular state or union territory might be given preference over others for promoting and supporting local employment policies.

Therefore, the Public Employment (Requirement As To Residence) Act, 1957, was enacted by the Indian Parliament, where it was made necessary to be a resident to get public employment in various States, including Andhra Pradesh, Himachal Pradesh, Manipur, and Tripura. This provision is not in force in any other States except Andhra Pradesh and Telangana.

Clause (4) of Article 16 : reservation for backward classes

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. It promotes social fairness and inclusivity by acknowledging the necessity of affirmative action in order to resolve the historical and social disadvantages that these backward groups have endured for so long. The central government took the view that since the Indra Sawhney vs. Union of India (1992) (Mandal Commission case) relates to the backward classes only, the reservation in the promotion of SCs and STs should not be affected and shall continue.

Clause (4A) of Article 16 : reservation in promotions for Scheduled Castes and Scheduled Tribes

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 the Mandal Case, the reservation in promotion in government jobs, shall continue. This clause was inserted for ensuring that the people belonging to SCs and STs also get opportunities in various higher levels of government jobs and can advance their careers.

Clause (4B) of Article 16 : carrying forward of unfilled vacancies

Clause (4B) was added after Clause (4A) 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. It was inserted to ensure that the unfilled reserved vacancies of one year can be forwarded to the next year by the State.

Clause (5) of Article 16 : religious or denominational institutions

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. This Clause of Article 16 was inserted to ensure that regulations requiring members of governing bodies of religious or denominational institutions to adhere to a particular religion or denomination are not affected by Article 16. It recognises the independence of all the religious organisations to uphold their own religious identities and characteristics in particular contexts.

After reading this Clause, it can be clearly stated that Article 16(5) is a type of exception that gives priority to Article 26 “Freedom to manage religious matters” over Article 16 “Equality of opportunity in the matter of public employment.”

Clause (6) of Article 16 : reservation for Economically Weaker Sections (EWS)

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. This Clause was inserted in order to give additional opportunities to people belonging to the economically disadvantaged sections, who do not fit into the previously established categories of reservations. It was also stated that the State would periodically go through one’s family income and notify who are economically disadvantaged in a particular area.

Features of Article 16 of the Indian Constitution

There are some important features of Article 16 that needs to be kept in mind while reading this Article, which are as follows-

Equality of opportunities is guaranteed to all: As per the provisions of this Article, all the citizens of India are given equal opportunities in the field of employment.
State’s Role in Providing Equal Opportunity: It means that the State is responsible for creating job opportunities for all citizens, regardless of their background, who shall have an equal chance to compete for public employment.
Prohibiting unnecessary discrimination in employment: This Article also prevents all kinds of unnecessary discrimination by the State in public employment jobs and appointments on the basis of caste, race, region, place of birth and residency.
Exceptions to equality: The State is allowed to create provisions for the reservation of appointments or postings for any underprivileged classes or groups of citizens who are insufficiently represented in the State’s services.
Not applicable to non-citizen: This provision regarding reservation is applicable for the citizens of India only. Non-citizens who come from other countries will not get this reservation benefit under Article 16. This Article explicitly states that “every citizen” of the country can only get benefits as per the provision of this Article.
Power of Parliament: The Indian Parliament has the authority to pass legislation to make the provisions of Article 16 legally binding.

Object of Article 16 of the Indian Constitution

The important aspects of Article 16 of the Indian Constitution are as follows-

It plays an important role in determining equality, and promoting social justice and inclusivity. It helps in balancing the opportunities for all by ensuring that citizens of all sections of society have equal opportunities to compete for government employment and contribute to the country’s progress and development.
It plays a crucial role in addressing the historical injustices and oppression faced by the people of backward classes, and helps in empowering the socially and economically backward classes. It facilitates communication among all so as to reduce the gap between different sections of society and encourages a more inclusive and representative workforce in government institutions.
It also plays a significant role in determining equal pay for equal work to make sure that no gender based wage discrimination exists. It helps in promoting gender equality in the workplaces and removes gender disparities that still exist in some spheres of employment.

