ARTICLE 16 OF THE INDIAN CONSTITUTION

(An Assignment Work towards fulfillment of 5th

Semester B.A.LLB (H) five years integrated course for the academic session
2017-22)

Subject – CONSTITUTION-1
SUBMITTED BY:

Ankita Dash

5 years Integrated B.A.LLB(H)

Reg. No. 1741802015

Under the guidance of Prof – Mr. Prateek Mishra

SUBMITTED TO: S‘O’A NATIONAL INSTITUTE OF LAW (SNIL)

 Siksha ‘O’ Anusandhan (Deemed to be University)Odisha, India

DECLARATION

I certify and hereby declare that the Assignment Work on the topic
“Article 16 of the Constitution” for the academic session 2019-2020,
has been prepared by me under the guidance of Mr. Prateek Mishra
and the Guide-in-charge and I declare that the same has not been
submitted for evaluation elsewhere.

Ankita Dash
5 years Integrated B.A.LLB (H)
(5th Semester)
Reg. No. 1741802015
S‘O’A National Institute of Law (SNIL)
S‘O’A University, Odisha, India
 GUIDE CERTIFICATE

This is to certify that Ankita Dash of B.A.LLB(H) course, Batch

2017-22, has successfully completed 5th Semester Assignment titled
“Article 16 of the Constitution’’ provided by the institution, for the
academic session 2019-2020.

Ankita Dash
5 years Integrated B.A.LLB (H)
(5th Semester)
Reg. No. 1741802015
S‘O’A National Institute of Law
 ACKNOWLEGEMENT
It gives me immense pleasure to be associated with this project. It was a
joyous learning process. The presentation of the assignment in the way
required has been made possible by the way of contribution of the
various people.
First of all, I would like to express my gratitude to Mr. Prateek Mishra
for his kind help and encouragement. I am very thankful to him for his
advice, assistance and constant support throughout the preparation of
this assignment.
I would like to thank all my beloved teachers for their support and
confidence in me.
I would also like to express my deep gratitude to all the respondents
whose response was of utmost importance for the assignment.
- Ankita Dash,
1741802015
TABLE OF CONTENTS
INTRODUCTION
Right to Equality is one of the basic fundamental rights that the constitution of
India guarantees to all the citizens of the country. Article 16 deals with the equality
of opportunity in matters of public employment. Equal opportunity is a term which
has differing definitions and there is no consensus as to the precise meaning. 

Article 16 in The Constitution Of India 1949

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
or, 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
office under 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 favor of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services
under the State

(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

The Constitution of India has given a wide interpretation of this article. Equal
Employment Opportunity (EEO) principles apply to:

 Access to jobs
 Conditions of employment
 Relationships in the workplace
 The evaluation of performance and
  The opportunity for training and career development. 

 “Article 16 is an instance of the application of the general rule with special

reference to the opportunity of appointments under the State. It says that
there shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.

 “If it stood alone all the backward communities would go to the wall in a
society of uneven basic social structure; the said rule of equality would
remain only a utopian conception unless a practical content was given to it…
that is why the makers of the Constitution introduced clause (4) in Art. 16.

 “The expression “nothing in this article” is a legislative device to express its

intention in a most emphatic way that the power conferred thereunder is not
limited in an what by the main provision but falls outside it. It has not really
carved out an exception but has preserved a power untrammelled by the
other provisions of the Article.”

 What Article 16 guarantees is equality of opportunity in matters of

appointment in State services. Equality of opportunity connotes that every
citizen shall be eligible for employment or appointment to any office under
the State according to his qualifications and capability, as held by the
Supreme Court in State of J. & K. v. K.V.N.T. Kholo, AIR 1974 S.C. Article
16 therefore does not prevent the State from prescribing the necessary
qualifications and selective tests for recruitment of government services.

(1) There shall be equality of opportunity for all citizens in matters

relating to employment or appointment to any office under the State.
The rule applies only in respect of employments or offices which are
held under the state. i.e., the person holding office as subordinate to
the state. The clause accordingly, does not prevent the state from
laying down the requisite qualifications for recruitment for
government services, and it is open to the authority to lay down such
other conditions of appointment as would be conducive to the
maintenance of proper discipline among the servants.

