A. ARTICLE 16 OF THE INDIAN CONSTITUTION:
Article 16 of the Constitution of India, talks about the right of equal opportunity in the matters of public employment. It states that:
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 egard 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 Scheduled Castes and the Scheduled Tribes which in the opinion of State are not adequately represented in the services under the State.
(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.
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 Article guarantees equality of opportunity when it comes to public employment. The first two clauses of the Article elucidate the fact that no citizens of India shall face discrimination in respect of employment. These two clauses lay the foundation for equal employment opportunity and eliminate compartmentalization in the name of religion, race, caste, sex, place of birth, or any other.
As one of the important constitutional provisions for deprived sections, Article 16 gives Parliament the power to make any law prescribing the requirements “for a class or classes of employment or appointment to an office under the Central Government or any local authority.” Clause 4 of the Article acts as a guideline for the government for making any provision for the reservation of appointments in favour of any backward class of citizens who are “not adequately represented in the services under the State”.
Like Article 14, 15 and 17, this article and its provisions indicate the government’s commitment to protect the interests of the SCs and STs.
C. CONSTITUTIONAL AMENDMENTS:
The 77th and 81st amendments are considered as technical amendments to protect reservation to SC/ST employees in promotions and in filling backlog of vacancies.”
It was through the 85th amendment of the Constitution that Article 16 (4A) was inserted and amended to give state the power “to provide quota in promotions with consequential seniority.” The clause 4A was inserted after the Supreme Court observed that the reservation of appointments/posts under Article 16(4) is restricted to initial appointment and it cannot extend to reservation in the matter of promotion.
While upholding the insertion of clause 4A, the Supreme Court imposed a condition – every time a government wants to exercise its power under Article 16(4A), “it must take up a specific exercise to demonstrate that the SCs/STs were not adequately represented.”
As the Supreme Court verdict in M. Nagaraj v. Union of India made it compulsory for the government to demonstrate the backwardness of SC/ST beneficiaries every time reservations were provided for promotion, it took another stand, which was heavily criticized for lacking constitutional merit. In its judgment, the apex court had observed that individuals “in the ‘creamy layer’ of OBCs” don’t have the right to be the beneficiaries of the reservation policy. However, the court held that no such exclusion would be applicable for SCs/STs.
The 117th Constitution Amendment Bill was passed to clarify that all SCs/STs are deemed to be backward.