This article is written by Shristi Suman. The article aims at analysing the right to equality guaranteed under Articles 16, 17 and 18 of the Indian Constitution. An attempt has also been made to delve through the history of these provisions and highlight the judicial precedents in such regard.
Table of Contents
Introduction
The fundamental rights conferred upon citizens are provided under Part III of the Constitution. These rights include the right to equality, the right to freedom, the right against self-incrimination, and the right to life. The right to life is provided under Articles 14-18 of the Constitution. These rights provide that there shall be equality before the law and equal protection of laws. To treat equal citizens as equals, the state has provided the citizens with the right to equality, which can be enforced in cases of violation of such rights.
Article 16 of the Constitution provides the right to equal opportunity in the case of public employment. No citizen shall be denied the right to equal opportunity and representation in cases of public employment. Article 17 provides for the abolition of untouchability. The right enshrined under Article 17 is to ensure that all forms of social disability are done away with. Article 18 of the Constitution provides for the abolition of titles, which states that no person shall receive titles either from the state or from a foreign state. A detailed analysis of these provisions has been provided hereunder.
Right to equality of opportunity in public employment : Article 16 of the Indian Constitution
Article 16 of the Indian Constitution guarantees equal opportunity to all citizens in matters related to employment in the public sector. Article 16(1) states that there shall be equal opportunity for the citizens in the matter of employment or appointment to any office under the State. The provision of equality is only applicable to the employment or offices which are held by the State. The State is still free to lay down the requisite qualifications for the recruitment of employees for the Government services. The Government can also pick and choose applicants for the purpose of employment as long as the applicants have been given an equal opportunity to apply for the Government service.
Article 16(2) lays down the grounds on which the citizens should not be discriminated against for the purpose of employment or appointment to any office under the State. The prohibited grounds of discrimination under Article 16(2) are religion, race, caste, sex, descent, birthplace, residence, or any of them. The words ‘any employment or office under the state’ mentioned in clause 2 of Article 16 implies that the said provision refers only to public employment and not to the employment in the private sector.
Article 16(1) and (2) lay down provisions for equal opportunity of employment in the public sector. However, it is stated in clause 3 of Article 16 that nothing in this article shall prevent Parliament from making any law which prescribes to the citizens who are appointed to any office under the State in regard to any requirements as to residence within that State or Union territory prior to employment or appointment to any office under the State.
Article 16(4) of the Indian constitution provides for the reservation of services under the State in favor of the backward class of citizens. The State shall decide whether a particular class of citizens is backward or not. Therefore, the State shall lay down acceptable criteria in order to ascertain whether a particular class of citizens is a backward class or not.
Equal pay for equal work
A question of equal pay for equal work was raised for the first time in the case of Indian Oil Corporation vs. Chief Labour Commissioner (2018). The issue before the High Court of Gujarat was whether the contractual laborers of the Indian Oil Corporation were entitled to equal wages like the permanent employees of the Company. In 1992, it was found by the Labour Commissioner that the work which is done by the contractual laborers is similar to the permanent employees and consequently, an order was passed by the Labour Commissioner making Rule 25(2)(v) of the CLRA Rules applicable. In 2013, Gujarat High Court stated that the Labour Commissioner was wrong in only taking into consideration the nature of the work of the contractual laborers and permanent employees. Other aspects such as quality of work, the capability of the individual, qualification, work experience, etc. should have also been taken into consideration.
It was stated by the Court that in order to equate the two sets of employees i.e. laborers on contract and permanent employees not only similarity of designation and work has to be taken into consideration but the mode of recruitment, nature of work, value judgment, responsibility on the individual are also required to be taken into consideration. It was observed by the Court that the permanent employees are required to be qualified according to the job, they need to go through a written examination which the contractual laborers are not required to and there shouldn’t be an obligation on the employer for equal pay for equal work. The labor union then approached the Hon’ble Supreme Court against the judgment given by the Gujarat High Court.
