Introduction
The right of equal opportunity is the main focus of Jurisprudence of Justice in the recent times with debates regarding moral desert, however, the Indian constitution employs an approach rectifies the past inequalities by providing a right of equal opportunity to its citizen both the backward and the general, but despite this the nature of equal opportunity differs under the constitutional framework.
Article 16 addresses the issue of equal opportunity in public employment. Equal opportunity is a phrase with multiple definitions, and there is no agreement on what it means exactly as the Indian Constitution has given this provision a broad meaning. The principles of Equal Employment Opportunity (EEO) relate to:
- Access to jobs
- Conditions of employment
- Relationships in the workplace
- The evaluation of performance and
- The opportunity for training and career development.[1]
Nature of the Right
Equality of opportunity means that every person is entitled for employment or appointment to any position under the State based on his qualities and capabilities. As a result, Article 16 does not preclude the state from prescribing the required credentials and screening tests for government service recruitment. Clause (1) also guarantees equal opportunity in (a) initial appointments, (b) promotions, (c) termination of employment, (d) salary, periodic increments, leave, gratuity, pension, age of superannuation, and other related matters.[2]
Further, the language of Article 16[3] is such that it starts with a general rule that there should be equality of opportunity for all citizens in matters of public employment, thereafter, it contains its flagship provision for the protection of backward classes of citizens under clause 4, as it recognizes the fact that social structures are designed in all manners to suppress these classes. These clauses are concrete measures to bring about equality under Article 14 in real sense as the State is obliged to remove inequalities and backwardness.
Additionally, matters connected to employment, including prior to and after the employment, that are incidental to the employment and are part of the terms and conditions of that employment will be referred to as “matter relevant to employment and appointment.”[4]
Equality of Opportunity is a Qualified Right
This natural right of equality is not something which is not an affirmative right but only a negative right. Also, the three non-obstante clauses under the Article concur with this character. Therefore, the state can attribute additional qualifications which maybe in the lines of Physical health, sense of discipline, moral integrity, and loyalty to the state may be among the qualifications mentioned, in addition to mental competence.[5]
Additionally, matters connected to employment, including prior to and after the employment, that are incidental to the employment and are part of the terms and conditions of that employment will be referred to as “matter relevant to employment and appointment.”[6]
Reservation Provisions for Backward Classes
Clause 4 provides for reservation to backward classes with certain qualifications, such that
In K.C. Vasanth Kumar v. State of Karnataka, the SC held that reservations in favour of backward classes must be based on the mean test. It has also been recommended that the reservation policy be revisited every five years or so, and if a class has progressed to the point where it no longer requires reservations. The name of this backward class should be removed from the list.[7]
At the same time, the provision of reservation itself has been curtailed in the light of a meaning right to opportunity for members of non-backward classes. The SC in Indira Sawhney & Ors. v. Union of India[8] clarified the nature of reservation, that caste could be an acceptable indicator of backwardness. Additionally, it curtailed the ongoing practices such as the overall limit of 50% in grant of reservations, implementation of creamy layers in the case of OBC’s with acceptance to 27% reservation to OBC’s.
As the SC in Indira Sawhney had rejected reservation in promotions to SC and ST employees, the Parliament introduced Clause (4A) in Article 16 of the Constitution for the purpose of reservation in terms of promotion of Scheduled Castes and Scheduled Tribes by the 77th Amendment.[9] Nothing in Article 16 of the Constitution prevents the State from establishing any provision for reservation in terms of promotion to any job in the government services in favour of the Scheduled Castes and Scheduled Tribes, as indicated in Clause(4A).[10]
At the same time, there were certain limitations like in the form of carry forward rule where The Supreme Court ruled that each year of recruiting must be evaluated separately, and that the reserve for each year should not be excessive in order to create a monopoly or to obstruct the legitimate interests of the rest of society. As a result, the court determined that reservations should be less than 50%, but the exact amount should be determined by the circumstances. However, this practically overruled with the incorporation of Article 16(4B)[11], where it was enacted by the government, allowing reservation in promotion to exceed the 50 percent limit set for regular reservations. The amendment permitted the state to carry over vacant positions from prior years.
Overruling, the Indira Sawhney judgement The Constitution (85th Amendment Act) of 2005 [12]was enacted in order to extend the advantage of reservation to citizens from Scheduled Castes and Scheduled Tribes in terms of promotion and seniority. In Article 16 (4) of the Constitution, the phrases” in cases of promotion to any class” were replaced with the words ”in situations of promotion with consequential seniority, to any class.”
