Article 16 of the Indian Constitution: The Examination of Right to Equality

Article 16 of the Indian Constitution: The Examination of Right to Equality

The right to equality is one of the basic fundamental rights that the Constitution of India guarantees to all the citizens of the country. The term equal opportunity is a term that has differing definitions. With time Article 16 of the Indian Constitution: The Examination of Right to Equality has been interpreted widely.

Equal Employment Opportunity principle applies to:

1. Access to job
2. Condition of employment
3. Relationships in the workplace
4. The evaluation of performance and
5. The opportunity for training and career development

The matter’s related to employment or appointment in clause (1) includes :

1. Initial appointment[1] ,
2. Promotions
3. Termination of employment
4. Matters of salary, periodical increments, leave, gratuity, pension, age of superannuation, etc…

Matters of Seniority

In Bimesh Tanwar v State of Haryana[2], it was held that seniority is not a fundamental right’.

The same question of seniority was raised in Union of India v Virpal Singh Chauhan[3] wherein the court held SC and STs getting the benefit of reservation based on promotion cannot get the position of seniority. The case introduced Catch up rule. Again in Arjit Singh v State of Punjab[4], it was held that the senior general candidates who were promoted after SC/ST candidates would regain their seniority over the general category, promoted earlier.

While determining the relationship of Article14, 15, and 16 in N.M Thomas v State of Kerala[5] the majority of five judges held that, Article 16 (1) permitted reasonable classification and did not forbid the state from rendering social justice to the backward classes.

Ray C.J, specifically in this case explained Article 16(1), 16(2), and 16(4). Article 16(1) uses ‘equality ‘which is in relation to all matters of employment. Article 16(1) permitted classification on the basis of object and purpose of law or state action except classification involving the discrimination prohibited by Article 16(2), Article 16 (4) is one of the methods of achieving equality embodied in 16(1). Hence, under Article 16 (4) a rule of giving preference to the unrepresented backward community is valid and would not contravene Article 14, 16(1), and 16(2).

Also Read: Preamble of The Indian Constitution

Formal and Substantive Equality

In the same case, Supreme Court recognized the distinction between formal and substantive equality. Formal Equality is also known as legal equality.  This is seen as one law that should be applied to all people, social and personal characteristics are no factor. Formal equality aims to distribute equality fairly and evenly, aims to treat people the same.

Substantive equality is referred to as equity in the sense that equality also involves recognizing differences when they are becoming roots of inequality and identifies them, even if this involves removing the barriers that disadvantaged individuals.

Backward classes and more backward classes

In Akhil Bhartiya Soshit Karam Chari Sangh v Union of India[6], it was concluded that classification or the SC and ST as a special category could be justified within the meaning of Article 15(1) and 16(1) whereas classification of the weaker section on the basis of backward classes may have to conform to requirements of Article 15(4) and 16(4). This classification was later approved by the Mandal Commission Case as the classification of backward and more backward.

India Sawhney v Union of India[7], questions were raised on

1. Whether the classification made is on the basis of economy or caste?
2. Whether Article 16(4) is an exception of Article 16(1) or not?
3. Whether in Article 16(4) backward classes are similar to socially and Educationally Backward Classes in Article 15(4) or not?
4. Whether classification of Backward or more backward class is valid?

The court ruled that –

1. Within SEBCS classification of backward and more backward classes is possible
2. To maintain the cohesiveness and character of a class the ‘creamy layer’ can and must be excluded from the SEBC
3. The backward class of citizens in Article 16(4) is a wider category than in Article 15(4) and 340. In Article 16(4) it means socially Backward while in 15(4) it means socially and educationally backward.

The Indira Sawhney case overruled three prominent cases

1. R Balaji v State of Mysore[8], in this case, state of ordered SC/ST 68%? Reservation and rest to general caste. But in the State of Mysore, it was observed that General Category is in the minority therefore it was held that the classification of backward and more backward is not accepted. Any community is backward only if they come under the Educationally and Socially Backward Category.
2. Devadason v Union of India[9], the question before the Court was to determine the constitutionality of carry-forward rule. Since the carry forward rule could go up to 54% of the total vacancies which is above 50% limit reservation prescribed in M.R Balaji and hence the rule got invalidated. But in the Mandal Commission case this rule was held as valid if it doesn’t exceed the limit of 50%.