The case as observed above was now been remanded on the question of the status of the contract laborers. The issue before the Court was mainly dependent on the Constitutionality of Rule 25(2)(v) of the CLRA Rules.
This Rule states that:
“In case where the worker is employed by the contractor in order to perform the same kind or similar kind of work as a worker who has been directly employed by the principal employer of the establishments, then the wage rates, holidays, hours of work and other conditions of service of the worker who has been employed by the contractor shall be the same as the worker who has been directly employed by the principal employer of the establishment in which the workers are working for the same or similar kind of work.”
It was stated by the Court that it is clear that the parity between contractual laborers and permanent employees under the CLRA Rules is dependent on the similarity of work they perform and not on the mode of recruitment or qualifications. The Supreme Court in order to decide the case referred to the judgment of Randhir Singh vs Union of India (1982). The case was a landmark judgment on the constitutional validity of equal pay for equal work. Equal pay for equal work is also a Directive Principle in the Indian Constitution. In the said case the Supreme Court grounded equal pay for equal work under Article 14 of the Constitution and stated that in cases where all “relevant considerations are the same”, the government can not deny equal pay for equal work simply by performing the bureaucratic maneuver i.e. by separating the workers into different posts, or to different departments. The example of drivers was taken to decide the case. According to the Court “there is not even the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government”, and hence, equal pay for equal work was attracted.
The phrase “same functions and duties” used by the Court resembles the language of the CLRA i.e. “same or similar work“. However, subsequent to the judgment in the case of Randhir Singh, the Supreme Court broadened the principles by passing a number of judgments. The Court through judgments passed a number of principles on equal pay for equal work including mode of recruitment, qualifications, etc. Equality of work was no longer related only to the kind or character of the work done by the workers but was also related to positions which the workers held in the office. In other words, the Supreme Court effectively converted the requirement for equal pay for equal work.
According to Article 16(2) of the Constitution, there shall not be any discrimination between the citizens on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them in respect of employment or office under the State. The words ‘any employment or office under the State’ makes it clear that the said Article applies only to public employment. In the case of Indira Sawhney & Ors. v. Union of India (1992), the Supreme Court held that there shall be a separate reservation for citizens belonging to other backward classes in central government jobs. The Court ordered the exclusion of citizens belonging to the creamy layer of other backward classes and economically poor citizens of forwarding castes for the purpose of reservation in central government jobs. The Court also stated that the upper limit of the reservations shall be not more than 50%.
The Constitution 77th Amendment Act, 1995
Since 1955, the Scheduled Caste and Scheduled Tribes have been provided with the facility of reservation for the matter of employment and promotion under the office of State. The Hon’ble Supreme Court, in Indra Sawhney case held that the reservation of Government jobs under Article 16(4) is limited to the appointment of the citizens belonging to the said classes and it cannot extend to a reservation in the matter of promotion. However, the Court’s decision in the matter of promotion affected the citizens belonging to Scheduled Castes and Scheduled Tribes adversely as they were not represented well in Government services. Since it is the State’s duty to protect the interests of the Scheduled Castes and Scheduled Tribes, the Government decided to continue the existing policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes. In order to carry out the practice which existed before the landmark judgment of Indra Sawhney, it was necessary to amend Article 16 of the Indian Constitution by inserting a new clause (4A) in the said Article.
For the purpose of reservation in matters of promotion of Scheduled Castes and Scheduled Tribes, Clause (4) was inserted in Article 16 of the Constitution by 77th Amendment. It was stated in Clause(4) that nothing in Article 16 of the Constitution shall prevent the State from making any provision for reservation in matters of promotion to any posts in Government services in favor of the Scheduled Castes and Scheduled Tribes.
