Fundamental Rights ( Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

UPSC: Fundamental Rights ( Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

The document Fundamental Rights ( Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC is a part of the UPSC Course Polity and Constitution (Prelims) by IAS Masters.
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FUNDAMENTAL RIGHTS

Some human actions are necessary for individual and social progress. That is, they are right actions. Throughout history , in all societies such 'right actions’ are accepted and promoted, initially morally and later legally. Such actions are called rights and are protected by law. For example, freedom of speech and movement (Art. 19); freedom to acquire and own property (Art.300A) and so on. In modern times when Constitutional governance is the norm, rights have been central to the relation between citizen and government.

A right is a legal claim that a citizen or any other individual is granted by the Constitution or any statute. For example, right to life. It.means the individual’s life can not be abridged or abolished by any one except in a manner that is prescribed in law (Art.21). If any one violates the right illegally, the individual can approach the fcourt for justice. The right can be diluted or denied according to a procedure established by law.

Rights are the essence of democracy as they empower the individuals and enable them to develop. Rights not only promote individual development but are generally associated with equality in contemporary times and establish a level playing field among the people- rich and poor; men and women; and various social groups. Thus, they are egalitarian in nature. They limit government control over individuals and are a protection against arbitrary Government actions.

Rights may be associated with obligations, there being very few absolute rights. For example, Right to Education that is made a Fundamental Right by the insertion of Art 21a by the Constitution 86th Amendment Act 2002 in India may confer the obligations on some citizens of the country to pay taxes that contribute to the revenues necessary to implement the right. Fundamental Duties that were inserted into the Constitution by the Constitution (42nd) Amendment Act 1976 are the obligations that citizens are expected to discharge. Fundamental Duties in Art. 51a require citizens to contribute to national and social development.

 

Various Kinds of Rights

Natural Rights: These are universal rights which an inherent in every individual, being a part of human nature. They are recognised and madfc enforceable by law. For example, right to life.

Human Rights: Human rights are similar to natural, rights in the sense that they are universal and are intrinsic to human nature. They are needed for dignified human life and are enjoyed irrespective of social, political and other considerations.They are contained in United Nations Universal Declaration of Human Rights 1948.

Civil Rights: These are the rights that citizens of a country enjoy and are conferred by the Constitution or the law of the country. Civil rights may differ from one country to another while human rights are universally accepted by all.

Statutory/legal rights: Where a right has the backing of law, it is called a statutory right. It may be a part of the Constitution or not. For example, the limited right to work given in the Mahatma Gandhi National Rural Employment Guarantee Act is a statutory right. Similarly, right to information is a statutory right. The above two rigjhts like many more are not a part of the Constitution like the right to life. But they have to be compatible with the Constitution as otherwise; they will be declared null and void by the higher courts- High Court and Supreme Court.

Constitutional Rights: They are rights enshrined in the Constitution.Some enjoy special status as Fundamental Rights and some others do not enjoy such status- for instance, outside part III of the Indian Constitution ( other than Fundamental Rights)

Fundamental Rights: They are a branch of civil rights and are given highest importance in India as they are defended by the Supreme Court directly. To restrict them, Constitution has to be amended. Some Fundamental Rights are confined to citizens only while others are open to all. For example, Art.15, 16, 19, 29 and 30 in the Chapter on Fundamental Rights in the Indian Constitution (Part III) are available to Indian citizens only. They are essential for human development, democracy and social progress.

 

Fundamental Rights

Fundamental Rights are important for the individual to live with dignity and the society to evolve on democratic lines. Constituent Assembly of India borrowed the concept of Fundamental Rights from American Constitution where they are found in the Bill of Rights. In fact, Fundamental Rights are considered so sacrosanct that if they are violated, the aggrieved individual can approach the Supreme Court of India directly (Art.32). Supreme Court can issue writs mentioned in Art.32 for the defence of the Fundamental Rights.The individual concerned can approach the High Court as well. for allother rights, the highest court of first instance is the High Court. But not the Supreme Court.

