Article 16 of Indian Constitution: Equality of Opportunity in Public Employment and Reservation in India

Points to note

• Descent and residence are extra grounds in Article 16(2). Under 16(3) Parliament once passed the Public Employment (Requirement as to Residence) Act, 1957; today residence rules exist mainly through special provisions such as Article 371D (Andhra Pradesh and Telangana).
• A State law reserving its jobs for "sons of the soil" by domicile is generally invalid (Kailash Chand Sharma v. State of Rajasthan, 2002).
• Clause (5) example: the trustees of a Hindu temple board can be required to be Hindus.
• N.M. Thomas (1976) and Indra Sawhney (1992): Article 16(4) is not an exception to 16(1) but a facet of it.

• From the first days of the Constitution SCs and STs got reservation, and this was never seriously disputed.
• For backward classes, Article 340 lets the President appoint a commission from time to time. Under it the Kaka Kalelkar Commission was set up in 1953 (Nehru government). Its 1955 report was not accepted.
• Drawing on Article 340, the Morarji Desai government set up the B.P. Mandal Commission in 1979 to suggest steps for the backward classes. Its 1980 report identified 3,743 castes and recommended 27% OBC reservation.
• After the V.P. Singh government came to power (December 1989), it formally implemented the Mandal recommendations in August 1990, giving 27% to OBCs in central jobs. Caste was chosen as the basis.
• In September 1991 the P.V. Narasimha Rao government added 10% for the economically backward among other classes. This 10% was struck down in Indra Sawhney (1992). (The EWS quota we have today is a different, later scheme from the 103rd Amendment, 2019.)
• Big questions arose: Does the Constitution allow caste-based reservation? Can there be reservation on an economic basis? What is the definition of backwardness? The Supreme Court answered them in Indra Sawhney v. Union of India, 16 November 1992.

In central government jobs and central educational institutions the shares are:

• Scheduled Castes: 15%
• Scheduled Tribes: 7.5%
• Other Backward Classes: 27% (non-creamy layer only)
• Total for SC + ST + OBC = 49.5%, just under the 50% ceiling of Indra Sawhney.
• EWS: 10%, added in 2019 → total 59.5%.

A nine-judge bench decided by 6:3:

• For establishing equality the State can make positive discrimination.
• Reservation is not against equality. The Constitution has proportional equality built into it, through which distributive justice can be achieved. (Distributive justice = distributing resources in a differentiated way, on the basis of priority.)
• Caste-based protection is valid, because in the majority Hindu community many castes are victims of backwardness. Caste is the first and main basis to identify backwardness; occupation, income, housing and other economic conditions can be seen as secondary factors.
• Creamy layer (the well-off) of the OBC will not get reservation. Today a person whose parents' income from other sources is ₹8 lakh a year or more (limit since 2017), or whose parents hold high constitutional posts or Group A / Class I posts, is in the creamy layer.
• There is no creamy layer for SC and ST (the Court did not apply it to them).
• Maximum limit of caste-based reservation is 50%, save extraordinary situations, and it is open to judicial review.
• No reservation in promotions (applied prospectively, with existing promotions saved for five years).
• The 10% economic quota of 1991 was struck down: income alone cannot identify a backward class under Article 16(4).
• A permanent body to examine inclusion and exclusion in the OBC list was ordered (the National Commission for Backward Classes, 1993; constitutional status by the 102nd Amendment, 2018, Article 338B).

After the judgment: what governments did

• The 10% EWS reservation of the Narasimha Rao government was withdrawn.
• Through the 76th Amendment (1994), Tamil Nadu's 69% reservation law was put in the Ninth Schedule. (The Ninth Schedule was added by the 1st Amendment, 1951; laws put in it were meant to be beyond judicial review. But under judicial activism the Supreme Court in I.R. Coelho (2007) brought post-1973 entries within judicial review on the basic structure test.)
• The 77th Amendment (1995) inserted Article 16(4A): SC and ST will get reservation in promotion.
• The 81st Amendment (2000) inserted 16(4B) (backlog, see below), the 82nd (2000) allowed relaxed qualifying marks in promotion (proviso to Article 335) and the 85th (2001) gave consequential seniority.

Through the 85th Amendment it was settled that for SC and ST reservation in promotion the principle of consequential seniority applies.

Take three officers of equal merit: x (general category, 5 years of service, the most senior), y (OBC, 3 years) and z (SC/ST, 2 years, the most junior).

