THE FUNDAMENTAL RIGHTS – 03
ARTICLE 17: ABOLITION OF UNTOUCHABILITY
THE FUNDAMENTAL RIGHTS – 03
Clause 5: Clause 5 of article 15 was inserted by 93rd Constitutional Amendment Act, 2005. Under Clause 4, reservations in the admission to educational institutions, that are partially or wholly aided by the State were provided for Socially and Educationally Backward Classes, Scheduled Castes and Scheduled Tribes.
Clause 5 extended the scope of reservations in admissions to private educational institutions as well. Minority educational institutions are not covered under both the clauses.
|Note: Article 15 does not provide protection against discriminations based on a citizen’s residence.|
EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT
The scope of article 16 is narrower than article 15, as it talks only about equality of opportunities in the matters of public employment.
Clause 1: It says that all the citizens shall be provided with equality of opportunities in the matters of public employment or appointments to offices under the State. This article, while ensuring equality of opportunities to all the citizens, does not prevent the State from prescribingqualifications; capabilities and conducting tests while recruiting the candidates to public offices.
‘EQUALITY OF OPPORTUNITY’- It refers to the right to be considered for employment or appointment not to be employed.
‘MATTERS OF EMPLOYMENT OR APPOINTMENT’- It refers to all the matters concerning employment or appointment such as a) appointment b) promotion c) termination of appointment d) matters related to salary, increments, pension, gratuity, leave, etc.
● The principle of ‘Equal Pay For Equal Work’ is also covered under article 16.
● Matters related to ‘Seniority’ is not covered under Clause 1 of article 16.
Clause 2: It says that no citizen shall be discriminated against based only on religion, race, caste, sex, descent, residence, place of birth or any one of them in the matters of employment or appointments to offices under the State. This provision is applicable only to the State not to private entities.
Clause 3: It says that residence of a candidate may be made as a necessary qualification for employments or appointments to certain positions under a State or a Union Territory or a local authority or any other authority with the sanction of the Parliament.
|Residence: It refers to the place where a person lives. It is not the same as the place of birth. Article 15 does not discriminate any citizen on the grounds of Place Of Birth, whereas Article 16 does not discriminate on the grounds of both the place of birth and the residence.|
Clause 4: It says that the State can make special provisions for reservations in employments to any backward class of citizens, who in the opinion of the State are inadequately represented in the services under the State.
WHO CONSTITUTE THE BACKWARD CLASS?
The term ‘Backward Class’ has been clearly defined in article 15, whereas the term is left without any definition in article 16. Under article 15, ‘Backward Class’ refers to a class of citizens who are Socially and Educationally Backward. Under article 16, it is interpreted generally as Social backwardness.
Clause 4A: It says that the State can make provisions for reservation in promotion with consequential seniority to any class or classes of posts under the State to Scheduled Castes and Scheduled Tribes, which in the opinion of the state are inadequately represented in the services under the State.
WHAT IS CONSEQUENTIAL SENIORITY?
Let us assume two persons A and B.
Both A and B are working in Level 1 of a class of public service.
A belongs to General Category and is 3 years senior to B, who belongs to SC or ST category. Both A and B are awaiting promotion to Level 2.
Now, B gets promoted to Level 2 under reservation.
The next year, A also gets promoted to Level 2.
Now, B is considered as senior to A by 1 year.
Clause 4B: It says that the State shall consider unfilled vacancies reserved under clause 4 and clause 4A, which are reserved to be filled up in a particular year as a separate category of vacancies to be filled in the succeeding years. These unfilled vacancies shall not be considered together with the vacancies of the year in which they are being filled up. This provision was added in order to keep the percentage of reservation under 50% in any given year.
Clause 5: It says that the provisions of article 16 shall not affect the operation of any law that mandates the appointments to offices related to any religious or denominational institutions or any other governing body related to them, shall be a person belonging to that particular religion or denomination.
|Article 335: It says that the State, while fulfilling the claims of SCs and STs for appointments to services and posts under the Union and the States, should ensure that the efficiency of administration is maintained.|
ARTICLE 17: ABOLITION OF UNTOUCHABILITY.
- This article abolishes ‘Untouchability’ and forbids its practice in any form. It also makes the practice a punishable offence by law. But, the term ‘Untouchability’ has nowhere been defined in the constitution.
- Accordingly, The Untouchability Offences Act, 1955 was enacted by the parliament, which was later amended and renamed as Protection of Civil Rights Act, 1976.
- The provisions of this article are available against private individuals and the State has to take the necessary steps to realise the objectives of the article.
- The rights under Article 17 are among a few other Fundamental Rights that are available against private individuals.
- The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to further the effectiveness of article 17.
|Criticism: Article 17 does not prescribe any measures for the eradication of the caste system, which is the root cause of the practice of Untouchability.|