Article 16, and Reservation in Public Employment

16(6), inserted later, permits reservation of appointments in favour of any economically weaker sections of citizens other than those already covered, subject to a stated maximum.

Article 335, which is read with 16(4)

Article 335: the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts.

A proviso, added later, softens it: nothing prevents the making of provision in favour of members of those groups for relaxation in qualifying marks or lowering the standards of evaluation for reservation in matters of promotion.

Article 335 is the textual limit inside the same Part, and an answer that gives 16(4) without it is giving half the scheme.

How the doctrine has developed, at the level this paper needs

Three propositions, stated as propositions and not as a case list.

Reservation is a facet of equality and not an exception to it, because 16(4) sits in the same article as 16(1).

There is a ceiling, on the reasoning that an exception which swallows the rule ceases to be an exception. The figure is contested and has been altered by amendment for the economically weaker sections; the principle that there is some limit is settled.

And the class must be identified on relevant material. Because 16(4) speaks of the opinion of the State, the review is of whether material existed and was considered, not of whether the court would have reached the same conclusion.

What article 16 does not reach

It is confined to employment under the State. Private employment is outside it, and a disadvantaged group's complaint about a private employer must go to a statute: section 20 of the disability legislation of 2016, section 9 of the transgender legislation of 2019, or section 3 of the HIV legislation of 2017.

That gap is one of the most important structural facts on this paper, and [The Case for a Single Anti-Discrimination Statute] returns to it.

Worked example

Any question on how the Constitution protects a group in employment.

Give 16(1) and 16(2), and point out that the list adds descent and residence.

Give 16(4) with its three commonly missed features: backward class rather than socially and educationally backward class; inadequate representation as the condition; and the opinion of the State.

Give 16(4A) and 16(4B) for promotion and carry forward.

Give article 335 and its proviso as the limit inside the same Part.

Close on the confinement to State employment, and name the three statutes that cover the private sector.

What it does NOT mean

It does not mean backwardness alone triggers 16(4). Inadequate representation in the services is the stated condition.

It does not mean the State's opinion is unreviewable. It is reviewed on material.

And it does not mean article 16 reaches private employers. It does not, and that is why the group statutes exist.

Quick revision

• 16(1) equality of opportunity in employment or appointment to any office under the State; 16(2) no discrimination on religion, race, caste, sex, descent, place of birth, residence. Descent and residence are here and not in article 15.
• 16(3): only Parliament may prescribe a residence requirement for employment under a State or a local authority.
• 16(4): reservation for a backward class of citizens which in the opinion of the State is not adequately represented in the services. Three points: the class description differs from 15(4); the condition is representation, not backwardness alone; and the opinion is the State's, reviewed on material.
• 16(4A) reservation in promotion with consequential seniority for the Scheduled Castes and Scheduled Tribes; 16(4B) carry forward of unfilled reserved vacancies as a separate class; 16(5) religious and denominational offices; 16(6) economically weaker sections.
• Article 335: claims of the Scheduled Castes and Scheduled Tribes taken into consideration consistently with the maintenance of efficiency of administration, with a proviso permitting relaxation in qualifying marks and lowering of standards for promotion.
• Article 16 reaches only employment under the State. Private employment is covered by section 20 of the disability Act, section 9 of the transgender Act and section 3 of the HIV Act.

Test yourself

1. What does article 16 guarantee and forbid? Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and article 16(2) provides that 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. The list is worth comparing with article 15(1), which names five grounds; article 16(2) adds two. Descent matters because it is the very word on which India's standing disagreement with the Committee on the Elimination of Racial Discrimination turns, since article 1 of that Convention lists descent as a prohibited ground and the Committee reads it as covering caste. Residence matters because it addresses a real form of exclusion, the reservation of local employment for local people, and because article 16(3) is its qualified exception: only Parliament may by law prescribe a requirement as to residence within a State or Union territory for classes of employment under that State or a local authority.

2. Set out article 16(4) precisely, and the three things commonly missed about it. Article 16(4) provides that nothing in the 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.

Three features are commonly missed. The beneficiary is a backward class of citizens, which is not word for word the socially and educationally backward classes of article 15(4), and the difference between the two descriptions has been argued at length. The condition is inadequate representation in the services, not backwardness taken alone, so a class may be backward and adequately represented and article 16(4) is not then available for it, which is why representation data matters so much in this litigation. And the judgment is expressly committed to the State by the words in the opinion of the State, which is why the courts have reviewed it by asking whether there was material before the State and whether the State considered it, rather than by substituting their own assessment of backwardness.

Two further clauses complete the reservation scheme. Article 16(4A) permits reservation in matters of promotion, with consequential seniority, to any class or classes of posts in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State are not adequately represented. Article 16(4B) permits unfilled reserved vacancies of a year to be carried forward to succeeding years, to be considered as a separate class and not counted with the vacancies of the year in which they are filled for the purpose of determining any ceiling. Article 16(5) preserves laws requiring the incumbent of an office connected with a religious or denominational institution to profess a particular religion, and article 16(6) permits reservation for economically weaker sections not already covered.

3. What limits article 16, and what does it fail to reach? Article 335 is the textual limit inside the same Part, and an answer that gives 16(4) without it gives half the scheme. It provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. A proviso added later softens it, providing that nothing in the article shall prevent the making of any provision in favour of members of those groups for relaxation in qualifying marks or lowering the standards of evaluation for reservation in matters of promotion. Beyond the text, three propositions are settled: reservation is a facet of equality rather than an exception to it, because 16(4) sits in the same article as 16(1); there is a ceiling on the extent of reservation, on the reasoning that an exception which swallows the rule has ceased to be an exception, the exact figure being contested and having been altered by amendment for the economically weaker sections; and the identification of the class must rest on relevant material, since the opinion is the State's but must be an opinion formed on something.

What article 16 fails to reach is private employment, because it is confined by its own words to employment or appointment to any office under the State. That is one of the most important structural facts on this paper: a disadvantaged group's complaint against a private employer has no constitutional remedy at all and must be founded on a statute, whether section 20 of the Rights of Persons with Disabilities Act, 2016, section 9 of the Transgender Persons (Protection of Rights) Act, 2019 or section 3 of the HIV and AIDS Act, 2017. Where no statute names the group, there is no remedy against a private employer, and that gap is the strongest argument for a single anti-discrimination statute.