One Hundred and Second Amendment Act, 2018

The One Hundred and Second Amendment Act, 2018, led to the establishment of the National Commission for the Backward Classes as a constitutional body, in order to look into and suggest the inclusion or exclusion of any community that falls under the backward classes. By this amendment, the Supreme Court of India in May, 2018, removed the State’s power to look into socially and educationally backward classes or groups in their territory for grant of quota in employment sectors and admissions.

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 vs. 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 the Indra Sawhney Case, is constitutional. Furthermore, all three judges agreed that the 50% limit is flexible and may be exceeded, only in exceptional circumstances. They further held 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 Article 16

Under clause (2) of Article 16 of the Indian Constitution, the words – “descent” and “residence” were present since inception, 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 vs. State of Andhra Pradesh (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, 1951, 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).

Clause (3) of Article 16 is an extension 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 extension 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:

The class of citizens is backward;
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 vs. Virpal Singh (1995) and Ajit Singh vs. State of Punjab (1996). Accordingly, it was observed that in case a Scheduled Caste/Scheduled Tribe candidate is promoted earlier due to a reservation/roster rule and his senior candidate from the general category is promoted later to that higher grade, the general category candidate will not regain seniority over the earlier promoted SC/ST candidate. 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 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 not regain his seniority over the reserved candidate.

The provisions of consequential seniority or the catchup rule are essential constitutional requirements. However the said provision was not present since the inception of Article 16. The provision of Article 16(4-A) was inserted in 1995 by the 77th Amendment, however at that time also it did not mention anything about consequential seniority. Subsequently, the legislature in 2001 by 85th Amendment inserted the words ‘consequential seniority’ in order to make it explicitly clear. However, the said amendment was challanded in the case of M. Nagaraj vs. Union of India (2006), wherein it was held that the provision of consequential seniority does not violate the basis structure and is constitutioanlly valid. Thus, making the provision of consequential seniority an essential constitutional requirement.

Carry forward rule

The Supreme Court considered the scope of Article 16(4) in T. Devadasan vs. 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 vs. Union of India, overruled Devadasan vs. 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, that is, far-flung states such as Nagaland, etc.

27% Reservation to the Other backward caste (OBC)

Reservation for OBCs has been an issue of concern since the concept of reservation first emerged. The government incorporates the term Other Backward Class (OBC) to designate castes that are educationally and socially backward, where the State granted them 27% reservation in addition to the Scheduled Castes and Scheduled Tribes but under certain conditions. It excluded advanced sections, that is, the creamy layer among OBCs.

Evolution of Article 16 of the Indian Constitution

The Kalelkar Committee

After India got its independence in 1947, affirmative actions were taken by the State to uplift the Scheduled Castes and Scheduled Tribes, which were known as “Depressed Classes” at that time. Though it provided a support system and help to those people during that time, there was no list of backward classes by which they can be provided proper benefits. Therefore, it lagged behind in uplifting these sections of people of society in various areas of economic development, employment, and education. So to protect and uplift the people of marginalised sections of society, the nation’s first Backward Classes Commission was established in 1953. This Commission was presided over under the chairmanship of Kaka Kalelkar to solve this issue. It submitted to the Government a list of findings about the number of backward groups in India, along with those classes which were considered ‘most backward’ at that time. But the Union Government disregarded the contention of the Committee, which stated “caste was the main indicator of backwardness”, as it wanted to establish a casteless society.

The Mandal Commission case

In Indra Sawhney vs. Union of India, (1993), 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 should 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 Commission’s 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 nine 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.