Fundamental rights include individual and group rights. They are common to most liberal democracies: equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practise religion and the right to constitutional remedies in case of violation of the rights. The Constitutional remedies are the writs( orders) such as habeas corpus. Right to life is an example of individual rights while affirmative action in favour of certain castes, women and minorities is an example of group rights.

Freedom Struggle and Fundamental Rights

In 1928, a series of All Party conferences were chaired by Motilal Nehru. They drafted a constitutional scheme, called the Nehru Report. This constitution called for a parliamentary democratic system of government and protection of minorities. In 1931, the Indian National Congress, at its Karachi session further committed itself to individual rights and liberties which included social and economic rights in favour of the lower castes and for a living wage for the workers.

Fundamental Rights were incorporated into the Indian Constitution with the inspiration of the leadership of the freedom struggle and the experience of the world’s leading democracies - UK, USA and France that had detailed provisions for the recognition and protection of individual rights in their Constitutions: Bill of Rights of UK, Bill of Rights of USA and Declaration of Rights of Man of France.

Fundamental Rights essentially safeguard individuals from any arbitrary State actions, but some rights are enforceable against private persons as well. For example, abolition of untouchability (Art.17) is a limitation on State action as also on individual actions.

Art. 15, 16, 19,29 and 30 are available to citizens only while others are enjoyable by non­citizens (aliens) as well. The reasons for limiting these rights to citizens only is evident in the content of these rights.

Fundamental Rights, being Constitutional rights, can be amended by the Parliament only- abridge or expand. However, Parliament is not free to abridge the FRs unless it serves public interest.Even then, amendment to the Constitution is the only way to amend the FRs.

The Supreme Court upheld the power of the Parliament to amend the Fundamental Rights from the commencement of the Constitution till the Golak Nath case verdict in 1967. In the Golak Nath case ruling, it held that Parliament could not amend the Fundamental Rights as these rights enjoy a ‘transcendental’ status under the Indian Constitution. But in the Keshvananda Bharati case (1973) verdict, it permitted limited power to the Parliament to amend the Fundamental Rights.

In the Kesavanda Bharati vs. State of Kerala case, the Supreme Court laid down the concept of “basic features” of the Constitution. The apex court ruled that basic features cannot be amended by the Parliament. What is meant is that the basic features cannot be restricted or violated but there is scope of enrichment and amplification, subject to judicial review. Fundamental Rights are not classified as a basic feature but if they are violated and there is no clear public purpose served by the violation, the violative law can be partially or wholly struck down by the courts.

The “Doctrine of Basic Structure” that was introduced in the Kesavananda Bharati vs State of Kerala (1973) was amplified in various verdicts of the apex court since then.

The sanctity attached to FRs under the Indian Constitution is seen in the fact that apex court can be approached directly; amendment to the FRs is possible only by an Amendment to the Constitution; FRs can be abridged only if public interest is served and the judiciary will determine if public interest is being served or not( Coelho case (I.R. Coelho v. State of Tamil Nadu 2007). State legislatures can not restrict FRs at all.

Under National Emergency (Art. 352,358 and 359) however, Constitution permits suspension of the operation/enforcement of all Fundamental Rights except Art. 20 and 21.

 

Limitation on Fundamental Rights

Most of the rights are subject to reasonable limitations. Some however are absolute- for example, untouchability is abolished unconditionally. Art.19.2 says that the rights contained in Art.19.1 are conditional and subject to reasonable restrictions. Such reasonable restrictions are spelt out in Art. 19.2 for some freedoms while for others, such limitations are added through either Amendment Acts or Supreme Court verdicts. For example, the doctrine of proportionality demands that restrictions be truly limited and not excessive.