Non-exclusion of “Creamy layer” in backward class
The ‘creamy layer’ has been defined by the Supreme Court as a class of society that are relatively forward and educated than the other members of the Other Backward Classes. The people who belong to the ‘creamy layer’ are not eligible for government-sponsored educational and professional benefit programs. In Indra Sawhney v. Union of India (II), The Bench analyzed the usage of the terms “caste” and “class”. It was stated that Article 16(4) of the Constitution has to be read together with the rest of the Constitution including Article 15(1) that prohibits the state from discriminating against any citizen on the grounds of caste. Considering the above, employing caste as a determinative factor in ascertaining the backwardness of the citizens is contradictory to the constitutional vision of a casteless society.
The issue which was before the Court was that:
(i) Whether the classification on the basis of caste is permissible?
(ii) Whether there is a rational nexus to such caste-based classification for the advancement of backward classes of citizens?
The Court observed that a classification based on caste is impermissible in light of Article 15(1) of the Constitution. The judgment given by the Court whittled away the distinction between “caste” and “class” upholding the non-exclusion of creamy layer in backward class.
The Constitution (81st Amendment) Act, 2000
The Government through the 81st Amendment Act, 2000 introduced Article 16(4B). The Amendment allowed reservation in promotion to the 50% upper limit which is set on the regular reservations. The Amendment permitted the Government to carry forward unfilled vacancies from previous years. This Amendment was called as the Carry Forward Rule.
Before 1997, the vacancies which were reserved for the Scheduled Castes and Scheduled Tribes and were not filled up by direct recruitment because of the non-availability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes were treated as “Backlog Vacancies”. These vacancies were then treated together as a distinct group and were excluded from the upper limit of reservation i.e. 50%. In the landmark judgment of Indra Sawhney, the Supreme Court held that the total number of vacancies to be filled up on the basis of reservations in a year including the reservations by the Carry Forward Rule shall not exceed the upper limit of fifty percent. As total reservations in a year for the Scheduled Castes and Scheduled Tribes along with the Other Backward Classes had already reached forty-nine and a half percent and the total number of vacancies to be filled up in a year was not allowed to exceed fifty percent and so the filling up of “Backlog Vacancies” became difficult. Therefore, in order to implement the said judgment and maintain the upper limit of reservations, an Official Memorandum dated August 29, 1997, was issued which stated that the fifty percent upper limit shall apply to current as well as “Backlog Vacancies”.
Due to the adverse effect of the aforesaid Memorandum on the Scheduled Castes and Scheduled Tribes, various organizations including the Members of Parliament in order to protect the interests of the Scheduled Castes and Scheduled Tribes approached the Central Government. After taking into consideration, the various representations by the organizations and Members of Parliament, the Court reviewed the position and decided to make an Amendment in the Constitution so that the vacancies which were left unfilled can be considered as a separate class of vacancies. Such a class of vacancies shall not be considered together with the other vacancies of the year. It was stated that carry forward rule will be applicable for unfilled (backlog) vacancies but it must not violate the 50% upper limit rule. Together all the reservations must not exceed the 50% upper limit. The Backlog vacancies were thus, allowed but the upper limit of the reservation remained 50%. This Amendment in the Constitution enabled the State to restore the position as it was before passing of the Memorandum dated August 29, 1997.
The Constitution (85th Amendment) Act, 2005
The Government servants who belonged to the Scheduled Castes and Scheduled Tribes enjoyed the benefit of seniority because of the reservation of promotion in Government services. The judgments of the Supreme Court in the cases like Union of India vs. Virpal Singh Chauhan (1995) and Ajit Singh vs. State of Punjab (1966) led to the issue of the O.M.(official Memorandum) dated 30th January 1997. The Memorandum adversely affected the interest of the Scheduled Castes and Scheduled Tribes in the matter of promotion who worked under Government. Subsequently, many representations were made by various quarters including Members of Parliament to protect the interest of the Government servants who belonged to Scheduled Castes and Scheduled Tribes.
The Government reviewed the position in the light of views received. The 85th Amendment was introduced in order to extend the benefit of reservation in favor of the citizens belonging to Scheduled Castes Scheduled Tribes in matters of promotion with consequential seniority. The Amendment substituted the words “in matters of promotion to any class” the words “in matters of promotion with consequential seniority, to any class” in Article 16 (4) of the Constitution.