Judgement

A 6:3 majority of the Supreme Court’s Constitution Bench (Justice B.P. Jeevan Reddy, C.J.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:

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.
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.
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 vs. 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 concluded that a class does not have to be classified as backward just because their geographic location is close to the SCs and STs. In short, it means that if a class of people lives next to those people belonging to the SCs and STs, then that group of people cannot be categorised as backward.
The exclusion of the creamy layer from the backward classes must be done.
It was determined that Article 16(4) of the Constitution does not allow for the classification of backward classes as “backward and more backward.”
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.
The reservation of backward classes shall not exceed 50 percent.
A provision under Article 16(4) can also be made by executive order, which must be approved by Parliament.
No reservation in promotions.
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.
No opinion was expressed with respect to the Mandal Commission Report.
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 vs. Union of India (1992) 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 vs. Union of India (2007) 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 vs. Lachhmi Narain Gupta (2018), the Hon’ble Supreme Court, by a larger bench of seven judges, struck down its backwardness criterion, held in the Nagaraj vs. Union of India (2006), 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 vs. 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 Gupta vs. Union of India (2016), the Hon’ble Supreme Court, while passing the judgement in this case, stated that the rule of no reservations in promotions will not be applicable to persons with disabilities. This no reservation rule in promotions has been laid down in the landmark judgement of Indra Sawhney case, as mentioned earlier.

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 based on religion, caste, race, language, or any of them in any educational institutions that is run or maintained by the State or receives any funds from it.

In other words, clause (4) of Article 15 allows what the rest of the article or clause (2) of Article 29 prohibits, that is, 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 vs. 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 vs. 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 vs. Union of India (1983); P.K. Ram Chander Iyer vs. 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 vs. P.K. 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 vs. Rangachari (1962).

The Supreme Court overruled the judgment passed in the Rangachari vs. The General Manager, Southern Railway, Madras (1960), in Indra Sawhney vs. 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.

Difference Between Article 15 and Article 16 of the Indian Constitution

According to Article 15 of the Indian Constitution, discrimination is prohibited based on religion, race, caste, sex, or place of birth in India. It applies the general equality principle of Article 14 in specific situations by outlawing classifications based on other special or protected grounds. Under Article 16, on the other hand, the Parliament is empowered to adopt any law establishing the qualifications “for a class or classes of employment or appointment to an office under the Central Government or any local authority.” This provision of Article 16 is one of the most important Constitutional provisions for underprivileged sectors.

Advantages of Article 16 of the Constitution

Various advantages or benefits of Article 16 of the Indian Constitution are as follows-

It is essential for ensuring equality of opportunities: One of the main advantages of Article 16 is that it grants equality of opportunities in employment services without any kind of unnecessary biases or discrimination. This reservation policy has been enacted in various States for correcting the age-old discrimination and uplift the disadvantaged groups. In India also, people belonging to these groups or sections are provided protection under the Constitution.
It provides reservation for backward classes of society: Another important benefit that is given under Article 16 of the Constitution is the reservation system. The disadvantaged groups or sections of society are provided with reservation of appointments or jobs, where they are insufficiently represented in State-run employment. It helps in determining the presence of historically underrepresented communities in employment sectors and provides them access to public job opportunities so that they could also contribute to the progress of our country.
It is helpful for promoting diversity in public services: The reservation system under Article 16 helps in promoting diversity in public services, which in turn reflects the diversity of Indian society. This ensures that public services will be more responsive to local needs and will be able to better serve the country.
It is enacted for promoting social justice: Another benefit provided under Article 16 is that it helps in promoting social justice and fairness in the society. It helps in bridging the gap between different sections of society. As it provides equal job opportunities to all in the public sector. Therefore, it distributes equal quantities of wealth to all and helps in uplifting those people who were subjected to prejudice in the past.
It helps in reducing poverty: Article 16 is also responsible for ensuring that all the people have a source of income for their survival. Public employment is an important tool for poverty reduction in India since it provides people and their families with a continuous and stable source of income. This Article helps in combating poverty and unemployment by ensuring the benefits of public employment to all, which are distributed correctly and equally.

