equality
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This article is written by Shristi Suman, a second-year student of (BBA.LL.B) Symbiosis Law School, Hyderabad. In this article, the scope, provisions, and different aspects of the Right to Equality under Article 16, 17 and 18 of the Constitution have been discussed.

Introduction

The Indian Constitution contains provisions for Right to Equality in Articles 14 to 18. The Preamble of the Indian Constitution also provides for the right to equal status and opportunity to the citizens of India. Right to Equality forms part of the basic structure of the Indian Constitution which can’t be amended. It is one of the six fundamental rights which is provided to the citizens of India by the Constitution. The Right ensures equality before the law and equal protection of the law irrespective of race, religion, caste, place of birth or gender of the citizens. Article 14 forms the foundation of Articles 16, 17, 18 of the Indian Constitution.

Right to equality of Opportunity in Public Employment: Article 16

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 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. The case Chemical Mazdoor Panchayat vs Indian Oil corporation was remanded by the Supreme Court in order to get a fresh decision on it by the High Court of Gujarat. 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 honorable 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, 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 honorable Supreme Court, in Indra Sawhney and Others vs. Union of India 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 and Others vs. Union of India, 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.

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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 v Union of India, 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 and Ajit Singh vs. State of Punjab 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 has 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, AIR 2007 SC 71

The case M. Nagaraj v. Union of India 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

Untouchability has been abolished by the Indian Constitution through Article 17. The Article states that the practice of untouchability is prohibited in all forms. Article 17 of the Constitution abolishes the practice of untouchability. The practice of untouchability is an offense under the Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) and anyone doing so is punishable by law. This Act states that whatever is open to the general public should be open to all the citizens of India.

Devarajjah v. Padmanna, AIR 1958 Mys 84

In the case of Devarajjah vs. Padmana, the term untouchability was defined. It was stated that the Untouchability Offences Act, 1955 fails to define the word ‘untouchability’. The Court observed that ‘untouchability’ under Article 17 of the Constitution should not be taken in the literal sense but should be understood as a practice that has prevailed and developed in India. The framers of the Constitution had clearly indicated untouchability as a practice that developed historically in this country. The existence and practice of untouchability in this country and the efforts which have been made for its eradication during the past decades are matters of common knowledge and can be taken judicial notice of.

Article 17 of the Constitution which was intended to abolish the practice of untouchability, fails to define the term ‘untouchability’ nor is it defined anywhere else in the Constitution. Through this case, the Court gave a broader interpretation of the word ‘untouchability’ under Article 17 of the Constitution.

Asiad Project Workers Case

In the Asiad Project Workers Case, the PUDR filed a case against the Delhi Administration. People’s Union for Democratic (PUDR) is an organization which was formed for the purpose of protecting the democratic rights of the citizens. It commissioned three social scientists for inquiring about the conditions under which the workmen were working in Asiad Projects. Based on the inquiry, the PUDR addressed Justice Bhagwati by writing a letter about the various violations of labor laws that were taking place in Asiad Projects. The Supreme Court treated the letter as a writ petition and issued a notice to the Union of India, Delhi Administration, and Delhi Development Authority. The violations were as follows:

(i) The provisions of the Equal Remuneration Act, 1976 were violated. The female workers were being paid less than male workers and the amount of wage was being misappropriated by the Jamadars. The workers who belonged to lower castes were treated as untouchables and were forced to work without wages. It resulted in a violation of Article 17 and 23 of the Constitution.

(ii) There was a violation of labor law as well as Article 24 of the Constitution as children below the age of 14 years were employed in the project.

(iii) There was a violation of the Right to life under Article 21 of the workers as they were denied of proper living conditions and medical facilities.

The judgment which was given by the Supreme Court was in favor of the petitioners. The Court observed that it is the duty of the State to protect the fundamental rights of the citizens. A set of guidelines were given for minimum wages and many other provisions were introduced to ensure proper working conditions for the workers.

Abolition of Titles: Article 18

The Article 18 of the Constitution forbids the State from conferring any titles on the citizens of India and also they are prohibited from accepting any title given by a foreign State. However, Military and academic distinctions can be conferred upon. The title which comes along with awards such as Bharat Ratna and Padma Vibhushan do not fall within the constitutional prohibition and thus, they do not fall under the definition of title under Article 18 of the Constitution.

Balaji Raghavan v. Union of India, (1996) 1 SCC 361

In the case of Balaji Raghavan v. Union of India, the petitioners contended that National Awards like Padam Vibhushan, Padam Bhushan, Padam Shri, and Bharat Ratna should not be given to the individuals as it is a violation of Article 18. It was argued in the court that the National Awardees very often misuse the title which is given to them by the Government. The Supreme Court held that National Awards are not subject to titles as per Article 18 and receiving a National Award was not a violation of equality under the Constitution. Article 51(A)(f) of the Constitution speaks about the necessary recognition and appreciation of excellence in the performance of a person’s duty. The Court criticized the Government’s failure in selecting the right candidates for National Award and also stated that the whole criteria for selection were vague and the main object of recognition and appreciation of work was wholly missing.

Designation of Senior Advocate

In the case of Indira Jaisingh vs. Supreme Court of India, the designation of the Senior Advocate was questioned as the appointment of the Senior Advocates were based on different norms and guidelines in different High Courts. Subsequently, the Supreme Court framed a new set of guidelines for the appointment of Senior Advocates. The petitioner Indira Jaisingh filed a petition on the grounds that the guidelines which are set by the Supreme Court for the appointment of Senior Advocates are flawed and need to be rectified. From the year 2015, no lawyer has been with the title of senior advocate by the Supreme Court. The last time the court made the designation of the Senior Advocate was in April 2015. The issue came before the Court when the Senior Advocate Indira Jaisingh filed a petition questioning the biased view when it comes to ‘giving them the gown’. This petition came right after when Supreme Court-appointed 5 new senior advocates in 2015. She contended that this was a violation of the fundamental rights under Article 14 & 15 of the Constitution. She also contended that this led to the monopoly of the senior lawyers in a court of law and the method of appointing senior designation also leads to unhealthy lobbying with the judges. The Courts have stopped the appointment of advocates for the designation of senior advocates after the said petition.

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 the 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 framers of the Constitution aimed to achieve a society where all citizens are treated equally. 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. 


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