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Do Indian Citizens have Right to equal opportunity in matters of Public Employment?

Right to equal opportunity Public Employment

Article 16 of the Constitution of India states about "Right to equal opportunity in matters of Public Employment"During the Constituent Assembly Debate, the present Article 16 was proposed as Article 10. The initial draft of Article 10 stated that:

  1. “There shall be equality of opportunity for all citizens in matters of employment under the State.
  2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, or any of them, be ineligible for any office under the State.
  3. 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 who, in the opinion of the State, are not adequately represented in the services under the State.
  4. 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.”

Draft Article 10 (Article 16) was debated on 30th November 1948. It provided for equality of opportunity in all government employment. In simple words, Article 10 stated that no citizen can be discriminated against on grounds of religion, race, caste, sex, descent, place of birth, or residence for government employment. It also allowed the State to make reservations in public employment for citizens from any backward class.

Mohammad Tahri, one of the member of the Constituent Assembly, proposed that in clause (1) of Article 10, after the words "of employment" the word "acquisition” be inserted. He proposed this because he simply wanted to mention that there are two aspects, one of employment and one of acquisition. Employment has already been mentioned; so he wanted that acquisition also should be added. However, this amendment was not moved.

Thereafter, Prof. K. T. Shah begged to move in clause (2) of Article 10, after the words 'place of birth' the words `in India' be added. The clause as proposed to be amended by him would read:

"No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth in India, or any of them be ineligible for any office under the State."

Prof. K. T. Shah’s object in moving this amendment is to point out that this country is vast enough to meet from her resources of manpower all that is needed to fill any office of responsibility and trust with efficiency in this country. The said amendment was later not moved.

Thereafter, M. Ananthasayanam Ayyangar suggested in clause (1) of Article 10, for the words "in matters of employment", the words "in matters relating to employment or appointment to the office" be substituted; and in clause (2) of Article 10, after the words "ineligible for any" the words "employment or" be inserted." He proposed this to clarify the position and also to include the word "office" so that it may be more comprehensive.

While some members wanted a residence criterion for employment in a state government, others didn’t want any such restrictions. Arguments in favour of the residence criteria claimed that only natives of a particular state could efficiently discharge their duties as officers of the state government. The responses to these arguments invoked the idea of common citizenship in the constitution which would be undermined by the residence criteria.

There were three main points of view about having reservations in public employment during the Assembly debate.

First, was that there must be equality of opportunity for all citizens, i.e. every individual who is qualified for a particular post should freely be able to apply for the post, sit for the examinations and have his qualifications tested. There should be no limitations to this principle.

The second view was that the principle of equality should be operative but without any reservations for any class or community. All the citizens that are qualified should be placed on an equal footing for public services.

 The third point of view, which was shared by Dr. B. R. Ambedkar, the Chairman of the Drafting Committee, was that equality of opportunity was a great principle, in theory; however, there must be a provision that allowed the entry of those communities who were far outside of the administration in the past.

The Assembly also discussed the use of the term ‘backward class’ in Article 10. While some preferred the term due to its generality and ability to encompass a wider range of communities, others argued that the generality of the term introduced a sense of vagueness; specific terms like ‘Scheduled Caste’ were better.

Some amendments that were also proposed by the members before the Constituent Assembly are:-

  • In clause (2) of Article 10, after the word 'birth' the word `residence' be inserted. This motion was adopted.
  • That in clause (2) of Article 10, the following new clause is inserted: "(2a) Nothing in this article shall prevent Parliament from making any laws prescribing in regard to a class or classes of employment or appointment to an office under any State for the time being specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment." This motion was adopted.
  • That in clause (2) or Article 10, after the word 'ineligible' the words `or discriminated against' be inserted." This motion was adopted.
  • That clause (3) of Article 10 be deleted. This motion was negatived.
  • That in clause (3) of Article 10 the word `backward' be omitted. This amendment was negatived.
  • That in clause (4) of Article 10, after the words `in connection with' the word `managing' be added, and the words or denomination' be deleted." This amendment was also negative.

On 30th November 1948 Article 10 was adopted. Later in the final draft of the Constitution of India Article 10 was put under Part III, i.e. Fundamental Rights, and was also changed to Article 16.

Throughout the year a few Amendments has also been made in Article 16 that are-

  • The Constitution (77th Amendment) Act, 1995, was made to incorporate clause (4A) in Article 16 of the Constitution. It stated that the object of the incorporation of Article 16 (4A) was to continue the then-existing dispensation relating to reservation in promotion.
  • The Constitution (81st Amendment) Act, 2000, was made to the Constitution, whereby Clause (4B) was incorporated in Article 16 of the Constitution. The Amendment allowed reservation in promotion to the 50% upper limit which is set on the regular reservations. The Amendment permitted the Government to carry forward unfilled vacancies from previous years. This Amendment was called the Carry Forward Rule.
  • The Constitution (85th Amendment) Act, 2005, was introduced to extend the benefit of reservation in favor of the citizens belonging to Scheduled Castes Scheduled Tribes in matters of promotion with consequential seniority. The Amendment substituted the words ”in matters of promotion to any class” the words ”in matters of promotion with consequential seniority, to any class” in Article 16 (4) of the Constitution.
  • The Constitution (117th Amendment) Act, 2012, provides that all the Scheduled Castes and Scheduled Tribes notified in the Constitutional shall be deemed to be backward. 

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