• Catch-up rule (Virpal Singh Chauhan 1995, Ajit Singh 1996): z can go up first through a reserved promotion, but when x is promoted later, x regains seniority over z. z gets an early chair, not a permanent lead. Normally, when merit is equal, the most senior person is promoted.
• Consequential seniority (85th Amendment): z keeps the seniority that comes with the reserved promotion. Your class notes explain it as deliberately treating z as the most senior: the gap with the most senior person is added to z, that is 2 years + 3 years + 1 day, so z stands just above x and is promoted first.

Then came the debate

After these government efforts, the debate was: Is reservation in promotion right? Should there not be a creamy layer for SC and ST? The Court answered through these cases:

• M. Nagaraj v. Union of India (2006): (i) reservation in promotion for SC/ST is valid; (ii) SC/ST representation in many organisations did not happen because of backwardness; (iii) SC/ST people are still victims of backwardness; (iv) reservation in promotion should not come at the cost of efficiency of administration (Article 335). But the State must collect quantifiable data on backwardness and inadequate representation, the creamy layer rule applies to SC/ST at the promotion stage, and the 50% ceiling must be kept.
• Even after this, SC/ST representation at higher levels remained low, and governments neither researched the lack of representation nor gave the data to the judiciary.
• Jarnail Singh v. Lachhmi Narain Gupta (2018): (i) SC/ST reservation in promotion is valid; (ii) the State need not give data on the backwardness of SC/ST (that condition was removed); (iii) all other Nagaraj conditions continue, including creamy layer and data on inadequate representation.
• B.K. Pavitra II (2019): Karnataka's law on consequential seniority upheld.
• Mukesh Kumar v. State of Uttarakhand (2020): there is no fundamental right to reservation in promotion; the State is not bound to give it.
• Jarnail Singh II (28 January 2022): data on inadequate representation must be collected cadre-wise, not for the whole service; the Court refused to fix a yardstick.

Through the 81st Amendment (2000) a new Article 16(4B) was inserted: reservation applies to vacancies lying empty, and for them the 50% rule does not apply. This adopted the principle of backlog and carry forward: if some of the reserved vacancies remain empty, they are added to the reserved posts of the next year.

Example: out of 100 vacancies, 50 are reserved. Only 30 are filled; 20 remain empty. Next year again 100 vacancies come: 50 for the general category, and 50 + the 20 left over from last year, that is 70 posts for the reserved categories. The 20 backlog posts are treated as a separate class, so the year's 50% ceiling is not breached.

In 2019 the 103rd Amendment gave reservation on an economic basis in two ways:

• Article 15(6): up to 10% EWS reservation in educational institutions, but minority educational institutions are not included.
• Article 16(6): up to 10% EWS reservation in employment under the State.

Who are EWS? (Government of India criteria, 2019)

• It does not apply to SC, ST and OBC; it applies to the general category.
• Family gross annual income (the candidate, parents, minor siblings, spouse and minor children, from all sources) must be below ₹8 lakh.
• Excluded if the family owns 5 acres or more of agricultural land,
• or a residential flat of 1,000 sq ft or more,
• or a residential plot of 100 sq yards or more in a notified municipal area,
• or a residential plot of 200 sq yards or more in other (non-notified) areas.

Supreme Court decision: Janhit Abhiyan v. Union of India (7 November 2022, 3:2)

(Your notes date this 26 May 2023; the correct date of the judgment is 7 November 2022.) The majority (Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala) held:

• EWS reservation, that is reservation on an economic basis, is constitutionally valid, because the Constitution also recognises economic justice.
• The idea of distributive justice is built into the Constitution.
• The 50% ceiling was kept for socially and educationally backward classes; the State can give reservation on other grounds, that is on an economic basis.
• Economic reservation does not reduce SC, ST and OBC reservation.
• Reservation is an enabling factor, not an essential feature of the Constitution: a tool run for a fixed period to empower a community. Justice Trivedi and Justice Pardiwala said reservation should not go on forever.
• The 10% EWS reservation can be applied in private (unaided) educational institutions too.
• Dissent (CJI U.U. Lalit and Justice S. Ravindra Bhat): leaving out poor SC, ST and OBC families from EWS is exclusionary and violates the equality code.

Criticisms of economic reservation (from the notes)

• Such arrangements will keep raising the demand for reservation, and people will start treating reservation as a fundamental right.
• Because of corruption in India it can be misused; economic backwardness is hard to identify reliably.
• There is a lack of data to define economic backwardness in India.
• Regional imbalance: economic activity is strong in western India but weaker in eastern and north-eastern India, so a single all-India income line can be disputed.

In its favour: it reduces the resentment of the general category against caste-based reservation, fits the constitutional principle of economic justice, and eases the unemployment and frustration in the general category created by globalisation, liberalisation and privatisation.

