The Constitution of India was drafted with the intention of establishing a democratic society based on social, economic, and political equality, as well as equality of position and opportunity. Positive action aims to enhance societal equality by favoring the poor. Any legislation cannot achieve its goal unless society accepts it. The right to equality is one of the fundamental rights guaranteed by the Indian constitution to all citizens. To achieve social equality, people of all classes must be given equal opportunities in all areas. That’s why equitable opportunity in government jobs is vital. Article 16 of the Constitution says Equality of Opportunity in terms of public employment and instructs extensive commitment among current service members. It is widely accepted that everyone in an organization should have an equal chance to apply for jobs, be trained and promoted, and have their employment terminated properly. Equality is treating all classes of individuals equally and as equals in work, i.e. Equal Employment Opportunity (EEO) is not just a philosophy; it is a legal duty. As a result, both employers and employees must adhere to Equal Employment Opportunity.
EEO concepts relate to:
- Job access
- Workplace conditions
- Workplace relationships
- Performance evaluation and
- Training and professional development options
According to the Supreme Court in State of J. & K. v. K.V.N.T. Kholo, equality of opportunity means that every person is eligible for employment or appointment to any post under the State.
A potential employee cannot be denied employment or be discriminated against because of:
Article 16 contains similar provisions, which we will examine in detail. Articles 16(1) and 16(2) indicate that all Indian nationals have equal opportunity to apply for government positions. However, Article 16(3), 16(4), 16(4A) and 16(4B) strengthen all forms of discrimination based on social position. Furthermore, Article 16(3) allows the state to establish laws relating to residence requirements for government jobs, thus strengthening the domicile regulations. The Constitution 103rd Amendment Act, 2019 included clause (6) to Article 16 to give 10% additional reserve of posts for economically vulnerable persons.
Articles 14, 15 & 16:
Article 14 covers equality before the law and equal protection of the law. It means that under the law, no one will be privileged or discriminated against, and that the law will guarantee equal protection to all Indian citizens. It forbids discrimination based on religion, ethnicity, caste, sex or place of birth. At the same time, this Article empowers the state to enact laws and special provisions for citizen upliftment. But Article 16 is only about employment. This article additionally outlaws discrimination on the grounds of descent and place of birth, in addition to those specified in Article 15(1). It ensures equality in employment and appointment, and allows the state to set regulations and qualifying requirements for job selection, as well as make reservations for backward classes in government jobs.
A constitutional right to equality is created by Articles 14, 15 and 16. Together, Articles 15 and 16 give effect to Article 14. That is, if either Article 15 or 16 is infringed, then Article 14 is breached, but not necessarily. Same when Article 16 is infringed, but not vice versa. Also, unlike Article 15(2), Article 16(2) outlaws discrimination on the grounds of descent and residence in addition to religion, race, caste, sex, and place of birth. In Sukhnandan Thakur v. State of Bihar, Patna High Court, followed by Sampath v. State of Madras, Madras High Court concluded that Article 16 exclusively protects against employment and appointment discrimination, but Article 15 is broader and covers circumstances not covered by Article 16.
Because the plain reading of the laws gives this impression, and the Supreme Court likewise agreed, Articles 15(4) and 16(4) were considered exceptions to Articles 15(1) and 16(1). It was later decided that Articles 15(4) and 16(4) flow from Articles 15(1) and 16(1) respectively, and may never be interpreted as exceptions to Article 15(1) or Article 16(1), respectively, in the cases of State of Kerala v. N.M. Thomas and Indra Sawhney v. Union of India (1). It is a way of achieving the equality of opportunity stipulated in Article 16(1).
Discussion of Article 16:
Only Indian citizens get Article 16. The Indian Constitution provides for equal opportunity in public employment as follows:
A. Article 16(1) defines the scope as nondiscriminatory employment or appointment in governmental jobs. Primary appointments, Promotions, Termination of employment and many more shall be covered under clause (1). This law also covers equal compensation for equal effort. It allows the state to set the criteria and examinations for government jobs. Physical fitness, discipline, moral purity, state loyalty, and mental excellence may be required. Article 16 of the constitution prohibits changing the selection criteria during the selection process.
B. Article 16(1) defines equality of opportunity in work as between members of the same class of employees, not between members of separate classes. And while the Constitution does not explicitly mention equal pay for equal work, the fundamental rights make it enforceable, and courts can order it when there are disparities in compensation based on arbitrary categorisation. Religious, racial, caste, and sex discrimination is prohibited by Article 16(2). This article has two new grounds, ‘descent’ and ‘residence’, which are not in article 15. This is to confirm that parochialism and nepotism are removed in government appointment matters. For reasons other than those indicated in section 2, discrimination must be considered and weighted in light of clause 1.
