Justice BP Jeevan Reddy [1]
641. Inasmuch as public employment always gave a certain status and power – it has always been the repository of State power – besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 1.6. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state is not adequately represented in the services under the state. Article 17 abolishes the untouchability while Article 18 prohibits conferring of any titles (not representing military or academic distinction). It also prohibits the citizens of this country from accepting any title from a foreign state.
642. Article 16 has remained unamended, except for a minor amendment in clause (3) whereas Article 15 had clause (4) inserted in it by the First Amendment Act, 1951. As amended, they read as follows :
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to –
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
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 provisions for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the caste, is 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.
643. The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the set of articles in Part XVI, Clause (1) of Article 38 obligates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
644. “Clause (2) of Article 38, added by the 44th Amendment Act says, “the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
645. Article 46 contains a very significant direction to the State. It says :
“46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. – The State shall promote with special care ‘ the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and the Scheduled Tribess, and shall protect them from social injustice and all forms of exploitation.”
646. It is evident that “the weaker sections of the people” do include the “backward class of citizens” contemplated by Article 16(4).
[1] This article is an excerpt from the judgment of Justice BP Jeevan Reddy in Indira Sawhney v Union of India 1993 (1) SCT 448, authored on behalf of M. H. Kania, C.J. and M. N. Venkatachaliah, A. M. Ahmadi, JJ.) (Majority view)