Article 16 of The Indian Constitution

article 16 of indian constitution

Brief description of articles

Article 16 is an important article of the Indian constitution. In this blog you will learn about Article 16 and its various sub articles.

Articles:Brief description of Articles:
Art 16(1)It provides for equality of opportunity for all citizens in case of public employment.
Art 16(2)It prohibits the state from discriminating against citizens only on the ground of Religion, Race, Caste, Sex, Place of Birth, Residence, Descent in gaining public employment.
Art 16(3)The parliament is empowered to provide by law residence as a ground for qualification in certain categories of employment under the state.
Art 16(4)It empowers the state to make special provisions for, or in favor of Backward classes of Citizens in case of Public Employment.
Art 16(4a)77th Amendment act 1995 which provided for reservation even in promotion for SC & ST.
Art 16(5)It empowers the state to prescribe or declare religion as a ground for qualification for the recruitment of candidates in certain categories of public employment.

Article 16 of the Indian constitution

  1. Article 16 1

  1. What is Article 16(1) of the Indian Constitution?

Right to public employment article 16
  • It provides for equality of opportunity for all citizens in case of public employment.
  1. Article 16 2

  1. What is Article 16(2) of the Indian Constitution?

article 16 no discrimination
  • It prohibits the state from discriminating against citizens only on the ground of Religion, Race, Caste, Sex, Place of Birth, Residence, Descent in gaining public employment.

Explanation- 

Residence and Descent (Hereditary) were added under Article 16(2)

Is residence a ground for discrimination?

Article 16(3) seems to contradict Article 16(2). Article 16(3) empowers the state to provide residence as the ground in certain jobs.

Hence, Residence became a specific criterion to deny somebody a job in some states.

You will understand it more clearly in the article below (refer: the explanation of Article 16(3))

NOTE- Explanation is for Understanding only.

  1. Article 16 (3) of the indian constitution

  • Under this Article, the parliament by law is empowered to provide residence as a ground for qualification in certain categories for employment under the state.

Argument-

Example- In some state services such as OPSC (Odisha Public Service Commission), people from other states mostly were not eligible to write an exam.

Reason- This is due to the linguistic barrier i.e you should have studied the Odia language which was made compulsory for OPCS and some other exams in Odisha.

This kind of linguistic barrier is generally used by states which have unique languages.

This is generally a way to filter out people. States use such barriers to provide reservations to their own people.

They are generally not stopping people to join State services but barriers like this are just a clever way to make people from other states not eligible for State PCS. This is done for other jobs as well.

So the question is who is having the power to make laws related to residence as a ground for providing jobs. Parliament or state legislature?

Answer- The Parliament is empowered under Article 16(3). The reason is simply that if the state legislature has been given the authority, then most of the states would have given reservations to their own people leaving people from some states vulnerable to jobs.

NOTE- Argument is for understanding only.

  1. Article 16 (4) of the Indian Constitution

  • If the Backward Class is not adequately represented under services in the state. Article 16 4 empowers the state to make special provisions in favor of Backward classes for Public Employment.

State cannot introduce law in favour of backward classes unless two conditions are met:

  1. The said class of citizen should be socially and educationally backward (not economically)

  2. It shall not be adequately represented in Government services.

Explanation-

In 1978 Prime Minister Morarji Desai gave Mandate to Mandal Commission which was established in 1979.

The mandate was to “identify the socially or educationally backward classes” of India and what measures should be taken to raise their status to ensure their right to equality.

Around 3000 classes were identified which were backward and the Mandal commission told that they should be given reservations.

Later VP Singh came to power and with some effort in 1990, they provided reservations for OBC’s. The reservation provided to OBC’s was around 27%. This is done by Article 16(4).

Later on, somebody contested against the reservations for OBC’s which led to the rising of a famous case i.e Mandal Case also known as Indra Sawhney Vs Union of India Case (1992)

NOTE- Explanation is for understanding only.

Indira Sawhney case

Supreme Court in Indira Sawhney Case clarified legal position on reservation policy in jobs, Court said:

  1. The court held that 27% of Reservation for OBC in public employment is valid constitutionally. However, the court directed the state to identify the creamy layer among OBC & remove them from the benefit of reservation.

  2. The court held ordinarily the reservation in jobs (public, not private) in favor of backward classes (OBC, SC, ST) cannot be more than 50%.