M. Nagaraj v. Union of India
The case of M. Nagaraj v. Union of India (2007) was related to reservation of Scheduled Castes and Scheduled Tribes and dealt with Articles 16 (4A) and (4B) of the Constitution. It was held in this case that in order to grant reservations to Scheduled Castes and Scheduled Tribes, the State must collect ‘quantifiable data’ to demonstrate their backwardness. It was held that the concept of the creamy layer will also apply to the Scheduled Castes and Scheduled Tribes and therefore, they would not be entitled to any such reservations. Further, the decision was altered as it was argued by the Attorney-General of India that both the holdings were incorrect as they were contrary to the judgment which was given in Indira Sawhney vs Union of India (non-exclusion of creamy layer in matters of reservations).
Report of Justice Ram Nandan Committee
Ram Nandan Committee was appointed to differentiate the creamy layer from other backward classes of citizens. A report was submitted by the Committee in 1993 which was accepted. By an Act of Parliament, the National Commission for Backward Classes was established in 1993. The Commission considered inclusion and exclusion of the citizens from the lists of castes that are notified to be backward for the purpose of job reservation. The Commission also evolved a formula in order to determine the criteria which will be applicable to differentiate the creamy layer from other backward classes.
It was stated by Ram Nandan Committee in its report that reservation should not be provided to OBC children of constitutional functionaries i.e. President, Judges of the Supreme Court and High Courts, employees of central and state bureaucracies above a certain level, public sector employees, and members of the armed forces and paramilitary personnel above the rank of colonel. The reservation would not be applicable to the children whose parents are engaged in trade, industry or in professions like medical, law, chartered accountancy, income tax consultancy, financial or management consultancy, engineering, or is a film artist or is involved in any other film profession, or is an author, playwright, sportsperson, sports professionals, media professional or any other vocations of like status, whose annual income is ₹ 100,000 (Rs 1 lakh to Rs 6 lakh for a period of three consecutive years (the amount has been changed from the amount which was specified in the year 1993 by the committee.
Disabled candidates
The Indian Constitution provides for equal rights and opportunities to the disabled citizens. The disability should be 40% or more and must be certified by a medical practitioner. The disability also includes blindness, visual impairment, hearing impairment, locomotor disabilities, etc. The Constitution aims to put the disabled citizens in an equal position with other citizens. In order to achieve this aim, the Constitution has made provisions under Article 15(1) and (2) for reservation of disabled citizens under Government services and institutions which are run by the Government.
Article 29(2) of the Constitution provides similar rights to the disabled people in matters of education. It has been stated in the Article that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds only on the ground of disability.
National Commission for Backward Classes
In the case of Indra Sawhney vs Union of India, the Court directed the Government to create a body for inclusion and exclusion of the citizens from the lists of castes that are notified to be backward for the purpose of job reservation. Subsequently, the Parliament passed the National Commission for Backward Classes Act in 1993 and constituted the National Commission for Backward Classes.
The 102nd Constitutional Amendment, 2018 provides a Constitutional status to the National Commission for Backward Classes (NCBC). The Commission has the authority to examine complaints and welfare measures of the citizens who belong to backward classes socially and educationally.
The Commission works for the citizens who belong to Backward classes and monitors all the matters related to it in order to safeguard the backward classes of citizens. NCBC also performs such other functions which are important for the protection, welfare and development and advancement of the socially and educationally backward classes.
Abolition of untouchability : Article 17 of the Indian Constitution
Article 17 of the Constitution provides that untouchability in any form is abolished and forbidden. The enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with the law. For the longest time in India, untouchability as a practice has continued to exist. The practice of untouchability includes dividing people into classes, wherein one or more “upper classes” do not engage with the “lower classes”. Documented evidence of division of labour among classes of people is the perfect instance of untouchability practice.