Six Classes

There are six classes of Fundamental Rights in Part III of the Constitution. They are:

  • Right to equality (Art. 14-18)
  • Right to freedom (Art. 19-22)
  • Right against exploitation (Art,23-24)
  • Right to freedom of religion (Art.25-28)
  • Cultural and educational rights (Art.29-30)
  • Right to constitutional remedies (Art.32)

Right to Equality: It is a very important right enshrined in Articles 14, 15, 1.6, 17 and 18 of the Constitution. It is the principal foundation of all other rights and liberties and guarantees equality before law, social equality and equal access to public areas, equality in matters of public employment, abolition of untouchability and abolition of titles. Thus, the State cannot discriminate against a citizen on the basis of religion, race, caste, sex, or place of birth. Every person shall have equal access to public places.While equality for all is guaranteed, affirmative action in favour of deprived groups is constitutionally allowed- for women, children, scheduled castes/ scheduled tribes , other backward classes( that is, other than the SC/STs). Practice of untouchability has been declared an offence and anyone practicing it is punishable by law. The State cannot confer any titles and citizens of India cannot accept titles from a foreign State, without the permission of the Government of India. The titles of Rai Bahadurs and Khan .Bahadurs are also abolished. However, military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Bhushan and Vibhushan "cannot be used by the recipient as a title and does not, accordingly, come within the constitutional prohibition". The Supreme Court ( 1995) upheld the validity of such awards.

Right to Freedom: It is given in Articles 19, 20, 21 and 22 of the Constitution of India, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution. The right to freedom encompasses the freedom of speech and expression, freedom to assemble peacefully without arms, freedom to form associations or unions, freedom to move freely throughout the territory of India, freedom to reside and settle in any part of the territory of India and the freedom lo practice any profession or to carry on any occupation, trade or business.Restrictions can be imposed on all these rights in the interest of public order, security of State, decency or morality. The constitution also guarantees the right to life and personal liberty and says that the right can be limited or denied in a way prescribed by the law.Protection with'respect to conviction for offences, protection of life and personal liberty and the rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty.However, the right to life and personal liberty cannot be suspended under any circumstance even under the National Emergency imposed according to Art.352.

Right to education by the 86th Constitutional amendment 2002 has been made one of the Fundamental Rights under the right to life and personal liberty (Art.21a). It is in line with the expanded reading of the right to life that the Supreme Court introduced since late seventies.

Right against Exploitation: The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely

  • abolition of trafficking in human beings and
  • abolition of employment of children below the age of 14 years in hazardous jobs like factories and mines.

Child labour is considered a gross violation of the spirit and provisions of the constitution. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law. Compulsory military conscription is however, permitted. In 2013, the concern with 'missing children’ has become acute as children are exploited through trafficking.

Right to Freedom of Religion : Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all people in India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the state and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. However, certain practices like wearing and carrying of Kirpans in the profession of the Sikh religion can be restricted in the interest of public order, morality and health. Religious communities can set up charitable institutions of their own, subject to certain restrictions in the interest of public order, morality and health. No person is compelled to pay taxes for the promotion of a religion. A State run institution cannot impart religious instruction.

Secularism in India was further strengthened with the Supreme Court ruling in April 2013 when it said that the Vedanta Group's bauxite mi ping project in the Niyamgiri Hills of Orissa will have to get clearance from the gram sabha, which will consider the cultural and religious rights of the tribals and forest dwellers living in Rayagada and Kalahandi districts. (Details further phead)

Cultural and Educational Rights:They are given in Articles 29 and 30 of the constitution and are measures to protect the rights of the minorities- linguistic and religious. Any community which has a language and a script of its own has the right to conserve and develop them. No citizen can be discriminated against for admission in State or State aided institutions. All minorities, religious or linguistic, can set up their own educational institutions in order to preserve and develop their own culture. In granting aid to_ institutions, the state cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution.

Right to Constitutional Remedies:Art.32 confers the right to move the Supreme Court directly in case of any denial of the fundamental rights. For instance, in case of arrest and detention, the person concerned can challenge the same as illegal and courts may either grant him/her bail or may set him free completely if there is nom legal basis. The courts can issue various kinds of writs to safeguard FRs: habeas corpus, mandamus, prohibition, quo warranto and certiorari.

Explanation of Art.12-35                                                         ;

Art. 12 defines "the State” as including the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The definition is important when any one approaches courts against the Government as they have to show that the agency being challenged is a part of State. For all practical purposes, government and State are used interchangeably.