  3. If the recruitment is only for 1 Seat then the reservation will not apply.

  4. Supreme Court also held reservation allows extending benefit for Backward Classes only at the entry stage of recruitment but not in promotion. Therefore reservation for SC & ST in promotion was declared unconstitutional & void.

Explanation-

Argument- As it is being said the state cannot give reservations more than 50% to overall Backward classes(OBC, SC, ST).

But the Tamil Nadu government is giving reservations of around 68% to its people. On what ground it is justified then?

Well, the reason is that the composition of Backward classes (OBC, SC, ST) in Tamil Nadu state is high. So it is justified to give more reservations to them on such grounds.

If there is only 1 Seat?
Example – Position such as Director-General of some XYZ institution. Then the seat is going to be unreserved.

People who lost privileges because of the Indra Sawhney Case were:
1. Creamy layer (OBC)
2. SC/ST in the promotions because previously they were getting reservations not only in selection but in promotions as well.

However, Parliament reacted to the judgment of Indra Sawhney’s case via Article 16(4a) described below.

Note- Explanation is for understanding only.

Article 16(4a) – Reservation in Promotion

article 16 4a reservation
  • Parliament reacted to the Judgement of Indra Sawhney case by introducing Article 16(4a) through the 77th Amendment act 1995 which provided for reservation even in promotion for SC & ST.

Person with Disabilities Act – 1995

  • The 1995 Act (Person with disabilities act of 1995) does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired a disability after having entered the service. 
  • 1995 Act recognises right to reservation in promotion.

Reservation in Promotion – Background

  • In the Indira Sawhney Case (1992), the Supreme Court held that the reservation policy cannot be extended to promotions.
  • However, 77th Constitutional Amendment inserted Clause 4A in Article 16 of the Indian Constitution and restored the provision of reservations in promotions.
  • In Nagaraj Judgement (2006), Court laid down three controlling conditions that the State must meet prior to granting SC/ST a reservation in promotion.
  • First Condition was that the State must show the backwardness of the Class. Secondly, the class is inadequately represented in position/service. The third is the reservations are in the interest of administrative efficiency.
  • In Jarnail Singh Case (2018) it struck down the demonstration of backwardness provision from Nagaraj Judgement.

Explanation-

Article 16(4a) is a perfect example that in a country like India, neither Parliament nor Judiciary is supreme.

Parliament- Firstly, extended reservation to Backward communities even in the promotion.

Judiciary- Declared that Reservations in Promotion is Unconstitutional.

Parliament- Now again used its power and brought the 77th Amendment Act which specifically wrote in the constitution, Reservations even in the promotion are valid. A new provision inserted Article 16(4a).

Judiciary- Allowed Article 16(4a). But Judiciary has the power to nullify the amendment itself.

But this is the maturity of Indian Democracy that there is never an ego clash between the Parliament and Judiciary. As they always look forward to the larger interest of the nation.

NOTE- Explanation is for understanding only.

  1. Article 16(5) of the Indian Constitution

article 16 5 of indian constitution
  • It empowers the state to prescribe or declare religion as a ground for qualification for the recruitment of candidates in certain categories of public employment.
  • For Example – In the church, Temple, Mosque, URDU, or Arabic School which are under the administration of state will be part of public employment & seats can be reserved.

Explanation-

Residence can become ground for reservation as we have seen under Article 16(2) and Article 16(3). Similarly, can we give reservations on the basis of religion?

Answer- Yes, for example, institutions such as Temple, Church, Gurudwara, Mosque, etc which comes under the Government premises i.e Funded by State.

Then the state can use religion in order to run those premises & only people from a particular religion can run those premises.

Question- Isn’t it a kind of discrimination with respect to public employment?

No, It is not discrimination. It is a kind of extra qualification to protect the interest of all religions. It even ensures the right to equality.

NOTE- Explanation is for understanding only.

Supreme Court M. Nagaraj VS Union Of India Case (2006)

Court retaliated against the reservation policy saying that the Reservation Policy will be valid only if it satisfies the following five requirements:

  1. The said class of citizens should be socially & educationally backward.
    said class means the class which is in question.

  2. Inadequate Representation in Jobs- The said class should not be adequately represented in Public services.

  3. Efficiency- The general efficiency of administration is to be maintained.

  4. The concept of the creamy layer should be applied for OBC.

  5. Overall Reservation of seats for Backward Classes should not exceed 50% of total seats.

Greetings, you have finished article 16 of the Indian constitution. If you have any doubts or queries, feel free to leave a comment below. We will respond as soon as possible.

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