Untouchability has not been defined in the Constitution. So, it has to be interpreted in the literal sense only. In Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. State of Mysore (1957), the Karnataka High Court noted that the literal construction of the word “untouchability” would include the persons who are, either temporarily or otherwise, treated as untouchables, so as they are suffering from an epidemic disease or a contagious disease, or are excluded from social gatherings on the basis of social observance relating to marriage and death. The definition provided by the Karnataka High Court aptly explains the form of untouchability that prevailed in India.
The Protection of Civil Rights Act, 1955
To curb the practice of untouchability, the Untouchability (Offences) Act, 1955, was enacted. The objective of the Act was to prescribe punishment for the preaching and practice of untouchability in the enforcement of any disability. The punishment prescribed by the Act for any form of untouchability is imprisonment for a term of not less than one month and not more than six months, along with a fine of not less than one hundred rupees and not more than five hundred rupees.
However, it is pertinent to note that the Act did not define the term “untouchability”. This was one of the major shortcomings of the Act, and hence the Committee on Untouchability, Economic, and Educational Development of the SCs was appointed to examine and propose changes to the Act in order to make it more effective. The Act was then amended to be renamed the Protection of Civil Rights Act of 1955, wherein the term “civil rights” was defined to have emanated from Article 17 of the Constitution. Another crucial change brought about by the amendment was that the offences were made non-compoundable in order to increase the gravity of the punishments.
In Devrajiah v. B. Padmanna (1957), the Karnataka High Court held that since the Untouchability (Offences) Act, 1955, does not define the term “untouchability”, it would include untouchability in every form, as it is prohibited under Article 17 of the Constitution.
The right against untouchability is not enforceable only against the State, but can also be enforced against private individuals, as held in People’s Union for Democratic Rights v. Union of India (1982).
A constructive view on the abolition of untouchability was taken by the Hon’ble Supreme Court of India in the case of Sabarimala Temple Indian Young Lawyers’ Association v. State of Kerala (2018). Justice Chandrachud stated that the issue of untouchability is not a technical rule; rather, it would include all social prejudices. The ban on entry of women into the Sabarimala Temple would also amount to untouchability.
Article 17 is one of the major cornerstones of the fundamental right to equality. The caste system has prevailed for decades in India. The colonial rule only added to the division of castes. This led to a disparity between the individuals on the basis of the socio-cultural habits they followed. The majority termed themselves the elite group, while the minority was treated as untouchables. They were not allowed to worship in community temples, share community resources such as river waters and forests, denied opportunities to study in public schools, denied opportunities of public as well as private employment, etc. While framing the Constitution, the Constituent Assembly noted the disparities and disrespect shown towards the class of people and added Article 17 as a relief. Article 17 was adopted by the Constituent Assembly unanimously, as no person denied the importance of the right against untouchability.
Abolition of titles : Article 18 of the Indian Constitution
Article 18 of the Constitution states that the state shall confer no titles to any individual except military or academic distinction. The scope is not limited to a citizen being conferred a title by the Government of India; rather, it extends to a citizen accepting a title from a foreign state, and even a foreign citizen, while he or she is holding an office of profit in India, accepting a title from a foreign state. A perusal of the debates of the Constituent Assembly would suggest that the framers did not want any classification of people by way of title. It was even iterated in the Constituent Assembly debates that if a person accepts any title, they shall forgo their citizenship of India. It would fall under the residuary powers of Parliament to cease the citizenship of the said person. Thus, it can be said that the fundamental right under Article 18 is more of a duty towards ensuring the right to equality.