Shortcomings of Article 16 of the Constitution

Some of the shortcomings of Article 16 of the Indian Constitution are as follows-

It leads to reverse discrimination: It might lead to reverse discrimination, which means people who do not fall under the backward classes belong to the general category. Therefore, they do not get any benefits. All the benefits are provided to the members of a minority or historically disadvantaged group. Though this reservation system is beneficial for the backward classes people, it is unfair towards the people belonging to the general category. The people of the general category face discrimination as a result of this reservation system. In spite of being a good and competent candidate for a job, they are not given preference after those reserved category candidates. Therefore, people belonging to the general category believe that they are denied the chances which they could have if this reservation system was not implemented.
It encourages caste-based divisions: Reservation provided to a person under Article 16 is given to them on the basis of their castes. Hence, it supports and encourages the impression that a person’s caste is more significant than their skills or credentials. Therefore, it could lead to conflicts and gaps between members of different castes.
It does not provide sufficient representation: Article 16 was implemented to provide sufficient representation for advancing the interests of historically underrepresented groups. But that is not happening as it was intended for. It can be seen that few people take advantage of this reservation system, excluding those who really need the benefits under this Article. People who actually fit into the categories are insufficiently represented under the current reservation system.
It leads to inefficient implementation and corruption: The reservation system under Article 16 is effective only when it is carried out for the correct purpose. But in recent times it can be seen that the provision of this Article is being currently misused by a large number of people. Therefore, it is leading to inefficient implementation and corruption in society. The political parties, instead of trying to remove this reservation system, try to increase the reservation quota for gaining more votes in elections.
It reduces the merit-based selection system: Another drawback of this reservation system is that there seems to be a compromise in merit-based selection in employment. It leads to the neglect of merit and qualifications, which results in the recruitment of less competent individuals in job sectors. So there have been arguments, on a time to time basis, about achieving a balance between reservation and merit-based selection to secure the appointment of the best competent applicants.

Recent judicial pronouncements

State of Punjab vs. Davinder Singh (2024)

In the case of State of Punjab vs. Davinder Singh (2024), the five-judge bench of the Supreme Court noticed that sub-classification was permitted for Socially and Educationally Backward Classes (SEBCs) under Article 342A (introduced in 2018). It gives the President the power to make a list of SEBCs. It was found that the constitutional provisions for recognising Scheduled Castes (Article 341), Scheduled Tribes (Article 342), and SEBCs (Article 342A) were ‘pari materia’, that is, ‘on the same matter’. It was also interpreted in a similar manner. The Apex Court also noted that the States were given the authority to grant reservations for the SC and ST category under Article 15 and Article 16. It was also required to grant permission to introduce sub-classification to give effect to the spirit of the right to equality.

Therefore, the Judges of the Supreme Court observed that it was not competent to revisit E.V. Chinnaiah vs. State of Andhra Pradesh (2004, which was also heard by a five-judge bench, where the Hon’ble High Court of Punjab and Haryana stated that no sub-classification within the SC category will be not permitted. The court heard the case for three days and reversed the judgement of E.V. Chinnaiah case, and upheld the validity of sub-classification within the Scheduled Caste and Scheduled Tribe Categories in a 6:1 majority.

Gaurav Kumar vs. State of Bihar (2024)

In the case of Gaurav Kumar vs. State of Bihar (2024), the petitioner filed a writ petition stating that reservation was enhanced from 50% limit to 65% within the State of Bihar on the basis of Caste Survey that was done few days ago, that is, on 7th November, 2023. The petitioner contended that the Amendment Act that enhanced the reservation was tabled hastily on 9th of November, 2023, which is only two days after the report was brought out. Thus, analysis was not done properly. It was also stated by the Petitioner that the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1991 (the “Reservation Act”) automatically increased the percentage for each and every caste, which was done mechanically and without taking into account the actual data from the Caste Survey.

The economic status of the people of each community was not analysed before doing so. The Patna High Court observed that the decision taken by the State was against the principles of Articles 15(4) and 16(4) of the Constitution, as it was done on the basis of mere proportion of population of different categories as against their numerical representation in government services and educational institutions.

Therefore, the court set aside the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Amendment Act, 2023, and the Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023, and stated that it was ultra vires the Constitution as it was violating Articles 14, 15, and 16 of the Indian Constitution.