103^rd Amendment Act, 2019

The amendment was enacted on 9^th January 2019 and received president accent on 12^th January 2019. The act enabled states to make reservations in higher education and matters of public employment on the basis of economic criteria alone. This Amendment Act amended Article 15(6) and 16(6).

In the Indira Sawhney case, it was held that, if an exception is shown then a reservation can be made which might exceed 50% limit under Article 16(1) and 16(4). The case of Youth for Equality v Union of India 2019[10] has raised the question to determine the Economically Weaker Section based reservation which provides 10% reservation to economically weaker sections as constitutional or unconstitutional. And whether the solely economic-based reservation is valid.

Amendments under Article 16 of the Indian Constitution

In 1995, the Government nullified the effect of Indra Sawhney’s judgment by introducing Article 16(4) through the 77^th amendment of the Constitution.

77^th Amendment Act added Article 16(4) (a) to overcome the decision of the Supreme Court in Indira Sawhney regarding promotion. It states that nothing in this article shall prevent the state from making any provisions for reservation in matters of promotion with consequential seniority, to any class or classes of posts in the service under the state in favor of the SC and ST which in the opinion if the state is not adequately represented in state services.

The two judgments Virpal Singh[11] and Arjit Singh[12] introduced the concept of catch-up rule. The rule held that senior general candidates who were promoted after SC /ST candidates would regain their seniority over general candidates, promoted earlier.

81^st Amendment Act added 16 (4) (b), which allowed backlog vacancies to be carried forward. Under Article 335 the appropriate government will have to introduce the time lap depending upon the fact and situation to fill the backlog vacancies.

85^th Amendment Act 2001, introduced the principle of consequential seniority to promoted SC/ST’s candidates.  Article 16 (4) (a) was amended such that it included matters of promotion with consequential seniority to any class.

The court in M. Nagraj v Union of India[13] validated the following constitutional amendments made by parliament-

1. The constitution 77th Act, 1995 which inserted Article 16 4A)
2. The constitution 81st Act, 2000 added Article 16 (4B)
3. The constitution 85th Act, 2001 added “Consequential Seniority” for SC/ ST under 16 (4B)

In Jarnail Singh and ors v Lacchmi Narain Gupta[14] and ors the court struck down the demonstration of backwardness provisions from Nagraj. However, while doing so it introduced the creamy layer exclusion principle which requires that the State does not extend reservation in promotion to SC /ST individuals who belong to the creamy layer of the said SC /ST.  In the same case, the bench observed that Nagraj had failed to refer to the EV Chinnaiah Case[15] wherein the court noted that the Subclassification of SC/ST can’t be created. Krishna Iyer, j. Clarified that the terminology of scheduled castes and scheduled tribes have been defined in Articles 341 and 342.

The most recent case regarding reservation is Jaishri Laxmanrao Patil v C.M Maharashtra[16] also known as Maratha Reservation Case 2018, the Court had to examine the constitutional validity of the Maharashtra Socially and Educationally Backward Classes Act, 2008 which grants Reservation to the Martha community.  The court invalidated the Reservation due to a lack of data and evidence.

 

Written by Miss. Shreya Patel,

Senior Member, The Legal State

 

Note:  The research and opinion in the articles are the author’s own views. we try to ensure that the information we post on our website is accurate. However, despite our best efforts, some of the content may contain errors. You can trust us, but please conduct your own checks too.

References:

[1]Southern Railway v Rangachari AIR 1962 SC 36; Krishan Chander Nayar v Central Tractor Organization AIR 1962 SC 602; Ram Sharan v Inspector General of Police AIR 1964 SC 1559

[2] AIR (2003)5 SCC 604

[3] 1996 AIR 448, 1995 SCC (6) 684

[4] 1996 AIR 1189,JT 1996 (2) 727

[5] AIR 1976 SC 490

[6] AIR 1981 SC 298

[7]  AIR 1993  SC 477

[8] AIR 1963 SC 649

[9] AIR 1964 SC 179

[10] WP (C) 73/2019

[11] 1996 AIR 448, 1995 SCC (6) 684

[12] 1996 AIR 1189,JT 1996 (2) 727

[13] https://www.scobserver.in/court-case/reservation-in-promotion-for-scs-and-sts/consequential-seniority-in-karnataka-plain-english

[14] Supra 13

[15] https://www.scconline.com/blog/post/tag/e-v-chinnaiah/

[16] SLP NO.15737of  2019