Balaji Raghavan v. Union of India (1996)
In this case, two writ petitions, in Kerala High Court and Madhya Pradesh High Court (Indore Bench), respectively, were filed by the petitioners pleading the issuance of the writ of mandamus in order to prevent the respondent from conferring any awards, namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Shri (hereinafter called “National Awards”), which would fall under the scope of “Titles” as postulated by Article 18. Stating that the titles are not violative of the provisions of the right to equality, the Hon’ble Supreme Court dismissed the writ petitions. It was held by the Court that the objective of the provision was to prohibit any conferment of title so as to create a hierarchy among the individuals. However, the national awards were conferred on those citizens who provided extraordinary services in their respective fields and furthered national interests. These awards, in no way, discriminated on any of the grounds of race, sex, colour, religion, etc. Moreover, these awards furthered the Directive Principles of State Policy under Article 51A(f). Thus, the national awards were held to be constitutional and did not fall under the heading of “titles” under Article 18.
However, it is pertinent to note that the Court took cognizance of the fact that the state did not follow a proper method for determining the persons to whom the state shall confer national awards. Thus, it was recommended that a committee be formed to work with proper procedures regarding the same.
Indira Jaisingh v. Union of India (2017)
This case relates to the issue of whether the title “Senior Advocate” forms a part of the “Titles” stipulated under Article 18 and violates the fundamental right to equality. The petitioner in this case was a senior advocate designated by the Bombay High Court. She had been practicing as an advocate for several decades at the Hon’ble Supreme Court. She challenged the rules relating to the designation of senior advocates at the Apex Court and averred that rectification of the procedure was necessary. The Court took into consideration the procedures of various jurisdictions as regards the designation of a senior advocate, including but not limited to Singapore, Australia, Ireland, etc. It was held by the Court that the designation as a senior advocate was based on the merits of the practitioners and was hardly a title. Noting that the procedure was not uniform amongst the various high courts, the court laid down the parameters that are to be considered for any designation of a practitioner as a senior advocate. These factors include:
- Number of years of practice: 10 points for experience of 10-20 years, 20 points for experience above 20 years.
- Judgements (reported and unreported), areas of expertise, pro bono work done by the practitioner: 40 points.
- Publications: 15 points.
- Test of personality and suitability on the basis of the interview: 25 points.
Conclusion
Right to equality is not a simple concept as it is perceived to be. The Indian Constitution aims to achieve a society in which all individuals are provided with an equal opportunity. The developments which have been made in the light of right to equality under the Constitution have uplifted the Indian society. The Courts have given various interpretations through the judgments so as to achieve the aim of equality which the framers of the Indian Constitution intended.
The fundamental right to equality has been enshrined under Articles 14 to 18 of the Constitution. Collectively, these rights ensure that citizens are treated equally by prohibiting the state from discriminating on the basis of religion, race, caste, sex, or place of birth. However, this right is often misconstrued as being an absolute right to equal opportunities for all. Rather, this right guarantees equal protection for equals and unequal treatment for unequals. The state has the duty to ensure that every person is provided with an opportunity in every aspect, i.e., education, employment, entertainment, use of natural resources, etc. Generally, the right to equality is enforceable against the state. However, in certain circumstances, such as in the case of Article 17, it can be enforced against private citizens as well. The right to equality is not just related to enjoyment of rights; it also includes certain duties upon the citizens, such as in Articles 17 and 18. These duties ensure that the right to equality is not frustrated.
FAQs
Whether the right to equality is only enforceable against the state?
The right to equality has been provided from Article 14 to Article 18 of the Constitution. While Articles 14, 15, and 16 are an obligation on the state to not discriminate among the citizens, Articles 17 and 18 are obligations not only on the states but on the citizens as well. The gravity of the obligation under Article 17 makes it enforceable against private citizens as well, and the courts have observed the same in various instances.
Whether the state can provide differential treatment while providing public employment?
Yes, the state can provide differential treatment while providing public employment under Article 16 of the Constitution. The purpose of the right to equality under Article 16 is to treat equals on equal footing and unequals on unequal footing. If the state has a reasonable nexus to treat different classes of people differently, it would not be unconstitutional to do so.
References
- Indian Constitutional Law, M.P. Jain (2018).
- Constitution of India, V.N. Shukla (2022).
- Constitutional Law, Mamta Rao (2021).