Art. 13. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

  1. There was a controversy about what constitutes 'law’. Supreme Court concluded in various verdicts that "law" includes any ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law. But not an amendment to the Constitution. Law is what the parliament does in its legislative capacity and amendment is what it does in its Constituent power. The latter thus is outside the purview of Art. 13 and thus an amendment Act can abridge FRs though within limits as laid down by the apex court.
  2. In sum, nothing in this article shall apply to any amendment of this Constitution made under Article 368.

 

Doctrine of Eclipse

The doctrine says that a law that is overridden by a subsequent law does not cease to exist. It only goes into dormancy. Once the overriding law is diluted or deleted, the earlier law may come into operation. For example, a pre-Constitution law goes into eclipse if it conflicts with a provision in the Constitution.. When the Constitution is amended , it allows the pre-Constitution law to re-surface, it comes out of eclipse. Generally, it does not apply to the-post-Constitutional laws as they become null and void from inception if they contradict the Constitution.

 

Article 14:- Equality before Law

The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Equality before law means that irrespective of any other criteria, all persons-citizens and others are equal in the eyes of law. The exception in certain matters is the President of India and the Governor of a State.

Equal protection of laws means Tike are treated alike' or 'people in similar circumstances are treated similarly. For example, persons having the same taxable income have to pay the same amount of tax. Equal protection of laws has been responsible for the affirmative action in USA and India. It allows deprived sections to be treated differently. Thus, SC/STs, women and others were given positive discrimination and thus egality is introduced in government policies causing social progress in the country. Similarly, African Americans in the USA were empowered.

Rule of Law                                    

Rule of law is a basic feature of all modern Constitutional democracies. An expert on English Constitution , Prof. A.V. Dicey says rule of law has following dimensions.

  • Firstly, rule of law means absence of arbitrary power on the part of the Government. There is a written law that lays down rights and. responsibilities of citizens and others; it also states clearly the powers, obligations and the limitations of government action.
  • Secondly, it means that no one is above the law and every one, whatever be his rank or status, is subject to the ordinary law of the land and the jurisdiction of the courts.
  • Thirdly, Constitution is not the source of rights but recognises the pre-existing rights and codifies the same for legal protection. For example, right to life, liberty,property etc.

As nation states emerged and democracy dug deeper, rule of law became the norm. Earlier, rule by individuals and groups according to their own whims and fancies was the order. Arbitrariness defined such rule. Rule of law gradually replaced it and is characterised by the following

  • Notion of equality and equal protection of laws, as explained above
  •  Penal laws can not be made retrospectively
  • Separation of powers, since the fusion of powers in one authority leads to dictatorship or absolutism.

Supreme Court of India, relying on Dicey observed: “The rule of law ...means that decisions ... should be predictable and the citizen should know where he is.”

Rule of law is the norm in modern times and arbitrary exercise of power by individuals and groups and rule by decree are not accepted.

"Howsoever high you may be, the Law is above you" sums up the essence of rule of law.

 

Doctrine of eclipse'

The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not nullity or void ab initio but becomes, only unenforceable i.e. remains in a limbo. Such laws are not deleted from the statute book. It essentially applies to the pre-Constitution laws as we will see ahead.

Supreme Court formulated the doctrine of eclipse in Bhikhaji v. State of M.PI 955. In this case the provisions of.C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorized the State Government to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision though valid when enacted, became void on the commencement of the Constitution in 1950 as they violated Article 19(1 )(g) of the Constitution. However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so as to authorize . the Government to monopolise any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal.

The doctrine generally does not apply to the post-Constitution laws as they are challenged and invalidated immediately if they contradict FRs.

