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(Doubt) The articles 16(4), 16(4A), 16(4B) not cobnsidered Fundamental Right?

wrt. Article 16, Right to Equality of Opportunity in matters of public employment.

They are called as Enabling provisions but not considered as Fundamental Right despite they are part of Article 16.
Can anyone explain why?

Comments

  • Article 16 of the Constitution of India provides Equality of Opportunity in Matters of Public Employment. In the first part of the Article, the general rule is laid down that "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". In the next section, the general principle is explained in detail which says 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 or, any employment or office under the State".

    The subsequent clauses (3), (4), (4A), (4B) and 5 however provide for the situations where departures can be made from the general rule laid down in clauses 1 and 2. The fundamental right under Article 16 is conferred only by clauses 1 and 2. The subsequent clauses don't confer rights. They are just enabling provisions. For example, clause 3 says that "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". Similarly, Clause 4 says that "Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State". These enabling provisions give special powers to Parliament and state where under they may frame rules/policies for expanding or supplementing the general principles laid down in clauses 1 and 2.

    In many cases upto Devadasan v. U.O.I. the Supreme Court considered clause 4 as an exception to the general rule laid down in clauses 1 and 2. But subsequently in N.M.Thomas case and Indra Sawhney v. U.O.I. case (popularly known as Mandal Commission Case), the Supreme Court held that Clause 4 was actually expansion and emphatic assertion of the general rule prescribed by clauses 1 and 2.

    Hope you must have got the concept by now. :)
  • edited February 3
    Candid said:

    In many cases upto Devadasan v. U.O.I. the Supreme Court considered clause 4 as an exception to the general rule laid down in clauses 1 and 2. But subsequently in N.M.Thomas case and Indra Sawhney v. U.O.I. case (popularly known as Mandal Commission Case), the Supreme Court held that Clause 4 was actually expansion and emphatic assertion of the general rule prescribed by clauses 1 and 2.

    Very lucid explanation. Thanks.
    But explain the significance of the change of position of clause 4 from an exception to expansion.
    be a UPSC killer than a UPSC lover
  • Candid said:

    In many cases upto Devadasan v. U.O.I. the Supreme Court considered clause 4 as an exception to the general rule laid down in clauses 1 and 2. But subsequently in N.M.Thomas case and Indra Sawhney v. U.O.I. case (popularly known as Mandal Commission Case), the Supreme Court held that Clause 4 was actually expansion and emphatic assertion of the general rule prescribed by clauses 1 and 2.

    Very lucid explanation. Thanks.
    But explain the significance of the change of position of clause 4 from an exception to expansion.
    Very nice question of yours!

    See, the significance lies in the fact that now it is in consonance with the general principles laid down in the clauses 1 and 2. Earlier, where the general rule provided for equality of opportunity in public employment, clause 4, for example, provided for reservation in favour of backward classes of citizens which in the opinion of state have not been fairly represented in the services under the state. There two aspects were mutually contradictory! The need was to reconcile these two differences. Thus, when the Supreme Court treated clause 4 as an emphatic statement of equality of opportunity, the purpose was achieved which was greatly sought after, and consequently, now clause 4 was in keeping with the provisions laid down in clauses 1 and 2. The Supreme Court reasoned that equality means equality between members of same class and not between members of separate and independent classes! The backward classes of citizens can't be put in the same class as the rest of the citizens as they were victim of historical wrongs and they have right to be compensated for that. But at the same time contested that there are limits to the extent they would be compensated at the cost of the present generation. The limit to the extent being that the reservation should not go to the extent of denying the reasonable equality of opportunities to the members of the classes other than backward (set a threshold of 50% reservation in a single year), that while considering the reservatons, maintenance of efficiency of administration should be kept in mind and that reservation was limited to initial employment alone, i.e., not applicable to promotions. This last aspect was the reason the Parliament added article 16 (4A) by the 77th Constitutional Amendment Act to provide for reservation in the matters of promotion in services under the state.

    Hope you must have got it by now. :)
  • Candid said:

    Candid said:

    In many cases upto Devadasan v. U.O.I. the Supreme Court considered clause 4 as an exception to the general rule laid down in clauses 1 and 2. But subsequently in N.M.Thomas case and Indra Sawhney v. U.O.I. case (popularly known as Mandal Commission Case), the Supreme Court held that Clause 4 was actually expansion and emphatic assertion of the general rule prescribed by clauses 1 and 2.

    Very lucid explanation. Thanks.
    But explain the significance of the change of position of clause 4 from an exception to expansion.
    Very nice question of yours!

    See, the significance lies in the fact that now it is in consonance with the general principles laid down in the clauses 1 and 2. Earlier, where the general rule provided for equality of opportunity in public employment, clause 4, for example, provided for reservation in favour of backward classes of citizens which in the opinion of state have not been fairly represented in the services under the state. There two aspects were mutually contradictory! The need was to reconcile these two differences. Thus, when the Supreme Court treated clause 4 as an emphatic statement of equality of opportunity, the purpose was achieved which was greatly sought after, and consequently, now clause 4 was in keeping with the provisions laid down in clauses 1 and 2. The Supreme Court reasoned that equality means equality between members of same class and not between members of separate and independent classes! The backward classes of citizens can't be put in the same class as the rest of the citizens as they were victim of historical wrongs and they have right to be compensated for that. But at the same time contested that there are limits to the extent they would be compensated at the cost of the present generation. The limit to the extent being that the reservation should not go to the extent of denying the reasonable equality of opportunities to the members of the classes other than backward (set a threshold of 50% reservation in a single year), that while considering the reservatons, maintenance of efficiency of administration should be kept in mind and that reservation was limited to initial employment alone, i.e., not applicable to promotions. This last aspect was the reason the Parliament added article 16 (4A) by the 77th Constitutional Amendment Act to provide for reservation in the matters of promotion in services under the state.

    Hope you must have got it by now. :)
    Thanks
    be a UPSC killer than a UPSC lover
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