 In the light of the case of M Thomas v State of Kerala, Justice V.R Krishna Iyer,
rightly pointed out that the experience of reservation in practice showed that the
benefits were, by and large, snatched away by the top creamy layer of the
backward classes or classes, thus keeping the weakest amongst weak always weak
and leaving the fortunate layers to consume the whole cake. Substantially lightened
by the march of time, measures of better education and more opportunities of
employment.

(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. The prohibited grounds of
discussions are religion, race, caste, sex, descent, place of birth, residence, or any
of them. Thewords, any employment or office under the State make it clear
that Article 16(2) also applies only to public employment.

In K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 S.C. 1495, the Supreme
Court has suggested that the reservations in favor of backward classes must be
based on the mean test. It has been further suggested that the policy of reservations
should be reviewed every five years or so and if a class has reached up to that level
where it does not need the reservation. Its name should be deleted from the list of
backward classes.

Supreme Court in Indira Sawhney & Ors. v. Union of India (AIR 1993 SC 477)

1. Upheld Implementation of separate reservation for other backward classes in

central government jobs.
2. Ordered to exclude Creamy layer of other backward classes from enjoying
reservation facilities.
3. Ordered to restrict reservations within the 50% limit.
4. Declared separate reservations for economically poor among forward castes
as invalid.

(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
office under 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. M R Balaji v Mysore[ix] AIR 1963 SC
649 Court put 50% cap on reservations in almost all states except Tamil Nadu
(69%, under 9th schedule) and Rajasthan (68% quota including 14% for forward
castes, post-Gujjar violence 2008) has not exceeded 50% limit. Tamil Nadu
exceeded the limit in 1980. Andhra Pradesh tried to exceed the limit in 2005 which
was again stalled by the High Court.
(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favor of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services
under the State.

The scope of Article 16 (4) was considered by the Supreme Court in Devadasan v.
Union of India, AIR 1964 S.C. 179. In this case “carry forward rule” made by the
Government to regulate the appointment of persons of backward classes in
government services was involved.

The Supreme Court struck down the “carry forward rule” as unconstitutional on
the ground that the power vested in the government cannot be so exercised so as to
deny reasonable equality of opportunity in matters of public employment for the
members of classes other than backward classes. In this case, the reservation of
posts to the members of backward classes had exceeded 50% and had gone up to
68% due to “carry forward rule.”

The Supreme Court held that each year of recruitment must be considered by itself
and the reservation for each year should not be excessive so as to create ma
monopoly or interfere unduly with the legitimate claims of the rest of the society.
So the court held that reservation should be less than 50%, but how much less than
50% should depend upon the prevailing situations. S. Rly. v. Rangachari]AIR
1962 SC 36, State of Punjab v. Hiralal 1970(3) SCC 567, Akhil Bharatiya Soshit
Karamchari Sangh (Railway) v. Union of India(1981) 1 SCC 246 Reservation of
appointments or posts under Article 16(4) included promotions.

This was overruled in Indira Sawhney & Ors v. Union of India AIR 1993 SC
477 : 1992 SCC 217 and held that Reservations cannot be applied in promotions.

(4A) Nothing in this article shall prevent the State from making Provision for
reservation in matters of promotion, with consequential seniority, to any class or
classes of posts in the services under the State in favor of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the State, are not adequately
represented in the services under the State.

This clause does not affect the decision as regards other backward classesbut
makes it inapplicable to the scheduled castes and the scheduled tribes. Justifying
reservations for the Scheduled Castes and Scheduled Tribes candidates in the
promotion, the Court had at one point held that even their seniority acquired by the
promotion of the general class candidates could not be affected by the subsequent
promotion of the general class candidates.

  S. Vinodkumar vs. Union of India 1996 6 SCC 580 Relaxation of qualifying
marks and standard of evaluation in matters of reservation in promotion was not
permissible.

(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 the total number of vacancies of that year.

(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. UOI v/s. S. Kalugasalamoorthy held that when a person is selected
on the basis of his own seniority, the scope of considering and counting him
against reserved quota does not arise.

Other Backward Class (OBC) is a collective term used by the Government of

India to classify castes which are educationally and socially disadvantaged. It
is one of several official classifications of the population of India, along with
Scheduled Castes and Scheduled Tribes (SCs and STs). The more important
question is to what extent the affirmative action programmes based on
irrelevant criteria such as caste and religion should be allowed to override
merit and efficiency criteria.

