Article 16 in Constitution of India

16. Equality of opportunity in matters of public employment

(1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State,

(2)No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3)Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an officeunder the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4)Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A)Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which in the opinion of State are not adequately represented in the services under the State.[In article 16 of the Constitution after clause 4, the following clauses shall be inserted through Constitution (Seventy-seventh Amendment) Act, 1995][Editorial comment -The Constitution (Seventy-seventh Amendment) Act, 1995, broadened the reservation provisions for job promotions, encompassing individuals belonging to Scheduled Castes and Tribes. Since 1955, the Scheduled Castes (SC) and Scheduled Tribes (ST) have had access to the facility of reservation in the promotion. However, the Supreme Court stated in its decision dated November 16, 1992, in the issue of Indra Sawhney and Others vs. Union of India and Others that reservation of appointments or posts under Article 16(4) of the Constitution is restricted to initial appointment. Further, it cannot extend to a reservation in matters of promotion. The interests of the SC and STs will be harmed by this Supreme Court decision. It is vital to continue the current dispensation of offering reservations in promotion for the Scheduled Castes and the Scheduled Tribes since their representation in services in the States has not achieved the requisite level. The government has chosen to maintain the prevailing policy of reservations in the promotion of the Scheduled Castes and the Scheduled Tribes in light of its commitment to safeguarding the interests of these groups. To achieve this, it is necessary to change Article 16 of the Indian Constitution. This is accomplished by adding a new clause (4A) to the aforementioned article that establishes a reservation in promotion for the Scheduled Castes (SCs) and Scheduled Tribes (STs).Also refer][Editorial comment -The primary goal of the Constitution (Eighty-fifth Amendment) Act, 2002, was to increase the benefits of reservation in favor of the Scheduled Castes and Scheduled Tribes in matters of promotion, with consequential seniority, to any class. The phrase 'in situations of promotion to any class' was replaced with 'in matters of promotion, with consequential seniority, to any class' in clause (4A) of Article 16 of the Indian Constitution.Also Refer][In article 16 of the Constitution after clause 4 (A), the following clauses shall be inserted through Constitution (Eighty-first Amendment) Act, 2000]

(4B)Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.[The Constitution (Eighty-first Amendment) Act, 2000, aimed to protect reservations for SCs and STs in the backlog of vacancies. A new clause (4B) was added to Article 16 of the Constitution of India by the 81st Amendment Act of 2000, after clause (4A). This gave the states the authority to treat unfilled reserved vacancies from one year as a separate class of vacancies to be filled in the following year or years. The new provision stated that such vacancies must not be included in the vacancies of the year in which they are filled, in order to calculate the overall vacancy reservation ceiling of 50% for that year. This modification essentially eliminated the 50% cap on reservations for backlog vacancies.Also Refer]

(5)Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

(6)Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.Editorial Comment - Article 16 discusses equality in opportunity of employment for all the citizens. There are 6 Clauses under this article. Starting clause 1 and 2 talks about equality of Opportunity and clause 3 to 6 are the exceptions of clause 1 and 2.

Clause 1 states that there shall be equal opportunity for the citizens in the matter of employment or appointment to any office under the State. This clause does not provide the right to employment; it only gives the right to equal opportunity in case of any available vacancy in public employment. This clause also applies to promotions or termination and other aspects of state employment. This equality is applied only to the people who are applying for the same employment opportunity or are working in the same post.

Clause 2 states that there will be no discrimination based on religion, race, caste, sex, descent, place of birth, residence in employment. The state cannot discriminate only on the basis of the above criterias.

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. Backward class includes Schedule Castes and Scheduled Tribes.

In the case of Balaji v. State of Mysore, AIR 1963 the court held that caste cannot be the sole determining criteria for gauging the backwardness of a community. It can be their Poverty or the place where they live also. In the case of T. Devadashan v. Union of India, AIR 1964, the court struck down the carry forward rule for the vacancies of backward classes. The Court held that, following Balaji, the reserve vacancies in any one year had risen to more than 50% because they were not constitutional because of the carry-forward clause. The 50% rule only applies to proper reservations, i.e., backward classes reservations made under Article 16(4). The law cannot be applied to exemptions, concessions, or reliefs given to retroactive classes in compliance with Article 16(4).

In the landmark judgment,Indra Sawhney v. Union of India, AIR 1993 (Mandal case), the Supreme Court dealt with the issue of “carry forward” reservations. The Second Backward Classes Committee, headed by BP Mandal, submitted its report which recommended 27 percent reservation for Other Backward Classes (OBCs) and 22.5 percent for the Scheduled Castes/Scheduled Tribes.

The Central government, however, acted on the report a decade later, by issuing an office memorandum (OM), providing 27 percent vacancies for Socially and Educationally Backward Classes to be filled by direct recruitment.

Indra Sawhney, the petitioner in this case, made three principal arguments against the Order- The extension of reservation violated the Constitutional guarantee of equality of opportunity, caste was not a reliable indicator of backwardness and that the efficiency of public institutions was at risk.

The Supreme Court upheld the government order that caste was an acceptable indicator of backwardness. Thus, the recommendation of reservations for OBCs in central government services was finally implemented in 1992. The Supreme Court states that 27% central government reservation for OBCs is valid. However, some states denied the existence of the creamy layer, and a report commissioned by the supreme court was implemented. The case was pressed again in 1999 and the supreme court reaffirmed the creamy layer exclusion and extended it to SCs and STs. This judgment also overruled Rangachar v. General Manager Southern Railway and Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India verdicts, which said that reservations could be made in promotions as well as appointments. Indra Sawhney v. Union of India held that reservations cannot be applied in promotions.

Later, the Parliament enacted the 77th Amendment Act, 1995 and added clause (4A) to Article 16 of the Constitution, thereby enabling the Parliament to make provisions for reservation for SCs and STs in promotion posts. This simply meant that even after the judgment of mandal case, the reservation in promotion in government jobs, shall continue.

Clause (4B) was added to the Indian Constitution by way of 81st Amendment Act, 2000. It was added to the Constitution with the intent that the backlog vacancies which could not be filled due to unavailability of eligible candidates of the SEBC category in a previous or preceding year, shall not be clubbed with the 50 percent reservation for the SCs and STs and Other Backward Classes on the total number of vacancies in the next year.

Clause (5) exempts a law from the application of clauses (1) and (2), which require the incumbent of any office to be religiously qualified for appointment.

The case M. Nagaraj v. Union of India 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 Indra Sawhney v. Union of India (non-exclusion of creamy layer in matters of reservations).

Clause (6) was added to Article 16 by the 103rd Amendment Act, 2019, which came into effect on January 14, 2019, and empowers the State to make various provisions for reservation in appointments of members of the Economically Weaker Sections (EWS) of society to government posts. However, these provisions must be within the 10% ceiling, in addition to the existing reservations.

In the case of Janhit Abhiyan v. Union of India (2022) the constitutionality of the 103rd Amendment was contested, alleging that it violated the fundamental structure of the Indian Constitution. However, the majority decision, with a 3:2 ratio, upheld the amendment as constitutionally valid. Justice Maheshwari explained that reservations go beyond being mere affirmative actions or measures to address social and educational backwardness; instead, they serve to combat various forms of disadvantages. The majority also ruled that a 10% reservation for Economically Weaker Sections (EWS) in addition to the existing 50% reservation limit, as established in the Indra Sawhney Case, is constitutional. Additionally, all three judges agreed that the 50% limit is not rigid and may be surpassed in exceptional circumstances.

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