Juvenile Justice (Care and Protection of Children) Act, 2000

The Juvenile Justice (Care and Protection of Children) Act, 2000 which was further amended in 2006 is the primary legal framework for juvenile justice in India. The Act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. ‘Juvenile’ or ‘Child’ means a person who has not completed 18 years of age. Under the law, Juvenile Justice Boards(JJB) are set up for each district or group of districts by state government to deal with matters relating to juveniles in conflict with law.JJB may pass orders to counsel parents / guardian and the child;advise / admonish the child and release;advise the child to- participate in group counseling and similar activities; perform community service;order payment of fine, if juvenile is above 14 years of age and earns money;release on probation of good conduct, and place him under care of parent / guardian or other fit person or fit institution; or send to a Special HomeJJB must remove records of conviction after expiry of period of appeal / reasonable period.Orders that the JJB cannot pass include sentencing to death / life imprisonment / committed to jail.

Some rules:

  • Juvenile MUST be released on bail irrespective of the offence.
  • A juvenile may be released on bail with or without surety
  • A juvenile may not be released on bail ifrrelease brings him into association with a criminal;exposes him to moral, physical or psychological danger
  • A juvenile net released, on bail must be kept in the Observation Home/place of safety pending inquiry
  • Parents / guardian of juvenile must be informed of the detention of the juvenile as soon as possible.

 

 

High Courts have constituted "Juvenile Justice Committees" which are monitoring committees headed by sitting Judges of High Courts. These Committees supervise and monitor implementation of Juvenile Justice Act in their Jurisdiction and have been very effective in improving state of implementation. Juvenile Justice Committee of Delhi High Court is considered a model in this regard.

Criminal Law (Amendment) Act 2013 is an example of special laws for women. Anti-sexual harassment law made in 2013 is a similar example.

 

Right to education and the special rights of the disadvantaged children'

In March 2013, it was decided that a constitution bench of the Supreme Court ( minimum strength of five judges) will hear the challenge to Article 15(5) of the constitution, which places an obligation on unaided private schools to reserve 25 percent seats for students from socially and economically weaker sections of society.The provision, under the Right to Education Act (RTE), was challenged by managements of private schools in various states. The petition quoted Article 145(3) of the Constitution: “The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be fiveTSince the challenge involved raises the question as to the validity of Articles 15(5) and 21- A of the Constitution of India, the apex court held that matter needs to be referred to the constitution bench of five Judges."

The apex court Oct 8, 2012, issued notice to the centre on a petition that sought equal status for unaided educational institutions at par with unaided minority institutions in reserving 25 percent seats for socially and economically backward sections. In 2002, in the TMA Pai case, the apex court held that unaided minority educational institutions need not give seats to non-minority students.

The petition contended that Article 15 (5) was ultra vires of the basic structure of the constitution as it discriminates between two similarly placed category of educational institutions on the basis of their minority and non-minority status and thus violates right to equality. In the same verdict the Supreme Court said that such reservation violates Art.19.lg. Article   19(l)(g) in the constitution provides for freedom to practise any profession,

occupation, trade or business.

Clause 5 of the Article 15 says " Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement ofeny socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar  as   such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutionsreferred to in clause (1) of Article 30.",'It exempts the minority and does not exempt the non-minority educational institutions.

In April , 2012, an apex court upheld the constitutional validity of the Right to Education (RTE) Act that mandates unaided private schools to keep 25 percent seats for students from economically and socially weaker sections of society. The petition seeks to challenge that verdict as a Constitution Bench is required to judge the validity of the 86th Amendment Act that gives right to education under Art.2la.

The apex court by majority judgment, upheld the constitutional validity of Section 12(1)(C) of the RTE Act that provides that seat quota.

While upholding the Section 12(1)(C) of the RTE Act, the majority judgment exempted unaided minority educational institutions from such quota but held back same exemption from un-aided non-minority institutions.

However, in a separate judgment Justice K..S. Radhakrishnan held that the mandate under the RTE Act providing for reservation of seats was not constitutionally valid, qhd thus the unaided schools, whether majority or minority, could not be compelled to earmark 25 percent seats in their institutions.

Art. 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.

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.

Nothing in this article shall prevent the State from making any special provision for women and children; 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.