In Achill Bharitaya Soshit Karamchari Sangh it has been emphasiszed that the
categorization of scheduled caste and scheduled tribes as a class on the
basis of which the classification could be justified as just and reasonable
within the meaning of Articles 15(1) and 16(1) because these classes stand
on a substantially different footing from the rest of the Indian community in
our Constitution.
Other weaker section in this context, in his opinion, would mean not other
‘backward class’ but dismally depressed categories comparable economically
and educationally to Scheduled Castes and Scheduled Tribes. In other words,
in his opinion, classification of Scheduled Castes and Scheduled Tribes as a
special category could be justified within the meaning of Article 15(1) and
Article 16(1),whereas classification on the basis of backward classes may
have to be confirmed on the basis of Article 15(4) and 16(4).

his, indeed, was the initial impression of the Supreme Court also. This
impression continued to rule until some of the judges in the  State of Kerala v.
N.M. Thomas opined that clause (4) of Article 16 was not an exception to
clause (1) or (2) of that article. This view in Thomas was reiterated, much
more emphatically by Chinnappa Reddy, J. in his concurring opinion
in A.B.S.K. Sangh v. Union of India and it has finally been accepted by the
Court in Indra Sawhney v. Union of India[xxiii] (the Mandal case).

Thus clause (4) of Article 16 is not an exception to the rest of that article, but
rather it is a facet of equality of opportunity guaranteed in clause (1) of that
article and an effective method of realising and implementing it. Clause (4)
does not derogate from anything in clauses (1) and (2) of Article 16 but rather
gives them positive support and content. It serves the same function, i.e.
securing of equality of opportunity, as do clauses (1) and (2). Obviously,
therefore, it is as much a fundamental right as clauses (1) and (2) or any other
provision of that article.

Mandal Commission
The Mandal Commission, or the Socially and Educationally Backward Classes
Commission (SEBC), was established in India on 1 January 1979 by the Janata
Party government under Prime Minister Morarji Desai  with a mandate to "identify the
socially or educationally backward classes" of India. It was headed by the late B.P.
Mandal an Indian parliamentarian, to consider the question of reservations for people
to redress caste discrimination, and used eleven social, economic, and educational
indicators to determine backwardness. In 1980, based on its rationale that OBCs
("Other backward classes") identified on the basis of caste, economic and social
indicators comprised 52% of India's population, the Commission's report
recommended that members of Other Backward Classes (OBC) be granted
reservations to 27% of jobs under the Central government and public sector
undertakings, thus making the total number of reservations for SC, ST and OBC to
49%.
The commission estimated that 52% of the total population of India (excluding SCs and STs),
belonging to 3,743 different castes and communities, were ‘backward’. The number of backward
castes in Central list of OBCs has now increased to 5,013 (without the figures for most of the
Union Territories) in 2006 as per National Commission for Backward Classes. Figures of caste-
wise population are not available beyond. So the commission used 1931 census data to calculate
the number of OBCs. The population of Hindu OBCs was derived by subtracting from the total
population of Hindus, the population of SC and ST and that of forward Hindu castes and
communities, and it worked out to be 52 per cent. Assuming that roughly the proportion of OBCs
amongst non-Hindus was of the same order as amongst the Hindus, the population of non-Hindu
OBCs was considered as 52 per cent.

The introduction to the Recommendations section in the report presents the following argument:
As the Commission had concluded that 52 per cent of the country's population comprised OBCs,
it initially argued that the percentage of reservations in public services for backward classes
should also match that figure. However, as this would have gone against the earlier judgement of
the Supreme Court of India which had laid down that reservation of posts must be below 50 per
cent, the proposed reservation for OBCs had to be fixed at a figure, which when added to 22.5
per cent for SCs and STs, remains below the cap of 50 per cent. In view of this legal constraint
the Commission was obliged to recommend a reservation of 27 per cent only for backward
castes.
The National Sample Survey puts the figure at 32%. There is substantial debate over the exact
number of OBC's in India, with census data compromised by partisan politics. It is generally
estimated to be sizeable, but lower than the figures quoted by either the Mandal Commission or
and National Sample Survey.
 103rd Constitutional Amendment Act, 2018 "Economic Reservation In
India" Highlights And Analysis