C. Article 16(2), “any employment or office under state” clearly states that it only relates to public work. A person or body hiring people for reasons prohibited by Article 16 is not constitutionally barred (2).
D. Hindu, Muslim, and Christian reservation jobs were found to be in violation of Article 16 in B. (2). Sexual harassment at work is also considered gender discrimination and is illegal. As stated previously under Article 15(3), the court supported unique provisions for women in employment. This section includes transgender people, so they cannot be discriminated against in state employment.
E. In clause 3, the parliament has the right to grant residence-based reservations. It is an exception to Article 16. (2). As there are numerous underdeveloped areas in various states, it is vital that we bring them all on an equal level. So that they might be quickly uplifted and given equal chance. In 1957, Parliament enacted the Public Employment (Residence Requirement) Act. This Act eliminated all rules requiring residency inside a state or union territory to hold public office within that state or union territory.
F. Clause 4 provides for backward class reserve; it empowers the state to provide for SCs, STs, and those who lack proper representation. In Balaji v. State of Mysore, decided that this provision only applies when these two conditions are met:
(a) The state’s services do not sufficiently represent this class.
(b) The second test alone cannot be used.
(c) This Article must be construed in light of Article 335, which states that reservations for backward classes must be justified.
(d) Article 16(4) must be construed in light of Article 335, which states that the claims of SCs and STs must be considered while maintaining administrative efficiency. The backward class’s reserve seems reasonable. It should be addressed in terms of public job chances. In Devadason v. Union of India, the constitutional legitimacy of the carry forward rule was questioned. The Supreme Court declared this provision unconstitutional, holding that the state cannot wield authority in a way that denies opportunity to those who are not disadvantaged. Indra Sawney v. Union of India, the court overruled the earlier judgement and declared that the carry forward rule is permissible as long as it does not exceed 50% of vacancies in a given year. This 50% restriction can only be exceeded in extreme cases.
This case, Indra Sawney v. Union of India, established 12 principles, three of which are relevant to this issue: (a) 27 percent reservation for backward classes is approved, (b) this reservation should be limited to appointment only and not reservation, and (c) reservation should not exceed 50% except in exceptional circumstances. In 1979, Prime Minister Morarji Desai created a Backward Classes Commission headed by Sri B.P. Mandal to count the number of SEBCs in India. This commission reported in 1980 that there were 3743 SEBC castes in India and suggested that they be given 27% reservation in government jobs. PM V.P. Singh authorised 27% reservation in 1990.
As a result of this, the Parliament passed the 77th Amendment Act, 1995, which introduced Article 16. (4-A). This article allowed reservation for SC/STs. Then, in the 81st Amendment Act, a new provision 4-B was added, ending the 50% cap on SC/ST reservation (backlog vacancy).
Article 16(1) is not violated if a religious entity has an office and a member of such position must be of that religion (2). Because it reserves the position for a person of a certain religion, it creates an exception to Article 16(1). This also supports Article 26 (Right to Freedom of Religion) which states that all religious denominations and sects are entitled to govern their own religious affairs, establish charity or religious institutions, and acquire and administer property in line with the law. Initially, this phrase may appear to be an exception to Article 16, Clause 1, yet it ultimately supports the Indian Constitution’s Part III Fundamental Rights.
Article 16(6) of the 103rd Amendment Act, 2019 offers an additional 10% reserve to economically disadvantaged residents. Because of their inability to compete financially with those who are more wealthy, those from lower socioeconomic strata have been mainly barred from higher education and public employment. Article 46 of the Constitution further requires the government to protect the educational and economic interests of the society’s weaker members. Thus, it provides an opportunity for citizens from lower castes to rise economically.
Article 16 is vital in social contexts. It not only provides equal chance to all individuals but also allows for social and economic advancement of the less fortunate. It extends the Right to Equality to Public Employment since, at the time of independence, society was divided into various classes.
This paper opened the ground for the adoption of reservation in India, bringing backward classes on par with forward class residents. Dr. B.R. Ambedkar claimed that many communities and localities have been discriminated against for many years and it is vital to uplift these portions of society in order to construct a welfare state. To achieve social equality, we must remove disabilities and increase possibilities for the weaker sections.
Thus, article 16 serves a dual purpose, ensuring equal opportunity while also allowing for its enforcement. Rarely has any other constitution gone into such depth about public service equality. However, the implementation of these rules has fallen short of the spirit of the law, causing widespread unhappiness. Modernisation and industrialisation change old stigmas, and expanding educational chances for disadvantaged groups will eventually help achieve the ultimate goal of equitable opportunity in public services.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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