Article 16 of the Indian Constitution: Overcoming Past Discriminations

Abstract

Aristotle opines: “Injustice arises when equals are treated unequally and also when unequals are treated equally”. The essence of equality percolates the Constitution of India, as the main aim was to create a democratic society wherein justice in all forms such as social, economic and political justice prevailed, along with the equality in status and opportunities. Affirmative action aims to promote societal equality through preferential treatment of socio - economically disadvantaged people. Right to Equality is one of the basic Fundamental Rights that the Constitution of India guarantees to all the citizens of the country. The Constitution accords Article 16, which deals with the Equality of Opportunity in the matters of public employment, which commands wide allegiance among the members of contemporary services. This paper examines pertinence of affirmative action, including arguments for and against; presents John Rawls’ theory of justice, and proposes a framework using Rawls’ theory for future affirmative action. This paper addresses and examines the issues in relation to equality of opportunities in public employment and also the International perspective on affirmative action. While assessing the opportunities in public employment under Indian Constitution, the following issues arise and dealt with: Are Articles 14 and 16 supplementary to each other?; Is reservation in public employment an exclusive discretion of the State or an enforceable constitutional right?; Quotas hurt efficiency?; Why so few women workers in India among many?; If there is equal opportunity in matters of public employment then why transgender are still excluded? This paper concludes that affirmative action, when targeted towards individuals who are denied equality of opportunity and have lower social mobility, will help create a more just society and also analyses the adoption of the schemes of reservation through landmark judgments.