A big 10 %  of all government jobs and college seats will now have a reservation for people
outside high income brackets as President Ram Nath Kovind cleared 124th Constitutional
Amendment bill passed by parliament this week. Some call it a landmark achievement of Prime
Minister Narendra Modi, others call it a pre-election gimmick of the ruling party, which is trying
to do anything and everything that is possible to retain its power in the 2019 Loksabha Elections.
In this Article we are not judging the motives behind the Amendments and would be limiting our
discussion to the legal points only i.e. Highlights of the Amendment, Analysis of the same and
the constitutional validity of the Reservation Criterion

 HIGHLIGHTS OF THE ACT

 The Constitutional (103rd Amendment) Act got the assent of President of India on 13th
January, 2018. The bill was passed in Lok Sabha by 323 members voting in favor and 3
members against the bill. It was subsequently passed by Rajya Sabha with 165 members
in the favor and only 7 members against the bill.
 It provides reservation of jobs in central government jobs as well as government
educational institutions. It is also applicable on admissions to private higher educational
institutions.
 It applies to citizens belonging to the economically weaker sections from the upper
castes.
 This reservation is "in addition to the existing reservations and subject to a maximum of
ten per cent of the total seats in each category".
 The Statement of Objects and Reasons of the Bill states that people from economically
weaker sections of the society have largely remained excluded from attending the higher
educational institutions and public employment on account of their financial incapacity to
compete with the persons who are economically more privileged.
 The bill states that it is drafted with a will to mandate Article 46 of the Constitution of
India, a Directive Principle that urges the government to protect the educational and
economic interests of the weaker sections of society. While socially disadvantaged
sections have enjoyed participation in the employment in the services of the state, no
such benefit was provided to the economically weaker sections.

AMENDED ARTICLES

 Article 15 (6) is added to provide reservations to economically weaker sections for

admission to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions referred to
in clause (1) of Article 30. The amendment aims to provide reservation to those who do
not fall in 15 (5) and 15(4) (effectively, SCs, STs and OBCs).
 Article 16 (6) is added to provide reservations to people from economically weaker
sections in government posts.
  An explanation states that "economic weakness" shall be decided on the basis of "family
income" and other "indicators of economic disadvantage."

ANALYSIS

   Constitutionality of Constitutional (103rd Amendment) Act, 2018

As the constitution stands amended, the only constitutional challenge left is conformity to the
basic structure doctrine. So far, it has become an established principle that reservation shall have
a cap of 50%.  These stipulations first arose in M.R Balaji v. State of Mysore1 when court stated
that reservation above 50% would imply dominance over section 16(1). The government
notification providing 10% reservation to weaker economic sections of society was struck down
in Indra Sawhney v. UOI2. However, it is noteworthy that these rulings were given in relation to
a law or subordinate legislation and have never been discarded in violation of Basic Structure
Doctrine. Moreover, the amendment only provides reservation to the extent of 10%. , however,
the existing articles 15(4), 15(5) and 16(4) do not mention that reservation shall be 50%
explicitly, by way of legislation. Consequently, any challenge pertaining to violation of basic
structure does not seem to have a stand.

A writ petition has been filed by Youth for Equality contending that 103rd amendment violates
the basis structure doctrine. Economic reservation finds its ground in terms of equality. It is
difficult to see how economic reservation damages or destroys the concept of equality, and
consequently Basic Structure. Therefore, the fact how equality and social justice is presently
understood in Constitution, shall be no ground for striking it down while I agree that the 103rd
amendment has created a logical mess and had put group determine, social and educational
backwardness at war by inclusion of article 15 (6) and 16 (6).

CONCLUSION:

The slogan “equality of opportunity” commands wide allegiance among the members of
contemporary societies. Under scrutiny, equality of opportunity divides into several different
ideals, some of them being opposed rivals. It is controversial which of these ideals, if any, are
morally acceptable, and which, if any, should be coercively enforced The ideal of a society in
which people do not suffer disadvantage from discrimination on grounds of supposed race,
ethnicity, religion, sex, sexual orientation is widely upheld as desirable in itself. For many, the
ideal is more compelling than any argument that might be offered to support it as requirements of
justice.