Samata Wamanrao Warudkar vs. State of Maharashtra (2024)

In the case of Samata Wamanrao Warudkar vs. State of Maharashtra (2024), the petitioner had secured a seat in a Medical College on the basis of a caste certificate of the ‘Halba’, which is a Scheduled Tribe category. The college forwarded that certificate to the Scheduled Tribe Caste Certificate Scrutiny Committee for verifying its authenticity. The committee invalidated her claim through committee order. So the petitioner filed the petition in the Bombay High Court. The court allowed her to complete her course to secure provisional admission to the college, against a seat reserved for the Scheduled Tribe (‘ST’) category. So she was able to complete her MBBS and through an interim order, she was provisionally permitted to take admission to a MD Anaesthesia course, which was also completed by her.

The committee, again, invalidated her claim, stating that she is filing the seat of a genuine candidate. At that time she was appointed as the Medical Officer of the Indira Gandhi Medical College and Hospital. Though her education was protected by the interim order, she was not able to get her certificates of MBBS and MD courses. The petitioner, finding that, challenged the order of the committee on merit basis, along with willingly forfeiting her claim of ST reservation.

The Bombay High Court passed its judgement after thorough inspection and taking into account the judgements of Food Corporation of India vs. Jagdish Balaram Bahira, (2017), and State of Maharashtra vs. Milind, (2001). The court stated that from the very inception, the petitioner case was very doubtful and at the same time she forfeited her reservation claim. So the education of the Petitioner cannot be protected, and disallowed the interference with the order of the committee.

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, that is, 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. Therefore, to help these backward vulnerable sections of society, this reservation system is provided to them for their protection and well-being. But it is also true that some people take advantage of this reservation system and use it for their own malicious purposes. So it is the duty of the State to ensure that proper surveys and inspections are carried out before providing a person’s caste certificate or a seat under this reservation system in employment sectors.

Frequently Asked Questions (FAQs)

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.

Who can get the benefits of reservations under Article 16?

Article 16 of the Indian Constitution provides reservation benefits for the members of Scheduled Castes, Scheduled Tribes, and other disadvantaged sections.

Whether the reservations made under Article 16 are permanent?

Though originally this reservation system meant to be temporary under Article 16, it has been repeatedly extended by means of constitutional changes. As per the opinions of some, the reservation should be made permanent.

What do you mean by reservation?

Reservation means a policy of positive discrimination that is created for promoting equality among all the citizens, including the marginalised and backward sections of society, in order to safeguard them from historical and social injustices. In short, it explicitly grants preferential treatment to marginalised sections of society in employment sectors and provides them proper access to education.

What are the advantages of reservation?

Various advantages of reservation system are as follows-

It helps in reducing stereotypes regarding caste, religion, and ethnicity.
It promotes social welfare by ensuring diversity in advanced education, and equality in workplaces.
It helps in increasing social mobility and reducing social isolation of these backward groups from society.
It helps in compensating for centuries of oppression and discrimination.
It aims to promote equity in society by resolving ‘graded inequalities’.

What are the disadvantages of reservation?

Various disadvantages of reservation system are as follows-

It can lead to erosion of meritocracy.
Instead of uplifting the weaker sections, it becomes a tool for people belonging to the ‘creamy layers’ of the population.
It also labels the success of those people as a result of reservation, instead of encouraging them for their achievements and hard work.
It is potentially decreasing the overall quality of public services.
Even once discrimination issues are no longer present, at that time also withdrawing the reservation is difficult due to vote bank politics.

When was the National Commission for Backward Classes established?

In 1993, the National Commission for Backward Classes was created for the people belonging to the backward groups or sections of society. The 102nd Constitutional Amendment Act of 2018 granted it constitutional status under Article 338B of the Constitution.

Where can the principles of Equal Employment Opportunity (EEO) be applicable?

Principles of Equal Employment Opportunity (EEO) can be applied for-

Getting a job or employment opportunities.
Proper working conditions and environment.
Relationship dynamics at work.
Procedure for assessing performance.
Potential for advancing career and training.

When was the Mandal Commission created?

Mandal Commission was created in accordance with Article 340 of the Indian Constitution. Morarji Desai Government had established this Commission for the Backward Classes in 1979 to investigate the social and educational conditions of the impoverished classes.

References

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