Introduction
After attaining the Independence, the next and the most foremost task in hand was of preparing the Constitution. A Constitution, which will be firm on safeguarding and enforcing the rights guaranteed and flexible enough to adopt and adapt to the changes of the contemporary world.
But for India, the task seemed nearly impossible because of the presence of nearly all the impediments which any developing nation could ever face.
The situation worsened even more, when the Colonial Rulers started fishing in troubled waters of India. Their policies of division, was a major challenge for the Independent India to overcome.
With liberty, India was now aiming to be a True Republic.
And True Republic must ensure the Fundamental Rights to every citizen!
But considering the then position of India, with a huge diversity of communities and the feeling of distrust and enmity among the communities, the Framers found themselves submerged in the middle of a swamp.
With the different needs of different communities, the allocation of rights in the Charter wasn’t an easy job.
But, after years of discussions and deliberations, the Constituent Assembly finally came up with a Powerful Constitution which prioritized the ‘Doctrine of Equality’ on one hand and also ensured the Upliftment of the Vulnerable on the other.
In this present article, we will try to comprehend the necessity and the proper interpretation of the exceptions provided in Article 16(1) and 16(2) of the Indian Constitution.
Historical Overview
The Article 16 of the Constitution was first discussed in the Constituent Assembly, when Sardar Vallabhbhai Patel presented the Interim Report on the subject of Fundamental Rights prepared by the Assembly-nominated members of the Advisory Committee on the 29th April 1947.
The Clause 5 (Rights of Equality) of the Interim Report which was adopted by the Assembly
on 30th April 1947, stated that:
“(a) There shall be equality of opportunity for all citizens in matter of public employment.
(b) No citizen shall on grounds only of religion, race, caste, sex, descent, place of birth or any of them be ineligible for public office.
(c) Nothing herein contained shall prevent the State from making provision for reservations in favour of classes who, in the opinion of the State, are not adequately represented in the public services.
(d) Nothing herein contained shall prevent a law being made prescribing that the incumbent of an office to manage, administer or superintend the affairs of a religious or denominational institution or the member of the Governing Body thereof shall be a member of that particular religion or denomination.” [1]
Today, after seven long decades of the Constitution, the Article has been extended.
Presently, Article 16 states that:
“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 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 favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
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(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….”[2]
The provisions of the Article 16, enables us to understand the legislative intent behind its formulation. The Article 16 springs out of the Article 14 of the Constitution.
The Article 14 is a huge edifice of which the Article 16 is one of its constituent blocks.
While Article 14 ensures the ‘Doctrine of Equality’ to prevail, the Article 16 tries to keep its extent within the perimeters prescribed by the Article 14.
As per Article 14, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.[3]
This Provision enables any Government or its instrumentalities to conform to the Constitutional position while dealing with the matters pertaining to employment and appointment to any office under the State.
As per Article 16(1), the State is bound to follow the Constitutional Guideline of ensuring equality of opportunity in the matters of employment and appointment under the State.
The Article 16(2) supplements the clause 1 of the said Article.
Both of these provisions manifest the legislative intent of making the Doctrine of Equality to be the Ultimate Guiding tool for such matters.
But, since the days of our Freedom Struggle, it was felt by our National Leaders, that to make an Inclusive Government, there should be a larger participation of its subjects, keeping in mind that the adequate representation of the downtrodden groups is ensured and such a participation must not disrupt in any way the smooth functioning of the government.
Sensing such difficulties to attain both simultaneously, the Framers of our Constitution devised a way to ensure the both by way of installing some exceptions.
Exceptions to the Article 16(1) & 16(2)
As earlier discussed, the Article 16 which ensures equality of opportunity in matters of public employment is subject to some exceptions.
As per Article 16(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”.[4]
It clearly bars the State to differentiate on the basis of residence.