93rd Constitution Amendment Act (2005) inserted a new clause in Art. 15. The new Clause- Art. 15.5 states more explicitly that the State can make any special provision for SC,ST and SEBCs (Socially and Educationally Backward Classes) in regard to admissions to educational institutions, including private educational institutions, whether aided or unaided by the state. However, minority educational institutions (Article 30) are exempt. It is an enabling Act and requires specific Central and State laws to enforce it. The enabling law was made in 2006- The Central Educational Institutions (Reservation in Admission) Act 2006.Similarly states also have enacted the relevant laws.

 

Art.15 and social progress

Art.14 establishes equality before law but historical facts of inequality mandate that special treatment for the:disadvantaged groups be given. Constitution recognizes that affirmative action is necessary for genuine social development. Therefore, in Art.15, there are provisions in support of marginalized sections of Indian society. One of the main goals of Art.15 is to reform the traditional social order which is beset with discrimination against certain sections.

Preferential treatment in favour of SC/ST and OBCs regarding educational and other facilities is a social reform that is based on Art.15. At the same time, the Supreme Court sought to balance the quota-based preferential action with general social good by limiting the quantitative extent of reservation permissible. For example, 50% is the limit laid down by the court for all reservations combined. Also, in the case of the SEBCs, creamy layer is excluded. Further, the Supreme Court sought updated data about the SEBCs in India to see if the quota set aside is in conformity with that or not.

Regarding women and their social progress on the basis of Art.15, the following needs to be noted:

  1. According to Supreme Court, reservation of posts exclusively for women is valid under Art.15 (3) as the Article 15(3) covers every dimension of State action. It needs to be noted that Art.15 does not cover employment for any other social group except women. All others are given preference in jobs under Art. 16.'
  2. Provisions in the criminal law and procedural law in favour of women have beenaccepted by the courts in view of their social weakness..
  3. Reservation for women in local bodies (Panchayat and Nagarapalika bodies) and educational institutions is supported by the Art.15.
  4. In Visakha vs State of Rajasthan (1997), Supreme Court suggested measures to eliminate sexual harassment in the work place as it violates Art. 14, Art. 15 and Art.23.

The Women’s Reservation Bill that is being nationally debated since 1996 is also based on the protective provisions of Art. 15 (3). Constitution 108) Amendment Bill was passed by the Rajya Sabha in March 2010.

 

Art.l 6. Equality of opportunity in matters of public employment

  • There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
  •  No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible Tor, or discriminated against in respect or, any employment or office under the State.
  • Parliament.' may legislate that residence is a criterion for employment in certain categories. For example, ‘sons of soil policy’ whereby people in the vicinity of an area may have the-employment reserved for them.
  • 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.
  • Religious and denominational institutions can reserve the employment in them for those professing the religion. For example, church, mosque etc

 

Explanation

.Descent and Residence are the two additional criteria found in Art. 16 '(2) as compared to Art. 15(1).

Descent can be exemplified by the following. In GD Rama Rao Vs State of Andhra Pradesh, the Supreme Court struck down an order of the Government where the Collector was directed to appoint persons from among the last holders of the office as it amounted to discrimination on the basis of descent.

Art.16 (3)

Residence can not be the basis for reservation. However, Art.16 (3) makes exceptions. That is, a State or a UT can reserve certain posts for its own residents. Parliament alone is competent to make such laws for any State or UT. The exception is made for reasons of efficiency as knowledge of local conditions is essential, at times, for discharge of duties well. Jobs so reserved are generally subordinate in nature. It is called ‘sons of soil policy’.

Parliament, in 1957 made the Public Employment (Requirement as to Residence) Act for a temporary duration for preferential appointment to the residents of the State for the non-gazetted ranks in the States of Andhra Pradesh, Himachal Pradesh, Tripura and Manipur. The Act expired in 1974.

Art.16 and Supreme Court Judgement in Indira Sawhney vs Union of India

In Indira Sawhney vs Union of India 1992, the Supreme Court upheld the Government policy of providing for reservation for the other backward classes (OBC)in government services. The gist of the verdict is the following:

  • It is not necessary that the 'provision' under Art. 16(4) should necessarily be made by the Parliament/ Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Art. 12 of the Constitution are themselves competent to make such a provision, if so advised.
  • Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social groups for the purposes of Art. 16(4).
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