Article 16 in The Constitution of India 1949
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.
(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 the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are 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.
Indra Sawhney & Others Vs Union of India–
Facts
The constitution recognized social and educational backwardness, but
not economic backwardness.
The court upheld separate reservation for OBC in central government
jobs, but excluded these to the "creamy layer" (the forward section of
a backward class, above a certain income).
The genesis of the debate was in 1980, when the Second Backward
Classes Committee, headed by BP Mandal, submitted its report. The
report recommended 27 percent reservation for Other Backward
Classes (OBCs) and 22.5 percent for the Scheduled Castes/Scheduled
Tribes. The commission identified 3743 castes and SEBC. The 27%
reservation was, however, not implemented.
The Central government ( Jananta Dal under Narasimha Rao),
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.
The order was challenged in court.
Challenged in court
Caste cannot be the sole base of reservation.
Reservation cannot exceed 50% mark. ( 60% in reservation, 40%
in merit )
Reservation cannot be on the basis of economic criteria.
Is Art 16(1) which talks about equality in employment exception
to Art 16(4) which says the stall shall provide reservation?
Judgement
The Judgement was mixed ( 6:3)
The Supreme Court of India gave verdict that 27% central
government reservation for OBCs is valid.
On 16 November 1992, the Supreme Court, in its verdict, upheld the
government order, being of the opinion that caste was an acceptable
indicator of backwardness.Thus, the recommendation of
reservations for OBCs in central government services was finally
implemented in 1992.
Excluded creamy layer
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.
Capped reservations to 50%. Economically weaker section
reservations was held invalid. Only socially and educationally
backward classes were accepted.
No reservation in promotions.
1. In 1992, in the Indra Sawhney case, the Supreme Court had
ruled that extending reservation to promotion in employment
was unconstitutional but allowed it to be continued for up to five
years.
Carry forward rule in case of unfilled vacancies.
Art 16(4) is enabler of Art 16(1) as it helps with achieving the goal of
equality.
Impact of Judgement
To neutralize the points made, the government had to bring in certain
amendments. These include :
77th Amendment 1995 - Reservation in promotion
The 77th Amendment’s objective stated that the representation of
the SC’s and ST’s had not reached the desired level in the States
and that this system had to be continued to bring about their
adequate representation.
81st Amendment 2000 -Carry Forward
The Supreme Court of India in its judgment in the Indra Sawhney
versus Union of India held that the number of vacancies to be filled
up on the basis of reservations in a year including carried forward
reservations should in no case exceed the limit of fifty per cent. As
total reservations in a year for the Scheduled Castes, the Scheduled
Tribes and the other Backward Classes combined together had already
reached forty-nine and a half per cent and the total number of
vacancies to be filled up in a year could not exceed fifty per cent., it
became difficult to fill the "Backlog Vacancies" and to hold Special
Recruitment Drives. Therefore, to implement the judgment of the
Supreme Court, an Official Memorandum dated August 29, 1997 was
issued to provide that the fifty per cent limit shall apply to current as
well as "Backlog Vacancies" and for discontinuation of the Special
Recruitment Drive.
85th Amendment 2001 - Consequential Seniority
The main purpose behind the 85th Amendment Act, 2001, was to
extend the benefit of reservation in favour of the SC/ST in matters of
promotion with consequential seniority. The amendment has
substituted, in clause (4A) of Article 16 of the Constitution, for the
words ”in matters of promotion to any class” the words ”in matters of
promotion, with consequential seniority, to any class”.
M. R. Balaji and Others Vs. State of Mysore –
The case arose from an order passed by the State of Mysore regarding
the reservation of seats in educational institutions on 26 July, 1958
.The order placed all the communities, except the Brahmin
community, in the category of educationally and socially backward
classes, Scheduled Castes and Scheduled Tribes.
The said order reserved 75% of the total seats in educational
institutions for these communities.
Nevertheless, the Mysore Government once again issued an order in
1962, which replaced all the previous orders relating to the
reservation of seats that were issued by the Government under Article
15(4). By the said order, the State classified the backward classes into
two categories, namely, backward classes and more backward classes.
Further, it reserved 68% of the seats for socially and educationally
backward classes, Scheduled Castes and Scheduled Tribes in the State
Engineering and Medical Colleges, while leaving merely 32% of the
seats for the merit pool. This order of the State of Mysore was
challenged by 23 petitioners before the Supreme Court through a writ
petition under Article 32 of the Constitution of India. Out of these 23
petitioners, 6 were the applicants for admission in Medical Colleges
affiliated either to the Mysore University or to the Karnataka
University for the pre-professional class in Medicine, while the
remaining 17 had applied in the University of Mysore for the five-
year integrated course of Bachelor of Engineering.
Issues involved
1. Whether the impugned order was rightly issued in accordance
with Article 15(4) of the Constitution?
2. Whether the State was justified in sub-classifying the
backward classes into “backward classes” and “more
backward classes”?
3. Whether the reservation of 68% of the seats was reasonable?
4.
Judgement
The Supreme Court ruled against the order of the State for several
reasons.
Firstly, the reservation provided was based solely on caste,
without considering other factors as according to Article 15 (4) of
the Indian Constitution.
Article 15 (4) of the Indian Constitution does not provide a
classification between “backward” and “more backward” classes
as done by the state order. Article 15 (4) of the Indian
Constitution approves special provisions for genuinely backward
classes and not for classes that are less advanced than the
advanced ones in the state. By adopting the technique of
classifying communities into backward and backward classes, 90%
of the total population is treated as backward.
The reservation of 68% reservation is inconsistent with the
concept of the special provision authorized by Art. 15(4) . Court
capped reservations at 50%.
Reservations must and should be adopted to advance the prospects
of weaker sections of society, but while doing so, care should be
taken not to exclude admission to higher educational centers of
deserving and qualifies candidates of other communities.