The Article 16(3) empowers the “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 “.[5]
- Under Art. 16(3), Parliament may make a law to prescribe a requirement as to residence within a State or Union Territory for eligibility to be appointed with respect to specified classes of appointments or posts. Thus, Art. 16(2) which bans discrimination of citizens on the ground of ‘residence’ only in respect of any office or employment under the state, can be qualified as regards residence, and a ‘residential qualification’ imposed on the right of appointment in the State for specified appointments. This provision, therefore, introduces some flexibility, and takes cognizance of the fact that there may be some very good reasons for restricting certain posts in a State for its residents.[6]
But, the Article 16(3) has also maintained a safeguard in order to ensure that such a power is not abused. And for that, the position of law is clear that only the Parliament is entitled to utilize this power and the State Legislative units are not. The reason behind this is, that usually the State Legislative Units have to face great local pressures and conferring such powers to the Legislative Assemblies of the States could create severe obstructions in the smooth and proper functioning of the Public Offices. - The second exception is provided in the Article 16(5)[7] of the Indian Constitution. Art. 16(5) provides that a law may prescribe that the incumbent of an office in connection with the affairs of a religious or denominational institution, or a member of the governing body thereof, shall belong to the particular religion or denomination.[8] As we were gearing up for our independence, our forefathers encountered a situation pertaining to the religious affairs. Our Constituent Assembly was comprised of members from different political inclinations, starting from Liberals to Radicals, from Nationalists to Socialists. And in such an environment, there were frequent clashes in the perceptions of the members regarding the policy issues. One such topic of clash was this. On one hand, some members wanted to establish a strict socialist order while on the other hand some members were of the opinion of establishing our country on the basis of it’s great ancient heritage. In our Constitution, the Doctrine of Equality occupies a dominant position. Hence, for any individual, this provision may appear contradictory as it enables the member of the particular religion to sit & administer the office of such religious/denominational institution. It can isolate the communities, because for any Religious Institution, no one except a member of that religion will be entitled to sit in such office. Although, this provision was aimed to secure the religious interests of the various communities, but the compartmentalisation of the Religious Institutions is itself an antithesis to the Principles of Equality, as embodied in the Constitution. For a country like India, unless all the communities unanimously express their assent in allowing members from the different religious communities to sit and administer such offices, the spirit of equality will stand defeated to some extent. Indeed, the Constitution must protect the religious interests of the people. But enabling divisive provisions may fuel more to the disintegration of the societal harmony and order.
- And the third crucial exception is clause 4 of Art.16.[9]
Under Art. 16(4), the state may make 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 public services under the state.[10]
Casteism is one of the remnants of the antiquity, infesting the minds of the people till date. For centuries, it has made the lives of the people miserable.
The Framers of our Constitution, never wanted the casteism to prevail after India’s Independence.
But Casteism, being a dirt glued to minds of the common man, was very difficult to get rid off.
So, for that purpose the Constitution allocated some space to such groups who formed the lower strata of the casteist society.
It was a sort of a governmental incentive, guaranteed by the Constitution. Although it should be wrong to include this in the fundamental rights. But this is one of the fundamentals of the Doctrine of Equality.
Prior to the decision of the Apex Court, in the matter of the State of Kerala vs. NM Thomas[11] and the subsequent landmark judgment in the Indra Sawhney Case[12] , it has been held that the Article 16(4) is not an exception but rather a facet of the Doctrine of Equality, embodied in the Constitution.
Conclusion
So, the conclusion which can be drawn from the above discussion is that, the State’s prima facie duty is to ensure the Equality of Opportunity in matters of employment in a public office.
Providing such an opportunity will enhance the functioning of the administration.
As it is evident from many pronouncements of the Apex Court that the Efficiency of Administration should never suffer.
The more efficient an Administration will be, the more it will be beneficial to the people in large.
But the Constitution has provided a space for the administration to allow various class of persons such as the socially and educationally backward groups and vice versa to be a part of such administration.
Such a concession has been made in order to provide adequate representation to the members of these groups.
The Constitution supports the idea of an Inclusive Government. And for that purpose, the participation of people from every corner of the Nation is important.
It is the constitutional obligation of the State to ensure both the administrative efficiency and the upliftment of marginalized groups.
And the concessions, provided in the sectors of appointment and employment in the Public Offices serve as a crutch to these handicapped men and women of the society.
But it must always be remembered that the State has to balance both of these tasks. Over-emphasising of any of these tasks will defeat the purpose as engraved in the Constitution.
And for this, the state must rely on the intelligible differentia, whenever it attempts to make some special provisions for these socially and educationally backward groups.
The state is empowered to classify the communities for the purpose of uplifting various marginalized groups, but it must be reasonable, devoid of arbitrariness and must conform to the principles of Nature Justice and Equality.
And there shouldn’t exist any ambiguity with respect to the fact that in any case, Equality will prevail. But such Equality must not be a mechanical equality. It’s important for us to understand that categorizing the equals and unequals as same will itself be against the Principles of Equality.
By Equality, it should be construed that equals should be treated as equals and treating the equals as unequals or unequals as equals will be in complete contradiction to the Doctrine of Equality.
The Various groups which were provided concessions or relaxations under the Articles 16(3) or 16(4) constitute that block of the society which requires immediate aid from the state. But it should not coincide in any way with the broader interest of the nation.
References:
[1] CONSTITUENT ASSEMBLY DEBATES, VOLUME NO. 3, April 30, 1947)
[2] Art. 16, the Constitution of India
[3] Art. 14, the Constitution of India
[4] Art. 16(2), the Constitution of India
[5] Art, 16(3), the Constitution of India
[6] M.P. Jain, Indian Constitutional Law, 1023 (8th ed., 2018)
[7] Art. 16(5), the Constitution of India
[8] Ibid.
[9] Art. 16(4), the Constitution of India
[10] Ibid, at 1024.
[11] State of Kerala vs. NM Thomas, AIR 1976 SC 490 : (1976) 2 SCC 310
[12] Indra Sawhney v UOI, AIR 1993 SC 477 : 1992 Supp (3) SCC 217
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