Also, “exception to exceptions” was provided, for instance, UOI v. S. Kalugasalamoorthy [13] where it was held that when a person is selected on the sole basis of his own seniority, he may not be considered against reserved quota.
Disabled Candidates
Disabled people in India are guaranteed equal rights and opportunities under the Indian Constitution. Subject to the condition that a medical specialist must verify the disability, which must be at least 40%. This group includes blindness, visual impairment, hearing impairment, locomotor impairments, and other disabilities. The Constitution attempts to strike a balance between the rights of disabled persons and those of other citizens. Article 15(1) and (2) [14]of the Constitution provide for the reservation of disabled people in government services and institutions in order to achieve this aim.
In terms of education, handicapped persons have identical rights under Article 29(2) of the Constitution. The Article states that no citizen should be refused entrance to any state-run educational institution or receive state-funded assistance solely because of their handicap.
Equal pay for Equal Work
The Supreme court in the case of Randhir Singh v. Union of India[15] read DPSP into Article 14 of the Constitution. Article 39 (d) of the Constitution provides that equal pay for equal work for both men and women as a Directive Principle of State Policy[16]. Court expanded it and laid down that equal pay for equal work for everyone and as well as between men and women. The Supreme Court based equal pay for equal work on Article 14 of the Constitution, stating that where all “relevant considerations are the same,” the government cannot deny equal pay for equal work simply by ensuring a administrative framework, such as separating workers into different posts or departments. The case was decided using the example of drivers. According to the Court, “there can be no question that the drivers in the Delhi Police Force execute the same tasks and duties as other drivers in the service of the Delhi Administration and the Central Government,” and so equal pay for equal labour was warranted.[17] The Court has established a range of policies on equal pay for equal labour, including manner of recruitment, qualifications, and so on. Workplace equality was no longer just determined by the type or nature of labour performed by employees, but also by the positions they had in the workplace. In other words, the Supreme Court essentially turned the requirement for equal compensation for equal labour into a demand for equal pay for equal effort.[18]
Conclusion
The Supreme Court has ruled in Nagraj v. UOI[19] that the State must gather “quantifiable evidence” to establish the backwardness of Scheduled Castes and Scheduled Tribes in order to award them reservations. It was decided that the creamy layer idea would apply to Scheduled Castes and Scheduled Tribes as well, and that they would not be entitled to any reservations. Furthermore, the judgement was changed after the Attorney-General of India claimed that both holdings were wrong since they contradicted the judgement in Indira Sawhney (non-exclusion of creamy layer in matters of reservations). Though such quantifiable data is not yet collected in the manner, however, the debate has resurfaced especially after the states have been reinvested with the power to redraw the OBC list or make any changes to the OBC list. And additionally, the EWS reservation also acts in contravention of the Indra Sawhney Judgement, therefore, we can say that the right to opportunity is being expanded continuously, but the expansion is such that it reduces the opportunity in numerical sense, even if retains it in functional sense.
References:
[1] M.P. Jain, Indian Constitutional Law, 109-110(6th ed., 2009)
[2] Id.
[3] The Constitution of India, 1950. Art. 16.
[4] Supra note 1.
[5] Mahendra P. Singh, V. N. Shukla’s Constitution of India 220-223 (11th ed., 2008)
[6] Id.
[7] K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 S.C. 1495.
[8] Indira Sawhney v. UOI, AIR 1993 SC 477. [Hereinafter Indira Sawhney].
[9] The Constitution (Seventy Seventh Amendment) Act, 1995.
[10] The Constitution of India, 1950. Art. 16(4A).
[11] The Constitution of India, 1950. Art. 16(4B).
[12] The Constitution (Eighty Fifth Amendment) Act, 2005.
[13] UOI v. S. Kalugasalamoorthy, 1996 6 SCC 580.
[14] The Constitution of India, Art. 15(1) and Art. 15(2).
[15] Randhir Singh v. Union of India, AIR 1982 SC 879.
[16] The Constitution of India, 1950. Art. 39(d).
[17] Supra note 15.
[18] Mahendra P. Singh, V. N. Shukla’s Constitution of India
[19] Nagraj v. UOI, (2006) 8 SCC 212
0 Comments