Counter-view: under the Directive Principles the government already runs welfare programmes to remove economic backwardness, so reservation on an economic basis is not the right tool.

Reservation is generally classified on these two bases:

Think of vertical reservation as the floors of a building (SC, ST, OBC, EWS, open) and horizontal reservation as a lift that runs through every floor (women, persons with disabilities, ex-servicemen).

Settled principles on reservation

• For social justice, caste-based reservation is the first and main tool.
• Caste-based reservation is constitutionally valid.
• Reservation on an economic basis is also possible, but it is the second priority (Indra Sawhney 1992; now through the 103rd Amendment).
• The Constitution has no provision for reservation on the basis of religion.
• Reservation can be given by any "State" under Article 12: the Union, the States, Parliament or a State Legislature.
• The Constitution does not state a right to reservation; it is implicit for social and economic justice.
• No creamy layer for SC/ST at recruitment; creamy layer applies to OBC at recruitment and to SC/ST in promotion (Nagaraj, Jarnail Singh).
• Reservation is subject to judicial review.
• The equality code of Articles 14, 15 and 16 is part of the basic structure, so it cannot be amended in a negative (destructive) way.

Criticisms of reservation

• Caste-based reservation, in some way or other, promotes casteism.
• If the race to grant reservation continues, gradually almost all posts may become reserved.
• Merit gets second priority, and the morale of meritorious candidates falls.
• It promotes populist or vote-bank politics; demands for reservation on the basis of religion are being raised at the political level, though the Constitution has no clear provision for it and the Supreme Court has never approved it.
• Politics of giving reservation to dominant castes too (Jats, Patidars, Marathas); some States have even passed laws. If this continues, all castes may need reservation and the principle of socio-economic justice may be lost.
• In the age of globalisation, liberalisation and privatisation the government is shrinking, so reservation is not giving as much benefit as it should.

The justice argument

Despite these criticisms, social and economic justice are built into the Constitution, and the Supreme Court has accepted this from Indra Sawhney to Jarnail Singh. World thinker John Rawls, in his theory of justice, suggested arranging social and economic institutions so that the least advantaged get the greatest benefit (the difference principle); government cannot run on merit alone. So justice must get priority over bare merit. That is why affirmative action is recognised in America and reservation policy exists in India.

• Sub-classification of SCs and STs allowed (1 August 2024): in State of Punjab v. Davinder Singh a seven-judge bench (6:1) overruled E.V. Chinnaiah (2004). States may divide SCs/STs into sub-groups, on empirical data, so the most backward get a fair share (but not 100% to one sub-group). Four judges added that a creamy layer should be identified among SCs and STs too. On 9 August 2024 the Union Cabinet said it would not apply creamy layer to SC/ST reservation.
• Creamy layer for SC/ST still open (2026): on 15 January 2026 a bench of CJI Surya Kant and Justices Joymalya Bagchi and Vijay Bishnoi issued notice on Ashwini Kumar Upadhyay's petition seeking SC/ST creamy layer exclusion. In August 2026 the Union told the Supreme Court in written submissions that the creamy layer idea cannot apply to SCs and STs, because wealth does not remove the stigma of caste. The matter is pending.
• OBC creamy layer clarified (11 March 2026): in Union of India v. Rohith Nathan (Justices P.S. Narasimha and R. Mahadevan) the Supreme Court called creamy layer exclusion a constitutional requirement, held that a 2004 letter cannot override the status-based 1993 Office Memorandum, and said treating government and PSU employees' children differently violates Article 14. The ₹8 lakh income limit (since 2017) stays.
• Caste count in Census 2027: the Census notified on 16 June 2025 will record caste for the first time since 1931. Population enumeration runs in February 2027 with reference date 1 March 2027 (1 October 2026 for snow-bound Ladakh, J&K, Himachal Pradesh and Uttarakhand). SC/ST are coded from the notified lists; others write their caste in an open column. The data will shape future debates on the 50% ceiling and sub-categorisation.
• States crossing 50%: the Patna High Court struck down Bihar's increase from 50% to 65% on 20 June 2024; the Supreme Court refused a stay (29 July 2024) and the appeals are pending. Maharashtra's 10% Maratha quota (SEBC Act, 2024) is being heard by a special bench of the Bombay High Court, allowed meanwhile subject to the outcome.
• OBC sub-categorisation: the Justice G. Rohini Commission submitted its report on 31 July 2023; it has not been implemented so far.
• Other moves: the UPSC lateral-entry advertisement for 45 posts was withdrawn on 20 August 2024 after objections that it carried no reservation; in June 2025 the Supreme Court introduced SC/ST reservation in direct recruitment and promotion of its own staff.